Dowthitt v. State

• Decision Date: 26 June 1996
• Docket Number: No. 71,554,71,554
• Parties: Dennis Thurl DOWTHITT, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 244

931 S.W.2d 244

Dennis Thurl DOWTHITT, Appellant, v. STATE of Texas, Appellee.

No. 71,554.

Court of Criminal Appeals of Texas.

June 26, 1996.

Rehearing Denied Oct. 16, 1996.

William E. Hall, Jr., Conroe, for appellant.

Michael R. Davis, Asst. Dist. Atty., Conroe, Matthew Paul, States Atty., Austin, for State.

OPINION

KELLER, Judge.

At a trial beginning in August 1992, a jury convicted the appellant of committing, on or about June 13, 1990, the capital murder (murder during the course of aggravated sexual assault) of Gracie P. ¹ The jury answered the punishment issues in the State's favor, and appellant was sentenced to death. Direct appeal to this Court is automatic under Article 37.071(h)(1990). ² Appellant raises fourteen points of error on appeal. We will affirm.

1. Sufficiency of the evidence

a. Corroboration of accomplice testimony

In point of error twelve, appellant contends that the evidence is insufficient to corroborate the testimony of Delton Dowthitt, appellant's sixteen-year-old son and accomplice to the capital murder. Delton testified at trial that he and his father picked up Gracie, age sixteen, and her younger sister Tiffany, age nine, for the ostensible purpose of driving them to their home. Instead, appellant stopped his pickup truck on a deserted road. Delton testified that he talked with Gracie outside while appellant remained inside the truck alone with Tiffany. At some point, appellant exited the vehicle and approached Delton. Appellant said that he had made a mistake and both of the girls would have to die. According to Delton, appellant used his knife to make a cut on Gracie's throat, snatched a beer bottle, and used the beer bottle to sexually assault her. Gracie was still alive during those events. Later, appellant killed Gracie by cutting her throat a second time. Meanwhile, Delton strangled Tiffany to death.

Appellant argues that Delton's testimony was not sufficiently corroborated. Because Delton was clearly an accomplice as a matter of law, his testimony must be corroborated by other evidence tending to connect appellant to the offense. Article 38.14. ³ No precise rule can be formulated as to the amount of evidence required to corroborate. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App.1994). The non-accomplice evidence does not need to be in itself sufficient to establish guilt beyond a reasonable doubt. Gill, 873 S.W.2d at 48. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App.1992). Nor must the non-accomplice evidence directly link the accused to the commission of the offense. Gill, 873 S.W.2d at 48. Munoz, 853 S.W.2d at 559. Cox, 830 S.W.2d at 611. While the accused's mere presence in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Gill, 873 S.W.2d at 49. Cox, 830 S.W.2d at 611. Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Munoz, 853 S.W.2d at 559.

The non-accomplice corroborating evidence consisted of the following:

(1) Appellant admitted that he was present during the commission of the crime although he denied guilt of the offense. Other witnesses saw appellant and Delton together in the evening before and after the murders.

(2) Non-accomplice witnesses testified that appellant had blood spatters on his shirt. A state expert testified that a person who inflicted the type of wound the victim suffered would have blood spatters on his clothing.

(3) A glass beer bottle was found on appellant's business premises. The bottle had the victim's blood on it and a fingerprint belonging to appellant. An expert testified that the injuries suffered by Gracie were consistent with those which would have been inflicted by a beer bottle such as the one found.

(4) Appellant admitted to his aunt that he "did it" and he made Delton "do it" although he never specified what "it" was.

(5) Appellant asked one of his daughters for forgiveness for an unspecified event on June 13, 1990 (alleged date of the murders).

(6) Appellant's daughters and sister testified that he habitually carried a knife. One of the daughters recognized the murder weapon as a knife carried by appellant. This daughter further stated that the knife was distinctive because of ridges on its top.

