# Petition for Writ of Certiorari — Texas v. Skelton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2535%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 878 ## Text wy! me? me. =~. nts) “<2. 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: ~ eae , ee Sd thomas Lowe, Clerk Court of Criminal Appeals | By: bs : Deputy Clerk ue = - See een se® OF PTO Qo LI 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, FTG a feczeet®, 0; Thomas Lowe, Clerk Court of Criminal Appeals Deputy Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2535%3A1. Public record. Not legal advice.