Whitmore v. State

570 S.W.2d 889

• Court: Court of Criminal Appeals of Texas
• Decided: July 12, 1978
• Docket: 52325
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death. The indictment alleged in substance that Whitmore caused the death of Judy Carol Rummel by employing Harrell Totty for remuneration to kill her.

The evidence presented shows that at approximately 5:00 p.m., on September 26, 1974, appellant, James Whitmore, had gone to the Dos Gringos Bar in Fort Worth. Joyce Walton, a waitress who served appellant, testified that he appeared to be upset. She further stated that he told her that his girlfriend had tried to run over him with a car and attempted to stab him on two previous occasions and that in response to her comment, “You mean to tell me you’re going to put a contract out on her?” he replied, “Well, I can’t let her kill me.” Whitmore then related that he had talked with a security guard as to exactly what could be done about the situation without elaborating on the details of their plans. He also stated to her that he would not be caught because no money would be transferred between them. As he left he said, “Well, you’ll probably read about this in the paper.”

Allen Bailey, his neighbor, testified that on the evening in question he had gone skeet shooting. He returned to his apartment around 9:30 p.m. and began cleaning his shotgun. Shortly thereafter, Whitmore came over and told him “. . . that if I heard two shots about two o’clock in the morning, not to worry about it, just open my door and he wanted to use the phone to call the police” because he did not have a telephone in his apartment. Bailey then testified that Whitmore had told him about his girlfriend’s two previous attempts to kill him and about the details of his plan with the security guard, Harrell Totty, to kill her. The plan called for him to invite his girlfriend over to make amends for their past disagreements. Totty would be making his rounds of the apartment complex and would be in appellant’s bathroom and he would yell, “Totty, Totty, Totty”, and Totty would come around the corner and shoot her twice. Then they were going to take a knife from the sink and use a sock to put it in her hand. Whitmore would make sure she was dead and then call for a doctor who lived in the complex to come over. Bailey stated that he did not believe Whit-more.

Tory Schroeder came into the apartment and Whitmore told him of the attempts made on his life by his girlfriend to which Schroeder kiddingly replied, “I would have her shot.” Some ten or fifteen minutes later Schroeder and Whitmore left to buy some beer. On the way to the Quik Sak grocery he told Schroeder that he was going to have his girlfriend, Judy Rummel, shot and that he was going to pay the security guard to do it and related the same plan to him as testified to by Bailey.

Judy Rummel, the deceased, was employed as a waitress at Pinto’s, a restaurant and bar. Whitmore knew that the place usually remained open until 2:00 a.m. Judy closed Pinto’s early on the evening in question because there were no customers. Susan Cowell, a friend and former roommate of the deceased, testified that she was with her at Pinto’s at approximately 9:30 p.m. and that Judy was very happy that evening because it was her first day back at work after having been in the hospital for pneumonia and she was going to see Whitmore that night.

Anita McCasland, the deceased’s roommate, testified that she was with her at Pinto’s from 8:00 p.m. until it closed at 11:30 p.m. and that her roommate had been in a good mood all evening. The deceased gave her a ride to their trailer house and after dropping her off said that she had received a call from Whitmore and was going to his apartment.

Schroeder, Totty and Whitmore were still in Bailey’s apartment when the deceased arrived. Schroeder then returned to Dr. Horn’s apartment where his mother was visiting and as he looked back he observed appellant, Totty and the deceased going into the apartment together. He then told Dr. Horn and his mother of Whitmore’s threats and began watching the apartment through the window of Dr. Horn’s apartment. Ten minutes later he heard two shots and then saw Whitmore go next door to Bailey’s apartment. Bailey, who had left his apartment for a few minutes to go to the store, also heard the two shots as he was unlocking his door after which he heard a woman scream, “Oh, God.” Shortly thereafter, Whitmore came into his apartment and said, “That was a cold blooded son-of-a-bitch, wasn’t it, Allen?” Whitmore called the police and then went to Dr. Horn’s apartment and told him that there was a woman in his apartment with two bullet holes in her. Dr. Horn told him to call an ambulance and police and to “get the hell” out of his apartment. Prior to going to Dr. Horn’s, Whitmore had yelled to Bailey as he was leaving, “Al, come over and look at this s — .” Bailey stepped outside his apartment and looked into the apartment. The deceased was lying on her side with her left arm draped over her forehead and her back toward the fireplace.