The evidence shows not only appellant's presence during the commission of the crime but numerous other circumstances connecting appellant to the offense. Delton's testimony was sufficiently corroborated. Point of error twelve is overruled.

b. Underlying offense

In point of error nine, appellant contends that the evidence is insufficient to show that the murder occurred during the course of an aggravated sexual assault. He argues that the evidence shows, instead, "sexual assault during the course of a murder" because appellant formed the intent to murder Gracie before he decided to sexually assault her. Appellant relies upon Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.1978), which established the felony murder merger rule.

Initially, we note that Garrett is inapplicable to a capital murder prosecution. Fearance v. State, 771 S.W.2d 486, 492-493 (Tex.Crim.App.1988). See also Muniz v. State, 851 S.W.2d 238, 243-249 (Tex.Crim.App.), cert. denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993)(merger doctrine rejected in context of aggravated sexual assault as underlying offense for capital murder).

Moreover, appellant's logic is flawed. Even if appellant formed the intent to murder before he formed the intent to commit aggravated sexual assault, the murder itself could still have occurred "during the course of" the aggravated sexual assault. The evidence in the present case shows that appellant used a beer bottle to sexually assault Gracie while she was still alive and delivered the fatal injury shortly thereafter. This situation is distinguished from instances in which the intent to commit the alleged underlying offense forms after the murder is complete. The latter situation is most commonly illustrated by the "afterthought theft" scenario. See Moody v. State, 827 S.W.2d 875, 892 (Tex.Crim.App.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). Ibanez v. State, 749 S.W.2d 804, 807 (Tex.Crim.App.1986). Under the "afterthought theft" scenario, the murderer decides to commit a theft only after the murder, committed for reasons unrelated to theft, is already complete. See authorities above. Under that scenario, the offender is not guilty of capital murder but of ordinary murder and theft.

Because the victim in the present case was still alive, the aggravated sexual assault could not have been an "afterthought" but was intertwined with the murder. Although not directly addressing appellant's argument, we have previously held that a murder may be in the course of an aggravated sexual assault even though the sexual assault is completed before the murder commences. Lincecum v. State, 736 S.W.2d 673, 680 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 936 (1988). Wooldridge v. State, 653 S.W.2d 811, 816 (Tex.Crim.App.1983). Because appellant intended to murder Gracie at the time he sexually assaulted her, and he completed the murder shortly after the sexual assault, appellant's conduct is sufficient to establish murder during the course of aggravated sexual assault. Point of error nine is overruled.

2. Voir dire

In point of error one, appellant claims that the prosecution improperly used the hypothetical of aiding suicide to illustrate a circumstance in which probation might be an acceptable punishment for murder. He argues that the hypothetical is not an example of murder at all because the example used by the State involves a person who merely supplies the victim with the means to commit suicide without actually participating in the commission of the suicide. He claims that the hypothetical thus constitutes a misstatement of the law used to qualify jurors on the range of punishment.

We need not address the merits of this allegation because any error would be harmless. Because appellant was convicted of capital murder, any erroneous or misleading hypotheticals to prospective jurors about punishment for the lesser-included offense of murder made no contribution to appellant's conviction or punishment. Jones v. State, 843 S.W.2d 487, 498 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Point of error one is overruled.

In point of error two, appellant argues that the trial court erred by denying his challenge for cause of an allegedly pro-death penalty venireman. But, appellant was granted an additional peremptory strike, which he never used. To preserve error concerning the denial of a challenge for cause, the appellant must exhaust all peremptory challenges, ask for more, be refused, and point out an objectionable juror who was seated. Garcia v. State, 887 S.W.2d 846, 852 (Tex.Crim.App.1994). Green v. State, 840 S.W.2d 394, 402 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). Harris v. State, 790 S.W.2d 568, 581 (Tex.Crim.App.1989). Appellant has failed to preserve error. Point of error two is overruled.

In point of error three, appellant argues that the trial court erred by overruling his motion to postpone the exercise of peremptory challenges until the completion of voir dire. Appellant claims that his rights to due process and effective assistance of counsel were violated. We have previously held that there is no due process or equal protection violation for refusing to permit retrospective strikes in capital cases. Janecka v. State, 739 S.W.2d 813, 833-834 (Tex.Crim.App.1987).

As for the effective assistance of counsel claim, ap...