Darrell Kramer v. the State of Texas

             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-22-00284-CR
     ___________________________

     DARRELL KRAMER, Appellant

                     V.

          THE STATE OF TEXAS


  On Appeal from the 211th District Court
          Denton County, Texas
      Trial Court No. F20-1113-362


  Before Birdwell, Wallach, and Walker, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      Appellant Darrell Kramer was convicted of murdering his ex-wife Diane

Kramer and sentenced to ninety-nine years in prison. See 

(a), 19.02(b)–(c). On appeal, Kramer argues in two points that the evidence is

insufficient to support his conviction. We will affirm.

                                   I. BACKGROUND

      On February 17, 2020, volunteers picking up litter near Diane’s home in

Denton, Texas, discovered some clothing items with dried blood stains on them.

Wrapped inside the clothing was a hammer. The volunteers notified the police, who

collected, photographed, and stored the items.1

      On March 13, 2020, Stevie and Richard Ealey, Diane’s daughter and son-in-

law, went to Diane’s house to perform a welfare check. Stevie and Richard received

no response to their repeated knocks on the front door, but they could hear Diane’s

dogs barking inside the house. After noticing that the window on the back door was

broken, Richard climbed the back fence and entered the house through that door.

Once inside, he found the house littered with dog feces and many empty alcohol

bottles. He yelled Diane’s name but received no response. After making his way to the

bedroom, he found Diane’s body in an advanced state of decomposition. The police




     Later, through forensic analysis, Kramer’s and Diane’s DNA was found on the
      1

hammer.

                                            2
were called, and it was determined that Diane had died of blunt force trauma to the

head.

        A murder investigation ensued, and Kramer emerged as a primary suspect.

Although Kramer and Diane were divorced, they maintained an on-again, off-again

relationship. Their relationship was tumultuous, and those close to Diane had

observed Kramer engaging in violent behavior towards her. Although Kramer was

living in Diane’s home at the time of her death, he never reported her death to police,

and shortly before her body was found, he had been using her debit card frequently.

        Ultimately, Kramer was charged with murdering Diane. A jury convicted

Kramer and assessed his punishment at ninety-nine years in prison. The trial court

sentenced him accordingly. This appeal followed.

                                    II. DISCUSSION

A. Kramer Is Not Entitled to a Factual-Sufficiency Review of the Evidence

        In his first point, Kramer argues that the evidence was factually insufficient to

support his conviction and sentence.2 However, current binding precedent from the

Court of Criminal Appeals dictates that appellate courts are to employ a legal-

        In his first point, Kramer contends “that the evidence was factually insufficient
        2

to convict him to the maximum sentence.” [Emphasis added.] To the extent that Kramer
intends to argue that his sentence is grossly disproportionate to the offense for which
he was convicted and thus violates the Eighth Amendment, see Graham v. Florida, 

, 59–60, 

, 2021–22 (2010), he has forfeited any such argument
by failing to object when the trial court sentenced him or to file a motion for new trial
raising such a disproportionality argument, see Russell v. State, 

, 527–28
(Tex. App.—Fort Worth 2011, no pet.); Kim v. State, 

 (Tex.
App.—Fort Worth 2009, pet. ref’d).

                                            3
sufficiency review of the evidence in criminal cases, not a factual-sufficiency review.

See Braughton v. State, 

 (Tex. Crim. App. 2018); Adames v. State, 

 (Tex. Crim. App. 2011); Brooks v. State, 

 (Tex.

Crim. App. 2010); see also Howard v. State, 

, 138 n.2 (Tex. Crim. App.

2011) (“[W]e have abolished factual-sufficiency review.”). Accordingly, we reject

Kramer’s factual-sufficiency challenge and overrule his first point.

B. The Evidence Is Legally Sufficient to Support Kramer’s Conviction

       In his second point, Kramer, emphasizing the fact that at least one witness was

not completely positive of the date on which she last spoke to Diane, argues that the

evidence was legally insufficient to support his conviction because it “was based on

inaccurate dates of when [Diane] was seen and heard of being alive.” This argument is

meritless.

