DeGarmo v. State

• Decision Date: 13 March 1985
• Docket Number: No. 69027,69027
• Citation: 691 S.W.2d 657
• Parties: Roger Leroy DeGARMO aka Quinton Earl Combest, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 657

691 S.W.2d 657

Roger Leroy DeGARMO aka Quinton Earl Combest, Appellant, v. The STATE of Texas, Appellee.

No. 69027.

Court of Criminal Appeals of Texas En Banc.

March 13, 1985.

Rehearing Denied April 24, 1985.

Kenneth D. Hartfiel, Rosenberg (court appointed), for appellant; David K. Chapman, San Antonio, of counsel.

Timothy Sloan, Sp. Prosecutor, Bay City, William A. Meitzen, Dist. Atty., Richmond, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TEAGUE, Judge. ^*

Roger De Garmo, aka Quinton Earl Combest, appellant, murdered Kimberley Anne Strickler, a young lady who was only twenty (20) years of age at the time of her untimely death. After finding appellant guilty of capital murder, the jury returned affirmative findings to special issues that were submitted to it by the trial judge pursuant to Art. 37.071(b), V.A.C.C.P. Based upon the jury's answers, the trial judge assessed appellant's punishment at death.

Appellant was accompanied and assisted by an accomplice--Helen Leydalia Mejia--when he kidnapped and later murdered Strickler. Mejia testified for the State. As a result of a plea bargain agreement with the prosecution, but after appellant's trial, Mejia received ten (10) years' deferred probation for her participation in the abduction and murder of Strickler.

We affirm appellant's conviction and sentence of death.

We overrule appellant's challenge to the sufficiency of the evidence to sustain the jury's verdict finding him guilty of capital murder.

The record on appeal reflects that appellant and Mejia kidnapped Strickler in Harris County after she befriended them by giving them a ride in her automobile. Appellant later forced Strickler to get inside the trunk of her motor vehicle, after which he closed and locked the trunk lid. Later, after driving to a location in Fort Bend County, appellant opened the trunk lid of Strickler's vehicle. Acting with a state of mind which showed a heart regardless of social duty and fatally bent on mischief, appellant then deliberately and intentionally fired one bullet from a pistol into Strickler's head, which wound caused Strickler to die almost instantaneously. Because appellant intentionally murdered Strickler in the course of committing the offense of kidnapping he is guilty of capital murder. See V.T.C.A., Penal Code, Section 19.03(a)(2).

The record on appeal also reflects that shortly before appellant murdered Strickler, but after he and Mejia had kidnapped Strickler and stolen her automobile, and with Strickler inside of the locked trunk, but still alive, he and Mejia abducted John Moers, which abduction occurred after Moers had also befriended appellant and Mejia by helping them extricate Strickler's vehicle from its then stuck position. Mejia held Moers captive by pointing a pistol at him. With Mejia driving Strickler's vehicle, and Strickler still alive but inside of the locked trunk, and appellant driving Moer's pick-up, with Moers held hostage inside of the cab of his vehicle, appellant and Mejia changed their location. After arriving at the new location, which was out in the country, appellant opened the trunk lid and shot Strickler in the head which caused her death. Thereafter, Mejia drove Strickler's vehicle to another location, at which Strickler's vehicle, with Strickler's body in the trunk, was abandoned. With appellant now driving Moers' vehicle, Mejia sitting in the middle of the cab, and Moers sitting next to the passenger door, the parties proceeded to another location. During this drive, appellant told Moers, "I will kill you too if you try anything, just don't try anything." Soon thereafter, Moers successfully escaped from appellant and Mejia by opening the passenger door and jumping from his vehicle.

As a result of what appears to have been extremely fine investigative work by several members of the Fort Bend County Sheriff's Department, who had been assigned the case after it had apparently been written off by other members of the Sheriff's Department as an unsolved murder, appellant and Mejia were eventually arrested.

Appellant's contention that the evidence is insufficient to sustain the jury's verdict finding him guilty of the capital murder of Strickler is totally without merit because at the punishment stage of the trial he testified and admitted killing Strickler. In so testifying, appellant intentionally, knowingly, and voluntarily rejected his attorneys' advice not to testify at the punishment stage of the trial, even though he had followed their advice at the guilt stage of the trial. Appellant told the members of the jury that they had made the right decision by finding him guilty of committing the capital murder of Strickler. He stated: "I was the one that was there and I was the one that did the crime. So, now you can at least sleep well knowing that you picked the right person and not thinking you might not have ..."

