                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00335-CR


JEROME OVERSTREET                                                   APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                I. INTRODUCTION

      A jury found Appellant Jerome Overstreet guilty of capital murder, and the

trial court assessed his punishment at life imprisonment.      In seven points,

Overstreet argues that insufficient evidence exists to sustain his conviction and

that the trial court erred by overruling his motion to suppress evidence seized

from his home pursuant to a search warrant. We will affirm.

      1
       See Tex. R. App. P. 47.4.
                    II. FACTUAL AND PROCEDURAL BACKGROUND

      Overstreet was married to Vicki Overstreet. They had a rocky marriage,

and according to Vicki‘s friends and family, Overstreet was abusive and

controlling. In September 2007, Vicki, fearing for her life, left Overstreet and her

hometown of Wichita, Kansas and moved to Texas. She wanted to make a clean

break from Overstreet, but after some time in Texas, she began talking to

Overstreet again.     He started occasionally visiting her on weekends at her

apartment in Texas.

      On Wednesday, November 6, 2007, Vicki told her sister Tammy Foster

that she planned to tell Overstreet that she did not want to reconcile with him.

On Thursday, Vicki told Tammy that when she broke the news to Overstreet, he

became angry. That same day, Vicki talked to her daughter, Melissa Collins.

Vicki told Melissa about her argument with Overstreet and said that Overstreet

had told her that he was coming to Texas to get her.

      Vicki did not show up for work on Friday or Saturday. Melissa was unable

to reach her mother over the weekend, so she called Overstreet and asked if he

had visited Vicki over the weekend; Overstreet told Melissa that he had not been

in Texas and had not spoken to Vicki. Overstreet also told Vicki‘s son Lamont

Webb that he had not talked to Vicki since the prior Thursday.

      When Vicki did not show up for work on Monday morning, her employer

called the police. Police officers went to her apartment to check on her. Her

door was locked, so they got a key from management. The officers found Vicki


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lying dead on the floor in her apartment. Her face was scratched, blood had run

down her cheek from her left nostril, and her forehead and eye sockets were

severely bruised. Her stomach was discolored and appeared to be bruised, her

pants and underwear were down around her mid thighs, and her shirt was raised

to expose the bottom half of her bra. Her left thigh appeared to have a bruise in

the shape of a hand impression on it, and her wrists and arms were bruised.

Officers saw traces of tape adhesive on her wrists and arms, but they did not find

any tape in her apartment. The officers suspected that Vicki had been sexually

assaulted.

      The carpet appeared as if it had been freshly vacuumed because there

were vacuum markings on it, yet officers could not find a vacuum in the

apartment. In the bathroom trashcan, officers found a grocery store receipt from

a nearby Kroger store in Euless that was for the purchase of a bottle of Riunite

wine on Friday, November 9, 2007. The purchaser had used a debit card that

was registered to Overstreet. A surveillance video from the Kroger store taken

on November 9 confirmed that Overstreet had made the purchase. The bottle of

wine was not found in the apartment.         One wine glass was on the kitchen

counter, and officers also found a box for two wine glasses matching the

description of the glass they found, but they did not find the other matching glass.

      Cell phone tower records for Overstreet‘s mobile phone number showed

that, on Friday, November 9, phone calls were made from that number in Wichita

at 6:13 a.m. and 6:50 a.m.; in Southaven, Kansas at 10:17 a.m.; in Edmond,


                                         3
Oklahoma at 11:49 a.m.; in Sanger, Texas at 2:31 p.m.; and in Euless at 3:46

p.m. Several calls were made in the Euless area from that afternoon until 1:26

a.m. on Saturday morning, and the next call was not made until 7:39 a.m. on

Saturday morning from Springer, Texas. By 12:08 p.m., calls were made from

the Wichita area. According to Overstreet‘s employer, Overstreet clocked in to

work on Wednesday, November 7, took vacation days on November 8 and 9,

and next clocked in on Monday, November 12.

      Euless detective Tony Bennett went to Wichita and interviewed Overstreet.

