Bowling Night Sims 4

[Jovanna Ponder]

MaxAlexander Soffar, hereinafter referred to as appellant, was convicted by a jury of committing the murder of Arden Alane Felsher while in the course of committing or attempting to commit the robbery of Stephen Allen Sims, which elevated *373 the offense of murder to the offense of capital murder, see V.T.C.A., Penal Code, 19.03. After the jury answered the special issues that were submitted to it pursuant to the provisions of Article 37.071, V.A. C.C.P., in the affirmative, the trial judge assessed appellant's punishment at death.

Appellant presents for review in his brief that was filed on July 24, 1984, which has not been amended or supplemented since that date, four grounds of error, to-wit: (1) "The evidence is insufficient to support the conviction"; (2) "The Trial Court committed reversible error by allowing testimony concerning an extraneous offense to be admitted before the jury at the guilt stage of the trial over Appellant's objection when probable cause for the Appellant's arrest was not an issue for the jury's determination"; (3) "The Trial Court committed reversible error by refusing to give a limiting instruction to the jury at the guilt phase of the trial on the law with regard to use of evidence reflecting prior inconsistent statements of witnesses admitted for the purpose of impeachment only"; and (4) "The Trial Court erroneously excluded prospective juror Dorothy L. Cone (R. XX-2981-3023) over the exception of the Appellant (R. XXII-2033) in violation of the doctrine announced in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968)." Finding that none of appellant's grounds of error warrant a finding by this Court that reversible error was committed by the trial judge, each will be expressly overruled.

The evidence reflects that on the night of July 13, 1980, at the Fairlane-Windfern Bowling Alley, located at 14441 Northwest Freeway in Houston, during the course of the commission of a robbery, in which approximately $1,000 was taken, two young persons, Stephen Allen Sims and Tommy Temple, who worked at the bowling alley, and Arden Alane Felsher, another young person, but a non-employee, were murdered. Gregory Garner, another young employee, was shot in the left side of the head above and in front of his left ear, but survived. Garner, however, did not testify at appellant's trial nor was his absence accounted for by the prosecution.[1]

Amazingly, the experienced police homicide detective who took appellant's third statement did not set out therein the date, county, city, state, nation, street address, name of the bowling alley, name of any victim, or any other fact which might expressly reflect that appellant's statement relates to the offense for which he was tried, convicted, and given the death sentence.

It is a well-settled rule of law in this state that a defendant's extrajudicial confession, standing alone, is not sufficient to affirm his conviction, and unless there is other evidence which, taken with the statement of the defendant, establishes beyond a reasonable doubt the guilt of the defendant, this Court will hold that the evidence is insufficient. See, for example, Patterson v. State, 140 Tex.Cr.R. 661, 146 S.W.2d 993 (1941), and the cases cited therein on page 994.

The above omissions in appellant's statement and the fact that no eyewitness to the crime testified causes this case to be one based upon circumstantial evidence, on which the jury was instructed. Although appellant did not testify, he presented the defense of alibi through witnesses.

Although appellant's first two statements were not formally admitted into evidence, the jury was informed of their contents. The first two statements reflect or indicate that appellant confessed being guilty only as a party to the offense and not as the actual culprit. See Chapter 7 of the Penal Code. Appellant's co-defendant, Lat Bloomfield, although subpoenaed, was not served and did not appear at appellant's trial. Because of the lack of independent evidence, Bloomfield was never prosecuted by the State.

If the above statement of appellant had adequately identified the offense admitted by him as being the same offense for which he was tried, it, combined with proof of the corpus delicti, which only consists of (1) the body of the deceased must be found and identified, and (2) the death of the deceased must be shown to have been caused by the criminal act of another, see Self v. State, 513 S.W.2d 832, 834 (Tex.Cr. App.1974) (and the cases cited therein), would have been, without more, sufficient to sustain appellant's conviction. Since Self, supra, connecting the accused to the crime of murder is no longer an element of the corpus delicti of murder in this State. However, it is still an element of the offense of murder which the State must prove beyond a reasonable doubt. Streetman v. State, 698 S.W.2d 132, 135 (Tex.Cr. App.1985). Thus, although the corpus delicti was clearly proved beyond a reasonable doubt by the prosecution, since appellant's above statement does not sufficiently identify the act to which it refers, and the other admitted evidence does not directly connect appellant to the offense for which he was convicted, the evidence will be sufficient if, and only if, the other evidence corroborates details of appellant's statement to the extent that a rational trier of fact could conclude beyond a reasonable doubt that appellant's above written statement relates to the capital murder of Felsher for which he was convicted.

