## In t he Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00284

- CR

_

__________________________

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

- 1113

- 362

Before Birdwell, Walla ch, and Walker, JJ. M emorandum Opinion by Justice Birdwell 

### D ARRELL 

### K RAMER 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Dar rell K ramer was convicted of murder ing his ex

- wife Dian e Kramer and sentenced to ninety

- nine year s in prison. See Tex. Penal Code Ann. §§ 12.32(a) , 1 9.0 2( b )

– (c)

. On appeal, Kramer argues in two poi nts that the evidence is
insu fficient to support hi s conviction

. We w ill affirm

. I
. B ACK GROUND
O n Feb ruary 17, 2020, volunteers picking up l itter near Dian e ’ s home in
Denton , Texas, discovered some clothing items with d ried blood stains on them

. Wrapped insi de the clothi ng was a ha mmer. T h e volunt eers n otified the police , wh o collected, photographed , and stored the items

. 1
O n March 13, 2020, Stev i e and Richard E al ey, Dian e ’ s daughter a nd son

- in

law, wen t t o Diane ’ s house to perform a welfare check

. Stevie and R ichard received

no r esponse to their repeated knocks on the f ront door , but they co uld hear Diane ’ s dogs barking inside the ho use . After noticing that the windo w on the back door was broken , Rich ard c limbed the back fen ce and entered the house through th at door

. Once inside, he found th e house littered with do g feces and many emp ty alcohol bottles. He yelled Diane ’ s name but received no response. After making his way to the
bedroom , he found Diane ’ s bo dy in an advanced state of decomp osition. The police

1 Later, t h rough f orensic analysis , Kramer’s and Diane’s DNA was found on the hammer

.3 wer e called , and it was determined that Diane had died of blunt f orce tra uma to the
head.
A mu rder in vestigation ensued, and Kramer emerg ed as a primary sus pect
. Although Kramer and Diane were divorced , th ey maint ained a n on

- again, off

- a gain
relat ionship

. Th eir r elation ship was tumultuous , a nd t hose close to Diane had observed Kramer engaging in violent behavior towards h er. Although Kramer was living in Diane ’ s hom e at the time of her death , he ne ver r ep orted her death to p o lice , and shortly be fore her body was found, he had been using her deb it card frequently

. Ultimately , Kramer was ch arged w ith murd ering Diane

. A jury convicted Kramer and assessed his puni shm ent at ninety

- nine years in prison. The trial court
sentenced him accordin gly. This appeal followed.
II. D ISCUSSION A. Kramer Is Not Entitled to a Fact ual

- Sufficiency Review of the Evidence
I n his fi rst point, Kr amer a rgues that the evi dence was factually insufficient to support his conviction and sentenc e . 2 However, current bind ing precedent f rom the Court of Criminal Appeals dict ates that appellate courts are to employ a legal

2 In his first point, Kr amer contends “ t hat th e evidence was factually insufficient to convict h im to the m aximum s enten ce . ” [Em phasis added

. ] To the extent that Kramer intend s to argue that his sentence is grossly disproportionate to the offense for which he was convicted and th us vio lates the Eighth Amendment, see Graham v. Florida , 560 U.S. 48, 5 9

– 60, 130 S. C t. 2011, 2 021

– 2 2 (2 010) , he has forfei ted any such argument by failing to objec t when the trial court sentenced him or to file a motion for new tria l raising such a disproportionality argument , see Russell v. State , 341 S.W.3d 526, 527

– 28 (Te x. App.

— F ort W orth 2011, no p et.) ; Kim v. Sta t e , 283 S.W.3d 473, 475 (T ex. App.

— Fort Worth 20 09, pet. ref ’ d)

.4 sufficien cy review of the ev idence in criminal cases, not a factual

- su fficiency review.
See Braughton v. State , 5 69 S .W.3d 592, 60 7 (Tex. Crim. App. 2018) ; Adames v. Sta te , 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State , 323 S.W.3d 893, 912 (Tex.
Crim. App. 201 0 ) ; see al so Howard v. State , 333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011) (“[W]e have abolished factual

- sufficiency review.”)

