Wardrip v. State

• Decision Date: 03 October 2001
• Docket Number: No. 73,671,73,671
• Citation: 56 S.W.3d 588
• Parties: (Tex.Crim.App. 2001) FARYION EDWARD WARDRIP, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Criminal Appeals

Page 588

56 S.W.3d 588 (Tex.Crim.App. 2001)

FARYION EDWARD WARDRIP, Appellant v. THE STATE OF TEXAS

No. 73,671

Court of Criminal Appeals of Texas, En Banc

October 3, 2001.

ON DIRECT APPEAL FROM WICHITA COUNTY

Before the court en banc

Per curiam.

Appellant was convicted of capital murder on November 5, 1999. Tex. Penal Code Ann. §19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.0711 §3(b) and §3(e), the trial judge sentenced appellant to death. Art. 37.0711 §3(g).¹ Direct appeal to this Court is automatic. Art. 37.0711 §3(j). Appellant raises two points of error challenging the sufficiency of the evidence at the punishment phase. We will affirm.

DELIBERATENESS SPECIAL ISSUE

In his first point of error, appellant claims the evidence is insufficient to support the jury's affirmative answer to special issue number one, "whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result." This special issue is no longer submitted in trials of offenses that were committed on or after September 1, 1991. See Art. 37.071, §§ 2(b) & (g). But it is submitted if the offense was committed before that date. See Art. 37.0711, §§ 1 & 3(b)(1). This capital murder was committed on December 21, 1984.

Although appellant argues that the evidence of deliberateness is legally insufficient, he urges us to extend the factual sufficiency standard announced in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), to our review of the deliberateness special issue.

Appellant acknowledges that we have repeatedly declined to conduct a factual sufficiency review of the future dangerousness special issue. McGinn v. State, 961 S.W.2d 161, 169 (Tex. Crim. App.), cert. denied, 525 U.S. 967 (1998). When reviewing the future dangerousness special issue, we have employed the legal sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). McGinn, 961 S.W.2d at 169. We view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. Jackson, 443 U.S. at 319; Chambers v. State, 866 S.W.2d 9, 16-17 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1100 (1994).

In McGinn, we stated that "future dangerousness is, in essence, an issue of prediction," as opposed to "an issue of historical fact."² 961 S.W.2d at 168. We explained: "Findings of historical fact are either right or wrong at the time of trial. But, predictions are not right or wrong at the time of trial--they may be shown as accurate or inaccurate only by subsequent events." Id. We held that a Clewis review of the future dangerousness issue is impossible because it would require us to assign some evidence mitigating value and to substitute our judgment for that of the jury. Id. We concluded that the Jackson standard should instead be used because it views the evidence in the light that supports the jury's verdict and asks only whether circumstances are present that a rational person somewhere could find a probability of future dangerousness beyond a reasonable doubt. Id.

Deliberateness, unlike future dangerousness, requires a finding of historical fact that is either right or wrong at the time of trial. It is distinguishable from future dangerousness because it involves an assessment of events that have already occurred. A Clewis review of deliberateness would not present the problems discussed in McGinn. Hence, we hold that the deliberateness special issue may be reviewed for factual sufficiency using the Clewis standard.³

In our review of the factual sufficiency of the evidence, we view all the evidence without the prism of "in the light most favorable to the verdict" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997); Clewis, 922 S.W.2d at 129. Appellant pleaded guilty to the capital murder of Terry Sims. The State presented evidence of the offense during the punishment phase of the trial. Leza Boone, Sims' friend and co-worker, testified that she and Sims finished working their shifts at Bethania Hospital in Wichita Falls at approximately 11:15 p.m. on the night of December 20, 1984. They planned to exchange Christmas gifts at the home of a friend after work and Sims was to stay at Boone's residence that night to help her study for her final exam the following day. Boone was unexpectedly called to return to the hospital to work the next shift, so she drove Sims to Boone's residence after the Christmas gift exchange. She dropped Sims off at approximately 12:30 a.m. on December 21, 1984.

