Petition for Writ of Certiorari — Texas v. Skelton

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

THE STATE OF TEXAS

PETITIONER,

¥.

JOHN SKELTON

RESPONDENT.

PETITON FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

GARY P. GARRISON* BRYAN DENNIS CADRA

District Attorney Assistant District Attorney

70th Judicial District 70th Judicial District

MICHAEL T. GRIFFIN ECTOR COUNTY

Assistant District Attorney COURTHOUSE

70th Judicial District Room 305

Odessa, Texas 79761

(915) 335-3035

* Attorney of Record

I.

.e

QUESTIONS PRESENTED

WHETHER THE TEXAS COURT OF CRIMINAL

APPEALS HAS MISAPPLIED THE RULE OF

JACKSON V. VIRGINIA 443 U.S. 307 (1979) BY

HOLDING THAT THE PROSECUTION IS UNDER

AN AFFIRMATIVE DUTY TO DISPROVE EVERY

HYPOTHESIS EXCEPT THAT OF GUILT BEYOND

A REASONABLE DOUBT.

-ii-

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........-.--. eee e serene ees i

TABLE OF AUTHORITIES. ... . ..ccc ccc cccccscnscsaes ill

OPINIONS BELOW ... ..sc0 04 ccecsae eee eae eee l

JURISDICTION .. . oo 005 08 kes cea eee eee 2

CONSTITUTIONAL PROVISIONS INVOLVED ....... 2

STATEMENT OF THE CASE . . occu eee vcs ncnes 2

SUMMARY OF ARGUMENT.............200++++e0003

REASONS FOR GRANTING THE WRIT..........-.-. 3

| . THERE ARE SPECIAL AND IMPORTANT

REASONS TO GRANT THE WRIT ..............3

Il. THE TEXAS COURT OF CRIMINAL APPEALS

MISAPPLIED THE RULE OF JACKSON _F.

VIRGINIA, 443 U.S. 307 (1979), BY PLACING UPON

THE STATE THE AFFIRMATIVE DUTY TO

DISPROVE ALL REASONABLE HYPOTHESES EX-

CEPT THE GUILT OF THE DEFENDANT ......... 4

CONCLUSION. <2... Rho oh ae 9

-lii-

TABLE OF AUTHORITIES

Cases Page

Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989) .. .6

Carlsen v. State, 654 S.W.2d 444 (Tex. Crim. App. 1983) . .6

Ciccaglione v. State, 474 A.2d 126 (Del. 1984) ........... 8

Delaware v. Van Ardsall, 475 U.S. 673 (1986) ............ 1

Dirring v. United States, 382 F.2d 512 (ist Cir. 1964)

cert. denied 377 U.S. 1003 (1964) ............cccccees y

Esmailka v. State, 740 P.2d 466 (Alaska 1987) ........... 8

Ford v. United States, 498 A.2d 1135

I rs ss wa 6. ot a'6.0 bes 0o0eeeeaeng 8

Holland v. United States, 348 U.S. 121 (1954)............ 5

Jackson v. Virgina, 443 U.S. 307 (1979)... 2.00.2. 4

Kidd v. State, 530 N.E.2d 287 (Ind. 1988) ............... 8

Maryland v. Garrison, 480 U.S. 79 (1987) ............... 4

Michigan v. Long, 463 U.S. 1032 (1983). .........0.0.... 4

Montana v. Hall, 481 U.S. 400 (1987)... 2.000002 ee. 4

Moreno v. State, 755 S.W.2d 866

EE 6

People v. Acosta, 396 N.W.2d 463 (Mich. App.) ......... 8

People v. Bean, 760 P.2d 996 (Cal. 1988)................ 8

People v. Pintos, 527 N.E.2d 312 (Ill. App. 1988). ........ 8

Poellinger v. State, 451 N.W.2d 752 (Wis. 1990).......... 8

State v. Buchanan, 312 N.W.2d 684 (Neb. 1981).......... 8

-iv-

TABLE OF AUTHORITIES, continued

Cases Page

State v. Caruolo, 524 A.2d 575 (R.1. 1987) .............. 8

State v. Couch, 720 P.2d 1387 (Wash. App. 1986) ........ &

State v. Derouchie, 440 A.2d 146(Vt. 1981) ............. 8

State v. Diaz, 346 S.E.2d 488 (N.C. 1986) ............... 8

State v. Duran, 762 P.2d 890 (N.M. 1988) ............... 8

State v. Jacobson, 419 N.W.2d 899 (N.D. 1988).......... 8

State v. McKibben, 722 P.2d 518 (Kan. 1986) ............ 8

State v. Nash, 694 P.2d 222 (Ariz. 1985) ................ 8

State v. Randles, 768 P.2d 1344, (Id. 1989) .............. 8

State v. Sabers, 442 N.W.2d 259 (S.D. 1989) ............. 8

Stokes v. State, 518 So.2d 1224 (Miss. 1988) ............. 8

United States v. Bakken, 734 F.2d 1273 (7th Cir. 1984) ....9

United States v. Bell, 678 F.2d 547 (Sth Cir. 1982) (en sur

Sn cr ne a a acarm onan s

United States v. Bobo, 477 F.2d 974 (4th Cir. 1973),

enet, Geen Ga5 U.S. SECS) onc cteccesansccunccns 4

United States v. Carter, 486 F.2d 1027 (6th Cir. 1973) ..... 7)

United States v. Davis, 562 F.2d 681 (D.C. Cir. 1977) ..... y

United States v. Fiore, 821 F.2d 127 (2nd Cir. 1987)....... 9

United States v. Hoelscher, 764 F.2d 491 (8th Cir. 1985) ...9

United States v. Leon, 739 F.2d 885 (3rd Cir. 1984) ....... 9

oY

TABLE OF AUTHORITIES, continued

Cases Page

United States v. Merrick, 464 F.2d 1087 (10th Cir. 1972),

cert. denied 409 U.S. 1023 (1972) .................... )

United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969). .... 9

United States v. Poole, 878 F.2d 1389 (11th Cir. 1989)... .. Y

CONSTITUTIONAL PROVISIONS

U.S. Comst., amend. MEV... ooo c woo dwe cc ccecn. 2

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

THE STATE OF TEXAS

Petitioner,

v.

JOHN SKELTON,

Respondent.

PETITON FOR WRIT OF CERTIORAR!

TO THE TEXAS COURT OF CRIMINAL APPEALS

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT:

NOW COMES THE STATE OF TEXAS, Petitioner

herein, by and through the District Attorney of Ector Coun-

ty, Mr. Gary P. Garrison, and files this petition for Writ of

Certiorari.

