Paulus v. State

• Citation: 633 S.W.2d 827
• Decision Date: 28 October 1981
• Docket Number: No. 57536,No. 1,57536,1
• Parties: Lilla PAULUS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 827

633 S.W.2d 827

Lilla PAULUS, Appellant, v. The STATE of Texas, Appellee.

No. 57536.

Court of Criminal Appeals of Texas, Panel No. 1.

Oct. 28, 1981.

Motion for Rehearing May 26, 1982.

Mike DeGeurin, Dick DeGuerin, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Carol S. Vance, Former Dist. Atty., William W. Burge, Robert Bennett, and Timothy G. Taft, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Appeal is taken from a conviction for the offense of accomplice to murder with malice aforethought under our former penal code. ¹ Upon the jury's return of a verdict of guilt, the trial court assessed appellant's punishment at 35 years confinement. ²

The indictment returned against appellant alleged,

"Bobby Wayne Vandiver and Marcia McKittrick on or about the 24th day of September, A.D. 1972, in said County and State did with malice aforethought kill John Hill by shooting him with a gun.

And the Grand Jurors aforesaid do further present in and to said court that Lilla Paulus on or about the 24th day of September, A.D., 1972, prior to the commission of the said offense by the said Bobby Wayne Vandiver and Marcia McKittrick as aforesaid, in the County of Harris and State of Texas, did unlawfully and willfully advise, command, and encourage the said Bobby Wayne Vandiver and Marcia McKittrick to commit said offense, the said Lilla Paulus not being present at the commission of the said offense by the said Bobby Wayne Vandiver and Marcia McKittrick...."

The sufficiency of the evidence is challenged.

Viewed in a light most favorable to the jury's verdict of guilt, the evidence reflects the first of a crucial sequence of events forming the context of this case to have been the death of Houston socialite and equestrienne Joan Robinson Hill in February of 1969. During Mrs. Hill's illness and immediately preceding her death, a long time friend, Dianne Settegest, ³ was a house guest in the Hill home in River Oaks. Eventually, suspicion regarding Joan Robinson Hill's death fell on her husband, Dr. John Hill, a prominent plastic surgeon. Among the witnesses who testified in May of 1970 before a Harris County grand jury in connection with the abstruse death was Dianne Settegest. During this trip to Houston, Settegest stayed with Ash Robinson and his wife, "Ma," the parents of the deceased woman, their only child.

John Hill was indicted for murdering his wife and brought to trial in January of 1971. During the trial, Dianne Settegest stayed with another close friend in Houston Lilla Paulus, ⁴ our appellant, at the latter's home on Underwood Street, and appellant attended a portion of the trial when Settegest testified.

The prosecution of Dr. John Hill ended in a mistrial. A second trial was to commence in the late fall of 1972 and it was Settegest's assumption she would stay with appellant again at that time.

Marcia McKittrick testified that she met appellant in January, 1972, at "either the (Houston) airport or her home"-she didn't remember which, but believed it to be the airport-and on that day or the next, went to appellant's home on Underwood; ⁵ according to McKittrick, she thereafter stayed at appellant's home "many times," whenever she was in Houston from the time she met appellant until the time of completion of the offense alleged here. McKittrick, a prostitute by trade, "worked" while in Houston at the William Penn Hotel under the alias "Dusty." Appellant was aware of her profession and asked McKittrick not to bring her "men friends" to the house, with which request McKittrick complied.

At "some time" during McKittrick's stay with appellant, the latter asked McKittrick if she knew of anyone interested "in filling a contract," meaning a killing. McKittrick agreed to make inquiries. Thereafter, McKittrick met Ash Robinson at appellant's home and appellant later told her that Robinson was the one who wanted a contract filled on Dr. John Hill. McKittrick did not know who John Hill was. She testified that she thereafter saw Ash Robinson at appellant's house "several times."