Officer C. P. Chessar of the Fort Worth Police Department testified that upon his arrival at the apartment he had the following conversation with Totty:

“Q. Did Totty describe to you the circumstances under which he had gone to the apartment that evening?

“A. Yes, sir, he did.

“Q. What did he say had happened?

“A. He stated he had been making his rounds, and knew that Whitmore had been having trouble, and he had gone to the apartment, One Seventy-One, to use the restroom. He stated that while he was inside the restroom he heard Whitmore screaming for help, and he went to the entranceway. He said, T drew my pistol and fired twice, I think.’

“Q. All right. Did he say who he shot at?

“A. He stated that he had shot at a white female, coming at Whitmore with a knife extended.”

Detective E. W. Cole of the homicide division testified that upon his arrival:

“He [Totty] told me he was the security guard there at the apartments that he— They had had trouble with Mrs. Rummel before at the apartments, that they had had complaints of her trying to run over Mr. Whitmore, that he was making his rounds, and that he had stopped into Mr. Whitmore’s apartment to use the bathroom, or restroom, and while there, in the restroom, he heard a call from Whitmore, and when he came around he saw Mrs. Rummel coming at James Whitmore with a knife, and that he fired his weapon.”

The Tarrant County medical examiner testified that the deceased had died as a result of blood loss into the thoracic chest due to two gunshot entry wounds. Several other witnesses who had known Whitmore testified that he drank heavily and was an alcoholic. There was also testimony that there had been problems in the past between him and the deceased.

Whitmore testified that he had talked to Judy Rummel at 4:30 p.m. on September 26, 1974, approximately seven hours before her death and he knew that she worked until 2:00 a.m. each morning. He further testified that at 6:00 p.m. on September 26, 1974, he had asked the security guard, Harrell Totty, to come check on him around 2:00 or 2:15 a.m. because he was going to have a date and the deceased knew of this fact. He related that when Totty was making his rounds at approximately 11:30 p.m. and asked to use his bathroom, just before the killing, he told Totty there would be no need to come by at 2:00 a.m. because he was going to spend the night at his mother’s place.

In his first ground of error, he contends that the trial court erred in not granting a new trial based on newly discovered evidence, the newly discovered evidence being that Harrell Totty, also indicted for this offense, had been acquitted.

The jury returned its verdict on May 30, 1975, and the motion for new trial was not filed until June 30, 1975. Assuming that we could consider the late motion for new trial, a subsequent acquittal of a co-principal of the crime does not by itself entitle a convicted co-defendant to a new trial. Another jury often has different evidence involving a single transaction. Different juries could reach opposite results on the same evidence. Rozell v. State, 502 S.W.2d 16 (Tex.Cr.App.1973).

Next, he contends that the trial court erred in filing “Conclusions of Law” overruling the motion for new trial over his objection. He urges that the action of the trial court is in violation of Article 40.07, V.A.C.C.P., which provides:

“In granting or refusing a new trial, the judge shall not sum up, discuss or comment upon the evidence in the case, but shall simply grant or refuse the motion without prejudice to either party.”

The court, in its conclusion, found that the motion was untimely filed. In order for such action to constitute reversible error, there must be a showing of injury to appellant. Mims v. State, 378 S.W.2d 318 (Tex.Cr.App.1964). No harm is shown. Ground of error number two is overruled.

In his third ground of error, he contends that the trial court erred in sustaining the State’s challenge for cause of venireman Ray E. Rugg. He argues that Rugg was a qualified juror under the constitutional standards of “ Witherspoon ” and that the Legislature is without authority to impose stricter standards as to a venireman’s qualification on the death penalty.

He is apparently contending that V.T. C.A., Penal Code, Section 12.31, is in conflict with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and that the prospective juror Rugg was excused in violation of Witherspoon.

In Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975), we held that the holding of Witherspoon was still alive and well in light of the new statutory scheme providing for the imposition of the death penalty, the adoption of which followed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Moore v. State, 542 S.W.2d 664 (1976).

