Granviel v. State

• Decision Date: 10 November 1976
• Docket Number: No. 52732,52732
• Citation: 552 S.W.2d 107
• Parties: Kenneth GRANVIEL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 107

552 S.W.2d 107

Kenneth GRANVIEL, Appellant, v. The STATE of Texas, Appellee.

No. 52732.

Court of Criminal Appeals of Texas.

Nov. 10, 1976.

Certiorari Denied May 23, 1977.

See 97 S.Ct. 2642.

Charles Dickens and Frank W. Sullivan, III, Fort Worth, for appellant.

Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GUPTON, Judge.

The offense is capital murder under V.T.C.A., Penal Code, Sec. 19.03(a)(2); the punishment, death.

Appellant was charged with the killing of Natasha McClendon while in the course of committing rape on another person. The sufficiency of the evidence to support the jury's verdict of guilty is not challenged. The record reflects that on October 7, 1974, appellant left work at 8:00 p. m. and drove to his apartment, where he watched the first half of a televised football game with his roommate. Appellant then decided to "go riding" because he wasn't enjoying the game. He drove through his apartment complex to the McClendon apartment, which was located in the same complex. While driving around the block, appellant "got this urge to have sex" with Laura McClendon, although they had never had intercourse previously. Appellant testified he had known the McClendon girls ¹ for approximately three years. He parked his car in front of the McClendon apartment and remained seated in it for several minutes. Through the open window of the apartment, he was able to see Laura inside.

At approximately 10 p. m. appellant walked up to the apartment and found the front door open. Appellant knocked and Laura invited him in. After some conversation, appellant asked for a drink of water. At that point, he was only interested in finishing the water and leaving. However, he returned the glass to the kitchen where Laura was cleaning the stove and her small son (Steven) was playing. Appellant then walked up behind Laura and placed a knife, which he had brought with him, to her throat. Appellant assumed Laura thought he was kidding. He told her to place her arms around him and smile so that Steven wouldn't be nervous.

Appellant, Laura and Steven walked toward Laura's bedroom with appellant locking the front door and closing the curtains on the way. Laura then told appellant that he "didn't have to take it" at which time he put the knife in his back pocket. Appellant had Laura tie her son with a telephone cord appellant had ripped from the wall when Steven started crying. Next appellant tore a bedsheet in strips and bound and gagged both Steven and Laura. Appellant then laid Laura and Steven "face down" on the bed, at which time Martha and her two year old daughter Natasha entered the apartment with her cousin Linda.

After calling, "Where is Laura?" Martha entered the bathroom. Natasha entered Laura's bedroom, saw appellant and ran to join her mother in the bathroom. At that time appellant covered Laura and Steven with a bedspread and Linda entered the room. Appellant showed her the knife and instructed her to lie down beside Laura on the bed.

Meanwhile, Martha left the bathroom and went into the livingroom. Appellant walked up behind her and grabbed her, throwing her on her head. Appellant then took Martha to her bedroom and bound her. He returned her to Laura's bedroom where he bound and gagged the remaining members of the McClendon family. Appellant then left the apartment and moved his car.

Upon reentering the apartment, appellant took Laura to the back (Martha's) bedroom and began removing her clothes. At this point he cut Laura on the inner thigh with his knife. Steven began crying and appellant placed him on a trunk in a closet of Laura's room. Laura told appellant that Steven needed his asthma medication which appellant then gave him. Appellant raped Laura, after which they sat and talked for about an hour.

Steven began crying so appellant stabbed him several times, thereby breaking his knife. While appellant was stabbing Steven, someone knocked on the front door. Appellant went to the kitchen for another knife and threw the handle of the broken knife into the trash can and the blade into the sink.

Following a second conversation with Laura, appellant brought Martha to the back bedroom, where he cut her on both arms and raped her. Appellant returned to Laura's bedroom for Linda; she wasn't breathing at that time. Appellant then stabbed Linda several times. Natasha began "hollering" so appellant stabbed her several times as she lay on the floor between the bed and the dresser. He then "threw her on the bed" and stabbed her again.

