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.

 

1See Tex. R. App. P. 47.4.
2

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, 
4

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, 
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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 
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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 
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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 
8

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 
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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 
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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 

 

2Overstreet 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)).
12

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 
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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 
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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,‖ 
15

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