Boone finished her shift at the hospital at approximately 7:15 a.m. and returned to her residence. Sims did not answer the door, so Boone obtained a key from her landlord who lived two doors down. Boone opened the door and noticed that the living room was in disarray. Sims did not respond when Boone yelled her name, so Boone ran back to her landlord's residence and told him that something was wrong. The landlord then entered Boone's residence and discovered Sims' dead body.

Sims was found lying naked on her left side in a pool of blood on the bathroom floor. Her hands were bound tightly behind her back with part of an extension cord that was tied in four knots. Her body was covered in blood and there was blood splattered on the bathroom walls and floor. The living room and front bedroom were in disarray. There were blood stains on the bed sheets and the floor in the front bedroom. Sims' bloodstained clothes were on the floor in the living room and front bedroom.

Dr. Allen Stilwell, the forensic pathologist who performed the autopsy on Sims' body, testified that she had eight stab wounds on the front of her chest, three stab wounds on the right side of her back, one stab wound on her left upper arm, and defensive cuts on her hands and fingers. Stilwell believed that Sims sustained most of these stab wounds after her assailant tied her hands behind her back. Sims also had bruises on the bridge of her nose, her lips, and above the left side of her cheek and eye. Stilwell testified that these bruises were consistent with Sims being struck by a fist or by her falling and banging her head on the floor. He further testified that Sims had additional "tease wounds" which were inflicted by her assailant "to get her attention."⁴ He testified that at least one of Sims' stab wounds caused hemorrhaging when it punctured a major artery and that other stab wounds caused her lungs to collapse which prevented her from breathing. He determined that Sims probably died from these injuries within two to four minutes after they were inflicted.

The forensic test results showed the presence of sperm on the oral and vaginal swabs taken from Sims's body. The DNA testing of appellant's blood and saliva samples revealed that appellant was the only individual who could have contributed the sperm found on Sims' oral swab.⁵ In addition, appellant's fingerprints matched a bloody fingerprint found on Sims' tennis shoe.

Appellant gave a statement after his arrest. In his statement, he claimed that he was under the influence of "heavy drugs" on the night he murdered Sims. He stated that he was out walking when he saw Sims. He forced his way into the residence and "just ransacked her, just slung her all over the house in a violent rage." He remembered "stripping her down out of anger," tying her hands behind her back, and stabbing her with a knife, but he did not recall having sex with her. He could not remember if he brought the knife with him or what he did with the knife after he committed the murder. Appellant stated that he was "mad at the world" and that his drinking and drug abuse caused him to be paranoid and to have violent outbursts. He had the urge to "lash out" at two or three people that evening, but he acted on his urge when he encountered Sims.

Appellant argues that the evidence is insufficient because there is no evidence of planning, preparation, or premeditation. He contends that he came to the murder scene unarmed and was in a "blind rage" when he attacked Sims. A jury must find "a moment of deliberation and the determination [by] the actor to kill" before it is justified in answering "yes" to special issue number one. Kinnamon v. State, 791 S.W.2d 84, 95-96 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). An act need not be premeditated to be deliberate, however, and the killing may occur during a "frenzy." Havard v. State, 800 S.W.2d 195, 212 (Tex. Crim. App. 1989)(citing Granviel v. State, 552 S.W.2d 107, 122-23 (Tex. Crim. App. 1976), cert. denied, 431 U.S. 933 (1977)). Further, this Court has recognized that whether or not a defendant comes armed to a crime scene is of probative value in proving deliberate conduct. Cooks v. State, 844 S.W.2d 697, 714 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 927 (1993).

Appellant's repeated stabbing of Sims evidences a deliberate act with a reasonable expectation that death would result. See Fearance v. State, 620 S.W.2d 577, 584 (Tex. Crim. App. 1980) (opinion on rehearing), cert. denied, 454 U.S. 899 (1981); Granviel, 552 S.W.2d at 123. Appellant's admitted anger and his urge to "lash out" is indicative of deliberateness. The evidence that he sexually assaulted Sims, tied her up, and stabbed her numerous times after he tied her hands behind her back also demonstrates deliberate conduct. Further, the evidence shows that appellant may have come armed to the crime scene. Appellant could not remember...