Overstreet told Bennett that he had last spoken with Vicki on Friday, November

9, by telephone. Euless police officers worked with Wichita police officers to

obtain a warrant to search Overstreet‘s house in Wichita. From Overstreet‘s

house, officers seized a bottle of Riunite wine, a canister to a Dirt Devil vacuum,

keys, papers with Overstreet‘s name on them, and an insurance policy in Vicki‘s

name.

      Crime lab testing on the contents of the vacuum‘s canister showed that

carpet fibers and glitter found in the canister were chemically and microscopically

the same as the carpet fibers and glitter found in the carpet of Vicki‘s apartment.

Testing of three sections of carpet taken from Vicki‘s apartment showed a ―strong

presence‖ of semen; Overstreet‘s DNA was an identical match to the semen on

two of the carpet cuttings, as well as to semen found on a pillowcase taken from

the apartment. A partial male DNA profile was found on a second pillowcase,




                                        4
which had been lying on Vicki‘s body when officers found her; the majority of

Overstreet‘s DNA profile was present in the mixture on that pillowcase.

      An examination of Vicki‘s body showed signs that Vicki‘s mouth and nose

had been smothered and that Vicki may have been strangled.             The medical

examiner also saw evidence that Vicki had suffered blunt force trauma on her

head, chest, abdomen, and thighs. The bruising on Vicki‘s thighs was consistent

with someone forcing her legs apart. The medical examiner opined that Vicki

had died of traumatic asphyxia. Vaginal swabs collected from Vicki‘s body tested

weakly positive for semen, but further ―confirmatory test[s]‖ were negative for

semen.

                        III. SUFFICIENCY OF THE EVIDENCE

      In his first and third points, Overstreet complains about the legal sufficiency

of the evidence. In his second and fourth points, he complains about the factual

sufficiency of the evidence.    Because the Texas Court of Criminal Appeals

recently held in Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010),

that there is no meaningful distinction between the factual sufficiency standard

and the legal sufficiency standard, we analyze Overstreet‘s insufficiency

arguments under only the legal sufficiency standard.

                   A. Legal Sufficiency Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the


                                         5
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the

weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04

(Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008),

cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine whether

the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

                           B. Law on Capital Murder

      A person commits the offense of capital murder if he intentionally causes

the death of an individual in the course of committing or attempting to commit

                                        6
aggravated sexual assault.    Tex. Penal Code Ann. §§ 19.02(b)(1), .03(a)(2)

(Vernon 2003). A person commits the offense of aggravated sexual assault if he

intentionally or knowingly causes the penetration of the anus or female sexual

organ of another by any means without the person‘s consent and if, in the course

of the same criminal episode, he causes serious bodily injury or attempts to

cause the death of the victim. Id. § 22.021(a) (Vernon Supp. 2010).

           C. Sufficiency of the Evidence to Prove Capital Murder

      In his first and second points, Overstreet argues that the evidence is

insufficient to connect him to Vicki‘s death and that ―[a]t best, the State proved

that [he] visited [Vicki] on the weekend she was killed and took some items with

him when he left.‖   In his third and fourth points, Overstreet argues that the

evidence is insufficient to prove that he committed the violent acts necessary to

commit the offense of aggravated sexual assault as an element of capital

murder.

      The evidence presented at trial establishes that Overstreet drove to Euless

on Friday morning, making various calls along the way and arriving sometime

between 2:30 and 3:45 p.m. Overstreet purchased a bottle of wine at a store

near Vicki‘s apartment around 3:30 p.m. that day, and the receipt for the wine

ended up in a trash can in Vicki‘s apartment. However, when Vicki‘s daughter

and son talked to Overstreet the following Monday, he told them that he had not

been to see Vicki over the weekend. He told Lamont that he had not talked to

Vicki since the prior Thursday, so Lamont was surprised when he saw the


                                        7
surveillance videotape of Overstreet leaving the grocery store in Texas that

Friday afternoon. Overstreet also told Detective Bennett that he had last spoken

with Vicki on Friday by telephone.           Thus, the evidence establishes that

Overstreet went to see Vicki in Euless the weekend that Vicki was murdered and

that he lied to her family and the police about being there.