In "the spring or early summer of 1972" on a trip to Dallas McKittrick mentioned the contract to her "chip," ⁶ Bobby Vandiver, an admitted robber. Two weeks "or so" later, she introduced Vandiver to appellant at the house on Underwood in Houston. According to McKittrick appellant asked Vandiver if he were interested in the "contract" for $5,000.00, and stated she would receive her money from the same unmentioned source as Vandiver. Vandiver agreed and they discussed details. Later McKittrick and Vandiver decided to "forget it" and returned to Dallas. Late in the summer, appellant called Vandiver at his sister's house in Dallas and told him the contract was on again and "... what had gone wrong was right again." McKittrick and Vandiver returned to Houston, and several weeks before September 24, 1972, appellant took them on at least three occasions to the Hill home on Kirby Drive in River Oaks, discussing Hill's routine and mentioning the people who were normally there. McKittrick also claimed that on occasion, she was with appellant when she met Ash Robinson at Ben Taub Hospital in Houston, but she stayed in appellant's car while appellant would sit in Robinson's car or they would walk. McKittrick, however, was not privy to any conversation, but on several occasions it appeared to her that Robinson handed money to appellant.

McKittrick further testified that prior to September 24, 1972, appellant told Vandiver the money was to come from Ash Robinson because Robinson was convinced that Hill would never be convicted of causing his daughter's death and that this was the only way he could get justice. Appellant gave McKittrick and Vandiver a coffin shaped picture of Hill. In an effort to locate Hill, McKittrick made phone calls from appellant's home with her knowledge to Seattle and to Las Vegas. Unable to locate Hill, McKittrick and Vandiver drove to Las Vegas in an effort to find him "a few days before" September 24th. Still unable to locate Hill, they returned to Houston where appellant told them that Hill was to return the next day but that Ash Robinson did not know on which flight. Appellant informed McKittrick that Ash Robinson had given her $7,000.00.

On the morning of September 24, 1972, McKittrick saw Robinson at appellant's home and he stated that Hill would have $15,000.00 on his person. McKittrick testified appellant had the arrival times for the National Airlines flights from Las Vegas on that day, but she didn't know which flight Hill would be on; McKittrick called the ticket agent for National Airlines and learned Hill was due to arrive in Houston at 6:38 p. m. McKittrick related she and Vandiver then estimated the time it would take a taxi to come from the airport; at about 7:00 p. m. they drove to the Hill home.

Vandiver knocked on the door and entered the house; McKittrick drove the car to the House of Pies on Kirby Drive and waited for him to call on the pay phone as planned.

Inside the house on Kirby, Vandiver encountered the 12 year old son and mother of his intended victim. He bound and gagged these witnesses, then apparently thereafter masked himself ⁷ and waited for Dr. Hill's arrival. Hill and his wife, Connie, had just returned to Houston via National Airlines from a trip to Seattle, San Francisco and ultimately a medical convention in Las Vegas. At approximately 7:30 p. m., they arrived by taxi at their home.

Immediately the Hills confronted the masked Vandiver who announced "this is a robbery." Hill and Vandiver struggled and Connie Hill ran for help. Vandiver fled after fatally shooting Hill four times with a .38 caliber pistol supplied by McKittrick.

In the interim, McKittrick had waited an hour when Vandiver telephoned and said there had been a "rumble." She picked him up at a Stop and Go convenience store and they returned to appellant's home. There appellant gave Vandiver $5,000.00 and he returned $1,500.00-$1,000.00 for steering him to the job and $500.00 for the advance she had given to them for his and McKittrick's trip to Las Vegas.

McKittrick related she and Vandiver then left for Dallas where they learned from television news reports the pistol used had been recovered from some bushes near the Hill home.

Regarding the quantum of proof the State was obliged to adduce in the instant case, Article 38.14, V.A.C.C.P. directs:

"A conviction cannot be had upon the testimony of an accomplice ⁸ unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."

In appellant's trial, the jury was correctly instructed that Marcia McKittrick was, as a matter of law, an accomplice witness. Thus, though the State may have established every element of the offense alleged against appellant through the testimony of McKittrick, the law insists that unless there is evidence independent of her testimony which tends to connect appellant with the commission of that offense, the evidence as a whole must be deemed insufficient. Article 38.14, supra, Walker v. State, 615 S.W.2d 728 (Tex.Cr.App.1981). ⁹

Because of both the nature of the offense charged against appellant-accomplice to murder-and the reliance by the State on "cumulative circumstances" to supply the corroboration of McKittrick's testimony regarding appellant's conduct and criminal liability, the instant case is uncommonly complex and will in time necessitate application of legal principles not always involved in reviewing the sufficiency of the corroboration of an accomplice witness. But the established yardstick against which all such evidence is to be broadly measured is as was first articulated in Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App.1968):

"The test as to the sufficiency of the...