Whitaker v. State

• Decision Date: 04 November 1998
• Docket Number: No. 09-97-046,09-97-046
• Citation: 977 S.W.2d 869
• Parties: Charles Elvin WHITAKER, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 869

977 S.W.2d 869

Charles Elvin WHITAKER, Appellant, v. The STATE of Texas, Appellee.

No. 09-97-046 CR.

Court of Appeals of Texas Beaumont.

Submitted Oct. 1, 1998.

Decided Nov. 4, 1998.

John D. MacDonald, II, Conroe, for appellant.

John S. Hollemand, Dist. Atty., William Lee Hon, Asst. Dist. Atty., Livingston, for state.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

A jury found appellant Charles Whitaker guilty of capital murder. The trial court sentenced him to life imprisonment in the Texas Department of Criminal Justice--Institutional Division. Whitaker brings five points of error on appeal.

FACTS

Charles Whitaker, Fred McGregor, and Danny Hill conspired for several hours to rob seventy-six year old Aline Berry, the owner and manager of the Berry Motel in Corrigan, Texas. In the middle of the night, they entered Ms. Berry's residence at the motel through an unlocked patio, found her in bed, and held her down while they tied her feet with electrical cord and her hands with pantyhose. Searching for money, they ransacked her home while she lay bound on her bed. The men took a money bag found at the residence and then fled the scene. McGregor left first to get the car. After McGregor brought the car around to the motel, Hill exited the residence and got into the car where he and McGregor waited for one or two minutes for Whitaker to come out of the residence. McGregor testified that when Whitaker reached the car, he (Whitaker) stated he had struck Ms. Berry and "laid the bitch to rest." The three men then drove to Hill's residence where they split the money.

James Riley, chief of police in Corrigan, Texas, arrived at the scene and found Ms. Berry, tied hand and feet, lying dead on her bed. He testified that her residence was in total disarray. He also stated it was known in the community that Ms. Berry kept large sums of money at her home; for that reason, Riley had previously advised her to make regular deposits rather than keep the money at her residence.

Investigator B.W. Emmons of the Montgomery County Sheriff's Department testified the cabinets had been opened in Ms. Berry's home, almost all the drawers in the home had been dumped to the floor, and the freezer was left open. The door to her safe was also standing open. On the bed next to Ms. Berry's body was a .22 pump rifle. The stock on the weapon was broken, and two large wooden splinters, which appeared to have come from the rifle's broken stock, were also found on the bed.

Vladimir Parungao, the assistant medical examiner of Harris County who performed the autopsy on Ms. Berry's body, stated Ms. Berry died from a blow to the right side of her head. He testified the cause of Ms. Berry's death was "suppressed head due to blunt trauma to the head." The dimensions of the end of the rifle butt were consistent with the dimensions of the depressed area on Ms. Berry's skull. Parungao further testified he observed contusions on the left upper and lower lip, a contusion on the left side of the jaw, a faint linear abrasion on the left side of the face, and imprints where the wrists and ankles were tied.

LEGAL AND FACTUAL SUFFICIENCY

In his first two points of error, Whitaker alleges the evidence is legally and factually insufficient to sustain the jury verdict finding appellant guilty of capital murder. He specifically argues the State failed to prove beyond a reasonable doubt there was a "nexus" between the murder of the victim and the taking of her property.

A person commits the offense of capital murder if he intentionally and knowingly causes the death of an individual while in the course of committing or attempting to commit certain delineated felonies, including robbery. TEX. PEN.CODE ANN. §§ 19.02(b)(1), 19.03 (Vernon 1994). The Penal Code provides a person commits robbery if, in the course of committing theft, and with intent to obtain or maintain control of the property, "he intentionally, knowingly, or recklessly causes bodily injury to another." Tex. Pen.Code Ann. § 29.02 (Vernon 1994). Tracking the language in the Texas Penal Code, the jury charge defines "in the course of committing theft" to mean "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." See TEX. PEN.CODE ANN. 29.01(1) (Vernon 1994).

In reviewing the legal sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979). The standard of review is the same for both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991).