OPINIONS BELOW

The opinion of the Texas Court of Criminal Appeals was

delivered on the 13th day of December, 1989, in cause No.

69,215, John Skelton v. The State of Texas and is attached

hereto as Appendix A; the order denying the State’s Motion

for rehearing is attached here as Appendix C. The order

granting the State’s Motion of Stay of Mandate until the

23rd day of July, 1990 is hereto attached as Appendix D-2.

e, »

JURISDICTION

The Judgment of the Texas Court of Criminal Appeals

was entered on the 13th day of December, 1989 (Appendix

A-17). A timely Motion for Rehearing was filed with the

Court of Criminal Appeals on the 29th day of December,

1989 (Appendix B-1). The Motion for Rehearing was denied

on the 2nd day of May, 1990 (Appendix C-1). This petition

for Writ of Certiorari was filed within ninety (90) days after

the State’s Motion for Rehearing was denied below. The

Jurisdiction of this Court is invoked under 28 U.S.C. sec.

1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner’s claim is based on the Fourteenth Amendment

to the United States Constitution.

STATEMENT OF THE CASE

The Respondent herein, John Skelton was indicted on

June 17, 1982, for the offense of capital murder. Trial was

held in the 161st District Court of Ector County, Texas dur-

ing the month of June 1983 in cause number B-13,984, the

State of Texas v. John Skelton. Appellant was convicted by

the jury of the indicted offense and sentenced to death on Ju-

ly 8, 1983. Appellant perfected his appeal to the Texas Court

of Criminal Appeals and his conviction was reversed on

December 13, 1989. The State of Texas by and through her

District Attorney filed a Motion for Rehearing on December

29, 1989. The motion was denied without written opinion on

May 2, 1990.

In this motion for rehearing the state specifically alleged

that the Texas Court of Criminal Appeals had misapplied the

rule of Jackson v. Virginia, 443 U.S. 307 (1979).

The State made a motion for stay of mandate so that this

petition for Writ of Certiorari could be effected and the

same was granted on May 14, 1990. The mandate has been

—_ by the Texas Court of Criminal Appeals until July 23,

1990. :

a

SUMMARY OF ARGUMENT

There are special and important reasons for granting the

writ. In holding that the prosecution has an affirmative duty

to rule out every hypothesis except the guilt of the defendant

beyond a reasonable doubt the Texas Court of Criminal Ap-

peals has violated this court’s holding in Jackson v. Virginia,

supra.

This Court may entertain this issue because it is clear that

the Texas Court of Criminal Appeals based its decision on

federal law. The opinion of the Court of Criminal Appeals

does not contain a ‘‘plain statement”’ that its decision rested

on adequate and independent state law grounds.

The Texas Court of Criminal Appeals has placed an un-

conscionable, untenable, and virtually impossible burden on

the State of Texas to prove guilt in criminal cases beyond a

reasonable doubt. The Court of Criminal Appeals has held

that the prosecution must rule out every hypothesis except

that of the guilt of the defendant beyond a reasonable doubt,

contrary to this Court’s holding in Jackson. The Texas

Courts holding is contrary to the Fifth Circuit Court of Ap-

peals’ exposition of Jackson and the Texas Court’s pur-

ported adoption of the Fifth Circuit rule.

REASONS FOR GRANTING THE WRIT

I.

THERE IS ONE SINGULAR, PROFOUND, AND PAR-

TICULARLY IMPORTANT REASON FOR GRANTING

THIS WRIT.

The imposition of an affirmative duty on the prosecution

to rebut or disprove every hypothesis except that of the guilt

of the defendant is to place upon the State a burden far in ex-

cess of any that can be imagined under the traditional and

constitutional standard of beyond a reasonable doubt. The

imposition of this standard usurps the function of a jury and

protects defendants from convictions to a degree that can

only be characterized as untenable. The imposition of this

standard allows intermediate state courts and state courts of

last resort to ignore the evidence elicited at trial and the

-4-

determination by the trier of fact of a defendant’s guilt or in-

nocence by using a standard which has been expressly

disallowed by this Court. The use of the ‘‘reasonable

hypothesis theory”’ allows state appellate courts to ignore the

standard of review propounded in Jackson and reverse those

causes where the evidence is clearly sufficient. The use of this

standard contravenes settled principles of appellate review

by an unwarranted substitution of one fact finder for

another.

THE TEXAS COURT OF CRIMINAL APPEALS’

HAS MISAPPLIED THE RULE OF JACKSON vy.

VIRGINIA, 443 U.S. 307 (1979) BY HOLDING THAT

THE PROSECUTION IS UNDER AN AFFIR-

MATIVE DUTY TO DISPROVE EVERY

HYPOTHESIS EXCEPT THAT OF GUILT BEYOND

A REASONABLE DOUBT.

It is clear from the Texas Court of Criminal Appeals opi-

nion in the instant case that the decision rested primarily

upon Federal law and that the independence of an alleged

State ground is not apparent from the four corners of the

opinion. ’

It is an ineluctable conclusion that the ‘‘reasonable

hypothesis theory’’ is a rule which was specifically rejected in

Jackson and has met with disapproval in the Fifth Circuit

Court of Appeals. ”

1. The Court plainly based its opinion on Federal law, see Appendix,

A-8. There the Court states it is ‘‘constrained’’ to follow Jackson v.

Virginia, supra. The Courts decision is clearly within the purview of

Michigan v. Long, 463 U.S. 1032 (1983) and its progeny; Montana v.

Hall, 481 U.S. 400, (1987); Maryland v. Garrison, 480 U.S. 79 (1987);

Delaware v. Van Ardsall, 475 U.S. 673 (1986).

2. United States v. Bell, 678 F.2d 547, 549 (Sth Cir. 1982) (en banc),

aff’d 462 U.S. 356 (1983).

Mi

In Jackson, the Court held, ‘‘Only under a theory that the

prosecution was under an affirmative duty to rule out every

hypothesis except that of guilt beyond a reasonable doubt

could this petitioner’s challenge be sustained. That theory

the court has rejected in the past. Holland v. United States,

348 U.S. 121, 140, 99L.Ed.150,75 S.Ct.127. We decline to

adopt it today.”’

This clear statement is not dicta but a fundamental part of

the majority’s opinion in Jackson. From this holding it is

readily apparent that the rebuttal of reasonable hypotheses

plays no part in the familiar Appellate standard, ‘‘...(t)he

relevant question being whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt’’. Jackson, supra at 319.

The Petitioner does not come to this Court seeking a

review of the factual basis of the Texas Court’s opinion.

