Earhart v. State

• Decision Date: 18 September 1991
• Docket Number: No. 70343,70343
• Parties: James Otto EARHART, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 607

823 S.W.2d 607

James Otto EARHART, Appellant, v. The STATE of Texas, Appellee.

No. 70343.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 18, 1991.

William W. Vance (court appointed), Bryan, for appellant.

Bill Turner, Dist. Atty., and Deena J. McConnell, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BAIRD, Judge.

This is an appeal from a capital murder conviction. Tex.Penal Code Ann. § 19.03(a)(2). The offense originated in Brazos County; however, venue was changed to Lee County pursuant to appellant's motion for change of venue. The jury affirmatively answered the two special issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071 § 2(b) and the court sentenced appellant to death pursuant to art. 37.071 § 2(e). Appeal is automatic to this Court pursuant to art. 37.071 § 2(h). Appellant raises twenty-three points of error, including challenges to the sufficiency of the evidence and the constitutionality of the Texas sentencing scheme. We will affirm.

I. FACTS

Appellant lodges numerous challenges to the sufficiency of the evidence; therefore, a rendition of the facts is necessary. On May 26, 1987, a Bryan resident noticed a foul odor emanating from a trash heap. The complainant was discovered, buried amidst the pile of refuse, arms tied behind her back with part of an electrical cord. The complainant had disappeared two weeks earlier, on May 12, 1987.

The complainant's younger brother, Jody Kirtland, with whom the complainant typically rode the school bus, left school early on May 12, 1987 for an optometrist's appointment. Ruth Kirtland, the complainant's stepmother, saw the complainant at school during the lunch period and informed the complainant that the younger brother would be leaving school for the appointment. After her stepmother left, the complainant, who was wearing turquoise shorts, a white top and white tennis shoes, told a classmate that this would be her opportunity to "get away."

A school bus driver testified that she dropped the complainant off at the child's home, around 3:40 p.m. on May 12, 1987, as usual. The driver testified that she saw a goldish-tan Chevrolet parked in front of the complainant's house that day, and had never previously seen a vehicle matching that description at the complainant's residence.

Jody Kirtland testified that when he and his stepmother returned home from the optometrist's office he looked for his sister but was unable to locate her. He testified that his sister spoke of being unhappy and of her desire to run away to live with her natural mother. He acknowledged that his stepmother, Ruth Kirtland, hit him and his sister.

The complainant's father, Joseph Kirtland, testified that he told Federal Bureau of Investigation agents that his daughter was very unhappy. He acknowledged that he told the police that the complainant's stepmother yelled at the complainant and struck the complainant. These disciplinary tactics proved to be a subject of disagreement between Joseph and Ruth Ann Kirtland. Joseph Kirtland further acknowledged having a ten thousand dollar life insurance policy on his daughter.

Ruth Ann Kirtland, the complainant's stepmother, testified that she and the complainant's brother returned to their home in the Westwood subdivision of Bryan around 4:00 p.m. on May 12 to discover that the front door to the house was open even though the air conditioner was running. The complainant's books were by the garage. Kirtland discovered that the phone had been moved and a piece of paper containing Joseph Kirtland's telephone pager number was missing. The house key was resting beside the phone. The only item missing from the Kirtland residence was a brown towel, and the complainant was nowhere to be found. Kirtland testified that the complainant had spent the prior weekend with her natural mother, Janice Dell, and that a confrontation ensued when Dell returned the complainant to her home. Several witnesses acknowledged longstanding enmity between Ruth Ann Kirtland and Janice Dell.

Ruth Ann Kirtland further testified that appellant visited the Kirtland home eight days before the complainant disappeared. The record reflects that appellant made a meager living collecting and trading odds and ends, and he stopped at the Kirtland home to inquire about a spray painter which the Kirtlands advertised for sale.

Ruth Ann Kirtland stated that she was asleep the afternoon appellant arrived at their home. The children answered the door and directed appellant to the spray painter in the garage. When Ruth Ann Kirtland met appellant in the garage, they spoke and appellant made a bid for the spray painter, claiming the painter was for his brother. Ruth Ann Kirtland declined appellant's offer. Subsequent testimony revealed that appellant did not have a brother.