. Accord ingly, w e rejec t
K ramer ’ s factual

- sufficiency challenge and overrule his first point

. B. The E vid ence Is Lega lly Sufficient to S upport Kramer ’ s Conviction In his second point, Kramer , emphasizing the fact that at leas t one witness was not completely pos itive of the da te on which she last spoke to Diane , ar gues that the evidence was legally insufficient to suppor t his conviction be cause it “ was based on
inaccurate dates of when [Diane] was se en an d heard o f being alive. ” This arg ument is
merit less

. 1. St andard of R eview and Applicable Law In our evidentiary

- sufficiency review, we view all the evidence in the light most favorable to the ve rdict to de termine whethe r any rational f actfin der could have found
th e crime’s essenti al elements beyond a reasona bl e doubt. Jack son v. Vir ginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) ; Queeman v. State , 520 S.W.3d 61 6, 622 (Tex. Crim. App. 201 7)

. This sta ndard g ives fu ll play to the f actfin der’s responsibility to
resolve conflicts in the tes timony, to weigh t he evidence, an d to draw reasonable
inferences from basic facts to ultimate facts. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789; Harrel l v. State , 620 S. W.3d 91 0, 914 (Tex. C ri m. App . 2021)

.5 The factfinder alone judges the ev idence’s weight and credibi l i ty. See Tex. C ode
Cri m. Proc. Ann. art. 38.04; Martin v. State , 635 S.W.3d 672, 679 (Tex. Crim. App. 2021)

. We may not re

- evaluate the ev idence’s weight and cre di bility and s ub stitut e our judgment for the factfinder’s. Queeman , 520 S .W.3d at 622. Ins te ad, we determine

w heth er the necessary inferences are reasonable based on the evidence’s cumulative
force when vie wed in the light most f avor able to the ve rdict. B raughton , 5 69 S.W.3d at 608 ; see Villa v. State , 514 S.W .3 d 227, 232 (Tex. Crim. App. 2017) (“Th e court conduct ing a sufficiency review must not engage in a ‘divide and conquer’ strategy but

must consider t h e cumu lative fo rce of all t he evide nce.”). We must presume that the
factfinder re solved any conflicting in ferences in favor of t he verdict, and w e must defer to that resolution. Braughton , 569 S.W.3d at 608

. To determine whether the State has met its bu rde n to prove a defendant’s gu ilt be yond a reasonable doubt, we compare the crime’s elements as defined by a hypothetica lly correc t jury charge to t he evidence add uced at trial

. Hammack v. State , 622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Febus v. S tat e , 542 S. W.3d 568,
57 2 ( Tex. Crim. App. 2018) (“The essential elements of an offense are determined b y state law.” ). Such a charge is one that accurately set s out the law, is authorized by the indictment, does not unnecessarily increase the State’s burd en of pro of or restrict t he
Sta te’s theories of liability, and adequately describes the particular of fe nse for which
the defe ndant was tried. Ham mack , 622 S.W.3 d at 914

. The law as authorized by the indictment means the statutory elements of the off ense as modifi ed by the char gi ng6 i ns trument ’s allegat ions

. Curlee v. State , 620 S.W.3d 767, 778 (Tex. Cri m. App. 2021) ;

s ee Rabb v. State , 434 S.W.3d 61 3, 616 (Tex. Cr im. App. 2014) (“When the State pleads a specific element of a penal offense that has st atutory altern at ives for tha t eleme n t, the sufficienc y of the evidence will be measured by the element tha t was actually plea ded, and not any alternative statutory elem ents.”).
2. Applicat ion The indictment alleged that “ on or about ” February 16, 2020 , “ and anterior t o

t he presentment of th [e] [i ] ndictment , ” Kramer “ intent ionally or knowingly cause[d] ”
Diane ’ s death by “ striking [h er] with a hammer or unknown object or by c ausing blunt for ce traum a . ” See Tex. Penal Code An n. § 19.02(b) (1)