Appellant returned to the back bedroom and talked with Laura before he began stabbing Martha and then Laura. Appellant then went through the women's purses and removed their money. He left the apartment, leaving the second knife in the back bedroom. Laura, Linda, Martha, Natasha and Steven McClendon died as the result of these injuries.

Approximately four months later (February 8, 1975) appellant spent the day playing cards with friends. Not long after he returned to his apartment, Betty Williams knocked on his front door and asked to use the telephone. Afterwards, she asked appellant if he had smoked someone else's cigarettes that afternoon by mistake. Appellant threw her half a pack, but as she opened the door and started to leave he "had an urge". Appellant suggested she take a full pack and told her it was in the bedroom. As Betty looked for the cigarettes, appellant walked up behind her, grabbed her, and "turned her upside down on her head." She appeared dazed and appellant began removing her clothes.

At that point, Vera Hill, the woman with whom appellant lived, began to unlock the apartment door. Appellant took a knife from the kitchen and stabbed Vera until she fell. He returned to the bedroom and was attempting to rape Betty when he heard a knock on the door. He choked Betty to quiet her and then told his friend at the door to return later, because he (appellant) and Vera were fighting. Appellant moved Vera's body to the kitchen so it could not be visible from the front door. Another knock on the front door went unanswered and appellant returned to the bedroom and raped Betty. In order to keep Betty quiet, appellant "tried to wrap her chin and neck around the bed post." He then stabbed her and struck her head with a hammer. Vera Hill and Betty Williams both died from the injuries they received.

Appellant left his apartment after attempting to eat a sandwich and drove in his car for a while, ending at Wanda Hanson's apartment. Wanda was not home, so appellant asked her mother, Lizzie Phillips, if he could use her phone. Mrs. Phillips allowed appellant into the apartment, following which he bound Mrs. Phillips and her two grandchildren. Appellant placed the small boy in a closet and was in the process of raping Mrs. Phillips when Wanda's sister knocked on the front door. Appellant found a gun under Mrs. Phillips' mattress and held it to the head of the entering woman. He directed her to the bathroom and allowed her to keep her son and daughter with her. Appellant also brought the baby its bottle.

Appellant took Mrs. Phillips to the livingroom and raped her. He then went to the door and motioned for the daughter's husband to come inside. The man was led to a closet and Mrs. Phillips was again taken to her bedroom and raped.

In the course of the third rape of Mrs. Phillips, Wanda and her boyfriend entered the apartment. Appellant announced that he and Wanda were going for a ride and ordered her family not to call the police for 12 hours because by that time he would have turned himself in.

After going to his apartment, appellant and Wanda drove to Rev. R. L. Spearman's home and the three of them proceeded to the police station where appellant gave statements concerning both incidents.

In three grounds of error appellant asserts (1) V.T.C.A., Penal Code, Sec. 19.03 is unconstitutional because the punishment of death is not the least restrictive means to protect any compelling state interest, (2) the death penalty sanctions the arbitrary imposition of death as punishment in violation of the Eighth and Fourteenth Amendments to the U. S. Constitution, and (3) the death penalty constitutes cruel and unusual punishment. These contentions have been answered adversely to appellant in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, and in Jurek v. State, Tex.Cr.App., 522 S.W.2d 934. See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913. Grounds of error one, fifteen and sixteen are overruled.

In his second ground of error appellant alleges the trial court erred in excluding five venirepersons for cause in violation of the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Donald L. Harrison stated that, "No, I could not" ever vote to inflict the death penalty and that this was a definite prejudice or feeling he would not change. Upon the State's challenge for cause, appellant's counsel stated, "We do not have any questions", in response to the court's inquiry if he had any objections to the exclusion of this person. The record shows that no questions were asked whatsoever. No error is shown. Boulware v. State, Tex.Cr.App., 542 S.W.2d 677 (1976).

Homer L. Lipscomb stated:

"Q (PROSECUTOR) You don't think you could imagine any sort of case in which you feel the death penalty to be justified, then?

A No."

He stated he didn't believe in that form of punishment, and that no matter how terrible the crime might be, he wouldn't want that on his mind and that this was a firm conviction that he wouldn't let anyone talk him out of. Upon State's challenge for cause, the appellant's counsel made no objection, nor did he question this person. No error is shown. Boulware, supra.

Inez Wallace advised...