Rather the Petitioner seeks a reversal of the judgment below

because of the erroneous standard used. The Court of

Criminal Appeals employed a standard not only in direct

contravention of Jackson, but one that is fraught with dif-

ficulties that threaten the very nature of objective appellate

review.

As applied, the rule allows appellate courts to escape the

Jackson standard and substitute their own fact finding for

that of the jury’s. As is amply illustrated in the instant case,

an appellate court can formulate a reasonable hypothesis

other than the guilt of the defendant with great ease. The

Texas Court of Criminal Appeals in this case held that, ‘‘the

evidence, even when viewed in a light most favorable to the

verdict, suggests at least one hypothesis other than the guilt

of the Appellant: that is, that someone else unbeknownst to

Appellant committed the offense.’’ (Appendix A-8)

Clearly the determination of this defensive issue is within

the purview of the trier of fact, and its determination of the

fact issue adverse to Respondent should be sustained under

Jackson. The Texas Court of Criminal Appeals’ statement

-6-

that ‘‘it is the Appellate Court’s function to ensure that no

one is convicted of a crime except on proof beyond a

reasonable doubt’’ (Appendix A-8), is so basic to our system

of jurisprudence that it does not admit of argument. But the

proposition that an appellate court will use the reasonable

hypothesis theory to reverse a case sustainable under the

Constitutional standard is to turn the rule of Jackson on its

head. The Texas Court of Criminal Appeals has specifically

adopted the Jackson standard of review in circumstantial

evidence cases. A review of the opinions where this standard

was adopted highlights the Court of Criminal Appeals’ at-

tempt to adopt one half of the Constitutional standard for-

mulated by this Court while adjuring the other.

Butler v. State, 769 S.W.2d 234 (Tex.Crim.App. 1989), il-

lustrates this attitude. In that case, the Texas Court of

Criminal Appeals considered the sufficiency of the evidence

in a murder case. In the majority opinion, the court held that

the Jackson standard requires that upon review by an ap-

pellate court ‘‘all the evidence is to be considered in a light

most favorable to the prosecution.’’ Id at 238. The court

went on to hold that,

‘*The Texas Court of Criminal Appeals has often

elaborated upon the Jackson standard for the suffi-

ciency of evidence reviews in this state. See Carlsen

v. State, 654, S.W.2d 444, 448-49 (Tex.Crim.App.

1983) (opinion on Reh’g) and Moreno v. State, 755

S.W.2d 866 867 (Tex.Crim.App. 1988). Carlsen

points out, that circumstantial evidence should not

be tested by ultimate standard of review’ different

from direct evidence; the standard in both kinds of

cases is whether ‘any rational trier of fact could

have found the essential element of the crime

beyond a reasonable doubt.’ (citation omitted).

...It 1s apparent then, that circumstantial evidence

cases have no different standard of review than

those cases supported by direct evidence.”’

The Court then clarified this position with the following

footnote;

i, 2

‘*Implicit in this statement is a question concerning

the status of the reasonable hypothesis theory. We

reiterate:

We are unable to devise or discover any reason,...

for abandoning the utilitarian ‘exclusion of

outstanding reasonable hypotheses analysis for ap-

plying the above standard for review’ (Jackson) in

circumstantial evidence cases. By the nature of cir-

cumstantial evidence, in order to determine it ra-

tionally establishes guilt beyond a _ reasonable

doubt, a process of elimination must be used...

Stated in the converse, if the evidence supports an

inference other than the guilt of the Appellant, a

finding of guilt beyond a reasonable doubt is not a

rational finding. Carlsen, 654 S.W.2d at 449. We

recognize that the United States Supreme Court

declined, in Jackson, to adopt this theory as part of

the Jackson standard for review. Likewise, we do

not mean to imply an adoption of this theory as the

standard of review for sufficiency of the evidence.

The reasonable hypothesis theory as utilized by this

Court is merely an analytical construct to facilitate

the application of the Jackson standard.’’

Although the Court of Criminal Appeals purports to have

adopted the Jackson standard to review the evidence in

criminal cases, its use of the euphemistic ‘‘analytical con-

struct’’ to circumvent the rest of the holding in Jackson is no

more than Judicial sleight of hand. This ‘‘analytical con-

Struct’ is a corollary rule of law by which the Texas Court of

Criminal Appeals seeks to avoid the full import of Jackson. *

This contention is best summarized by Judge White of the

Texas Court of Criminal Appeals who concurred in the

Butler opinion. Judge White stated,

3. In United States v. Bell, supra fn.2, the Fifth Circuit Court of Ap-

peals held that the hypothesis of innocence phraseology was not merely

semantic and adopted the standard of review stated therein. Be//, supra

549, fn.3.

.

‘“‘Thus, Jackson specifically denounces the

‘reasonable hypothesis theory’’ while the majority

embraces it. Further, whether this theory is

euphemistically labeled as an ‘‘analytical

construct’? (See op.at 238, fn.1) or a standard of

review is of little moment; the resultant effect re-

mains the same - the adoption of a theory of suffi-

ciency review expressly denounced by Jackson.

Thus, although the majority, by all auspices, fully

adheres to Jackson, it appears to me that such

adherence is disturbing selective.

Because the Court sees fit to selectively adhere to

certain convenient aspects of Jackson, supra and

Moreno, supra, while completely disregarding the

less palatable holding of those opinions, I must

concur only in the result reached.’’ Butler, supra at

244.

Clearly the Texas Court of Criminal Appeals has misap-

plied the rule of Jackson. The ‘‘reasonable hypothesis

theory’’ has been renounced by the Fifth Circuit Court of

Appeals (supra, fn.2) and has fallen into disfavor in other

jurisdictions. *

4. Ciccaglione v. State, 474 A.2d 126 (Del. 1984); Esmailka v. State,

740 P.2d 466 (Alaska 1987); Ford v. United States, 498 A.2d 1135 (D.C.

Ct.App. 1985); Kidd v. State, 530 N.E.2d 287 (Ind. 1988); People v.

Acosta, 396 N.W.2d 463 (Mich. App.); People v. Bean, 760 P.2d 996,

1003 (Cal. 1988); People v. Pintos, 527 N.E.2d 312 (Ill.App. 1988);

Poellinger v. State, 451 N.W.2d 752 (Wis. 1990); State v. Buchanan, 312

N.W.2d 684 (Neb. 1981); State v. Caruolo, 524 A.2d 575, 581 (R.I.

1987); State v. Couch, 720 P.2d 1387 (Wash.App. 1986); Srate v.

Derouchie, 440 A.2d 146, 148-149 (Vt. 1981); State v. Diaz, 346 S.E.2d

488 (N.C. 1986); State v. Duran, 762 P.2d 890 (N.M. 1988); State v.

