McDuff v. State

BAIRD, Judge,*

concurring.

I write separately to more fully discuss the sufficiency of the evidence to establish murder in the absence of the victim’s body. In points of error one and two, appellant contends the evidence is legally insufficient to prove the corpus delicti of the murder since no body was produced and there was neither a confession by appellant nor non-accomplice testimony establishing the death. Appellant further contends that if accomplice witness testimony is utilized to establish corpus de-licti, it must be corroborated.

*622I.

The corpus delicti of any crime “simply consists of the fact that the crime in question has been committed by someone.” Fisher v. State, 851 S.W.2d 298, 303 (Tex.Cr.App.1993). The corpus delicti essentially embraces all of the elements of the crime except the participation of the defendant:

the corpus delicti [of a crime] embraces the fact ... that somebody did the required act or omission with the required mental fault, under the required (if any) attendant circumstances, and producing the required (if any) harmful consequence, without embracing the further fact (needed for conviction) that the defendant was the one who did or omitted that act or was otherwise responsible therefor.

Id. (quoting 1 W. LaFave & A. Scott, Substantive Criminal Law § 1.4 at 24 (2nd ed. 1986)). Proof of the carpus delicti may not be made by the defendant’s extrajudicial confession alone, but proof of the corpus delicti need not be made independent of the extrajudicial confession. If there is some evidence corroborating the confession, the confession may be used to aid in the establishment of the corpus delicti. Self v. State, 513 S.W.2d 832, 835 (Tex.Cr.App.1974). On the other hand, a conviction may not be based upon an accomplice witness’ testimony unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex.Code Crim.Proc.Ann. art. 38.14.

In the context of murder, the State was previously required to produce and identify a body or remains in order to prove the corpus delicti. Article 1204 of the 1925 Penal Code provided:

No person shall be convicted of any grade of homicide unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of the death of the person charged to have been killed.

This provision can be traced to the first codification of criminal and civil laws of the Republic of Texas, and was founded upon a desire to avoid the swift execution of a potentially innocent person, particularly on the rugged frontier where the alleged deceased might have simply moved on to another place, never to be seen again. See, Walter W. Steele, Jr. & Ruth A. Kollman, The Corpus Delicti of Murder After Repeal of Article 1201, Voice for the Defense 10, 11 (June 1991) (drafters apparently concluded “that the vicissitudes of life on an enormous frontier required particular safeguards against the conviction and execution of innocent persons” and one of such safeguards was the body requirement). See also, Puryear v. State, 28 Tex.App. 73, 11 S.W. 929, 931 (1889) (Texas provision inspired by desire to avoid conviction and punishment of innocent persons, stating “we could cite hundreds of cases in which the innocent have been punished under the old rule, which did not require the body or a portion of it, to be found.”).

This view was never adopted by the English common law. See e.g., Puryear, 11 S.W. at 931 (a common law conviction for murder could be sustained upon testimony of witness without production of body); Wheeler, Invitation to Murder, 30 S. Tex.L.Rev. at 276 (circumstantial evidence sufficient to establish death in common law). And Texas appears to have been the only state to have enacted such a provision. While some states adopted less radical rules, requiring “direct proof’ of the corpus delicti of death, even those provisions have long been repealed. Wheeler, Invitation to Murder, 30 S.Tex. L.Rev. at 276 (Montana, New York, North Dakota identified as having statutes requiring proof of death by direct evidence, but those provisions now repealed).

Article 1204 was repealed by the Texas Legislature with the passage of the 1974 Penal Code. Fisher, 851 S.W.2d at 303. While we have referred a number of times to its repeal, we have never purported to know the impetus therefor. Id., Streetman v. State, 698 S.W.2d 132, 134-35, n. 1 (Tex.Cr.App.1985); Easley v. State, 564 S.W.2d 742, 747 (Tex.Cr.App.), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978); Valore v. State, 545 S.W.2d 477, 479 n. 1 (Tex.Crim.App.1977). Nevertheless, the demise of article 1204 is consistent with prevailing legal views.

The notion that the careful and meticulous murderer might escape punishment by de*623stroying or forever concealing the body of his victim is a distasteful one:

The fact that a murderer may successfully dispose of the body of the victim does not entitle him to an acquittal. That is one form of success for which society has no reward.

Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882, 891 (1982) (quoting People v. Manson, 71 Cal.App.3d 1, 139 Cal.Rptr. 275, 298 (1977), victim’s body never found); see also, State v. Zarinsky, 143 N.J.Super. 35, 362 A.2d 611, 621 (App.Div.1976) (concealment or destruction of victim’s body should not preclude prosecution where proof of guilt can be established beyond reasonable doubt), aff'd, 75 N.J. 101, 380 A.2d 685 (1977); and, People v. Lipsky, 57 N.Y.2d 560, 457 N.Y.S.2d 451, 456, 443 N.E.2d 925, 930 (1982) (no hesitancy overruling common law rule requiring direct proof of death in murder case as such rule rewards professional or meticulous killer). See generally, Wheeler, Invitation to Murder, 30 S. Tex.L.Rev. at 278 (axiomatic that society built on respect for law should not grant immunity to killer who through calculation or fortuitous events completely destroys or conceals victim’s body). In addition, it is less likely in today’s mobile and technological society that a person might vanish and never be heard from again. In a case before the Virginia Supreme Court, a defendant made a similar argument to the one presented by appellant. Epperly, supra. Epperly was convicted of first degree murder even though the victim’s body was never recovered. Epperly contended that proof of corpus delicti is only sufficient if (1) there was an eyewitness to the killing, (2) identifiable remains were found or (3) the accused confesses to the crime. Epperly, 294 S.E.2d at 890. The Virginia Supreme Court rejected his argument, expounding upon life in modem society where it is exceedingly rare that a person can vanish of their own volition:

