Vanderbilt v. State

• Decision Date: 23 September 1981
• Docket Number: No. 66710,66710
• Citation: 629 S.W.2d 709
• Parties: Jim VANDERBILT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 709

629 S.W.2d 709

Jim VANDERBILT, Appellant, v. The STATE of Texas, Appellee.

No. 66710.

Court of Criminal Appeals of Texas.

Sept. 23, 1981.

Rehearing Denied Nov. 4, 1981.

Gene Storrs, Amarillo, for appellant.

Stephen M. Rienstra, Atty. pro tem, Beaumont, Robert Huttash, State's Atty., Austin, for the State.

OPINION

TOM G. DAVIS, Judge.

Appeal is from conviction for capital murder. Trial was in Jefferson County following change of venue from Potter County. After finding appellant guilty of capital murder, the jury returned affirmative findings to the first two special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

In his fourth ground of error the appellant contends that there was insufficient evidence to support a finding that the murder was committed in the course of kidnapping or attempted kidnapping.

The evidence shows that the victim, Katina Moyer, was a sixteen-year-old high school student. She was seen leaving a parking lot at the Amarillo High School at approximately 3:15 p. m., April 1, 1975, driving her mother's red Chevrolet station wagon. This automobile had imitation wood paneling on the side, a paper dealer's license plate, and a Dallas Cowboys sticker on the rear window. Thus, the evidence establishes that the vehicle had distinctive recognizable characteristics.

Katina Moyer was expected to pick up her mother, a school teacher, from the Palo Duro High School in Amarillo at approximately 3:35 p. m. Miss Moyer customarily waited in the car on the parking lot until her mother got off work. When Mrs. Moyer completed her duties on April 1, 1975, her daughter was not waiting on the parking lot.

Frances Kearns, a neighbor of appellant, testified that she saw the Moyer's red station wagon parked in front of appellant's home on the afternoon of April 1, 1975. Kearns stated that she saw appellant leave his house with a girl matching the victim's description, and get into the red station wagon. Kearns testified that the girl with appellant that day had long brown hair, much like the victim's hair, and that the girl had something draped over her shoulder so that Kearns could not see the girl's hands. Kearns identified a photograph of appellant's wife and verified that the girl she saw with appellant that afternoon was not his wife. Kearns had never seen the girl or the red station wagon in the vicinity of appellant's home prior to April 1, 1975. Appellant's home is situated within a few blocks of the Palo Duro High School where Miss Moyer was scheduled to pick up her mother.

Elton Walcott testified that on April 1, 1975 between 4:30 p. m. and 5:00 p. m. his family was nearly involved in a traffic accident with the Moyer's red station wagon. He stated that his wife was driving at the time and he was able to positively identify both the Moyer's vehicle and appellant as the driver. There was also a white female with long dark hair, like Katina Moyer's, in the station wagon with appellant. Mr. Walcott last saw the vehicle northbound on Dumas Highway and stated that appellant seemed to be in a hurry.

Mrs. Walcott positively identified the Moyer's station wagon as the vehicle she nearly collided with on April 1, 1975. She testified that the auto was driven by a white male with a tiny moustache and that a white female with long dark hair was the only other passenger. These descriptions are consistent with the physical appearances of appellant and Miss Moyer on the date of the offense.

Mary Fuller testified that she was driving south on Dumas Highway from Dumas on April 1, 1975. At approximately 6:00 p. m. she noticed a red station wagon, like the one owned by the Moyer family, parked alongside Dumas Highway near the intersection of Cactus Drive. The vehicle appeared to be unoccupied and the fourway emergency lights were flashing. Fuller saw appellant along the side of the highway approximately "half a block" from the red station wagon and stopped to offer him a ride. The appellant was dressed "casually," wearing a "windbreaker" or jacket, white shirt, and "Levi slacks." He accepted the ride and told her his car had broken down. He denied ownership of the station wagon, stating that his car had broken down "further back up the road." Fuller testified that she had just driven between 50 and 60 miles on the highway and had not seen any vehicles parked thereon that appeared to be broken down. Fuller stated that she had several children and was aware that young people frequently have car trouble. Consequently, it was her habit to be very watchful for stalled vehicles and stranded motorists.