       1. Standard of Review and Applicable Law

       In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 

, 

 (1979); Queeman v. State, 

 (Tex.

Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to

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

inferences from basic facts to ultimate facts. See Jackson, 

, 

; Harrell v. State, 

, 914 (Tex. Crim. App. 2021).

                                           4
      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Martin v. State, 

, 679 (Tex. Crim. App.

2021). We may not re-evaluate the evidence’s weight and credibility and substitute our

judgment for the factfinder’s. Queeman, 

. Instead, we determine

whether the necessary inferences are reasonable based on the evidence’s cumulative

force when viewed in the light most favorable to the verdict. Braughton, 

; see Villa v. State, 

 (Tex. Crim. App. 2017) (“The court

conducting a sufficiency review must not engage in a ‘divide and conquer’ strategy but

must consider the cumulative force of all the evidence.”). We must presume that the

factfinder resolved any conflicting inferences in favor of the verdict, and we must

defer to that resolution. Braughton, 

.

      To determine whether the State has met its burden to prove a defendant’s guilt

beyond a reasonable doubt, we compare the crime’s elements as defined by a

hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State,

, 914 (Tex. Crim. App. 2021); see also Febus v. State, 

 (Tex. Crim. App. 2018) (“The essential elements of an offense are determined by

state law.”). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or restrict the

State’s theories of liability, and adequately describes the particular offense for which

the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the

indictment means the statutory elements of the offense as modified by the charging

                                            5
instrument’s allegations. Curlee v. State, 

, 778 (Tex. Crim. App. 2021);

see Rabb v. State, 

 (Tex. Crim. App. 2014) (“When the State pleads

a specific element of a penal offense that has statutory alternatives for that element,

the sufficiency of the evidence will be measured by the element that was actually

pleaded, and not any alternative statutory elements.”).

      2. Application

      The indictment alleged that “on or about” February 16, 2020, “and anterior to

the presentment of th[e] [i]ndictment,” Kramer “intentionally or knowingly cause[d]”

Diane’s death by “striking [her] with a hammer or unknown object or by causing

blunt force trauma.” See 

(b)(1). Thus, a hypothetically

correct jury charge would require the State to prove beyond a reasonable doubt that

Kramer (1) intentionally or knowingly caused Diane’s death (2) by striking her with a

hammer or unknown object or by causing blunt force trauma (3) on or about

February 16, 2020. See Hammack, 622 S.W.3d at 914; see also Curlee, 620 S.W.3d at 778.

      Kramer specifically argues that the State failed to prove the date on which the

crime occurred; he does not complain about the sufficiency of the evidence to

support any other element of the offense. According to Kramer, because certain

witnesses were not completely certain of the last date on which they saw Diane alive

or provided inconsistent dates of when they last saw her alive, no rational trier of fact

could have found that the State proved that Kramer committed the crime on the date

alleged in the indictment.

                                           6
          But the inability of witnesses to recall specific dates merely goes to the weight

and credibility of their testimony—of which the jury, as factfinder, is the sole judge.

See Tex. Code Crim. Proc. Ann. art. 38.04; Martin, 635 S.W.3d at 679. In our legal-

sufficiency review, we may not re-evaluate the evidence’s weight and credibility or

substitute our judgment for the jury’s. Queeman, 

. Moreover, we

must presume that the jury resolved any inconsistencies in the witnesses’ testimony to

support its guilty verdict. See Harrell, 620 S.W.3d at 913–14; McQuarters v. State, No. 01-

18-00213-CR, 

, at *2 (Tex. App.—Houston [1st Dist.] June 4, 2019,

no pet.) (mem. op., not designated for publication). Thus, the witnesses’ difficulty

recalling specific dates does not support Kramer’s legal-insufficiency argument.

          Moreover, the State was not required to prove a specific date and time of

death, nor was it required to prove that the murder was committed exactly on

February 16, 2020. When—as here—an indictment alleges that the offense occurred

“on or about” a certain date, the State is only required to prove that the defendant

committed the offense “at some time prior to the filing of the indictment and within

the limitations period.” Smith v. State, 

 (Tex. App.—Waco 1997, pet.

ref’d); accord DeMoss v. State, 

 (Tex. App.—San Antonio 1999, pet.

ref’d).