... there is less reason for strictness in the proof of corpus delicti now than in earlier times. In Sir Matthew Hale’s day,1 a person might disappear beyond all possibility of communication by going overseas or by embarking in a ship. It would have been most dangerous to infer death merely from his disappearance. Worldwide communication and travel today are so facile that a jury may properly take into account the unlikelihood that an absent person, in view of his health, habits, disposition, and personal relationships would voluntarily flee, “go underground,” and remain out of touch with family and friends. The unlikelihood of such a voluntary disappearance is circumstantial evidence entitled to weight equal to that of bloodstains and concealment of evidence.

Id.

Finally, dispensing with the body requirement is consistent with the increasingly accepted view that direct and circumstantial evidence are equally valuable. Id. (emphasizing that direct and circumstantial evidence are “entitled to the same weight”). See, Hankins v. State, 646 S.W.2d 191, 198-199 (Tex.Cr.App.1981) (Op’n on rehearing). The State may prove its case by direct or circumstantial evidence so long as it shoulders its burden of proving all of the elements of the charged offense beyond a reasonable doubt. See, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (enunciad ing single standard of review for assessing sufficiency of evidence). See also, State v. Lerch, 63 Or.App. 707, 666 P.2d 840, 849 (1983) (rejecting argument that higher standard applies when circumstantial evidence relied upon to prove corpus delicti), aff'd, 296 Or. 377, 677 P.2d 678 (1984); Geesa v. State, 820 S.W.2d 154, 156-59 (Tex.Cr.App. 1991) (since circumstantial and direct evidence judged by same standard at trial, should therefore be subject to same standard of review on appeal); and, State v. Rebeterano, 681 P.2d 1265, 1267 (Utah 1984) (recog-*624nizmg that jurisdictions have uniformly held production of body not necessary to prove murder and death can be established by circumstantial evidence). As one state court explained:

... circumstantial evidence, like direct evidence, must indicate guilt to the extent that there is no reasonable doubt of that conclusion. In essence, circumstantial and direct evidence is to be analyzed the same in determining its sufficiency to establish a disputed issue_ It would be inconsistent to require more from circumstantial evidence to establish the corpus delicti than is required to establish guilt beyond a reasonable doubt.

State v. Smith, 81 Or.App. 321, 570 P.2d 409, 411 (1977). Retention of a body requirement would contradict our holdings that circumstantial evidence and direct evidence are of equal value.

Whatever the reason for the repeal of article 1204, the State is no longer required, in proving murder, to produce a body and identify it as the alleged victim. Fisher, 851 S.W.2d at 303. Rather, corpus delicti of murder is now shown if the evidence proves (1) the death of a human being; (2) caused by the criminal act of another. Id.

II.

Appellant further contends an accomplice witness’ testimony must be corroborated in proving the corpus delicti. While a conviction may not be had upon accomplice witness testimony unless corroborated, no such requirement applies to corpus delicti (except in cases where the defendant’s extrajudicial confession is the only evidence offered to prove corpus delicti.). Self, supra. Since appellant did not make an extrajudicial confession in this case, there is no need to require corroboration in proving the carpus delicti. Appellant was charged with murder committed in the course of aggravated kid-naping or attempted aggravated kidnaping.2 Tex. Penal Code Ann. § 19.03(a)(2). The State was required to prove that appellant intentionally or knowingly caused the death of the alleged victim in the course of intentionally or knowingly abducting her.3

Appellant’s accomplice, Hank Worley, testified he was with appellant when they abducted the victim on the evening of December 29, 1991. He testified that following the abduction, appellant tortured and repeatedly sexually assaulted the victim. Worley testified they drove into the country and appellant pulled the victim from the car by her hair and continued to sexually assault her. At one point appellant struck the victim. Worley stated the blow caused the victim to “bounce off the ground” a couple of times, and that she could not brace herself for the fall as her hands were tied behind her back. In describing appellant’s blow to the victim, Worley testified that “it sounded like a tree limb or something breaking.” Even though appellant burned the victim two or three times thereafter, Worley testified the victim did not protest or scream as she had done when burned by appellant earlier. He stated the victim’s body “was limp” and, when picked up by appellant, her feet and legs “were dangling.” Appellant put the victim in the trunk. Worley stated the victim did not make any noise while in the trunk. Worley told appellant to let the victim go, but appellant refused. Worley further testified appellant asked him for a pocketknife and a shovel.