Ruth Ann Kirtland described appellant as obese, filthy and unkempt. She further testified that appellant kept looking the complainant "up and down" as he spoke about the spray painter. Ruth Ann Kirtland testified that appellant drove a Chevrolet Impala, which she described as a "filthy, dirty old car."

Kay Dowling, a resident of Bryan, testified that on the day the complainant disappeared, May 12, 1987, appellant came to her home answering an ad for the sale of kittens. Appellant arrived shortly after 1:00 P.M. and left shortly after 1:20 P.M. While at the house, appellant did not purchase a kitten, but did state that the kitten was for his nine-year-old daughter (the complainant was nine years old). The record reflects that appellant did not, in fact, have any children.

Elizabeth Smith, a resident of the Westwood subdivision of Bryan, testified that appellant visited her home on May 12, 1987, answering an advertisement about the sale of antique furniture. Before arriving, appellant phoned Smith about the furniture. Smith was left with the impression that a woman would be joining appellant to look at the furniture. Appellant, however, arrived at her home alone around 1:30 p.m. and stayed "about 10 to 20 minutes." Appellant looked at the furniture and asked to use Smith's phone. Appellant made a phone call, which Smith believed to be feigned due to the brief time in which it took to place the call. Smith testified that appellant was quite interested in her children, and asked repeated questions about Smith's daughter. Appellant left without purchasing the furniture, and Smith was relieved to see him leave. She testified that she was afraid of appellant and locked her house after he left.

John Rollins, a neighbor who lived across the street from the Kirtlands in the Westwood subdivision of Bryan testified that on May 12, 1987, he went home during his lunch hour. At approximately 1:35 to 1:40 p.m., appellant came to his home, asking if he knew where Ruth Ann Kirtland was. Appellant claimed he wanted to look at the spray painter Kirtland advertised for sale. Rollins testified that appellant drove a cream colored car. Rollins later identified appellant as the man who came to his house from a photo lineup.

Peggy Hesson, also a resident of the Westwood subdivision, testified that on May 12, 1987, appellant arrived at the Hesson home around 2:10 p.m. inquiring if Hesson had an appliance that needed to be hauled away. Hesson recognized appellant from two months earlier, when she had answered an advertisement, placed by appellant, for free hauling of nonworking appliances. On May 12, however, Hesson had no appliance to be hauled. She gave appellant directions to another location, but appellant returned ten minutes later. Her son answered the door the second time and spoke with appellant, who then left. Hesson believed that appellant was intoxicated.

Around 2:45 p.m., appellant reappeared at Elizabeth Smith's residence and stated he wanted to again look at the furniture. Smith believed that appellant paid an inordinate amount of attention to her children, and testified that appellant asked Smith's five-year-old daughter for a bite of her popsicle. Appellant left the Smith residence around 3:10-3:15 p.m. when a neighbor, who was a police officer, arrived home in a marked police car.

Jean Eye and Melanie Terry, two adult female students who lived in the Westwood subdivision, testified that while on a walk on May 12, 1987, between 2:00 and 3:30 p.m., they encountered a man matching appellant's description driving through the subdivision. They testified that the car was moving very slowly, and that the driver appeared unkempt, drunk, and seemed to signal them to get in the car. The women avoided the car and did not see it again.

Glenna Charles Kansky, the Kirtland's next door neighbor, testified that on May 12, 1987 between 3:00 and 4:00 p.m. she looked out her window and saw the complainant speaking in a very animated fashion to someone in a "light colored sedan." The car subsequently pulled into the driveway. Kansky did not see to whom the complainant spoke.

Jacquelyn Gray testified that on either May 11th, 12th, or 15th she was driving down the road where the complainant's body was ultimately found and saw a little girl, dressed in a bright shorts set and white shoes, run out in front of her car. Gray slammed on her brakes, and the girl ran back and took the hand of a very heavy man.

Frank Thurmond testified that "several days before May 22nd," he saw a heavy set man and a "creme," "tan" or "gold" colored car at the location where the complainant's body was discovered.

Dr. Richard Morgan testified that shortly after midnight, May 14, 1987, he saw a brown car parked where the complainant's body was ultimately discovered.

Dr. M.G.F. Gilliland, an Assistant Medical Examiner, postulated that, based upon the autopsy results, the complainant died on May 12, 1987, in the afternoon or evening, as a result of a gun shot wound to the head. A .22 caliber bullet was removed from the complainant.

Dr. Gilliland determined the time of...