Posted on 5/22/17

Until the early 1970s, the Texas Penal Code, or TPC, clearly stated that a defendant cannot be convicted of murder charges unless a body or some body parts are found. That meant that the prosecution cannot win a murder case unless it produced a body. When someone was accused of murder, police sent investigators to the actual or potential crime scene in an attempt to discover the body. Investigators were often looking in the woods or in creeks for bodies or body parts. This allowed murders to dodge murder charges because they could point to a technical requirement that a body or body parts must be found.

In 1974, the TPC did not reenact the statute requiring a positive identification of the alleged victim’s body or body parts for a murder conviction. At the same time, the law was not specifically repealed. Based on the basic reading of the law and that the statute was not reenacted, it seemed that the dead body requirement was no longer applicable. The Fisher case from 1993 affirmed as such.

The Fisher Case

InFisher, the defendant was accused of killing his girlfriend. Police found bones that they believed were the remains of the girlfriend, but because DNA testing was still in its infancy, the police had no positive identification of the body. The prosecution set forth evidence that Fisher confessed to Marquez how Fisher strangled his ex-girlfriend with a cord, drowned her body in the bath and mutilated her body. He then took some body parts and burnt them on the stove so they would no longer be recognizable. He also threw other body parts in the trash.

The Texas Court for Criminal Appeals accepted that testimony, together with the evidence of the bones believed to be from the girlfriend, thereby convicting Fisher. The court held that the evidence was strong enough and made an analysis of the new law that suggested that there was no need for positive body identification.

At trial, Fisher argued that because the legislature did not specifically repeal the law the law requiring finding a dead body was still in effect. The Court rejected the argument, reasoning that because it was not included in the reenactment, it was effectively repealed. Therefore, the Court confirmed that Texas law no longer required the prosecution to positively identify a dead body or body parts; instead, circumstantial evidence is sufficient to attain a conviction for murder. The Court did note, however, that Marquez’s testimony by itself would not be sufficient evidence to convict Fisher; instead, the combination of the testimony and the bones found in the bathtub were sufficient evidence for conviction.

Note that today, with DNA testing as forensic evidence, this requirement would be less of an issue. For forensic criminal law,DNA use was not widespread until 2001 when courts were accepting of such evidence and DNA laboratories used nationally recognized standards.

If you have been accused of murder, the police and prosecution will use every tool at their disposal to convict. You need strong representation. Contact the law firm of Christopher Abel, a criminal defense attorney fighting for those accused of serious crimes.

(image courtesy of Drew Hays)


Flower Mound Office

Phone: 972.584.7837

Denton Office