Fuller offered to take appellant home, however, he stated that he could not remember his address and asked to be let out near a service station so that he could get assistance. After leaving appellant near the service station, Fuller noticed that he stood watching her as she drove away, and that he appeared to be holding a white handkerchief which she had not previously noticed. Rather than approaching the service station, appellant turned and walked toward a nearby park.

The Moyer's station wagon was located by police at approximately 10:00 p. m. on April 1, 1975. The vehicle was found unoccupied on the shoulder of the southbound lane of Dumas Highway near Cactus Drive, approximately 600 yards from the Amarillo city limits. The front portion of the automobile was facing south. An Amarillo police officer testified that he thoroughly "dusted" the vehicle searching for latent fingerprints, but was unable to obtain any identifiable fingerprints. While the officer did not state unequivocally that the vehicle had been wiped clean of fingerprints, he did testify that based upon his experience it was unusual to find no fingerprints on an automobile.

At approximately 2:10 a. m., April 2, 1975, Katina Moyer's body was found on Gluck Pens Road approximately one mile east of Dumas Highway. Gluck Pens is a rural dirt road that intersects with Dumas Highway approximately six miles north of the location where the abandoned station wagon had been recovered.

The results of an autopsy performed on April 2, 1975 showed that the cause of death was a gunshot wound through the head. The approximate time of death was between 6:00 p. m. April 1 and 1:00 a. m. April 2. The pathologist testified that bruises found on the victim's wrists and forearms occurred before death. Further, that there had been some type of binding on the decedent's wrists, and that the bruises could have been caused by handcuffs.

Prior to her disappearance and death, no bruises had been observed on the victim's body. The State presented evidence that Katina Moyer had never been known to pick up a hitchhiker, and she had not previously been acquainted with appellant.

Jerre Kris Tucker testified that she had been sexually molested by appellant on March 27, 1975. She was 21 years old at that time and employed at a shopping mall in Amarillo. On that evening she got off work at approximately 9:15 p. m., and was sitting alone in her car on the parking lot adjusting her makeup before leaving. Appellant opened the driver's door of her car, produced a pistol, and demanded that she move over. Appellant entered the car, drove it a short distance, then pulled over. At that time he instructed Tucker to turn around and put her hands behind her back. He then produced a pair of handcuffs and proceeded to handcuff Tucker's hands behind her back.

The appellant drove Tucker to an area in southwest Amarillo where residential construction was in progress. The area was secluded at that time of the evening. Appellant parked the car in an alley between unoccupied new houses and sexually molested Miss Tucker. He later released her several blocks from her place of employment, and left her car on the parking lot where the original abduction occurred.

Shortly after appellant had entered Miss Tucker's car he had put on a pair of her gloves and carefully wiped the steering wheel and gearshift lever. The appellant was wearing dress slacks and a "sport coat" type of jacket when he accosted Tucker.

The evidence shows that appellant had been an Amarillo police officer. On April 11, 1975 police officers searched the appellant's residence and seized the following items of evidence therefrom: a .41 caliber Smith & Wesson revolver; a box of .41 caliber ammunition; a box in which the .41 caliber pistol had been purchased; a box containing both live rounds and spent shell casings of .357 caliber ammunition; the box in which a Smith & Wesson .357 caliber revolver had been purchased; and a pair of handcuffs.

The evidence established that appellant purchased a Smith & Wesson .357 caliber revolver from the Amarillo Police Department on March 10, 1975. This weapon was not admitted in evidence. Appellant had also purchased three sets of handcuffs from the Amarillo Police Department between December 3, 1974 and March 21, 1975. The handcuffs seized at his residence were purchased from the Police Department on March 21, 1975.

Miss Tucker was shown the .41 caliber revolver seized at appellant's residence and a .357 caliber revolver of the same make and model as the one purchased by appellant. She testified that the gun used by appellant when he abducted her looked similar to these weapons, but could not say that it looked more like one than the other.

Miss Tucker was asked to examine the handcuffs seized from appellant's residence. After doing so she testified that they looked and felt like those appellant had used to bind her hands behind her back. Laboratory analysis of the handcuffs found in appellant's residence disclosed a small spot of blood. That blood spot was found to be human blood, Type A Positive-the same blood type as Katina Moyer's.

On April 18, 1975 a .38 caliber slug was recovered by the police approximately 250 feet from where the body had been found on Gluck Pens Road. Subsequent laboratory analysis disclosed 3 hair fragments embedded in the slug....