      The evidence also establishes that Overstreet and Vicki had a rocky

marriage and that he was abusive towards her. Elaine Garcia, Vicki‘s friend and

hairstylist, testified about an incident that occurred sometime around Christmas

2005 while Elaine was doing Vicki‘s hair at her house in Wichita.           When

Overstreet arrived home, Vicki asked Elaine not to leave her alone with him.

Vicki followed Elaine outside when she was leaving, telling Overstreet that she

was helping Elaine carry her things to her car. Overstreet began yelling at Vicki,

so she got in the car with Elaine and left with no purse, phone, keys, or coat,

despite the 13 or 14 degree weather.

      Vicki‘s longtime friend, Dorothea Gamble, testified that Overstreet was

controlling over and abusive toward Vicki. Dorothea explained that Vicki had

stayed with her in August 2007 after she secretly left Overstreet. The weekend

before Vicki‘s death, Vicki told Dorothea that Overstreet had visited her in Texas

a few times.

      Vicki‘s son Lamont testified that his mother and Overstreet had a rocky

marriage and that Vicki had stayed with Lamont for a brief period before she

moved to Texas. During that time, he or his wife would physically escort her to


                                         8
and from her car and their apartment. According to Lamont, Vicki changed her

phone number and planned to move to Texas without telling Overstreet.

However, Vicki later told Lamont that Overstreet had visited her in Texas on

weekends.

      Vicki‘s sister and daughter both testified that a few days before Vicki‘s

death, she and Overstreet had argued on the phone. According to Tammy, Vicki

told Overstreet on Wednesday or Thursday that she did not want to reconcile

with him, and Overstreet got angry at Vicki. Vicki sounded fearful and stressed

when she talked to Tammy.       According to Melissa, Overstreet told Vicki on

Thursday that he was coming to Texas to get her.

      When police discovered Vicki dead in her apartment, there were no signs

of forced entry, and the deadbolt on her door and all of the windows were locked.

A vacuum found in Overstreet‘s house contained carpet fibers and glitter

matching those found in Vicki‘s apartment. Overstreet‘s DNA matched semen

found on carpet cuttings and two pillowcases—one of which was found on Vicki‘s

body—taken from her apartment.

      Based on the evidence presented at trial, a rational jury could have

concluded that Overstreet intentionally caused Vicki‘s death. See Tex. Penal

Code Ann. §§ 19.02(b)(1), .03(a)(2).

      A rational jury also could have concluded that Overstreet had sex with

Vicki without her consent and suffocated her in the course of the same criminal

episode. See id. § 22.021(a). Overstreet admits that ―a fair analysis of the


                                       9
evidence indicates that he had sex with [Vicki] sometime prior to her death,‖ but

he argues that insufficient evidence shows that he committed the necessary

violent acts for aggravated sexual assault. But in addition to Overstreet‘s semen

found on the carpet around Vicki‘s body, Vicki‘s clothing was in disarray, with her

underwear pulled down to her mid thighs, and there were multiple bruises on her

body, including bruises on her thighs consistent with someone forcing her legs

apart.

         Viewing the evidence in the light most favorable to the jury‘s verdict, we

hold that a rational trier of fact could have found beyond a reasonable doubt that

Overstreet murdered Vicki while in the course of committing or attempting to

commit aggravated sexual assault. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Clayton, 235 S.W.3d at 778. Accordingly, we overrule his first four points.

                               IV. MOTION TO SUPPRESS

         In his fifth, sixth, and seventh points, Overstreet argues that the trial court

erred by overruling his motion to suppress evidence seized from his home

pursuant to a search warrant and that his rights under the United States and

Texas constitutions were violated because the search warrant was invalid.2 He


         2
       Overstreet urges us to determine that the Texas constitution provides
greater protection than the United States Constitution. He cites Heitman v. State,
815 S.W.2d 681 (Tex. Crim. App. 1991), for the proposition that Texas courts
may find that defendants have greater rights under the Texas constitution than
they have under the United States Constitution. However, Overstreet does not
contend that Article I, § 9 of the Texas constitution and the Fourth Amendment of
the United States Constitution differ in any material respect or explain how the
Texas constitution provides any greater protection. Thus, we will examine

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argues specifically that the supporting affidavit was too conclusory, contained

―merely opinions,‖ and set forth facts that had become stale by the time the

search warrant issued.