Forensic pathologist, Hubbard Fillinger, testified that a single blow to the head can cause death. He further explained:

... The kind that you and I are most familiar with is the boxer-type punch to the head where the person sustains a con*625cussion that is a shaking of the brain causing it to swell very rapidly inside the skull. When it swells, the person loses consciousness extremely rapidly and death can follow in a very short period of time thereafter.

Fillinger also answered a hypothetical question tracking the facts of the instant case:

[Prosecutor]: Doctor Fillinger, hypothetically speaking, if a single blow was made to the head of an individual, from one individual to another with a person of some size and stature standing over a person of approximately five feet, three inches in height and 115 pounds, one blow from hand to — whether it be open or closed fist — to the had of that individual, on that person’s knees, 5’3”, 115=pound [sic] person, on that person’s knees, the other one standing, the blow sounding like a tree limb breaking, like a break, not a pop sound, the description of the individual that was hit having been knocked back and bouncing off the ground a time or two, being carried after that by the head and being described as limp with her legs and feet dangling, could — could that be compatible with life?
[Fillinger]: Well, the description that you give to me suggests, number one, a blow of a great deal of force that makes a cracking or snapping sound. That tells me that something major has broken, in all probability. Either facial bones, neck bone, jawbone or something.... The loud cracking noise, the fact that the person is limp thereafter would be consistent with brain and/or spinal cord damage. The snapping noise would make it more than likely that we have either facial fractures or damage to the jaw or neck, should again, render a person limp, unconscious and probably not responding as it’s described the way she was picked up. Hanging limp, that would indicate to me that there’s probably spinal cord damage.

As to the victim’s failure to respond, or minimal response, to the burning after being struck, Fillinger stated:

... The fact that there is no apparent response or very minimal response after the blow was struck would tell me, number one, that person is not only rendered incapable of perceiving it, but has probably had the nerve tracks in the spine so damaged that they can’t even feel it .... if we generate that much pain to a very sensitive part of the anatomy and there’s no response, that leads us to believe that the neurological pathways that sent that message up, ouch, are damaged to the point where we don’t have any possible recovery. And that’s an indication that life is going to he lost very quickly.

(Emphasis added.)

Worley testified they abducted the victim from a carwash. Witnesses near the car-wash at the time of the abduction heard a woman scream and car doors slam and saw a car matching the description of appellant’s car leaving the carwash. The victim’s soaped car was found abandoned at the carwash, her keys and purse inside. The victim’s apartment was unlocked and there was no evidence she had packed or made arrangements for a trip. The victim never reappeared despite massive efforts on the part of her family and friends to locate her. Her bank accounts and credit cards have remained inactive.

Hair found in the backseat and the trunk of appellant’s car had microscopic characteristics similar to hair recovered from the victim’s clothing. Worley’s sister testified that Worley left with appellant on an evening between Christmas and New Year’s, 1991. Another witness testified to driving around Austin with appellant four days before the abduction in this case, looking for a certain prostitute. They stopped to ask a 12 or 13-year-old girl if she knew the woman. According to the witness, as they drove away from the young girl, appellant said, “Why don’t we just take her?” Appellant was arrested in Kansas City on May 4,1992, where he was living under an assumed name.

Keviewing the record evidence in a light most favorable to the verdict, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Wor-ley’s testimony as to appellant’s forcible abduction of the victim, appellant’s beating, sexual assault, and torture of the victim, appellant’s statement that he would not re*626lease her and appellant’s request for a knife and shovel, together with the victim’s sudden and unexplained disappearance established the corpus delicti of murder and aggravated kidnaping.4 The evidence supports the jury’s verdict.

With these comments, I join the remainder of the majority opinion.

McCORMICK, P.J., joins this opinion.

This opinion was prepared by Judge Frank Malo-ney prior to his leaving the Court.

. Matthew Hale is often credited with the notion that a body should be produced in order to support a murder conviction. Hale is quoted as writing, "X would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found dead." Steele & Kollman, The Corpus Delicti of Murder, Voice at 11; Michael E. Wheeler, Invitation to Murder?: Corpus Delicti, Texas-Style, 30 S.Tex.L.Rev. 267, 273 (1989); Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882, 890 (1982).

. Appellant was charged in the alternative with murder committed in the course of an aggravated sexual assault. The jury found appellant guilty of capital murder. In a capital murder case where a general verdict is returned, the evidence is sufficient if it supports any of the alternatively submitted theories. Cook v. State, 741 S.W.2d 928, 935 (Tex.Cr.App.1987), judgment vacated and remanded on other grounds, 488 U.S. 807, 109 S.Ct. 39, 102 L.Ed.2d 19 (1988).

. "Abduct” was defined in the charge as meaning “to restrain a person with intent to prevent her liberation by secreting or holding her in a place where she is not likely to be found." “Restrain” was defined as "restricting] a person's movements without consent, so as to interfere substantially with her liberty, by moving her from one place to another or by confining her.”

. Worley's testimony was corroborated by other evidence tending to connect appellant to the crime, such as the testimony of Worley's sister, hair recovered from appellant’s car and trunk, and the witnesses who saw appellant’s car around the carwash at the time of the abduction. See, art. 38.14.