Neumuller v. State

• Citation: 953 S.W.2d 502
• Decision Date: 11 September 1997
• Docket Number: No. 08-96-00050-CR,08-96-00050-CR
• Parties: Loretta NEUMULLER, a/k/a Susie Neumuller, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 502

953 S.W.2d 502

Loretta NEUMULLER, a/k/a Susie Neumuller, Appellant, v. The STATE of Texas, Appellee.

No. 08-96-00050-CR.

Court of Appeals of Texas El Paso.

Sept. 11, 1997.

Randol L. Stout, San Angelo, for appellant.

Ori T. White, District Attorney, Ft. Stockton, for State.

Before BARAJAS, C.J., and LARSEN and CHEW, JJ.

OPINION

LARSEN, Justice.

Loretta Neumuller, aka Susie Neumuller, appeals from her conviction for capital murder. A jury found her guilty, and the trial court assessed punishment at life imprisonment. ¹ We affirm.

Facts

Larry Albers was 79 years old at the time of his death. He was a retired rancher who owned several apartments and a flea market in Ozona, Texas. Mr. Albers had also inherited oil and bank interests from his late wife.

In April 1993, shortly following the death of his wife, Mr. Albers met Loretta Neumuller at the White Horse Lounge in Del Rio, Texas. By June, Albers had asked Neumuller to move to Ozona with him. In September, Albers deeded his home to Neumuller and agreed to extensive remodeling. Neumuller then moved in. Albers also promised Neumuller that he would revise his will in her favor.

Shortly after moving to Ozona, Neumuller met Tyrone "Pete" Parker, a tenant of Albers. By October, Neumuller and Parker had become lovers. In September 1993, Neumuller told Parker she was so mad at Albers that she could just kill him. Parker replied that that could be arranged. After that, Parker would occasionally mention killing Albers.

In January 1994, Albers began transferring significant amounts of property to Neumuller. He added her name to his checking account signature card. On February 28, 630 shares of common stock in the Ozona National Bank were transferred from Mary Frances West Albers (Albers' deceased wife) to Larry Albers or Loretta C. Neumuller. Also in January, Albers retained attorney Troy Williams to prepare a new will naming Neumuller his executrix and sole beneficiary. He signed the new will on January 24, 1994.

William Mason, an attorney who had represented Albers in earlier probate matters, contacted Albers in early March and asked him to come to Mason's office to discuss a debt. Albers arrived at Mason's office accompanied by Neumuller. Mason asked to speak with Albers alone. Mason testified that appellant was "miffed." In the course of their two hour meeting, Mason asked Albers why he was transferring so much of his property to Neumuller. Albers appeared astonished that he had transferred so much control and property to appellant. Mason further testified that he advised Albers on ways of regaining control of his property and that Albers agreed to do so. Mason and Albers made an appointment for the next morning.

Rather than Larry Albers, however, the next morning Neumuller came to Mason's office with a letter terminating Mason and demanding Albers' files. Mason refused to deliver them. Several days later, Mason received a letter from Troy Williams asking for Albers' files. Mason arranged to meet with Albers and Williams to make the transfer. This meeting never took place.

Instead, on March 16, 1994, Neumuller notified the sheriff's office that Albers was missing. Highway department workers spotted Albers' car down an embankment about 28 miles south of Ozona. Albers' decomposed body was in the car. The interior of the car was partially burned and officers discovered a full can of gasoline in the backseat. They also found a bloody pipe in the trunk of the car. Albers' death was ruled a homicide. The car and its contents were sent to the DPS forensic lab in Austin.

The bloody pipe bore the palm print of Tyrone "Pete" Parker. On March 30, Parker was arrested and he gave a statement to the police implicating Neumuller. She was arrested on March 31 and also gave a statement.

According to Neumuller, Parker asked her in January if Albers had made a new will and told her she should get that done. Parker told Neumuller sometime later that Albers told him (Parker) that he (Albers) had made a will leaving everything to Neumuller. In her statement, she commented, "I guess maybe he was waiting for confirmation from Larry." After the new will was made, she claimed Parker "started talking seriously about killing Larry." At some point after this, Parker told her "I think it's time to kill Larry." In response, Neumuller told Parker she could not do it. Parker told her not to worry, that he would do it. They then discussed making Albers' death look accidental. Parker said he would find someplace to make it look like an accident.

