Richard Bryan Kussmaul v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-238-CR

RICHARD BRYAN KUSSMAUL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-773-C

O P I N I O N

Appellant, Richard Bryan Kussmaul, was charged by indictment with the offense of capital murder of two teenagers, Leslie Murphy, age 17, and Steven Neighbors, age 14. A jury found Kussmaul guilty and his punishment was automatically assessed at life imprisonment, the State having waived the death penalty prior to trial.

In two points of error, Kussmaul complains (1) that there was insufficient evidence to corroborate accomplice-witness testimony and (2) that the court erred in limiting his cross-examination of a witness. We will affirm.

THE ACCOMPLICE WITNESS RULE

Kussmaul contends the evidence is insufficient to corroborate the testimony of three accomplice witnesses, James Pitts, Michael Shelton, and James Long, under Tex. Code Crim. Proc. Ann. art. 38.14. Article 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Munoz v. State, 853 S.W.2d 558 (Tex. Crim. App.1993), provides a review of that Court's

opinions which lends us guidance in applying Article 38.14. In Walker v. State, 615 S.W.2d 728, 731 (Tex.Cr.App.1981), the Court stated:

An accomplice witness is a discredited witness because her or his testimony alone cannot furnish the basis for the conviction. No matter how complete a case may be made out by an accomplice witness or witnesses, a conviction is not permitted unless he or they are corroborated.

In order to determine whether the accomplice-witness' testimony is corroborated we eliminate all accomplice evidence from the record and determine whether the other inculpatory facts and circumstances in evidence tend to connect the appellant to the offense. Edwards v. State, 427 S.W.2d 629, 632 (Tex. Crim. App. 1968). Corroborative evidence need not establish the appellant's guilt of the charged offense or directly link him to the offense, but is sufficient if it "tends to connect" the appellant to the offense. Granger v. State, 683 S.W.2d 387, 392( Tex. Crim. App. 1994). Each case must be considered on its own facts and circumstances on its own merit. Apparently, insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. All the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary. The corroborative evidence may be circumstantial or direct. The corroboration testimony need not directly link the accused to the crime or be sufficient in itself to establish his guilt. Otherwise, the testimony of the accomplice would be valueless. The corroborative evidence is sufficient if it tends to connect the accused with the crime, and it is the cumulative weight of such evidence which supplies the test. Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983) (citations omitted).

THE ACCOMPLICE WITNESS TESTIMONY

James Pitts, Michael Shelton, and James Long were accomplice witnesses as a matter of law, and the appropriate instructions limiting accomplice-witness testimony was given in the charge. Even though Pitts, Shelton, and Long had given several untruthful statements to the McLennan County Deputy Sheriffs concerning their individual roles in the murders during the investigation, their testimony at trial coincided and revealed that Leslie Murphy and Steven Neighbors were murdered by Bryan Kussmaul.

The testimony reveals that Pitts received a telephone call from Leslie Murphy, stating that she and Pitt's former girlfriend were in San Antonio and would be coming through Bruceville-Eddy that afternoon and wanted to meet with him. Pitts agreed to meet them outside a movie rental shop in Eddy. Pitts did not have transportation, so he called Kussmaul to pick him up. While waiting for Leslie Murphy to arrive, Pitts and Kussmaul went to the Frontier Lounge for an hour or two. They then went to the movie rental store where they picked up Leslie Murphy and her companion, Steven Neighbors. Pitts' former girlfriend was not with them. They all then rode in Kussmaul's pickup to a mobile home in a rural area near Moody. On their way they picked up another friend of Kussmaul's, James Long. Kussmaul lived at the mobile home with Michael Shelton and two girls. The two girls, however, were not present during any of the events that happened at the mobile home that evening. Michael Shelton was at the mobile home when Kussmaul left to pick up Pitts and was still there when the group returned.

They only stayed at the mobile home a short period of time while they loaded up an ice chest with beer and left for Poor Boys, a nightclub in Eddy. They stayed at Poor Boys until nearly closing time and shot pool. All were drinking beer except Pitts and the victims, who were all underage. There was also some evidence that Kussmaul went outside Poor Boys at one point in the evening and smoked some marijuana. From Poor Boys they all rode back to the mobile home in Kussmaul's pickup truck. Shelton and others were still drinking beer, which was being passed from the coolers in the pickup bed through the rear sliding-glass window to those in the passenger cab. Shelton admitted to drinking 18 to 20 beers during the course of the evening.

