BERNARD LEE JOPLIN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 12, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01380-CR
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BERNARD LEE JOPLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court #4
Dallas County, Texas
Trial Court Cause No. F88-95161-HK
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O P I N I O N
Before Chief Justice Enoch, and Justices Stewart and Kinkeade
Opinion By Justice Stewart
 
                 Bernard Lee Joplin appeals his conviction for the offense of first degree murder. Punishment was assessed by the jury at life imprisonment and a $10,000 fine. In two points of error, appellant complains that: (1) the evidence is insufficient to support his conviction; and (2) the trial court erred in admitting evidence of the contents of a telephone conversation because appellant was insufficiently identified as the speaker. We disagree. Accordingly, we affirm.
        Vernadine LeFlore, the deceased, lived with appellant. Delores Cowlings, Leflore's mother, testified that she knew appellant by the name of Slim. Appellant called Cowlings on Monday, March 28, looking for LeFlore. Appellant said that he had not seen LeFlore since Wednesday, March 23, when she went next door to the store during a game of dominoes and that he had filed a missing person report with the police and had called the morgue on Thursday or Friday. The police and the morgue later told Cowlings that she was the first person to inquire about LeFlore. On March 30, Cowlings called appellant to ask him whether he had heard from LeFlore. At that time, appellant discouraged Cowlings from coming to Dallas to look for LeFlore and said that he would bring LeFlore home to California the next day. Cowlings immediately called Dallas Police Officer J.J. Coughlin and told him that she had spoken to appellant and gave Officer Coughlin appellant's telephone number and physical description. Cowlings further testified that although appellant had a physical impairment and received social security disability benefits, he did not have any difficulty using his hands the last time she saw him. Cowlings identified State's Exhibit 3 as a gold chain that belonged to LeFlore and testified that the chain was not broken the last time Cowlings saw LeFlore wearing it.
        Denotra Berry, LeFlore's daughter, testified that she knew appellant by the name of Slim, that appellant often exercised his right arm by squeezing a ball, and that he did not have trouble using his arms. Berry identified State's Exhibit 3 as a gold necklace that belonged to LeFlore.
        Dallas Police Officer Robert McCLoud testified that he found LeFlore's severly beaten body under a cardboard box and a bundle of wood in a warehouse area on Monday, March 23, at about 5:30 p.m.. This area was one block from the apartment that she shared with appellant. LeFlore was not identified at the scene. On cross-examination, Officer McCloud testified that forensic tests showed that all of the blood at the scene was LeFlore's blood. Although there was no tangible, physical evidence to link appellant to LeFlore's murder, there also was no physical evidence excluding him as the murderer. Officer McCloud was informed that appellant had a necklace in his possession when he was taken to jail.
        Doris Jackson testified that she lived in the same apartment complex as appellant and LeFlore. On Tuesday, March 22, between 5:00 and 5:30 p.m., appellant, whom she knew as Slim, and LeFlore were arguing in the hallway because LeFlore had locked appellant out of their apartment. Appellant hit LeFlore with his right arm and knocked her down. Appellant dragged LeFlore by her feet out of the front door. Jackson followed appellant when he took LeFlore to the back of the apartment building. Jackson heard appellant say, "Bitch, I'm going to kill you." LeFlore cried as appellant held her with his left hand and hit her with his right hand. Appellant and LeFlore then went across the street to another apartment complex. LeFlore ran to the front door of the apartment complex and said, "Will somebody please call the police because he is going to kill me." Jackson did not call the police because she thought that appellant and LeFlore were having a family argument.         Deryl Young testified that on Tuesday, March 22, or Wednesday, March 23, between 5:30 and 6:00 p.m., he saw appellant, whom he knew as Slim, and LeFlore in front of the apartments across the street from his apartment. They were arguing, and appellant was pushing LeFlore across the street. Appellant did not appear to have any difficulty with his arms. LeFlore appeared to be afraid to go with appellant. Between 10:00 and 11:00 p.m., appellant and LeFlore visited Young at his apartment. LeFlore did not have any bruises or blood on her, and she did not ask Young to call the police. Young later observed appellant and LeFlore walking down the street together. After midnight, appellant returned to Young's apartment and asked him if he could come inside to clean up. Young noticed that appellant had blood on his pants and a "weird" expression on his face. Appellant said that he had sent LeFlore to a relative's house.
        Patrick Edward Besant-Matthews, a forensic pathologist, testified that an autopsy was performed on LeFlore on March 24. Besant-Matthews estimated that LeFlore was beaten to death late in the evening on March 22. Besant-Matthews believed that appellant, because of his size, was capable of inflicting the wounds suffered by LeFlore even if his right hand were impaired. Besant-Matthews testified during cross-examination that there was no forensic evidence linking appellant to the homicide.
        Dallas Police Officer N.G. Herron testified that he spoke to Cowlings about a missing person report on LeFlore and that Cowlings gave him a phone number at which she had reached Slim just before she called Officer Herron. Immediately thereafter, Officer Herron dialed the telephone number that Cowlings had given him and asked to speak to Slim. The person who answered the telephone responded, "This is Slim." Slim told Officer Herron that his real name was Edward Smith. Slim indicated that he knew LeFlore and Cowlings. Slim told Officer Herron that LeFlore was gone when he returned home on Wednesday, March 23, or Thursday, March 24. Appellant said he thought that LeFlore had gone to the store because her purse and clothes were in the apartment. Officer Herron asked Slim to take his name and number and to give it to LeFlore when she returned. Appellant did not tell Officer Herron that he had filed a missing person report on LeFlore. Officer Herron could not locate a report.