*376 After having carefully reviewed the record, we find that any rational trier of fact, by comparing the details of appellant's statement with the physical proof and testimony adduced at trial, as well as the timing of the suggestive statements made by appellant, could easily find beyond a reasonable doubt that appellant's statement refers to the murder of Felsher and that the murder occurred during the commission of the robbery that occurred at the bowling alley.

Appellant also made oral admissions within a few weeks after the commission of the offense for which he was convicted that he had taken part in a robbery; one of the admissions referred to a "bowling alley."

Given the above, we find and hold that appellant's statement was sufficiently corroborated by independent evidence showing the substantive facts of the crime. Therefore, we hold that viewing the evidence in the light most favorable to the verdict the *377 evidence is sufficient for any rational trier of fact to find beyond a reasonable doubt that appellant committed the murder of Felsher and that it occurred in the course of the commission of a robbery. Appellant's first ground of error is overruled.

However, the above general policy precluding the admission into evidence of evidence of extraneous conduct must in some circumstances give way, thus permitting the latter to become admissible evidence. Thus, extraneous transactions constituting criminal offenses shown to have been committed by the accused may become admissible evidence upon a showing by the prosecution both that the transaction is relevant to a material issue in the case and that the probative value of the evidence outweighs its inflammatory or prejudicial potential, i.e., all relevant evidence is admissible evidence unless its probative value is substantially outweighed by the danger of unfair prejudice, or it confuses the issues, misleads the jury, causes undue delay, or is needless presentation of cumulative evidence. See Texas Rules of Criminal Evidence, Rules 402 and 403. Also see Clark v. State, 726 S.W.2d 120 (Tex.Cr.App.1986); Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1986); Williams, supra, Mann v. State, 718 S.W.2d 741 (Tex. Cr.App.1986); and Phillips v. State, 659 S.W.2d 415 (Tex.Cr.App.1983); Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980). The material issues in a criminal prosecution always consist of the elements of the offense. Davis v. State, supra. Of course, whether an extraneous offense might be admissible must be decided on an ad hoc basis.

The evidence about which appellant complains originated when, almost a month from the day the offense occurred at the bowling alley, he was stopped by a League City police officer for speeding on a motorcycle. It was determined that the motorcycle had been stolen. The record reflects that after the League City officer stopped appellant, another League City officer arrived on the scene, in the capacity of a "back-up unit", and thereafter gave appellant his "Miranda warnings",[2] after which appellant volunteered to that officer, "that he was not going to the penitentiary for any damn bike. [You] better check Houston for bigger things." Enroute to the station house, appellant volunteered another statement, that "he wasn't going to prison for a mere motorcycle theft, that he would go for bigger things." Needless to say, the League City police officers contacted the Houston police department, whose members thereafter came to League City and spoke with appellant and obtained from him the first of three written statements. All of the above evidence concerning the motorcycle theft was admitted over objection.

The State argues in reply, inter alia, that appellant's statement does not reflect or indicate any evidence of an extraneous offense. We disagree. In the context in which they were made, appellant's statements clearly imply that he had committed theft of the motorcycle and that he had *378 committed some offense much more serious than theft of a motorcycle. His statements, however, also support the conclusion that his last written statement was not fabricated.

In this instance, we find that the above volunteered statements of appellant were admissible because appellant, through testimony, injected into the case the defense of alibi, thus raising the issue whether his above written statement was truthful. Thus, the relevancy of appellant's oral volunteered statements to the officers clearly outweighs the prejudice of the implied theft of the motorcycle.

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