Jacobson, 419 N.W.2d 899 (N.D. 1988); State v. McKibben, 722 P.2d

518 (Kan. 1986); State v. Nash, 694 P.2d 222 (Ariz. 1985); State v.

Randles, 768 P.2d 1344, 1346-1347 (Id. 1989); State v. Sabers, 442

N.W.2d 259 (S.D. 1989); Stokes v. State, 518 So.2d 1224 (Miss. 1988)

-9.

The United States Circuit Courts of Appeals have abandon-

ed the vestiges of this test.

It is apparent that the Texas Court of Criminal Appeals

has adopted Jackson both in the instant cause and as the

standard of review for criminal cases in the State of Texas. It

is also readily apparent that the rule of Jackson has been

misapplied, and that the same harmful misapplication will

continue without the intervention of this Court. The State

Should not be deprived of verdicts proved beyond a

reasonable doubt.

CONCLUSION

For these reasons petitioner prays that the petition for

Writ of Certiorari to the Texas Court of Criminal Appeals

issue and this case be reversed.

5. Dirring v. United States, 382 F.2d 512, 515 (Ist Cir. 1964), cert.

denied 377 U.S. 1003 (1964); United States v. Fiore, 821 F.2d 127, 128

(2nd Cir. 1987); United States v. Leon, 739 F.2d 885, 891 (3rd. Cir.

1984); United States v. Bobo, 477 F.2d 974, 989 (4th Cir. 1973), cert.

denied 421 U.S. 909 (1975); United States v. Carter, 486 F.2d 1027, 1028

(6th Cir. 1973); United States v. Bakken, 734 F.2d 1273, 1282 (7th Cir.

1984); United States v. Hoelscher, 764 F.2d 491, 494 (8th Cir. 1985);

United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969); United

States v. Merrick, 464 F.2d 1087, 1092 (10th Cir. 1972), cert. denied 409

U.S. 1023 (1972); United States v. Davis, 562 F.2d 681, 689 (D.C. Cir.

1977); United States v. Poole, 878 F.2d 1389 (11th Cir. 1989).

Respectfully submitted,

-10-

Gary P. Garrison

District Attorney

Ector County Courthouse

Room 305

Odessa, Texas 79761

(915) 335-3035

Attorney of Record

Michael T. Griffin

Assistant District Attorney

Ector County Courthouse

Room 305

Odessa, Texas 79761

(915) 335-3035

Bryan Dennis Cadra

Assistant District Attorney

Ector County Courthouse

Room 305

Odessa, Texas 79761

(915) 335-3035

A-l

APPENDIX A

JOHN SKELTON, Appellant

NO. 69,215, v. ---- Appeal from Ector County

THE STATE OF TEXAS, Appellee

OPINION

After a lengthy trial appellant was convicted for capital

murder. Punishment was assessed at death.

The evidence showed that on the morning of Saturday,

April 24, 1982, an individual by the name of Joe Neal climb-

ed into his pickup truck with the intention of taking one of

his daughters to choir practice. Neal apparently turned on

the truck’s ignition, put the truck in reverse. This act set off

a bomb which had been placed under the truck. The explo-

sion propelled Neal’s body out of the truck, ripped off his

left wrist and hand as well as both legs. Medical testimony

indicated that Neal bled to death as a result of his injuries.

Testimony at trial showed that upon viewing the scene of

the explosion, authorities found pieces of a 6-volt K-Mart

lantern battery and two halves of a broken horseshoe magnet

wrapped with duct tape. Vance Johnson, an agent with the

Bureau of Alcohol, Tobacco, and Firearms testified that in

his expert opinion the explosion was caused by more than

two or three sticks of dynamite which were hooked up to the

electrical wiring leading to the back up lights of the pickup

truck. The bomb was attached so that when the truck was

placed in reverse, it would detonate. He further testified that

in his opinion the 6-volt battery was used as a backup power

source in case the electrical system of the truck failed. It was

also his opinion that the bomb was placed directly

underneath the floorboard area of the driver’s side of the

truck. Jerry Taylor, another agent from the Bureau of

Alcohol, Tobacco, and Firearms, testified that he estimated

that the bomb was made up of four to seven sticks of

dynamite. He also felt that the bomb had been placed direct-

ly under the floorboard areas of the driver’s side of the

truck. Dr. Elliot Byall, chief of the Forensic

A-2

Branch of the Bureau of Alcohol, Tobacco, and Firearms

Lab in San Francisco, testified that he conducted tests on

gauze swabs that had been taken from the victim and ascer-

tained the presence of dynamite vapors and nitroglycerin,

one of the components of dynamite.

Testimony at trial connected appellant to the offense.

Robbie Smart, who characterized his relationship with the

appellant as a father-son relationship, testified that up until

1981, appeliant had owned Husky Steam Cleaners. Smart

testified that he began working for appellant at Husky in

1975. He was promoted to plant superintendant in 1980 and

essentially ran the business for appellant who traveled fre-

quently. Smart related that the victim came to work for

Husky as a salesman in 1979. The victim left Husky’s

employment in 1980 after appellant accused him of seiling

hot tanks produced by Husky and keeping the money from

the sales for himself. Appellant also thought his own son,

Jerry Don Skelton, and another salesman, Bob Fowler, were

also involved in the scheme. Smart testified that on several

occasions appellant discussed having someone break the

arms of both Fowler and the victim, and on one occasion,

appellant told Smart that he had a cousin in prison who

would help him find someone to do the job. Smart testified

that appellant also threatened to break the arms of two other

individuals who were business competitors, a Mr. Berryhill

and Glen Danielson. Appellant also told Smart that in June

of 1981 that he had tried to file false theft charges against the

victim and Fowler. As part of this plan appellant had given

two steam machines to two men in Andrews, Texas, in ex-

change for their agreeing to falsely testify that the victim and

Fowler had sold them the machines for cash and pocketed

the money. Appellant also admitted this during his own

testimony. Smart also testified that on one occasion ap-

pellant told him that he had hired someone to firebomb

American Steam Cleaners in Odessa. American Steam

Cleaners was owned by appellant’s competitor, Berryhill,

and both the victim and Fowler had gone to work there after

leaving appellant’s employment. Smart related that he did

not believe appellant’s threat regarding the firebomb, but

several days later American Steam Cleaners was indeed fire

bombed. Not content with that, in August of 1981, appellant

told Smart that he was going to kill the victim. Appellant

said that he was going to catch the victim in his truck and

shoot him. Appellant also said that he knew

A-3

the victim always carried a gun and if the gun was not there,

he would plant one on him after he had killed him. When

Smart tried to dissuade appellant, appellant’s only answer

was that he also wanted to kill Danielson, Fowler and his

son, Jerry Don Skelton.

