Kutzner v. State
Decision Date | 09 June 1999 |
Citation | 994 S.W.2d 180 |
Parties | (Tex.Crim.App. 1999) RICHARD WILLIAM KUTZNER, Appellant v. THE STATE OF TEXAS NO. 72921 |
Court | Texas Court of Criminal Appeals |
Appellant was convicted of capital murder in September 1997. TEX. PENAL CODE ANN. 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 2(b) and 2(e), the trial judge sentenced Appellant to death. Art. 37.071 2(g).1 Direct appeal to this Court is automatic. Art. 37.071 2(h). Appellant raises 23 points of error. We will affirm.
The victim, Kathryn Harrison, owned and operated a real estate business in Montgomery County called Parade of Homes Realtors. Charles Divin worked as a realtor at the business. Shortly after the lunch hour on January 22, 1996, Divin went to the Parade of Homes office. Upon his arrival, he noticed the victim's car in the otherwise empty lot. Divin entered the office and went about his business, but did not see the victim. After a short period, Divin looked down the hallway and noticed that the light was on in the computer room. When he went to the room, Divin discovered the victim's body and called "911."
Montgomery County Sheriff's Deputy Jimmy Simmons was the first officer to arrive on the scene. Simmons found the victim lying face down with her wrists bound with red plastic-coated wire and her ankles locked in a cable tie, also known as "tie-wrap" or "flex cuff." A cable tie was also secured tightly around her neck. The victim's purse had been turned inside out and Divin noted a computer keyboard and a General Electric top-loading videocassette recorder were missing from the office.
Appellant and Roy Landry both subsequently became suspects in the investigation and on February 21, 1996, several detectives went over to Appellant's house. Appellant was not home at the time the detectives arrived, but one of the detectives spotted and recovered a 30-inch white plastic tie-wrap from Appellant's driveway. Detective Ben Beall2 then spoke with a neighbor and found out the type of vehicle Appellant drove and also obtained Appellant's wife's work phone number. Beall later learned that Appellant's vehicle had been repossessed and taken to A.W. Enterprises.3 Subsequent investigation revealed that Cougan Hignight had gone to Appellant's residence on the night of February 9, 1996, to repossess Appellant's truck on behalf of A. W. Enterprises. As Hignight prepared the truck for travel, Appellant came out of his residence and confronted Hignight. Hignight offered Appellant several opportunities to remove any personal property he had in the truck, however, Appellant refused each opportunity and threatened to "sic" his dogs on Hignight. Appellant finally turned and walked back into his house and Hignight left with the truck and everything that was in it.
A. W. Enterprises received the truck on the next business day. Upon its delivery, Andy Wooten, the owner of the business and the person who had originally sold Appellant the vehicle, instructed that all personal items were to be removed from the truck and secured in a locked storage building located on the used car lot. A day or two later, Appellant called Wooten to inquire about the possibility of retrieving his personal belongings.
On February 22, 1996, Detective Beall went to Wooten's car lot looking for Appellant's truck and inquiring about whether any personal items had been left in the truck. Wooten instructed an employee to unlock the storage building and show the detective Appellant's belongings. Upon seeing Appellant's belongings, Beall contacted the Harris County District Attorney's Office for a search warrant allowing him to seize the items. After obtaining the warrant, Beall returned to the lot and seized several items including four plastic tie-wraps and some fourteen gauge red electrical wire. Appellant's fingerprints were discovered in two "glue gobs" found in Appellant's truck and on a piece of paper found among the items removed from the truck.
After executing the search warrant, Beall obtained a warrant for Appellant's arrest. At approximately 11:40 p.m. on February 22, 1996, Beall and other Harris County and Montgomery County officers went to arrest Appellant at his residence. When officers received no response to their knocks, they entered and searched for Appellant. Detective David Moore proceeded into the garage where he saw "some red electrical wire" which was similar to the type used in the victim's case. Moore later obtained a search warrant with which he returned and seized both the wire and two tie-wraps. The wire which was wrapped around the victim's wrists, the wire recovered at the used car lot, and the wire recovered from Appellant's home all bore the same identification numbers, the last of which was a classification number indicating the pieces of wire were all of the same type and had all been manufactured by Rome Cable of Rome, New York. This cable was not common in the Houston area.
In the meantime, other officers went to Roy Landry's residence. After obtaining a search warrant, officers entered Landry's trailer and seized a General Electric top loading videocassette recorder which was later identified as the one taken from the real estate office. Landry testified at trial that he had known Appellant for many years and had worked for him in the air conditioning business. Landry also told the jury that four or five months prior to the instant murder, Appellant suggested to him that he should rob an elderly lady who worked alone in an office. Landry asked Appellant why he did not commit the robbery himself if it was so easy and Appellant told him the office was too close to where he lived. Questioning further revealed that the Parade of Homes building was about a mile and a half from where Appellant lived.
Sometime during the last week in January, Appellant appeared at Landry's home with the top-loading videocassette recorder later recovered by law enforcement officers and a computer keyboard. Appellant subsequently retrieved the keyboard to give to "a computer lady that did work for Mike Covington." Mike Covington testified that sometime in the latter part of January or the first part of February, Appellant brought a computer keyboard to his home. However, Appellant retrieved the keyboard a week to a week-and-a-half later because Covington did not need it. Appellant was later arrested at Covington's home.
Lela Porch testified at trial that she had met Appellant through Mike Covington. In January 1996, Appellant fixed Porch's heat pump in exchange for an older model computer. About three weeks later, Appellant brought her a computer keyboard. Officers retrieved the keyboard approximately two weeks after Porch received it and it was later identified as the keyboard that had been stolen from the real estate office.
Remodeling contractor Dale Aikins testified that he had done some work for Appellant prior to the instant offense. Aikins told the jury that on at least three separate occasions during the time he was working for Appellant, Appellant commented that there were no serial numbers on items like tie-wraps and if you ever wanted to kill anybody, "this [tie-wrap] would be a good thing to use." Michael Ennis specialized in tool mark identification in his position as a forensic physical scientist with the Federal Bureau of Investigation laboratory in Washington, D.C.. Ennis examined the tie-wraps found around The victim's neck and ankles and determined that they had been cut by the tin snips recovered from among Appellant's personal belongings at Wooten's auto lot.
At the punishment phase, the State offered evidence that appellant had served several years for an armed robbery in California committed in the late 1960's. The State also showed Appellant had been convicted for theft of stolen property in Johnson County, Texas, in May 1984, and had four convictions for aggravated robbery from 1985. Finally, the State proved that on January 5, 1996, just two and a half weeks prior to the commission of the instant case, Appellant murdered Rita Sheron van Huss in Harris County under similar circumstances. See Kutzner v. State, No. 72,805 (Tex. Crim. App. January 13, 1999) ( ).
In his first eight points of error, Appellant alleges the "admissible evidence" was legally and factually insufficient to support his conviction.4 While Appellant sets out both the standard for a legal sufficiency review and the standard for a factual sufficiency review, he does not distinguish between the two in his analysis. We shall respond to all of the points together in the same general manner.
In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.5 Jackson v. Virginia, 443 U.S. 307 (1979). In a factual sufficiency review, the Court views all the evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
Appellant notes that no witness observed him enter or exit the real estate office at or near the time of the offense. Furthermore, no witness observed him inside the office or in its vicinity at or near the time of the offense. Appellant then argues that because there are no witnesses and there is no physical evidence showing Appellant's actual...
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Table of Cases
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