King v. State

• Decision Date: 24 March 1982
• Docket Number: No. 68633,68633
• Citation: 631 S.W.2d 486
• Parties: Leon Rutherford KING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 486

631 S.W.2d 486

Leon Rutherford KING, Appellant, v. The STATE of Texas, Appellee.

No. 68633.

Court of Criminal Appeals of Texas.

March 24, 1982.

Rehearing Denied May 5, 1982.

Ken J. McLean, Houston, court appointed, for appellant.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr., Andy Tobias and Doug Shaver, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

This cause is before us for automatic review of appellant's conviction for the offense of capital murder proscribed by V.T.C.A. Penal Code, § 19.03(a)(2), ¹ as well as his sentence of death ² assessed by the trial court pursuant to Article 37.071(e), V.A.C.C.P.

On April 10, 1978, two Baytown young persons drove into the Houston Montrose area where they stopped at two different nightclubs. Leaving the second club at 11:30 p. m., Michael Clayton Underwood and his female companion, K______ B______, ³ were accosted by appellant and Allen Carter who had driven up in a maroon pickup truck. Carter exited the passenger side, brandishing a shotgun and instructed the couple to cross the street and enter the truck. The streets were deserted, so they did as they were instructed.

During the next twenty five minutes as appellant drove around, Carter took the $11.50 the couple had between them, and on discovering that Kay had only $.50, appellant hit her hard in the chest with his elbow. ⁴ Appellant asked Carter what he wanted to do with Underwood, to which Carter replied, "I think we ought to waste him." King said "I think that's cool," and told Carter he knew of a place where they could go and Underwood "wouldn't be found for months." Kay started crying. Appellant told her to stop crying or he would "blow (her) head off too," adding, "it wasn't anything new to him."

Carter then unzipped the back of Kay's blouse and began fondling her breasts, saying to Underwood, "I like your chick." Appellant pulled into an isolated vacant lot, up to a cement slab and stopped. Carter exited the truck, instructing Underwood to do likewise, and then Kay. At this point King objected, saying, "No, (we're) going to spare the chick.... We are going to fuck the hell out of her and then we will decide what to do." From in the truck, Kay could hear Carter and Michael Underwood talking softly without argument, but Underwood's tone sounded as if he were pleading.

Kay then observed Carter push Underwood down. The latter laid still on his stomach. Carter then called to King, who exited the truck, walked around its rear and took the shotgun from Carter. King said to Kay, "Get out of the truck; I want you to watch me waste your old man." Kay slid to the edge of the seat, where she could see Michael, lying on the concrete surface, on his stomach with his eyes closed, offering no resistance. Appellant raised the shotgun above his head and struck Underwood in the back of the head with the butt of the weapon. He raised the shotgun again and repeated the blow. At this point Kay turned her head, but, as she reported it, "He continued to hit him. I could hear it. It sounded like something just kept hitting the ground like woodchopping... eight or nine times." King put the shotgun in the bed of the pickup.

King and Carter both got back in the truck and after driving around a short while longer, appellant stopped, got the weapon from the back, walked out of sight for several minutes, and returned without it. When he got back in the truck, he ordered Kay to take off her clothes. Still crying, she sat motionless. Carter unzipped her blouse and pulled it off. Appellant first tried to pull the zipper on her pants down, then ripped it open and pulled off her pants. Both Carter and King got undressed, the latter instructing her to lie down in the seat with her head toward the steering wheel. The men had earlier informed her that they had a .45 caliber pistol under the seat; she did as she was told. Carter got on top of her and penetrated her vagina with his penis. Carter told her to put King's penis in her mouth, which she did.

After approximately thirty minutes of this, King and Carter traded positions. According to Kay, the two men continued the assault, switching places a number of times; during this period they talked and laughed about killing Underwood and told Kay they had been to a party where they "didn't get enough," laughing at her plight. ⁵ After two continuous hours of sexual assault and banter, appellant decided they had been at that spot too long and he was going to move. He drove to an apartment complex and parked under a carport. During the fifteen minute drive, Carter was having intercourse with Kay, and on arrival, appellant got back on his knees and forced her to take his penis in her mouth.