In January of 1982, appellant again told Smart that he was

going to get even with the victim and Fowler. In March of

1982, appellant came to Smart’s house and said he was work-

ing on a project and needed four horseshoe magnets. He said

he had a surprise for the victim and that Smart would be sur-

prised when he heard about it. Appellant told Smart to go

out to Husky (which had since been sold to a partnership)

and take four magnets from their inventory. Smart was to

give those magnets to appellant and then order four new

replacement magnets. However, Smart was told not to put

the replacement order on the books. When Smart cautioned

appellant that the magnets could be traced, appellant told

Smart that if he followed directions, everything would be all

right. Appellant told Smart that he was going to ‘‘scare the

shit out of some people.’’ On March 25, 1982, Smart remov-

ed the four magnets from the Husky Parts Department. The

next day he gave them to appellant. Appellant told Smart

that on a recent trip through the South, he had met some

trained mercenaries who had showed him a lot about ex-

plosives. On April 8, 1982, Smart ordered some new magnets

to replace the ones he had taken from Husky. On April 19,

appellant called Smart and asked if the new magnets had

come in. When Smart told him that they had not, appellant

remarked that they should be in in a day or two. Then he told

Smart that if something spectacular happened to send the

newspaper clippings to some friends of his in Arkansas.

Smart testified that the magnets did not come in until April

28, four days after the bombing.

Smart testified that he was out of town during the

weekend of the bombing. Upon learning of the bombing

after his return, he was shocked. On Friday, April 30, he

took the new magnets back to Husky as appellant instructed.

Finally Smart testified that he received a call on May 6, from

a man named L.C. Neatherlin, who was related to appellant

by marriage. Neatherlin asked Smart to come to his business

at 10:00 the next morning to fix a steam cleaner. When

Smart arrived the next morning, Neatherlin took him into an

office, handed him the phone and told him that appellant

A-4

wanted to speak to him. When Smart told him that the vic-

tim had been killed, appellant replied that he hated to hear it

but he could not say he was sorry. Appellant also told Smart

that he was in Arizona at the time of the bombing and had

alibi witnesses who would testify to that fact. Appellant ask-

ed Smart not to tell the police that he had called. Finally

Smart testified that a few days prior to his testimony, he had

received a phone call during which the caller said that both

he and his daughter were dead.

Ron Masterson, the owner of a distributorship for steam

cleaning equipment in Springfield, Tennessee, testified that

he had known appellant for approximately five years. In

March of 1982, appellant called Masterson and asked him to

try to find him some dynamite. Appellant said that he need-

ed twenty sticks of dynamite and ten blasting caps in order to

remove some stumps from his farm in Arkansas. After this

initial request, appellant called some six to seven times over

the next few days inquiring about the dynamite. During these

conversations appellant also told Masterson that he was liv-

ing in Springfield, Missouri, with a doctor named Judy Par-

ton. On April 4, 1982, appellant came to see Masterson. The

next morning they obtained ten sticks of dynamite and

blasting caps from a contractor friend of Masterson. When

Masterson asked appellant if he knew how to use the

dynamite, appellant replied that the dynamite would explode

if the wires leading from the blasting caps were hooked up to

the terminals of a 6-volt battery. Appellant then placed the

dynamite in an ice chest and sealed it with duct tape. He then

put the ice chest inside of a hot tank (used in steam cleaning)

which Masterson was returning to appellant. The hot tank

was then bolted and the threads on the boit were then

damaged so as to prevent anyone from opening the box. Ap-

pellant then put the hot tank in the back of his pickup truck.

On April 6, appellant left Tennessee and returned to

Missouri. Between April 6 and April 14, appellant called

Masterson several times. Each time, appellant told Master-

son that he had not yet used the dynamite.

Leonard Robinson, the parts manager for Husky Cleaning

Systems, testified that he checked his magnet inventory on

April 27, 1982. He was surprised to find only one magnet

when there should have been five. A few days later, Robbie

Smart brought back four magnets and said that he was

A-5

returning them because he did not need them. After Smart

left the shop, Robinson went back and checked the magnets.

He testified that he was surprised to see that the boxes they

were in were not dusty and showed not signs of ever having

been marked with a price.

Danny Kirby, supervisor of the DPS laboratory in

Houston, testified that he was given State’s Exhibit 95 (a

piece of wrapper taken off a stick of dynamite obtained by

the police from Blevins Ditching and Excavating Company

in Jamestown, Tennessee), State’s Exhibit 96 (a scrap of

dynamite paper found in the vehicle behind the driver's seat

after the blast) and State’s Exhibit 89 (long fibrous materials

found with several pieces of metal at the bomb scene).

State’s Exhibit 95 had been removed from a piece of

dynamite manufactured by the Austin Powder Company

with a date shift code of 2C0254. Earlier testimony revealed

that all of the dynamite purchased by the excavation com-

pany between March 8, 1982 and April 23, 1982 had the

same date shift code, indicating it was manufactured on the

same shift. No testimony was given as to the date on which

the dynamite given to appellant was purchased by the ex-

cavation company nor what date shift code was on the

dynamite given to appellant. Kirby testified that after his

scientific analysis he determined that all of the papers had

the same chemical origin. He also testified that he had been

asked to test State’s Exhibits 69 and 71 (the parts of a magnet

found at the scene of the explosion), State’s Exhibit 84, (the

magnets returned to Husky by Robbie Smart after the explo-

sion) and State’s Exhibit 88 (the sole magnet remaining in the

Husky inventory after Robbie Smart removed four magnets

and gave them to appeiiant). After running tests on these ex-

hibits, he came to the conclusion that the paint on all the

magnets had the same chemical properties.

Appellant presented several alibi witnesses who testified

that appellant was in Springfield, Missouri on April 23 and

April 24. A Springfield pharmacist testified that he filled

three prescriptions for appellant sometime between 6 p.m.

and 9 p.m. on the day of the murder, April 24th. Dr. Judy

Parton, a friend of appellant's and a physician in Springfield

testified that appellant took her to work on the morning of

April 23 and picked her up at 3 p.m. that afternoon. They

spent the evening together and then had breakfast together

A-6

on the morning of April 24. She then went to work and ap-

pellant picked her up around 4:00 p.m. that afternoon. Ac-

cording to Dr. Parton, appellant stayed in the Springfield

area until April 27.