After being at the mobile home a short while, the accomplice testimony is that Kussmaul began "harassing" and making "sexual advances" on Leslie Murphy by placing his hands on her breasts and between her legs. Murphy apparently tried to discourage Kussmaul verbally and ultimately slapped him on his face. Kussmaul then hit her in the face with his fist, knocking her to the floor. Kussmaul then "hollered" at Pitts, Long, and Shelton to hold Murphy down while he took his lock-blade knife from the holster on his belt and cut the crotch out of her jeans and panties. According to the testimony, Leslie Murphy was screaming for help during this time. Kussmaul began raping her on the carpeted living room floor, but apparently due to her continued resistance, he and the accomplices forcibly carried her into the bedroom where she was "thrown" onto a bed which had a flowery yellow sheet on it. Prior to carrying Murphy into the bedroom, James Long hit Steven Neighbors in the face with his fist and knocked him "almost unconscious" on the floor. Pitts was trying to hold Murphy down on the bed, but she looked up and Kussmaul hit her in the face again and tied a "gag" around her head and over her mouth. After that, she was described as "not moving much," and Kussmaul then raped her and left the bedroom. Long, Shelton, and Pitts then raped Murphy, during which occurrence a gunshot was heard from outside. Kussmaul returned to the bedroom with a rifle. Neighbors was dragged from the living room into the bedroom where Kussmaul kicked him in the face and he fell to the floor. Kussmaul then stated he was going to "kill the fucking bitch" and shot her once in the back. He then turned the rifle toward Neighbors and stated that he was "going to kill him, too" and shot him in the back, also.

Kussmaul, Shelton, Long, and Pitts then wrapped the victims in sheets and placed them in the back of Kussmaul's truck. They drove around for awhile and eventually dumped the bodies beside a gravel road. They returned back to the mobil home and cleaned up the blood and vacuumed the floors. During the cleaning, Kussmaul was still in possession of the rifle, which was described as being bolt-action.

CORROBORATING EVIDENCE

Other than the testimony from the three accomplice witnesses, the State presented testimony from a forensic pathologist, seven deputy sheriffs, a bar maid, an evidence-trace analyst, two men who discovered the victims' bodies, two men who lived near the mobile home, a television director, a waitress, a weapons expert, two jail inmates, and the victims' mothers. Kussmaul did not testify, but his mother and four other witnesses testified in his behalf.

Claudine McNamara, a bar maid at Poor Boys nightclub, identified Leslie Murphy and Steven Neighbors as having been at Poor Boys with Kussmaul and the accomplice witnesses immediately preceding the murders at the mobile home. Standing alone, Kussmaul's presence with the accomplice witnesses and the victims is not sufficient to corroborate the accomplices' testimony. See Cherb v. State, 472 S.W.2d 273, 280 (Tex. Crim. App. 1971).

In addition to being together with the accomplices and victims at Poor Boys prior to the murders, Charles Linch, a trace analyst at the Southwest Institute of Forensic Science in Dallas, testified that carpet fibers found on a pink blanket and white sheet in which the victims were wrapped when dumped beside the road were an exact match to the carpet fiber taken from the carpet in the bedroom where the victims were killed.

Further, Janice Townsend Parchman, M.D., a forensic pathologist with the Southwest Institute of Forensic Sciences, testified that she performed autopsies on the bodies of Leslie Murphy and Steven Neighbors. She stated that each victim died from a single gunshot wound to the back. She also retrieved parts of the jackets and casings from the bullets from each victim. These items were submitted to Lannie Emmanuel, a firearm and tool-mark examiner. After being qualified as an expert in the area of firearms and ammunitions, he testified that the bullet jackets and casings from the victims' bodies were British .303 Mark 7 bullets and that his research indicates these bullets could only be fired from one make of rifle, a .303 British Lee Enfield bolt-action rifle. This matches Shelton's description of the firearm used by Kussmaul to commit the murders as a "bolt action rifle."

Photographs were introduced in evidence which corroborated the accomplice-witness' testimony concerning Kussmaul cutting the crotch out of Leslie Murphy's jeans and panties.

Mike Avila, who lived near the mobile home, stated that on the night in question around 1:00 A.M. he saw the headlights and heard the familiar loud exhaust pipes of a pickup go up to the mobile home. He stated he had heard these loud exhausts many times before on the pickup of the "white boy" who lived at the mobile home. He said that after the pickup had been at the mobile home about ten to fifteen minutes he heard a gun shot and a girl screaming. He heard her say, "Help me, help me, please, somebody, help me." He said that it was quiet for about twenty-five to thirty minutes and then he heard two more gunshots and that, in about ten to fifteen minutes, the same pickup left and travelled the same route as previously indicated by the accomplices. Avila said that he discussed this incident with another neighbor, Mr. Phelps, who had heard one gunshot and a girl screaming on the night in question. The testimony given generally placed the incidents in the time frames previously established by the accomplice witnesses. As cited in Mitchell, apparently insignificant circumstances sometimes afford satisfactory evidence of guilt and corroboration of accomplice-witness testimony. Mitchell v. State, 650 S.W.2d 801, 807 (Tex. Crim. App. 1983). Other seemingly insignificant evidence was given by Shelton, when he stated that on the way from Poor Boys to the mobile home that beer was being passed from the coolers in the pickup bed through the rear sliding-glass window to passengers in the cab. A photograph of Kussmaul's pickup, State's exhibit 33, depicts the sliding-glass rear window in the pickup. Also, the transmission-oil leaks found near where the bodies were dumped and leading up the gravel road to the paved road provided circumstantial evidence corroborating that it was Kussmaul's pickup used to dump the bodies.