        Dallas Police Officer John J. Coughlin testified that he investigated LeFlore's murder on March 30. Officer Coughlin had the telephone number of Slim, the person who had last seen LeFlore. Officer Coughlin went to Slim's apartment to investigate LeFlore's disappearance. Slim told Officer Coughlin that his real name was Edward Jonhas. Officer Coughlin testified that appellant, Slim, and Edward Jonhas were all the same person. Appellant voluntarily went to the police station with Officer Coughlin. At the station, appellant spoke to Police Officer Phil Harding. Appellant admitted that he and LeFlore had fought and that he had pushed and shoved her. Appellant made a voluntary statement regarding the altercation. Appellant then was arrested for the murder of LeFlore. Officer Coughlin identified State's Exhibit 3 as a gold chain that appellant had his pants pocket when he was booked into jail. Officer Coughlin testified that the broken condition of the exhibit was consistent with a chain that had been pulled. Officer Coughlin did not notice any problem with appellant's use of his hands.
        Doctor Clay Griffith, a medical doctor specializing in psychiatry, testified that he performed a physical and psychiatric examination of appellant. Griffith testified that although appellant had an arm problem and would have been unable to grasp an ankle with his right hand, he believed that appellant could grasp a person of LeFlore's size by the heels. Griffith could not exclude the possibility that appellant could have beaten someone to death.
        Barbara Stacy, director of nurses for the Dallas County jails, testified that appellant was examined by a physician's assistant in April 1988. The physician's assistant made an entry regarding scratches and bruises on appellant's arms and hands. He indicated that the range of motions of appellant's arms and hands was fine.
        In his first point, appellant complains that the evidence is insufficient to support his conviction for the offense of murder. Appellant argues that the State merely has shown a plausible explanation for the death of LeFlore. In reviewing the sufficiency of the evidence, this Court's inquiry is limited to determining whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1974); Girard v. State, 631 S.W.2d 162, 163 (Tex. Crim. App. 1982). In a prosecution for homicide based on circumstantial evidence, it is not required that circumstances should, to a moral certainty, actually exclude every hypothesis that the act might have been committed by another person, but that the hypothesis intended is a reasonable one consistent with the facts and circumstances proved. Vaughn v. State, 607 S.W.2d 914, 921 (Tex. Crim. App. 1980). It is not necessary that every fact point directly and independently to the guilt of the accused, and the force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt. Id. The court may consider events that occurred before, during, and after the commission of the offense to determine whether the circumstances adduced sufficiently support a verdict of guilty. Thompson v. State, 697 S.W.2d 413, 416 (Tex. Crim. App. 1985).
        The evidence adduced at trial is as follows. Appellant was seen by several persons fighting with LeFlore shortly before the time of her death. Appellant was observed with blood on his pants and a "weird" expression on his face near the time that LeFlore was believed to have been murdered. Appellant claimed that he filed a missing persons report on LeFlore, yet the police did not have a copy of such a report. Appellant also claimed to have called the morgue to see if LeFlore's body had been found, yet there was no record of his call. Appellant tried to discourage Cowlings from coming to Dallas to look for LeFlore. Police found LeFlore's broken necklace in appellant's pocket. Appellant told Young that he had sent LeFlore home to her relatives. However, appellant told Officer Herron that LeFlore went next door to the store during a dominoes game, and then he told Officer Harding that he found LeFlore gone when he returned home.
        The jury is the exclusive judge of the facts, the credibility of witnesses, and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). The jury is entitled to accept one version of the facts and to reject another. Id. We conclude that, viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that appellant murdered LeFlore beyond a reasonable doubt. Appellant's first point is overruled.
        In his second point, appellant complains that the trial court erred in admitting evidence of a telephone conversation because there was no authentication as to the identity of the speaker. Specifically, appellant argues that the mere fact that a person called, unknown by voice to the testifying witness, identified himself as a particular person is insufficient to prove the identity of that person. The State replies that there was a sufficient indicia of reliability that the speaker was appellant.
        Section 901(a) of the Texas Rules of Criminal Evidence provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Appellant relies on U.S. v. Pool, 660 F.2d 547 (5th Cir. 1981), to support his contention that he was not sufficiently identified as the person with whom Officer Herron spoke. That case is distinguishable from the present case because it involved an undercover agent who was called by an alleged defendant. Here, Officer Herron, the witness, called Slim (appellant) using the telephone number that had been furnished to him by Cowlings. Palos v. State, 416 F.2d 438, 440 (5th Cir. 1969), is instructive in deciding the present case. In Palos, the agent-witness dialed a telephone number registered to the defendant and asked for "Palitos," a name by which the defendant was known. The defendant replied, "Yes, this is he." The court held that such circumstantial evidence was sufficient to make out a prima facie case from which the jury could have concluded that the appellant was a party to the conversation. Id.
        Rule 901(b)(6) of the Texas Rules of Criminal Evidence provides:
        (b) Illustrations. By way of illustration only and not by way of limitation, the following are examples of authentication or identification conforming with requirements of this rule:
 