After presentation of the defense case, the State offered

rebuttal. Warren Heagy, an attorney and half owner of

Husky Cleaning Systems, Inc. testified that after he and his

partner had purchased the company from appellant in May

of 1981, appellant told him he suspected the victim and an

indivdual named sob Fowler had been stealing from him

while they both had been employed as salesmen for ap-

pellant. Appellant showed Heagy two invoices which pur-

ported to reflect a sale of a steam unit by each salesman. Ac-

cording to appellant, the men were stealing steam units from

appellant and then selling them for cash. Heagy testified that

he noticed that the invoices were both dated some six months

after both salesman had left appellant’s employment. Fur-

thermore, the invoices were consecutively numbered and the

invoice supposedly prepared by the victim was full of

typographical errors which was extremely unusual since the

victim was an excellent typist. Heagy testified that appellant

quizzed him about the possibility of both men going to the

penitentiary. When Heagy told appellant that they would

probably get probation, appellant said that that he would

take care of them in his own way. Heagy related that ap-

pellant seemed obsessed with the two men.

Another witness, John Campbell, testified that he had

business dealings with both appellant and the victim. Camp-

bell related that appellant told him he hated the victim and

wanted to kill him. When Campbell asked if appellant was

going to shoot the victim, appellant replied in the negative.

Appellant further replied that shooting the victim with a gun

would be too easy and he wanted to make him suffer.

Skelton also told Campbell that he had been a demolitions

expert in the military. On another occasion appellant told

Campbell that he was going to falsely accuse the victim and

Bob Fowler of stealing equipment from him in order to get

them convicted and sent to the penitentiary.

A-7

In an attempt to rebut appellant’s alibi witnesses the State

also called Sheridan Carol Kirkland to the stand. Kirkland, a

former neighbor of appellant testified that she saw appellant

driving down an Odessa street at 3:00 p.m. on April 25,

1982, the day after the bombing. Kirkland testified that she

noticed at that time that appellant looked especially tired.

Another neighbor, Carrie Scholl, testified that appellant

called her the evening of the bombing. When she told him

about the bombing, he appeared to be shocked. After her

testimony the State rested.

In his portion of rebuttal, appellant introduced evidence

showing that the call to Carrie Scholl had been made from

Room 404 of the Interstate Inn Motel in Springfield,

Missouri.

During this portion of the case, appellant took the stand.

He related that he obtained the dynamite in Tennessee for

the purpose of blowing up tree stumps on his farm in Arkan-

sas. However, he was never able to use the dynamite for that

purpose because it was stolen out of his truck in Springfield,

Missouri. He also related that he was in Springfield,

Missouri from April 16 to April 26 and during that time he

stayed in Room 404 of the Interstate Inn Motei. He testified

that he called Carrie Scholl on the evening of April 24 in an

attempt to locate his wife, and when Scholl told him that

‘*Joe Fowler’’ had been killed by an explosion, he thought

she was kidding. Appellant also admitted talking to Robbie

Smart over the telephone on May 7. He testified that he call-

ed Robbie at O. C. Neatherlin’s Fiat dealership to discuss the

repair of Neatherlin’s steam cleaner by Robbie. It was during

this conversation that Robbie told him that Joe Neal had

been killed and that the police wanted to talk to him. Ap-

pellant denied that he had ever received any magnets from

Robbie Smart.

In his sixth and seventh points of error, appellant argues

that the evidence is insufficient to convict him either as a sole

actor or as a party. The indictment in the instant case con-

tained two paragraphs. The jury was charged on the first

paragraph which alleged that appellant did:

A-8

‘*knowingly and intentionally while in the course of

committing and attempting to commit arson of a

vehicle owned by Joe Neal, intentionally cause the

death of Joe Neal, hereafter styled the Complai-

nant by placing an explosive weapon on the vehicle

of the Complainant, and causing said weapon to

explode.’’

In addition, the jury was charged that they could convict ap-

pellant either by his acts alone or as a party. The verdict of

the jury does not indicate whether they found appellant guil-

ty aS a party or as acting alone.

In both circumstantial and direct evidence cases the stan-

dard by which evidence is reviewed is whether any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Houston v. State, 663

S.W.2d 455 (Tex.Cr. App. 1984); Carlsen v. State, 654

S.W.2d 444 (Tex.Cr.App. 1983); Butler v. State, 769 S.W.2d

234, 238 (Tex.Cr. App. 1989). In Denby v. State, 654

S.W.2d 457, 464 (Tex.Cr.App. 1983) (Opinion on Rehear-

ing), this Court noted that ‘‘if the evidence supports an in-

ference other than the guilt of the appellant, a finding of

guilt beyond a reasonable doubt is not a rational finding.”’

Proof which amounts to only a strong suspicion or mere pro-

bability is insufficient. It is the appellate courts’ function to

ensure that no one is convicted of a crime except on proof

beyond a reasonable doubt.

After viewing the evidence in the light most favorable to

the verdict, as we are constrained to do, Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we find

that we agree with appellant as to both points. Although

there is plentiful evidence to show that appellant made

numerous threats against the victim and that two weeks

before the offense he was in possession of materials similar

to those used in the commission of the offense, we find no

evidence which connects appellant with the actual setting of

the bomb, nor is there any evidence showing that he

solicited, encouraged, directed, aided or attempted to aid

another individual to place the bomb. V.T.C.A., Penal

Code, Section 7.02(a) (2). The evidence, even when viewed in

the light most favorable to the verdict, suggests at least one

hypothesis other than the guilt of appellant: that is, that so-

meone else unbeknownst to appellant committed the of-

fense.

A-9

The only evidence which even comes close to linking ap-

pellant to the actual placing of the bomb is the fact that in

late March or early April, appellant obtained eleven sticks of

dynamite from Blevins Ditching and Excavating Company in

Jamestown, Tennessee. In addition, the State produced

testimony that on March 20, appellant had asked Robbie

Smart to procure four magnets for him from the Husky

Steam Cleaning inventory, but not to put the transaction on

the books. Instead Smart was to substitute new magnets in

their place. The State, in its argument to the jury at the con-

clusion of the guilt-innocence phase relied heavily on

testimony from Danny Kirby, the supervisor of the DPS lab

in Houston, in arguing that the scraps of dynamite paper and

pieces of magnet found at the scene of the blast could be tied

to appellant. The State in that argument misconstrued

Kirby’s testimony and because of that misconstruction we

now set out Kirby’s testimony in some detail to show how the

State’s case was deficient.