          Viewed in the light most favorable to the verdict, the record contains ample

evidence to support the jury’s finding that the State proved the indictment’s date

allegation beyond a reasonable doubt. See Jackson, 

, 

.

                                              7
The record shows that Diane was last seen on February 5, 2020, on surveillance video

from a 7-Eleven convenience store and was last heard from on February 6, 2020,

during a phone call with her daughter Stevie.3 The hammer—the apparent murder

weapon—with traces of both Kramer’s and Diane’s DNA was found on February 17,

2020. Kramer’s friend Nicholas Waldman testified that he found Diane dead when he

went to her house searching for Kramer after being released from jail on March 3,

2020. Stevie and Richard discovered Diane’s body in an advanced state of

decomposition on March 13, 2020. Thus, the evidence indicates that Diane likely died

in mid-February 2020—and definitely died no later than March 2020—which is well

before the filing of the indictment in June 2020. Accordingly, a rational factfinder

could have found beyond a reasonable doubt that Kramer murdered Diane before the

indictment was filed and within the limitations period. See Smith, 

;

DeMoss, 

; see also Tex. Code Crim. Proc. Ann. art. 12.01(1)(A)

(providing that there is no limitations period for murder).

      Further, viewed in the light most favorable to the verdict, the evidence is

sufficient to support the jury’s finding that Kramer murdered Diane by striking her




      3
        The record reflects that Stevie received text messages from Diane’s phone on
February 12 and 17, 2020. But Stevie testified that these texts differed in style from
Diane’s usual messages and that in hindsight she did not believe that they were
actually sent by Diane.

                                           8
with a hammer. 4 See Jackson, 

, 

; Queeman, 

. For example, the record reflects that

      • The medical examiner who performed the autopsy on Diane testified that
        her death was caused by “[b]lunt force injuries of the head due to assault by
        another person”;

      • The forensic anthropologist who examined Diane’s cranium testified that
        the damage to her skull was consistent with its having been hit with a
        hammer;

      • A hammer containing both Kramer’s and Diane’s DNA was found wrapped
        in blood-stained clothing near Diane’s house on February 17, 2020;

      • Despite living with Diane at the time of her death, Kramer never reported
        her death to the police;

      • Shortly before Diane’s body was discovered in an advanced state of
        decomposition, Kramer had been frequently using Diane’s debit card;

      • Those close to Diane had observed Kramer engaging in violent behavior
        towards her throughout the course of their relationship;

      • Kramer admitted to his friend Waldman that he had “beat[en] [Diane’s]
        brains in with a hammer”; and

      • While in custody awaiting trial, Kramer told another inmate that he had
        “lost control” and had “beat[en] [Diane] in the head” after she would not
        give him her credit card to buy wine and cigarettes.




      4
       Although Kramer’s legal-insufficiency argument focused solely on the date
element, we address the sufficiency of the evidence to support the offense’s other
elements in the interest of ensuring completeness. See Pabon v. State, No.
08-18-00152-CR, 

, at *5 (Tex. App.—El Paso July 31, 2020, no pet.)
(not designated for publication) (addressing issue “in the interest of ensuring
completeness”); Jones v. State, No. C14-92-01182-CR, 

, at *3 (Tex.
App.—Houston [14th Dist.] May 13, 1993, pet. ref’d) (not designated for publication)
(addressing argument “in the interest of completeness and caution”).

                                             9
This evidence is sufficient to show that Kramer intentionally or knowingly caused

Diane’s death by striking her with a hammer.

      Because a rational factfinder, having considered the evidence presented at trial,

could have found beyond a reasonable doubt that—at some point before the

indictment was filed and within the limitations period—Kramer murdered Diane by

striking her with a hammer, we overrule Kramer’s second point. See Jackson, 

, 

; Queeman, 

; see also Smith, 

;

DeMoss, 

.

                                  III. CONCLUSION

      Having overruled both of Kramer’s points, we affirm the trial court’s judgment.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 28, 2023




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