Finally, Richard Chaney, a McLennan County jail inmate, testified that he was in the same cell with Kussmaul in 1993. In conversations with Kussmaul about his pending sexual assault charges, Kussmaul stated to him that he had used a rifle in the offense and that he had disposed of the rifle in Denton and that it would never be found. Kussmaul's admission, that he used a rifle in the commission of the offense with which he stood charged, is direct evidence before the jury corroborating the accomplice-witnesses' testimony about his use of a rifle to commit the murders. This admission also provides an explanation of why the murder weapon was never found. Many other accomplice-witness cases have been upheld where the murder weapons have not been found. E.g. Granger v. State, 683 S.W.2d 387, 392 (Tex. Crim. App. 1994); Mitchell v. State, 650 S.W.2d 801 (Tex. Crim. App. 1983).

As noted earlier, all the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary. It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt. The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses, which tends to connect the accused with the commission of the offense, supplies the test. Each case must be considered on its own facts and circumstances and on its own merits.

The standard for reviewing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found all the essential elements of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). Viewing the evidence in the light most favorable to the jury's verdict, as this court is required to do, and under the rules previously discussed, we conclude that the evidence independent of the accomplice-witnesses' testimony tends to connect the Appellant, Kussmaul, with the crime charged and is sufficient to corroborate the accomplice-witnesses' testimony. Point one is overruled.

Kussmaul asserts in point two that the trial court erred in limiting his cross-examination of Richard Chaney, by refusing to allow him to establish that Chaney had voluntarily contacted law enforcement authorities and falsely accused another person. As noted in point one, Chaney testified for the State about statements Kussmaul made to him while they were in the McLennan County Jail. In Kussmaul's cross-examination of Chaney, he attempted to refer to a specific instance where Chaney had told a Bell County deputy sheriff that another individual, David Cornelius, had committed several burglaries. Kussmaul claims that Chaney was attempting to curry favor with the police when he gave them this information, but that it had "backfired" on Chaney because when the officers contacted Cornelius he told the officers that Chaney had sold him some stolen property. This ultimately resulted in Chaney being indicted for possession of stolen property in McLennan County. The trial court sustained the State's objection to this line of cross-examination on the basis that it was a specific instance of conduct that is prohibited by Rule 608(b), which states:

Specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, other than a conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

Tex. R. Crim. Evid. 608(b).

The excluded cross-examination of Chaney was properly preserved in a bill of exceptions. It, however, is merely speculative and does not present facts which tend to show how it relates to Chaney's character for truthfulness or to bias or motive for giving the information. Chaney readily admitted to selling stolen property, a satellite dish, for which he had already pled guilty and been sentenced. In the bill of exceptions, Chaney's testimony was to the effect that, in addition to selling Cornelius' stolen property, he had advised the deputy sheriff that Cornelius had committed a string of burglaries. Chaney testified that, "Yes, sir. Pointed it out and did everything but take them to the places he burglarized." Nothing more was said about whether Chaney's tip had led to the conviction of Cornelius or whether it simply was not the truth. There is not enough information in the bill of exception to uphold Kussmaul's argument that it was error for the court to exclude it.

The State relied on Ramirez v. State, 802 S.W.2d 674 (Tex. Crim. App. 1990), where the state was precluded from eliciting similar information from a defense witness. We believe that Rule 608(b), as interpreted by Ramirez, upholds the trial court's ruling excluding that portion of Chaney's cross-examination. Even if it was error, we find it to be harmless under Rule 81(b)(2), Tex. R. App. P., for the reason that it had already been brought out that Chaney was an inmate in the McLennan County Jail at the time of the conversations with Kussmaul and that he had been convicted and sentenced for possession of amphetamines, receiving stolen property, and theft in Tarrant, Bell and McLennan Counties. Further, during his cross-examination by Kussmaul, he admitted to having used five different aliases in the past in order "to keep from getting picked up." He admitted to being a "fence" for buying and selling stolen property. We fail to see where the excluded cross-examination complained of could have had any more damaging effect on his testimony than was already in evidence. Point two is overruled and the judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 29, 1995

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