As noted above, Kirby testified that he was given State’s

Exhibit 95 (a piece of wrapper taken off a stick of dynamite

obtained by the police from Blevins Ditching and Excavating

Company in Jamestov.n, Tennessee, State’s Exhibit 96 (a

scrap of dynamite paper found in the vehicle behind the

driver’s seat after the blast) and State’s Exhibit 89 (long

fibrous materials found with several pieces of metal at the

bomb scene). State’s Exhibit 95 had been removed from a

piece of dynamite manufactured by the Austin Powder Com-

pany with a date shift code of 2C0254. During the State’s

direct examination of Kirby, the followng testimony was

elicited:

‘‘Q. And would you tell the -- are these the items that

you did the comparison on to locate fibers from

the paper of the dynamite?

“*A. Yes.

**Q. All right. Now then, wouid you please tell the jury

how you tested these items to come to any type of

conclusion?

‘‘A. Okay. The fibers found here in these pieces of

metal, also the pieces of metal inside here were

upon the surface of the metal and I removed those

fibers from that fibrous material and

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A-10

looked at them microscopically and also ran a

solubility test, or a second solubility test and a

G.C. Pyrolysis. I did the same for State’s Exhibit

No. 96 which is the brown rolled paper substance

which was found in the Neal vehicle, and the same

-- | removed some of the wrapper material that

was submitted by Frankie Hodges which is State’s

Exhibit 95 and ran the same test on those. The

results were these fibrous material found on all of

these did have the same chemical and physical

properties.

Did you examine (State’s Exhibit 89)?

Yes, I did.

And you did then also examine State’s Exhibit

No. 95, the dynamite wrapper submitted by the

Alcohol, Tobacco & Firearms from the Ike

Blevins place of business?

Yes, I did.

And you did also examine State’s Exhibit No. 96,

a piece of fibrous material found in the back of

the Joe Neal vehicle, and you did conduct those

tests; is that correct?

Yes, I did.

And all those match?

Yes, they do.”’

During cross-examination the following occurred:

ie?

ot

m2

And your examination into those three exhibits,

95, 96, and 89 just showed they were the same type

of paper?

The same type of material, yes, sir.

Under accord with the three tests that you made

there were no dissimilarities?

A-11

**A. No dissimilarities that I noticed.

*‘Q. And those tests merely indicated that all of those

items could have made a common origin?

““A. Yes, sir.

**Q. And could not have a common origin?

‘*A. I am sorry?

‘*Q. And could not have had a common origin?

‘*A. And may have not had.”’

Viewing this testimony in the light most favorable to the ver-

dict, there is nothing in this testimony which shows that the

dynamite obtained by the appellant, was the same dynamite

used in the explosion. At most it demonstrates that the paper

used to wrap the various sticks of dynamite was made out of

the same ingredients. This evidence does not foreclose that

someone other than appellant could have obtained dynamite

wrapped in the same kind of paper and made a bomb with

which to kill the victim.

Similar evidence was adduced concerning the various

nagnets involved in the case. Kirby was asked to test State’s

_xhibits 69 and 71 (the parts of a magnet found at the scene

of the explosion), State’s Exhibit 84, (the magnets returned

to Husky by Robbie Smart after the explosion) and State’s

Exhibit 88 (the sole magnet remaining in the Husky inven-

tory after Robbie Smart removed four magnets and gave

them to appellant). Kirby testified that he performed three

types of tests on paint scrapings taken from the magnets:

**Q. So to the best of your scientific knowledge, and

based on your scientific analysis, the properties

contained in all of those magnets, the ones sub-

mitted by Detective Smith from Husky, the one

submitted by the crime scene and the one submit-

ted by Detective Smith in the group basically have

all the same characteristics?

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A-12

Yes, especially the paints.

So the best of the scientific state in the art of

analysis at this time, through all the testing that

you have done and been experienced with, those

magnets have the same properties?

Yes, and the paints do. I should clarify that the

paints and the magnets do.”’

On cross-examination, the following occurred:

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Your test of the red paint on the magnet has in-

dicated they were all painted with the same kind of

paint? ~ -

Yes, sir.

As are probably millions of other objects in the

world?

I don’t know.

But there could be innumberable things that are

painted with that same kind of red paint?

There again, I am not sure. I am not sure where

the paint came from, what they utilize that par-

ticular paint for other than magnets.

Right. But the magnets were just all painted with

the same kind of red paint. That is all that means?

Yes, sir.

And it would be if Joe Neal had owned that red

magnet like that, it would be the paint would

match on that; wouldn’t it?

I didn’t test one. I don’t know.

Right. But all that shows was that those three

magnets were painted or all those magnets were

painted with the same red paint?

A-13

‘““A. Yes, Sir.

“‘Q. And it is probably safe to assume that every

magnet that that company ever made was painted

with the same kind of red paint?

‘‘A. It may be. It is possible, yes, sir.’’

Although the evidence against appellant leads to a strong

Suspicion or probability that appellant committed this

capital offense, we cannot say that it excludes to a moral cer-

tainty every other reasonable hypothesis except appellant’s

guilt. Nathan v. State, 611 S.W.2d 69 (Tex.Cr.App. 1981);

Flores v. State, 551 S.W.2d 364 (Tex.Cr.App. 1977).

Specifically, there remains the outstanding possibility that

someone other than appellant committed the offense.

This Court encountered a similary situation in Nathan v.

State, supra. In Nathan, the victim’s body was dis-

covered on a Texas beach a little over four years after the vic-

tim’s disappearance. Nathan was convicted of murder with

malice. On appeal, Nathan argued the evidence was insuffi-

cient to prove that he committed the offense. The States’

evidence showed the following:

‘“(1) The deceased, a man of regular habits who

was planning a trip to Louisiana the next day, left

his home on the morning of October 6, 1972, to

collect a debt or debts. He usually carried $200.00

to $300.00 or more dollars in cash. He never return-

ed home.

(2) The deceased indicated that morning to the

witness Ford he intended to see the appellant about

a debt due him.

(3) The deceased was placed at the Sunlight Baptist

Church on that date inquiring about the appellant.

(4) The deceased was seen leaving the area of the

church with the appellant in his car on Cedar Street

about 10 a.m. on October 6, 1972. This was the last

time he was seen alive.

A-14

(5) The appellant called his place of employment at

2:45 p.m. on the date in question and said he could

not drive the afternoon school bus.

(6) When the deceased did not return home at 8

p.m. on October 6, 1972, a search led to the ap-

pellant, who took relatives to the Sunlight Baptist

Church where he claimed he had last seen the ap-

pellant working on his car. The car was found there

and was in working order. Appellant was described

by witnesses as being nervous and acting strange

and attempting to lead them on ‘wild goose chases.’

(7) Leroy Broussard testified that while searching

for his uncle with the appellant the next morning

(October 7, 1972) the appellant had displayed a

pistol and stated a spot on the back of his car was

rabbit blood. Appellant also told police officers the

spot was rabbit blood. When the car was turned

over to the police for examination, it appeared to

have been washed and the seats appeared to have

had water or other fluid used on them.