. Thus, a h ypothetically

corre ct jury charge would requir e the State to prove beyond a rea sonable doubt that Kramer (1) in t entionally or knowingly caused Diane ’ s death (2) by str ikin g h er with a hammer or unknown obje ct or by causing blunt force traum a (3 ) on or about February 16, 2020

. See Hammack , 622 S.W.3d a t 914 ; see also Curlee , 620 S.W.3d at 778

. Kramer specifically argues that the State fail ed to prove the date on which the

c rime occur red ; he d oes not complain about the sufficiency of the e vidence to support any other element o f the offense. Ac cording to Kramer, because certain
witnesses were not completely certain o f the last dat e on which t hey sa w Di ane alive
or p r o vided inconsistent dates of when they last s aw her ali ve, no rational trier of fact
could h ave found th at the State pro ved that Kr amer committed the crim e on the date alleged in the indictment.7 Bu t the inability of witnesses to r ecall specific dates merely goes to the weight
and cred ibility of the ir testimony

— of which the j ury, as factfinder, is the s ole judge

. See Tex. Code Cr i m. Proc. Ann. art. 38.04; Martin , 635 S.W.3d at 679

. I n our legal

sufficiency review, w e may not re

- ev al uate the evidence’s weigh t and credibility or substitute o ur judgment for the jury ’ s . Queem an , 520 S.W.3d at 622

. Moreover, we

must pr e sume that the ju ry resolved any inconsistencies in the wi tnesses ’ testimony to support its guilt y verdict

. See Harrell , 6 20 S. W.3d at 913

– 14 ; McQuarters v. St ate , N o . 01

- 18

- 00213

- CR , 2019 WL 2345414 , at *2 (Tex. App.

— Houston [1st Dist.] June 4, 2019 , no pet.) (mem. op., n ot designated for publicat ion). Thus, the witnesses ’ difficulty
recalli ng specific dates does not support Kram er ’s legal

- insu ffic iency argument. Moreover, the State was not required to prov e a specific date and time of death, no r was it required to prove th a t the murder was commit ted exact ly on February 16, 2020. When

— as here

— an indi c tment alleges that the o ffens e occurred

“ o n o r about ” a certain date, the State is only r equired to prove that th e defendant
committed the offense “ at some time prior to the f iling of the indict ment and within the limitations period. ” Smith v. State , 959 S .W.2d 1, 26 (Tex. App

. — W aco 1 99 7 , pet
. ref ’ d

) ; accord DeMoss v. State , 12 S.W.3d 553, 560 (Tex. App.

— San Antonio 1999, pet.
ref ’ d)

. Viewe d in the li ght most favorable to the v erdict, t h e record contains ample evidence to support the jury ’ s fin ding that the State proved the indict ment ’ s date allegati on beyond a reasonable doubt. See Jackson , 443 U. S. at 319 , 99 S. Ct. at 2789

.8 Th e record shows that Dia ne was last seen on Februar y 5, 2020, on surve illance video
from a 7

- Ele ven conven i ence store an d was last heard from on Februar y 6, 2020, during a phone call with her daughter Stevie

. 3 T he hammer

— the appar ent mur der
weapon

— with traces of both Kramer ’ s and D iane ’ s DNA wa s found on February 17,
2020. Kramer ’ s friend Nicholas Waldman te stified that he f ound Diane dead when he

wen t to he r house searching for Kramer after being release d from jail on March 3,
2020. Stevie and Richar d discovered Diane ’ s body in an advanced state of decomposition on March 13, 2020

