     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-00-00188-CR



                                   Calvin Oliver, Appellant

                                               v.

                                 The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
          NO. 0992924, HONORABLE BOB PERKINS, JUDGE PRESIDING



               Calvin Oliver appeals from his conviction for murder. Tex. Penal Code Ann.

§ 19.02(b) (West 1994).      After the jury found him guilty, it assessed punishment at life

imprisonment in the Texas Department of Criminal Justice—
                                                        Institutional Division and a $10,000

fine. In two issues on appeal, appellant challenges the sufficiency of the evidence to support his

conviction in general and in particular challenges the sufficiency of the evidence to prove the

corpus delicti of the offense. We will affirm the trial court’s judgment.


                                     Factual Background

               Tiffany Rowles testified about the events that she observed around Thanksgiving

of 1997. She and her boyfriend, Sean McNatt, had been friends with appellant and Jennifer

Stover for about five or six months. Appellant and Stover had had an on-again, off-again

relationship; Stover had been living in Dallas for awhile just before the described events. Rowles

and McNatt went to appellant’s residence to have dinner with appellant and Stover two or three
days before Thanksgiving. 1 During dinner, Stover and appellant fought about a journal she kept,

apparently because it had information about a possible relationship between Stover and someone

other than appellant. Appellant began to tear pages out of the journal and scream at her but had

not physically abused her at the time that Rowles and McNatt left. Rowles and McNatt returned

the next day and witnessed appellant force feed Stover prescription drugs at gunpoint. From that

point on, Rowles said she never saw appellant without his gun, which she recognized as a .357

magnum. While he was making Stover take the drugs, he was punching her in the face and

stomach. He would not allow Rowles to write down the name and address of Stover’s family as

Stover wanted so that Rowles could contact them. Rowles also testified that appellant “cut”

Stover, poured Clorox over her wounds, and forced her into a tub of cold water while blowing

a fan on her. He poured liquid detergent down Stover’s throat when she was unconscious to make

her choke and revive. Appellant also told Rowles that he had ripped out Stover’s nipple rings and

inserted a hot curling iron and nunchucks, a martial arts weapon, into Stover’s vagina. Appellant

continued torturing Stover for about three days. The last time Rowles saw Stover she was alive

as far as Rowles could tell but was beaten and very badly hurt. The reason that Rowles did not

go for help at that point was that appellant had threatened her and her son.

               Approximately a day after Rowles last saw Stover, appellant called Rowles’s home

and asked Rowles and McNatt to come back over to his trailer. Stover was no longer there.



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     Some of the time sequences were vague, both in the testimony at trial and in the statements
given at the time of the events because Rowles and McNatt were heavy cocaine users at the time.
Appellant sold them cocaine, which was one reason why they were visiting him. They testified
about their drug use in front of the jury.

                                                2
Appellant first said that Stover had gone back to Dallas and then that he had “sold” her to

someone in Mexico. Later that afternoon, a neighbor’s young child came to appellant’s residence

complaining that there was a strange smell coming from his garage.

               McNatt generally testified to the same events as Rowles. Further, McNatt said he

and appellant were watching the news together and appellant said that “they hadn’t found her yet.”

He then said, “Yeah, she’s gone.” Appellant first told McNatt that he had “sold” Stover to some

friends in Austin for “drugs or money.” He later said that Stover was dead and told McNatt to

smell the trunk of his car. McNatt said that appellant’s garage and car trunk smelled like a dead

animal, only worse. Rowles went into the garage with McNatt and the smell was so bad that she

ran to the bathroom and threw up. McNatt came into the bathroom at that point and said that

Appellant said that he “needed someplace to dump her” and that if Rowles found out he would

kill her too because he knew a woman would be the first person to go to the police. Later, when

McNatt asked how he had killed Stover, appellant responded that he had made her perform oral

sex on him while she was semi-conscious and he made her choke on his semen. Rowles and

McNatt eventually left and called the police.

               Officer Don Rios2 was the first person to interview Rowles and McNatt. He

described Rowles as extemely scared and crying hysterically. He described McNatt as appearing

to be in shock. Partway through taking the report, he called for a detective due to the severity of

the events described and also called for another officer to help watch the house because of the fear

Rowles and McNatt expressed.