Again, King and Carter took turns raping Kay and alternately forcing their penises in her mouth continuously for two additional hours. The radio was on and when it was announced that the time was 4:45 a. m., King told Carter to "hurry up and get your nuts off, it's late and we have got to go home," whereupon Carter reached climax, with King quick to follow.

Everyone got dressed and King drove back to the Montrose area near where the couple had been abducted. King asked Kay for her address. Carter looked through her purse and found a letter from her parents; he handed it to King who tore the address off. He told Kay not to go to the police, because he had her address and would come to her apartment and kill her. As King and Carter let Kay out of the truck, appellant again threatened to kill her if she reported the night's events.

Kay got into her car and began looking for a telephone; crying and in pain, she finally just pulled into a gas station and stopped because she "couldn't drive anymore." Two men approached her car and asked if she were okay. She asked them to call the police which they did. She was immediately taken to the hospital by the officers.

Appellant does not challenge the sufficiency of the evidence to support the jury's verdict of guilt, and it clearly is enough.

By his first ground of error, appellant contends the trial court erred in refusing to allow voir dire examination of the venire upon the length of time a capital murder convict would serve before he became eligible for parole, in the event a life sentence were assessed.

Specifically, appellant reasons that in view of his entitlement to a challenge for cause of any prospective juror who "has a bias or prejudice against any phase of the law applicable to the case upon which the defense is entitled to rely... as mitigation... of the punishment," ⁶ he should be allowed to inquire about the jurors' knowledge of our statutes ⁷ which prescribe a minimum of twenty years be served before a life offender is eligible for parole, because this minimum eligibility requirement is "in effect, part and parcel of the 'range of punishment' applicable" to the offense of capital murder. This contention is without merit.

It is the premise of this argument-that parole eligibility is a part of the range of punishment-which causes it to fail. By definition, the "range of punishment" is that within which the jury is authorized by law to assess a penalty. And such authorization, in turn, is accomplished through the instructions to the jury given by the trial court in "distinctly setting forth the law applicable to the case." Article 36.14, V.A.C.C.P. Contrary to the implication inherent in this contention, a jury has no power to effect or affect a minimum parole eligibility on any sentence; thus, the minimum term of incarceration required for that eligibility is clearly not a part of any "range of punishment" prescribed for an offense, including capital murder.

Appellant's first ground of error is overruled. ⁸

In grounds of error two and six, appellant complains of the trial court's permitting the testimony of Houston police officers L. L. Dawson and Tim Thomas regarding hearsay statements made by Kay describing the capital murder transaction in issue; he says it served only to bolster her unimpeached testimony. ⁹

Officers Dawson and Thomas received a radio dispatch to their patrol unit at 4:55 a. m. on April 11, 1978 and pursuant thereto proceeded to find Kay sitting in her car at a gas station which was not open. When the officers approached her car, they could see her sitting inside, crying "quite hard" with her head down. Once her attention was gotten, Kay did not recognize the two men as policemen. According to Dawson,

"She was crying and screaming and incoherent and she backed away from us more to the center of her vehicle. After talking to her a few minutes she unlocked the door. * * * She was still carrying on. * * * She said they killed him, they killed him. * * * Her face was puffed. She had been crying and her makeup had been running. (Her) lips were puffed. Her hair was matted and dirty. Her clothes were disarrayed and soiled and she was just a mess."

Once the complainant unlocked the door of her car, the officers helped her out, but she collapsed. They caught her before she fell to the ground, and walked her about ten or twelve feet toward their patrol car, but she collapsed again; they picked her up and carried her, placing her in the backseat. Thomas asked her if she wanted to go to a hospital. She said she did. Dawson drove complainant's car and Thomas drove her, to Ben Taub Hospital.

During the two to three minute trip, Thomas would try to talk to the complainant, but she could not maintain her train of thought, and would repeatedly break off the end of sentences, blurting out, "I know they killed Michael." Arriving at the hospital, the officers again had to support her as she walked. Thomas suggested she zip her pants, and on discovering the zipper was broken, he had her take her shirt tail out to cover the gap. She was taken to the admission desk, where Dawson had to furnish some information to the nurse because...