In considering factual sufficiency, we view all the evidence without the prism of "in the light most favorable to the prosecution" and, thus, consider the testimony of defense witnesses and the existence of alternative hypothesis. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996) and Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd, untimely filed). The verdict is set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129. Our review must be "appropriately deferential" to the factfinder's determination to avoid substituting our judgment for that of the trier of fact. Id. at 133.

Citing TEX.CODE CRIM. PROC. ANN. art. 38.14, appellant first claims that a "conviction cannot be had upon the testimony of an accomplice 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." Without McGregor's testimony, appellant contends the State fails to establish a nexus between the murder and the robbery. In Knox v. State, 934 S.W.2d 678, 686 (Tex.Crim.App.1996), the Court of Criminal Appeals explained the accomplice witness rule:

To determine whether an accomplice's testimony is corroborated, we eliminate the accomplice testimony and review the remaining evidence to determine whether it tends to connect appellant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). Further, we have stated:

Corroborative evidence need not establish appellant's guilt of the charged offense nor directly link appellant to the offense, but is sufficient if it "tends to connect" appellant to the offense. Each case must be considered on its own facts and circumstances--on its own merit. Apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration.

Id. (citations omitted).

Because a killing and an unrelated taking of property do not constitute capital murder under § 19.03(a)(2), to obtain a conviction for capital murder, the State "must prove a nexus between the murder and the theft, i.e. that the murder occurred in order to facilitate the taking of the property." Ibanez v. State, 749 S.W.2d 804, 807 (Tex.Crim.App.1986) ; Hernandez v. State, 969 S.W.2d 440, 444 (Tex.App.--San Antonio 1998, pet. ref'd). In order for the killing of Aline Berry to qualify as a capital murder under § 19.03(a)(2), the intent to rob must be formed prior to or concurrently with the murder. Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App.1993); Schexnider v. State, 943 S.W.2d 194, 198 (Tex.App.--Beaumont 1997, no pet). Therefore, the State was required to prove beyond a reasonable doubt that Whitaker committed the murder during the commission of the underlying theft, or while in immediate flight, with intent to obtain or maintain control of the property. Hernandez, 969 S.W.2d at 444. If a jury could rationally conclude that Whitaker formed the intent to obtain control of the victim's property before or during the commission of the murder, then the evidence would support a conclusion that the murder occurred in the course of robbery. Dillard v. State, 931 S.W.2d 689, 696 (Tex.App.--Dallas 1996, pet. ref'd, untimely filed).

In addition to the accomplice McGregor's testimony concerning Whitaker's involvement in the planning of the robbery, the robbery itself, and the murder, the record also contains additional evidence showing the formation of Whitaker's intent to rob Aline Berry prior to the murder, along with other evidence connecting Whitaker to the charged offense. LaTonya Washington, who lived with Hill and claimed to be his wife, testified Hill told her in the early morning hours of April 9, 1995, that they (Whitaker, Hill, and McGregor) were going to rob the motel. According to LaTonya, she told him, "You're crazy." She also told Hill immediately before he went out the door that he needed to sit himself down before he ended up in a lot of trouble. The next time LaTonya saw the three men, they were in her bedroom passing out money; they gave her approximately $300, which she gave to the authorities. She knew what they had done.

Also testifying for the State was Billy Joe McCullar, an inmate at the Polk County Jail, who, for a time, shared a cell with Whitaker. McCullar stated that Whitaker told him they planned the robbery, wore stockings over their faces and socks over their hands, went to Berry's house, entered the house, tied her feet and hands, and found the safe. According to McCullar, appellant related to him that he (Whitaker) hit Berry with a gun on the head to quiet her. Whitaker also told McCullar he and his accomplices then split the money at Hill's place.

Appellant points to the testimony of jail nurse Connie Franklin who was present during a conversation between Whitaker and McCullar. According to Franklin, Whitaker asked McCullar if he (Whitaker) had ever told McCullar that he had killed or hurt anyone. McCullar responded to Whitaker by stating that Whitaker had not told him anything--that...