(8) A chemist testified that some of the stains in ap-

pellant’s car were of human blood but could not be

typed. It could not be determined whether other

blood stains were human or animal.

(9) Dr. Jachimezyk testified the bullet holes in the

shirt were made by a .32 caliber weapon or a small

weapon.

(10) The police found .32 caliber shells in the com-

partment of appellant’s car.

(11) The remains contained coins, etc., as earlier

described but no billford, or wallet with cash as

normally carried by the deceased was found.

(12) Although the appellant was unable to pay the

full amount of the motel bill on October 4, 1972, he

was able to pay the balance several days later. And

on October 7, 1972, he gave $123.00 to Shirley

A-15

Little and paid a gasoline bill and other bills about

that date. It was shown he spent $271.40 from Oc-

tober 7th and October 9th.

(13) Over three years after the disappearance of the

deceased in November, 1975, the appellant told his

current girlfriend, Vera Jones, during an argument

over the termination of their relationship that he

had ‘got rid of one person’ and could ‘get rid of

another’ and no one would find out.’’ 611 S.W.2d

at 76-77 (footnote omitted)

This Court after reviewing the evidence found that although

the proof cast great suspicion on Nathan, the State had not

succeeded in excluding every other reasonable hypothesis.

Thus Nathan’s conviction was reversed and an acquittal was

entered.

The case of Flores v. State, supra, is also very similar.

Flores was a murder case in which the most damaging

evidence against the defendant was that he was found in

possession of the deceased’s car approximately twenty-four

hours after the deceased was last seen alive. When Flores was

arrested some six weeks later he was still in possession of the

deceased’s car, the car bore license plates which had been

issued to another car and there was evidence that Flores had

recently stored a suitcase with many items belonging to the

deceased. While finding that the evidence cast great suspi-

cion on Flores, this Court found that the evidence did not ex-

clude to a moral certainty every other reasonable hypothesis

except the appellant’s guilt.

We see no difference between Nathan, Flores and the ins-

tant case. Although this Court does not relish the thought of

reversing the conviction in this heinous case and ordering an

acquittal, because the evidence does not exclude every other

reasonable hypothesis, we are compelled to do so. The

judgement is reversed and an order of acquittal is entered.

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57

L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct.

2151, 57 L.Ed.2d 15 (1978).

McCormick, Presiding Judge

A-16

(Delivered December 13, 1989)

En Banc

Publish

Miller, J., dissents

White, J., not participating

A-17

JOHN SKELTON, Appellant

NO. 69,215 v. Appeal from ECTOR COUNTY

THE STATE OF TEXAS, Appellee

DISSENTING OPINION

I dissent. I believe the evidence sufficiently supports the

jury’s verdict of guilt.

The standard of review for sufficiency claims in whether,

viewed in the light most favorable to the judgment, any ra-

tional trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Builer v. State, 769

S.W.2d 234 (Tex.Cr.App. 1989). This identical standard ap-

plies to sufficiency challenges involving circumstantial

evidence cases.

Id.

In the case at bar, appellant had the motive; indeed, the

express intention, to kill the victim. Appellant acquired

horse shoe magnets and dynamite - key ingredients to the

bomb - shortly before the victim met his death. Appellant in-

dicated something ‘‘spectacular’’ that would make the

newspapers was going to happen. Appellant’s dubious claim

that the dynamite was stolen from his truck, along with ap-

pellant’s bizarre series of phone calls to Robbie Smart and

Carrie Scholl, also implicate appellant. Furthermore, given

that the jury received a ‘‘parties charge’’ in this case, I would

find the evidence sufficient to exclude every other reasonable

hypothesis other than appellant’s guilt. Willis v. State, No.

Jk. eee, |S ee

(Tex.Cr. App. delivered June 7, 1989).

Accordingly, I respectfully dissent.

BERCHELMANN, Judge

Delivered: December 13, 1989

EN BANC

PUBLISH

B-|

APPENDIX B

OFFICIAL NOTICE FROM CLERK’S OFFICE

COURT OF CRIMINAL APPEALS

COURT OF CRIMINAL APPEALS OF TEXAS

CLERK’S OFFICE

Austin, Texas December 29, 1989

Dear Sir:

I have this day received and filed the state’s motion for

rehearing

In Cause No. 69,2/5, John Skelton

vs.

THE STATE OF TEXAS, Appellee.

Sincerely yours,

Thomas Lowe, Clerk

RECEIVED IN ECTOR COUNTY DISTRICT AT-

TORNEY’S OFFICE, ODESSA, TEXAS

C-1

APPENDIX C

OFFICIAL NOTICE FROM THE CLERK’S OFFICE

COURT OF CRIMINAL APPEALS

COURT OF CRIMINAL APPEALS OF TEXAS

CLERK’S OFFICE

Austin, Texas, May 2, 1990

Dear Sir:

I have been instructed to advise that the Court has this day

denied the State’s Motion for Rehearing in Cause No. 69,2/5

John Skelton

Vs.

THE STATE OF TEXAS Appellee.

Sincerely yours,

THOMAS LOWE, Clerk

RECEIVED IN ECTOR COUNTY DISTRICT AT-

TORNEY’S OFFICE, ODESSA, TEXAS

|

D-1

APPENDIX D

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

JOHN SKELTON CAUSE NUMBER: 69,215

VS.

STATE OF TEXAS

On this 14th day of May __, 1990, came on to be

considered the motion of the Assistant District Attorney to

Stay the issurance of the mandate in this cause for a period of

60 days.

AND SUCH MOTION is hereby granted. The mandate in

this cause is due to issue on 7-13-90.

IT IS SO ORDERED.

PER CURIAM

A TRUE COPY ATTEST:

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thomas Lowe, Clerk

Court of Criminal Appeals |

By: bs :

Deputy Clerk

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D-2

APPENDIX D

AUSTIN, TEXAS

JOHN SKELTON CAUSE NUMBER: 69,215

VS.

STATE OF TEXAS

On this 5th day of July, 1990, came on to be considered the

second motion to stay execution of mandate filed by the

assistant district attorney in the above-styled cause.

AND SUCH MOTION IS HEREBY GRANTED for a

period of ten days from the current deadline. The mandate in

this cause is due to issue on 7-23-90.

IT IS SO ORDERED.

PER CURIAM

A TRUE COPY ATTEST:

srewer etic,

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feczeet®,

0;

Thomas Lowe, Clerk

Court of Criminal Appeals

Deputy Clerk