             A. Law on Search Warrants and Standard of Review

      A search warrant cannot issue unless it is based on probable cause as

determined from the four corners of an affidavit. U.S. Const. amend. IV; Tex.

Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2010)

(―A sworn affidavit . . . establishing probable cause shall be filed in every instance

in which a search warrant is requested.‖); Nichols v. State, 877 S.W.2d 494, 497

(Tex. App.—Fort Worth 1994, pet. ref‘d).

      Under the Fourth Amendment and the Texas constitution, an affidavit

supporting a search warrant is sufficient if, from the totality of the circumstances

reflected in the affidavit, the magistrate was provided with a substantial basis for

concluding that probable cause existed. Swearingen v. State, 143 S.W.3d 808,

810–11 (Tex. Crim. App. 2004); Nichols, 877 S.W.2d at 497. Article 18.01(c) of

the code of criminal procedure requires an affidavit to set forth facts establishing

that (1) a specific offense has been committed, (2) the item to be seized

constitutes evidence of the offense or evidence that a particular person


Overstreet‘s federal and state constitutional arguments together. See Hogan v.
State, 329 S.W.3d 90, 93 (Tex. App.—Fort Worth 2010, no pet.) (citing Arnold v.
State, 873 S.W.2d 27, 33 & n.4 (Tex. Crim. App. 1993), cert. denied, 513 U.S.
830 (1994); Garcia v. State, 239 S.W.3d 862, 868 n.3 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref‘d), cert. denied, 129 S. Ct. 505 (2008)).


                                         11
committed the offense, and (3) the item is located at or on the person, place, or

thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c); see Tolentino v.

State, 638 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1982). Probable cause

for a search warrant exists if, under the totality of the circumstances presented to

the magistrate in an affidavit, there is at least a ―‗fair probability‘‖ or ―‗substantial

chance‘‖ that evidence of a crime will be found at the specified location. Flores v.

State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (quoting Illinois v. Gates, 462

U.S. 213, 238, 243 n.13, 103 S. Ct. 2317, 2332, 2335 n.13 (1983)).                  The

magistrate‘s action ―cannot be a mere ratification of the bare conclusions of

others.‖ Gates, 462 U.S. at 239, 103 S. Ct. at 2333. Additionally, facts stated in

an affidavit for a search warrant must not have become stale when the

magistrate issues the search warrant. Serrano v. State, 123 S.W.3d 53, 60 (Tex.

App.—Austin 2003, pet. ref‘d); Guerra v. State, 860 S.W.2d 609, 611 (Tex.

App.—Corpus Christi 1993, pet. ref‘d); see Sherlock v. State, 632 S.W.2d 604,

608 (Tex. Crim. App. [Panel Op.] 1982).

      When reviewing a magistrate‘s decision to issue a warrant, we apply a

deferential standard in keeping with the constitutional preference for a warrant.

Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007); Swearingen, 143

S.W.3d at 810–11; Emenhiser v. State, 196 S.W.3d 915, 924–25 (Tex. App.—

Fort Worth 2006, pet. ref‘d). We should interpret the affidavit in a commonsense

and realistic manner, recognizing that the magistrate may draw reasonable

inferences. See Rodriguez, 232 S.W.3d at 61; see also Davis v. State, 202


                                           12
S.W.3d 149, 154 (Tex. Crim. App. 2006); Nichols, 877 S.W.2d at 498.

                    B. Affidavit Provided Substantial Basis
                      for Probable Cause Determination

      Here, Detective Robert Chisholm of the Wichita Police Department

prepared an affidavit to obtain a search warrant for Overstreet‘s residence.