   2
       All detectives and officers are employees of the Travis County Sheriff’s Department.

                                                 3
               Detective Jim Anderson was called to come to the Travis County Sheriff’s central

office to investigate further. He took Rowles’s statement. Anderson then began searching for

appellant’s vehicle. Anderson went to appellant’s residence where he encountered appellant and

a friend. Anderson asked for consent to search the trailer, explaining to appellant that the search

was related to suspected foul play in Stover’s disappearance. 3 On entering, based on his initial

viewing of the scene, Anderson called for a team of crime scene technicians. Anderson noticed

that the carpets had been cleaned; the carpet in the master bedroom was still wet. The detective

found half a gallon of carpet shampoo, wet rags that had been used to clean the carpet, and

vacuum parts in appellant’s sink. Anderson found evidence corroborating the statements from

Rowles and McNatt. He found nunchucks on appellant’s dresser which appeared to have hair on

them, an empty bottle of Stover’s prescription medicine, and an empty gun holster that could have

held the described gun. The gun was not found at that time, but was later recovered with one

bullet missing. Detective Manuel Villanueva described the search of the garage that revealed what

at first appeared to be a wig with a pony-tail holder in the hair; a later inspection revealed there

was no liner as would be expected with a wig and the hair looked like it had been cut off. More

of Stover’s pill bottles were found, as well as a purse.

               Detective Richard Wines accompanied Anderson to headquarters where he

interviewed McNatt. He described finding an indentation in the bathroom wall that would have

matched a bullet being fired into the wall or ricocheting into the wall. There was also an



   3
     Appellant consented to the search while an officer was in the process of obtaining a search
warrant.

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indentation beside the toilet that would have been consistent with someone being pushed or falling

against the wall. He testified that he was familiar with the smell of a human body as it began to

decompose and that was the smell he smelled when he opened the trunk of appellant’s car.

               Deputy Hughes described the test on a spare tire cover found in appellant’s car

trunk. The crime scene test showed positive results for blood. This blood was later tested against

a known pre-disappearance medical specimen from Stover and produced a positive DNA-match

that identified the blood as hers.

               At that point, February 1999, an arrest warrant for appellant was executed.

Appellant was arrested in July 1999 near St. Louis, Missouri. After being read his rights,

Appellant made two written, signed statements. In one, he said that he and Stover had spent a few

days together, he asked her to leave, and he had not seen her since. In the second, made the same

day, appellant said that Stover was depressed and committed suicide by taking an overdose of her

prescription medicine. Appellant said he tried to save her, but she died. He wrapped her body

in a blanket and put her in the trunk of the car but did not remember much else. At some point

he drove somewhere with the body and disposed of it but did not remember where.

               There was testimony that Stover was still listed with the Department of Public

Safety Missing Persons Clearinghouse and regular checks on her social security number failed to

reveal any activity using that number. Stover was the mother of two children and her former

husband testified that the regular contact she had always had with the children ceased. No one

else in Stover’s family had heard from her since November 1997. Several witnesses testified to




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witnessing incidents of abuse by appellant toward Stover; one testified that Stover was afraid of

appellant.


                                            Discussion

Corpus Delicti

               In his first issue, appellant argues that, because it cannot be confirmed physically

that Stover is dead, the evidence is insufficient to establish the corpus delicti of the offense. We

disagree.

               In general, the corpus delicti of an offense consists of the fact that someone

committed the crime in question. The corpus delicti of murder is established if the evidence

shows the death of a human being which was caused by the criminal act of another. McDuff v.

State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 844 (1997); Fisher

v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993); Smith v. State, 968 S.W.2d 452, 461

          Amarillo 1998), vacated & remanded on other grounds, 5 S.W.3d 673, 679 (Tex.
(Tex. App.—

Crim. App. 1999). The State is not required to produce and identify the body or remains of the

decedent in order to establish the corpus delicti. McDuff, 939 S.W.2d at 614; Fisher, 851 S.W.2d

at 303. The State’s inability to produce and identify the victim’s body does not preclude a murder

conviction as long as the corpus delicti of the offense is proven by way of circumstantial evidence.

See McDuff, 939 S.W.2d at 614; Fisher, 851 S.W.2d at 303.

               Under the common law corpus delicti rule, an extra-judicial confession alone is

insufficient to support a murder conviction. Fisher, 851 S.W.2d at 302; Jackson v. State, 652



                                                 6
S.W.2d 415, 419 (Tex. Crim. App. 1983). However, if there is some evidence tending to

corroborate the confession, then the confession may be used to establish the corpus delicti.

Fisher, 851 S.W.2d at 302; Smith, 968 S.W.2d at 461. The corpus delicti need not be proven

independently of the extra-judicial confession; there need only be independent evidence tending

to prove the corpus delicti. Fisher, 851 S.W.2d at 303-03; Smith, 968 S.W.2d at 461. The task

of the reviewing court is simply to consider all the evidence in the light most favorable to the

conviction to determine whether the evidence tended to show that the death of the named

complainant was caused by the criminal act of the charged party. Fisher, 851 S.W.2d at 303;

Smith, 968 S.W.2d at 461.