        (6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called....
        
Although there is no direct testimony by a telephone representative that the number in question in this case was assigned to appellant as suggested in section 901(b)(6) of the Texas Rules of Criminal Evidence, there is evidence that the number called belonged to appellant. The telephone number was furnished to Cowlings by Berry, who stated that it was LeFlore's number. Appellant and LeFlore shared an apartment. Cowlings had reached appellant at the same number immediately before Officer Herron made his telephone call. Appellant was known by the nickname Slim, and the person who answered the telephone identified himself as Slim. The telephone number was cross-referenced with appellant's address.         Furthermore, in admitting the contents of a telephone conversation, the identity of the speaker is sufficiently established if the message reveals that the speaker has knowledge of facts that only the speaker would be likely to know. Earnhart v. State, 582 S.W.2d 444, 448-49 (Tex. Crim. App. 1979). In the case at bar, the person who answered the telephone and identified himself as Slim was familiar with the situation, he alluded to the approximate time of LeFlore's disappearance, and he described what she was wearing when she disappeared. We conclude that the circumstances, coupled with appellant's self-identification, support a finding that the matter in question is what its proponent claims. The contents of the telephone conversation were properly admitted. Appellant's second point is overruled.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          ANNETTE STEWART
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
881380F.U05
 
 
 
File Date[12-19-89]
File Name[881380F]