The statutory scheme for capital murder [V.T.C.A., Penal Code, Section 19.03 (formerly Article 1257, V.A.P.C., as amended in 1973), and Article 37.071, V.A.C.C.P.], including the possible infliction of the death penalty, has been upheld by this Court in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), and by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

Prospective juror Rugg stated that under certain circumstances he would falsify his vote in answering the questions or issues submitted to him as provided by Article 37.071, V.A.C.C.P., in order to avoid imposition of the death penalty. Although Rugg stated that in a proper case he might be able to impose the death penalty, he consistently stated that his opposition to the death penalty would affect his deliberation on the fact issues submitted to him as required by Article 37.071, supra. While it is conceded by the State that Rugg was qualified under the Witherspoon doctrine, his answers were such as to disqualify him under V.T.C.A., Penal Code, Section 12.31(b), which provides:

“Prospective jurors, shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”¹

It is of no consequence that prospective juror Rugg was qualified under Witherspoon. Moore v. State, supra. Ground of error number three is overruled.

Ground of error number four complains of the admission into evidence of photographs taken of the deceased in the morgue after the killing. The photographs, taken before the autopsy, show the location of the wounds and were admissible under Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). No error is shown.

In ground of error number five, he contends that the trial court erred in refusing to admit into evidence at the preliminary competency to stand trial hearing an affidavit by Dr. Jackson Speegle regarding his mental condition. He argues that the affidavit was admissible to show his state of mind and he relies on Article 3726, V.A.C.S. His contention is without merit.

The affidavit in question was dated August 15,1960, and states that appellant was a schizophrenic. The State’s objection that the affidavit was hearsay and was not authenticated or qualified under the provisions of Article 3737e, V.A.C.S., was properly sustained. The affidavit was more than fifteen years old and was of no material relevance in the instant case. There is no showing in the record that Dr. Speegle was unavailable or that any attempt had been made to subpoena him.

Ground of error number six urges that the trial court erred in the admission into evidence at the trial on the merits the judgment of the competency hearing. Such contention is without merit. Where testimony is offered upon the main trial on the issue of insanity, the admission into evidence of the judgment in a preliminary sanity hearing is proper. Wilkinson v. State, 423 S.W.2d 311 (Tex.Cr.App.1968).

Ground of error number seven complains that the trial court should have submitted to the jury a charge during the punishment phase of the trial as to the issue of temporary insanity caused by intoxication. The charge submitted to the jury at the punishment stage of the trial properly instructed the jury as to the law of temporary insanity caused by intoxication as a mitigating fact. No error is shown.

In grounds of error numbers eight, nine, ten and fourteen appellant contends that the grand jury did not hear sufficient evidence before it returned the indictment and that the trial court should not have refused him a copy of the grand jury proceedings so that it could be included in the record on appeal.

The motion to quash the indictment was filed June 9, 1975, ten days after the trial was concluded. A grand jury may determine the nature and competency of any evidence presented to it and this Court cannot go behind the face of the indictment. Carpenter v. State, 477 S.W.2d 22 (Tex.Cr.App.1972).

There is no showing in this record that the grand jury testimony was ever recorded or transcribed nor has appellant shown a particularized need. No error is shown. Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.1974). Grounds of error numbers eight, nine, ten and fourteen are overruled.

Ground of error eleven contends that the trial court should not have transferred this case from Criminal District Court No. 4 to Criminal District Court No. 1. The court has the power to transfer causes and there is no jurisdictional problem. Bank v. State, 503 S.W.2d 582 (Tex.Cr.App.1974). There was no challenge to the regularity of the transfer made at the time of the trial and no harm has been shown. Nothing is presented for review.

In grounds of error numbers twelve and thirteen, appellant contends that the death penalty is cruel and unusual punishment and that the juries and prosecutors are given too much discretionary authority. These contentions have been decided adversely to appellant by this Court in Jurek v. State, supra, and Smith v. State, 540 S.W.2d 693 (1976), and by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

Finally, in ground of error number fifteen, appellant contends that it was error for the trial court to admit certain statements made by the deceased to her roommate, Anita McCasland, outside his presence on the day of her murder. Many of the statements came in without objection. Even if the statements were hearsay, no reversible error was committed. The statements made earlier to her roommate are admissible to show that she was going to see appellant on a peaceful mission. Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973); Sherman v. State, 428 S.W.2d 338 (Tex.Cr.App.1968); Porter v. State, 152 Tex.Cr. 540, 215 S.W.2d 889 (1948).

No reversible error having been shown, the judgment is affirmed.

1 . See similar provision contained in Article 1257(d), V.A.P.C., 1925, as amended (Acts 1973, 63rd Leg., p. 1122, ch. 426 — effective June 14, 1973 until January 1, 1974 — effective date of present Penal Code.