. Thus , the evidence i ndicates that Diane likely died
in mid

- February 2020

— and d e finitely died no later than March 2020

— which is w ell before the filing of th e indictment in June 2020. Accordingly , a rational factfinder
could have found b eyond a reas onab l e doubt t hat Kra mer murdered Diane before the
indictment was filed and within the l imita tions period. See Smith , 959 S .W.2d at 26 ; DeMoss , 12 S.W.3d at 560 ; see also Tex. Code Crim. Proc. Ann. art . 12.0 1 (1)(A) ( pro viding that there is no limitations perio d for m urder ).
Further , v iewed in the light most favorable to t he verdict, the evi d e nce is
sufficien t to suppor t the j ury ’ s findin g that Kramer murdered Dian e by striking her

3 T he r ecord reflects that Stevie received text messages from Diane ’ s phone on Feb ruary 12 and 17, 2020

. But Stev ie testified that t h ese te xts differed in sty le from Diane ’ s u sual messages an d that in hindsight she did not believe that they wer e actually sent by Dian e.9 with a hammer

. 4 See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; Qu ee man , 520 S.W .3d at 622

. For exampl e, the re cord reflects t hat

• T he medical examiner who performe d the autops y o n Diane testified that her death was ca used by “ [ b ] lunt force injuries of the head due to assault by
a nother person ” ;

• T he fore nsic anthropologi st wh o examine d Diane ’ s cr ani um testified that the damage to her skull was consistent with its ha v ing been hit with a hammer;

• A hammer containing both Kramer ’ s and Diane ’ s DNA was found w rapped in bloo d

- stained clothing near Diane ’ s house on Februar y 17, 2020;

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

• Shortly before Di ane ’ s body was discovered in a n advance d s tate o f deco mposition, Kram er had been frequently using Diane ’ s deb it card ;

• T hose close to Diane had observed Kramer engaging in violent behavior towards her th roughout the cou rse of th e i r relationship ;

• Kramer admitted to hi s friend W aldman that he had “ beat[en] [Diane ’ s] bra ins in with a hammer ” ; and

• While in custody aw aiting trial, Kra mer told another inma te that he had

“ lost control ” and had “ beat [en] [ Diane] in the head ” after sh e w o uld n ot give him her credit card to buy wine and cigaret tes
.

4 Although Kramer ’ s legal

- insufficiency argument focuse d solely o n the date ele ment, we address the s uffic iency of the evidence to sup port the o ffense ’ s other el ements in the in t erest of en suring completeness

. See Pabon v. State , No. 08

- 18

- 00152

- CR , 2020 WL 4381650 , at *5 (Tex. App.

— El Paso July 31, 2020, no p et.) (not designated for publication) (addressing issue “ in the interest of ensuring comp leteness ”) ; Jones v. State , No. C 1 4

- 92

- 01182

- CR, 1993 WL 153660, at *3 (Tex. App.

— Houston [14th Dist.] May 13, 1993, pet. ref ’ d) (not designated for publication) (addr essing arg ument “ in the interest of completeness and caution ” )

.10 T his evidence is suffic ient to show that Kramer intentionally or knowin gly c au sed
Diane ’ s death by str ikin g her with a hammer.
B e cause a rational fa ctfinde r , having cons ider ed the e vidence p res e nted at tri al,
could have found beyond a reas onab le doubt t hat

— at some point before the
indic tment wa s filed and within the limit ations period

— Kramer murdered Diane by striking her with a hammer , we overrule Kramer ’ s seco nd po int. See Jackson , 443 U.S.

a t 3 19 , 99 S

. Ct. at 2789 ; Queeman , 520 S.W.3d a t 622 ; see also Smith , 959 S .W.2d at 26 ; DeMoss , 12 S.W.3d at 560

. III. C ONCLUSION Having o verruled both of Kramer ’ s points, we affirm the t rial court ’ s j udgment. /s/ Wade Birdwell
Wade Birdwell Justice
Do No t Pu bl ish Tex. R

. App. P. 47 .2(b)
Delivered : December 28, 2023