When he testified, appellant also threatened the jurors with death if they answered the special issues submitted to them in such a way that he, appellant, would only receive life imprisonment. He told the jurors that if that happened, i.e., that if he only received a life sentence, he would eventually, either acting individually or in conspiracy with others, cause each juror to die, or, if the juror was no longer alive, he would cause members of the juror's family to die. Appellant made no bones about what he intended to do if the jury's verdict did not result in him receiving the death penalty: "I'm not threatening, I'm promising that if and when some catastrophe happens and I was put back on the street, if you are not available, somebody of your possession would be and I would just say my statement is you should give me the death penalty because that's the only way you're ever going to stop me because you have put me in this position ... I'm going to die any way, so why not take with me some of the people that's going to make me die. That's the way I feel ... so you better ... put the 'Yes' on both of them questions from my point of view."

And the record reflects that the jurors did as appellant requested--they answered both special issues in the affirmative, which caused the death penalty to become the only penalty that the trial judge could assess.

In asserting that the evidence is insufficient to sustain the jury verdict finding him guilty of capital murder, appellant acknowledges that the present law in Texas is that if a defendant does not testify at the guilt stage of the trial, but does testify at the punishment stage of the trial, and admits his guilt to the crime for which he has been found guilty, he has, for legal purposes, entered the equivalent of a plea of guilty. The law as it presently exists is clear that such a defendant not only waives a challenge to the sufficiency of the evidence, but he also waives any error that might have occurred during the guilt stage of the trial. In this instance, appellant unequivocally admitted his guilt to the capital murder of Strickler. We decline appellant's invitation to overrule the above principles of law regarding waiver of a challenge to the sufficiency of the evidence, and hold that because appellant admitted his guilt to the capital murder of Strickler, he waived any challenge to the sufficiency of the evidence. Brown v. State, 617 S.W.2d 234 (Tex.Cr.App.1981); Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970). Also see the cases collected in Smyth v. State, 634 S.W.2d 721, 724 (Tex.Cr.App.1982) (Teague, J., dissenting opinion); and see also Bodde v. State, 568 S.W.2d 344, 348 (Tex.Cr.App.1978), in which this Court rejected the argument that a defendant was deprived of due process of law because he could not testify at the punishment hearing and admit his guilt without waiving any error that might have occurred during the guilt stage of the trial. This Court held: "We cannot say that this common-sense rule of procedure denied appellant due process of law." (348).

Furthermore, it has long been the law of this State that in reviewing the sufficiency of the evidence, this Court will look to all of the evidence in the case that was adduced at both stages of the trial, and not just that offered or presented by the State. See Davis v. State, 440 S.W.2d 291, 293 (Tex.Cr.App.1969); Bellah v. State, 415 S.W.2d 418 (Tex.Cr.App.1967). Thus, evidence presented at the punishment stage of the trial may be considered in determining whether the evidence is sufficient to sustain a guilty verdict for the primary offense. Compare Branch v. State, 445 S.W.2d 756, 758 (Tex.Cr.App.1969), (Evidence admitted during the guilt stage of the trial may be considered by the jury in assessing the punishment.)

It is also now axiomatic that this Court, as all appellate courts must do when a challenge to the sufficiency of the evidence is made, will review the facts of the case in the light most favorable to the verdict, in order to make the determination whether any rational trier of fact could find guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Berry, 670 F.2d 583, 588 (5th Cir.1982); Sutherlin v. State, 682 S.W.2d 546, 548-549 (Tex.Cr.App.1984).

Notwithstanding that we find and hold that appellant's admissions that were made at the punishment stage of the trial constitute waiver of his challenge to the sufficiency of the evidence, we have carefully reviewed the evidence, and have done so without even considering Mejia's testimony, and find that circumstantially ¹ the evidence is more than sufficient to sustain the verdict of the jury, and would permit a rational trier of fact to find guilt beyond a reasonable doubt. Appellant's ground of error that the evidence is insufficient to sustain the capital murder verdict of the jury is overruled. ²

Appellant...