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McCog v. State

Court of Appeals of Texas, Fifth District, Dallas
May 17, 2004
No. 05-03-00921-CR (Tex. App. May. 17, 2004)

Opinion

No. 05-03-00921-CR.

Opinion issued May 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 282nd District Court, Dallas County, Texas, Trial Court Cause No. F02-73769-QS. Affirmed.

Before Justices JAMES, BRIDGES, and LANG-MIERS.


OPINION


Lloyd William McCog appeals his capital murder conviction. A jury convicted appellant, and the trial court sentenced him to life imprisonment. In three issues, appellant argues the evidence is legally and factually insufficient to support his conviction, and the standard of review for factual sufficiency challenges is incorrect. We affirm the trial court's judgment. Jerry Lackey retired from the United States army after twenty years of service. He served in Korea and two tours in Vietnam. Lackey had an appointment on the morning of September 10 at the veteran's hospital in Dallas. Jo Newberry, Lackey's wife in 1976, testified Lackey left home in the early morning hours of September 9, 1976, in his pickup truck and carried a suitcase in the truck's bed. Lackey also took with him his army papers in a brown vinyl folder and his wallet containing his driver's license and military identification. According to Newberry, Lackey would pick up hitchhikers because he felt sorry for them. At approximately 9:45 a.m. on September 9, 1976, appellant briefly visited his son. At approximately 6:50 a.m. the next day, Dallas police officer C.E. Shaw was called to the 2900 block of South Ledbetter in Dallas near Mountain Creek Lake. Shaw found Lackey dead and lying on the side of the road in front of his pickup. Shaw noticed Lackey's pockets were turned inside-out. Shaw checked Lackey's body for identification, but he found no identification or wallet. Shaw could tell Lackey had been beaten severely about the head, and later investigation revealed Lackey had been shot in the head and thigh. Police also recovered fingerprints and palm prints from the top edge of the sides of the truck bed and the tailgate. L.C. Taylor, a Dallas crime scene detective in 1976, testified he recovered the fingerprints from appellant's truck. However, none of the fingerprints were identified in 1976, and the case went unsolved. Lackey's murder went to the cold case files. There were approximately 275,000 ten-print fingerprint cards on file at that time with close to 50,000 unsolved crimes. The fingerprint division would check cards manually every day in an attempt to find a match. From 1985 to 1989, they worked to prepare a new system with each print being enlarged and traced before being entered into a computer. A latent print took thirty minutes to an hour to prepare. In 1989, the system was finally automated and on line. The system matched up fingerprints from the cold cases at an average of 100 cases a month. In 1991, using a new electronic system for matching fingerprints, police matched the fingerprints recovered from Lackey's truck with appellant's fingerprints. However, the case of Lackey's murder was still unassigned. Dallas police detective Steven L'Huillier testified there were approximately 500 murders in the City of Dallas with only sixteen homicide detectives available to respond to the crimes. Additionally, he testified it was a tragic oversight that the case was not reassigned for over ten years. Appellant was indicted for capital murder in November 2002. At his trial, appellant's sister, Ginger Miller, testified appellant told her in 1976 that he had killed "a military guy." Appellant explained he had taken the victim to a lake, beat him, robbed him, and shot him in the head. Appellant took out a wallet and showed it to Miller, stating it was the victim's wallet. Miller testified the wallet was dark and contained a driver's license and some cards. Although she saw a photograph of the victim on one of the identification cards, Miller could not identify the victim other than to say he was not African-American. Miller told her mother about the conversation with appellant, but when neither woman heard anything in the news about the killing, they assumed appellant was "just boasting." In the early 1980s, Miller mentioned the murder in a letter to appellant, and two weeks later appellant told Miller never to bring up the matter again. In 1985, appellant threatened Miller and began parking outside her workplace for hours at a time. After about three days of this, Miller called Bob Irby, a family friend and Dallas police detective. Miller also eventually told Irby about appellant's confession to murder, but at that time Irby was unable to corroborate appellant's confession. Benjamin Armstrong, a Dallas police officer working with the fingerprint system in 1991, testified that it is not possible to identify a specific date on which a fingerprint was made. However, none of appellant's fingerprints taken from the truck were degraded. Armstrong testified that fingerprints exposed to the sun would start to degrade. Depending on the temperature, Armstrong testified, fingerprints could go away in a day or two, and rain would wipe them out. At the end of appellant's trial, the jury convicted appellant of capital murder, and this appeal followed. In his first and second points of error, appellant argues the evidence is legally and factually insufficient to support his conviction. A person commits capital murder if he intentionally or knowingly causes the death of an individual in the course of committing or attempting to commit robbery. Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2004). When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex. App.-Dallas 1998, pet. ref'd). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). The question is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02 (Tex.Crim.App. April 21, 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. The record shows appellant's fingerprints were recovered from Lackey's truck after the discovery of Lackey's body on the morning of September 10, 1976. The fingerprints were not degraded, though Armstrong testified that fingerprints exposed to the sun would start to degrade and could go away in a day or two. Further, Lackey picked up hitchhikers because he felt sorry for them. Miller testified appellant hitchhiked everywhere he went in the 1970s and did not own a car. Miller further testified he had killed a "military guy." Specifically, appellant said he took the "military guy" to a lake, beat him, robbed him, and shot him in the head. Appellant showed Miller a dark wallet like the one Lackey carried and told her it belonged to the victim. When Lackey's body was discovered near Mountain Creek Lake, his pockets were turned out, and his wallet, military records, and other belongings were missing. In addition, Lackey had been beaten and shot in the head. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational jury could have found the essential elements of the crime of capital murder in this case beyond a reasonable doubt. See Turner, 805 S.W.2d at 427. Further, after reviewing all the evidence in a neutral light, we cannot conclude: (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence establishes the beyond-a-reasonable-doubt standard could not have rationally been met. See Zuniga, slip op. at 8. We overrule appellant's first and second issues. In his third issue, appellant argues the standard of review for factual sufficiency challenges is incorrect. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In a post-submission supplemental brief, appellant draws this Court's attention to the Zuniga opinion. Because the Zuniga opinion addresses the correct standard to be applied in assessing the factual sufficiency of the evidence, a standard we have applied to the factual sufficiency of the evidence to support appellant's conviction, we need not address appellant's third issue. We affirm the trial court's judgment.


Summaries of

McCog v. State

Court of Appeals of Texas, Fifth District, Dallas
May 17, 2004
No. 05-03-00921-CR (Tex. App. May. 17, 2004)
Case details for

McCog v. State

Case Details

Full title:LLOYD WILLIAM McCOG, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: May 17, 2004

Citations

No. 05-03-00921-CR (Tex. App. May. 17, 2004)

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