Detective Chisholm‘s affidavit, subscribed and sworn on November 16, 2007,

alleged that Euless police had notified him that they were working on a homicide

in Euless involving Overstreet‘s wife Vicki; that when they found Vicki dead in her

apartment, her apartment door was deadbolted but her keys were inside the

apartment; that the carpet in her apartment appeared to have been vacuumed,

yet no vacuum was found in the apartment; that officers found a pair of white

men‘s Roundtree-York underwear and some ―yellowish latex gloves that did not

appear to belong‖ in the apartment; that officers also found a November 9 receipt

for the purchase of a bottle of wine from a Euless store but did not find a bottle of

wine in the apartment; that officers tracked the debit card used for that purchase

to Overstreet and recovered videotape surveillance from the store showing

Overstreet wearing a black sweatsuit with a white stripe on it and making the

wine purchase; and that Vicki‘s ―very good friend‖ Gamble had told officers that

Overstreet was very controlling and manipulative towards Vicki and had choked

Vicki in the past to the point that she thought she was going to die. The search

warrant affidavit further alleged that officers had probable cause to believe that

certain evidence of the offense would be found in Overstreet‘s home, including a



                                         13
bottle of Riunite wine, keys to Vicki‘s apartment, a black sweatsuit with a white

stripe, Roundtree-York men‘s briefs, latex gloves, fingerprints, and other trace

evidence. The magistrate issued a search warrant, which was executed that

day.

       Overstreet argues that the facts in the supporting affidavit were stale

because of the time that had lapsed between when the officers found Vicki‘s

body and when the search warrant issued. The search warrant was issued and

executed on November 16, 2007, four days after officers found Vicki dead in her

apartment and six days after cell phone records showed that Overstreet had

driven from Euless back to Wichita. Considering the short lapse of time since the

occurrence of the events and the nature of the items to be seized, it was not

unreasonable to presume that the items sought from Overstreet‘s house

remained there. See Bower v. State, 769 S.W.2d 887, 903 (Tex. Crim. App.)

(finding substantial basis for issuance of warrant to search for evidence of

murder committed more than three months earlier when that evidence was in

defendant‘s possession seven days prior to warrant‘s issuance), cert. denied,

492 U.S. 927 (1989), overruled on other grounds by Heitman, 815 S.W.2d at 685

n.6; Arrick v. State, 107 S.W.3d 710, 718 (Tex. App.—Austin 2003, pet. ref‘d)

(upholding warrant based on affidavit seeking search of defendant‘s residences

and automobile for evidence of murder that had occurred several months earlier).

       Overstreet also argues that the affidavit is ―conclusory in nature,‖ ―does not

contain the necessary facts to support a finding of probable cause to search,‖


                                         14
and contains ―merely opinions and not facts.‖ But based on the facts contained

in the affidavit, the magistrate knew that Vicki had been found dead in her

apartment; that Euless police were working the case as a homicide; that

Overstreet was Vicki‘s estranged husband who had a history of being controlling

over and abusive to her; that he had been in Euless the weekend Vicki went

missing; that he had purchased a bottle of wine from a nearby store, the receipt

for which but not the bottle was found in Vicki‘s apartment; that Vicki‘s apartment

door was deadbolted but her keys were inside; and that the carpet in her

apartment had been vacuumed but no vacuum was found.

      According deference to the magistrate‘s probable cause determination,

and conscientiously reviewing the totality of the circumstances set forth in the

affidavit, we conclude that the affidavit did not rely on conclusory statements

such that the magistrate‘s probable cause determination was a ―mere ratification

of the bare conclusions of others.‖ See Gates, 462 U.S. at 239, 103 S. Ct. at

2333. To the contrary, the affidavit contained sufficient information to allow the

magistrate to conclude that there was at least a ―‗fair probability‘‖ or ―‗substantial

chance‘‖ that evidence that Overstreet sexually assaulted and murdered Vicki

would be found in Overstreet‘s house. See id. at 238, 243 n.13, 103 S. Ct. at

2332, 2335 n.13; Flores, 319 S.W.3d at 702. Accordingly, we hold that the trial

court did not err by denying Overstreet‘s motion to suppress, and we overrule

Overstreet‘s fifth, sixth, and seventh points.




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                               V. CONCLUSION

      Having overruled Overstreet‘s seven points, we affirm the trial court‘s

judgment.




                                               SUE WALKER
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 7, 2011




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