On March 15, Parker called Neumuller and told her "tonight is the time to get it over with." That evening, the two cleaned out the trunk of Albers' car. Neumuller then had dinner with Albers. After dinner, she called Parker and arranged to pick him up at a ravine near his trailer. Neumuller let Parker into the house and she joined Albers in the den where they watched the late news. Albers and Neumuller then went to their separate bedrooms. Parker followed Albers into the bathroom. Neumuller heard Albers call out. She "ran back to where Pete and Larry was at" and saw Parker on top of Albers with a pipe across his throat. At this point, she told Parker she couldn't do this. Parker said it was too late.

Neumuller and Parker then wrapped towels around Albers' bloody head, carried him to the car, and put him in the trunk. Parker handed Neumuller the pipe which she also put in the trunk. She then drove Parker back to the ravine to get his vehicle. They drove to the spot Parker had selected, took Albers out of the trunk and in the driver's seat, put a gas can in the backseat and set paper on fire in the front seat. Parker got in beside Albers and drove the car into the bluff a few times and then ran the car over the embankment. They returned to Ozona and Neumuller cleaned the bloody bathroom.

Neumuller said she saw Parker several times after "we killed Larry." On the day before her arrest, Neumuller met Parker and complained, "I feel like a criminal." Parker apologized and said, "I never done an accident and I fucked up." Parker reassured her saying, "Won't it be funny when we send everyone in this town an invitation to our wedding."

Venue

In her first and second points of error, appellant claims the trial court erred in denying her motion to change venue. Appellant filed a written motion and supporting affidavits in compliance with TEX.CODE CRIM.PROC.ANN. art. 31.03 (Vernon 1989). The State responded by filing three controverting affidavits asserting appellant could get a fair and impartial trial in Crockett County. After hearing, the trial court denied appellant's motion. Appellant re-urged the change of venue motion during voir dire. A hearing was held and again, the trial court denied the motion.

Appellant complains that the State, in its controverting affidavits, failed to attack the credibility of the defendant's affiants or their means of knowledge as required by TEX.CODE CRIM. PROC.ANN. art. 31.04 (Vernon 1989). She also complains that the affidavits meet the common sense guidelines recognized in Beets v. State, 767 S.W.2d 711, 743 (Tex.Crim.App.1987), cert denied, 492 U.S. 912, 109 S.Ct. 3272, 106 L.Ed.2d 579 (1989).

A defendant seeking a change of venue must file a written motion supported by affidavits of at least two credible residents of the county asserting that the defendant cannot receive a fair trial in the county due to either prejudice or a combination of influential persons against her/him. TEX.CODE CRIM.PROC.ANN. art. 31.03 (Vernon 1989). If the State fails to file controverting affidavits, the defendant is entitled to a change of venue as a matter of law. Lundstrom v. State, 742 S.W.2d 279, 281-82 (Tex.Crim.App.1986)(en banc). If the defendant participates in a hearing on the motion, puts on evidence and allows the State to do so, the issue becomes a fact question to be resolved by the trial court. Id. at 282. Once the issue is before the trial court, the defendant waives any complaint about the adequacy of the State's response to the motion to change venue, and is no longer entitled to a change of venue as a matter of law. Id.; Robbins v. State, 667 S.W.2d 318, 323 (Tex.App.--El Paso 1984), rev'd on other grounds, 717 S.W.2d 348 (Tex.Crim.App.1986). On appeal, we will not disturb the trial court's decision unless we find it abused its discretion in refusing to grant the change of venue. DeBlanc v. State, 799 S.W.2d 701, 705 (Tex.Crim.App.1990).

At the first venue hearing, five witnesses testified for the defense and three for the State. All witnesses agreed that in the month following the murder of Mr. Albers, there was a great deal of talk about the case. They all also agreed that the talk had died down and no one recalled having a conversation concerning the murder in the recent past.

Four of Neumuller's witnesses testified that the general consensus in the community was that the defendant was guilty and that she could not get a fair and impartial trial in Crockett County. Neumuller's final witness, however, testified that opinions were mixed and that people in Ozona were generally fair minded and would try to give her a fair and impartial trial. Three defense witnesses believed defendant was guilty, and if called to be jurors were not sure they could set aside their preconceived notions. Monica Bendele, on the other hand, thought the defendant was innocent and would be prejudiced against the State. Les Long testified that he had no opinion on Neumuller's guilt or innocence but acknowledged that it might be difficult to get an impartial jury because so many people knew Albers and Parker.

The State's witnesses, all of whom signed controverting affidavits filed by the State, asserted that the defendant could get a fair and impartial trial in Crockett County. After hearing all of the testimony, the trial court denied the motion to change venue but noted that it would revisit the issue during voir dire...