               The fact finder had sufficient evidence before it to establish the corpus delicti of

murder. The last time that Stover was seen was at appellant’s residence; alive, but injured. The

jury had before it the testimony of two eyewitnesses4 to events occurring around Thanksgiving,

1997. As set out above, they testified to extensive torture committed by appellant. The police

found physical evidence that corroborated the witnesses’ stories: they found evidence of extensive

cleaning in the areas that corresponded to the account of events as well as the other physical

evidence that corroborated both stories. The police discovered blood in the trunk of the car,

which proved a positive DNA match for Stover. One detective testified that he recognized the

smell of a body that had begun to decompose when he examined the trunk. The jury had evidence




   4
      Appellant contends the witnesses are not credible because they are drug addicts. The jury
had that information before it; it is their province to weigh the credibility of the evidence. The
jury had before it extensive physical evidence that corroborated the eyewitness’ testimony.

                                                7
that Stover had not been seen or heard from, nor had her Social Security number been used for

any reason.

                  Appellant told several versions of what occurred to Stover. In one, she simply left.

In another, he “sold” her to a gang in Austin for drugs. In another, she died accidentally, he

panicked, and could not remember where he hid the body. McNatt’s testimony about appellant’s

“needing a place to dump her, ” appellant’s concern that a woman would be likely to go to the

police, and statement that “Rowles would be next” supplied a basis to infer that he had killed

Stover. In talking to McNatt, he first said, after hearing a news report: “Oh good, they have not

found her yet.” He then described to McNatt how he had killed her. The jury was entitled to

choose which of appellant’s versions of events to believe, including the one in which he confessed

to killing her.


Legal and Factual Sufficiency

                  In his second issue, appellant challenges the legal and factual sufficiency of the

evidence to prove guilt beyond a reasonable doubt. When the court reviews the legal sufficiency

of evidence, it does so in the light most favorable to the verdict to determine whether a rational

finder of fact could have found all the elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979); Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App.

1998), cert. denied, 526 U.S. 1070 (1999). If there is evidence that establishes guilt beyond a

reasonable doubt and if the fact finder believes the evidence, the reviewing court is not in a

position to reverse the judgment on sufficiency of the evidence grounds. Moreno v. State, 755



                                                   8
S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury as trier of fact is entitled to resolve any

conflicts in the evidence, to evaluate the credibility of the witnesses, and to determine the weight

to be given any particular evidence. Id.

               When the court reviews the factual sufficiency of the evidence, it puts aside the

prism of the “light most favorable to the verdict.” Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim.

App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); Stone v. State, 823

S.W.2d 375, 381 (Tex. App.—
                          Austin 1992, pet. ref’d untimely filed). The reviewing court

considers all the evidence in a neutral light and reverses if the verdict is so contrary to the

overwhelming weight of the evidence as to be unjust. Johnson, 23 S.W.3d at 7; Santellan v.

State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 134. The jury’s

verdict, however, should still be accorded due deference so that the reviewing court does not, in

effect, become the thirteenth juror. See Clewis, 922 S.W.2d at 133. The appellate court does not

interfere with the jury’s resolution of conflicts in the evidence or pass on the weight or credibility

of testimony. Unless the record clearly reveals that a different result was appropriate, an appellate

court should defer to the jury’s determination concerning what weight to give contradictory

testimonial evidence because the jurors’ resolution of such conflicts often turns on an evaluation

of credibility and demeanor by the jury. See Johnson, 23 S.W.3d at 8.

               Appellant challenges the sufficiency of the evidence based in part on the fact that

Rowles and McNatt were drug addicts. However, that information was before the jury and it had

the opportunity to evaluate the witnesses’ credibility in light of that knowledge.           Witness

credibility is a jury decision; our review of the record does not reveal a result other than deference


                                                  9
to the jury’s determination is appropriate. See Johnson, 23 S.W.3d at 8. We have extensively

detailed the evidence under issue one; extensive circumstantial evidence as well as two admissions

of guilt to McNatt provide legally sufficient evidence to support the verdict. A neutral view of

the evidence does not lead to the conclusion that the verdict is against the overwhelming weight

of the evidence. The evidence is factually sufficient to support the verdict. Accordingly, we

overrule appellant’s second issue.


                                           Conclusion

               We have reviewed the record and hold that the corpus delicti of murder was

established and that legally and factually sufficient evidence supports appellant’s guilt beyond a

reasonable doubt. We affirm the judgment of conviction.




                                             Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

Affirmed

Filed: December 7, 2000

Do Not Publish




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