Whitaker v. State
| Citation | 977 S.W.2d 595 |
| Decision Date | 20 May 1998 |
| Docket Number | No. 72371,72371 |
| Parties | George H. WHITAKER, III, Appellant, v. The STATE of Texas. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appellant was convicted in April 1996 of capital murder. V.T.C.A., Penal Code, Section 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071, Section 2(g). 1 Direct appeal to this Court is automatic. Article 37.071, Section 2(h). Appellant raises nine points of error. We will affirm.
In points of error three and seven, appellant argues that the evidence is legally and factually insufficient to support the jury's findings that he committed the underlying offense of burglary and that he entered the house with the intent to commit murder.
Viewed in the light most favorable to the verdict, the evidence at trial established the following: Catina Carrier, the deceased's sister, met appellant in high school and became friends with him sometime after graduation. The two eventually began dating in September 1993, moved in together, and became engaged that Christmas. After moving in with appellant, he became very controlling and possessive of Catina and did not want her to be around her family members or away from their home when she was not working. Also, appellant often showed up at her workplace and often took the money she was making. Catina testified that appellant bought a white Suburban with the money he had taken from her. Catina testified appellant became increasingly abusive and told her if she ever left him no one else would have her.
In April 1994, Catina decided to leave appellant. She first moved her daughter, who had been living with them periodically, out of the house. She then made secret arrangements in order to get herself out too, consequently, forcing her to leave all her belongings in appellant's home. On the day she left, Catina had appellant drop her off at work as usual. She then had a co-worker from another job come pick her up and drop her off at a friend's house where she only stayed one night. The next day, she moved on to a friend's house that appellant did not know. Catina did not let her family know where she was staying so as not to involve them in her troubles. Catina further did not work for fear appellant would find her. Appellant did try to locate Catina during this time through her family and friends.
Around June 14, 1994, appellant told a friend, Laquisia Carter, that "after Wednesday, she wouldn't see him anymore." He told her he "was going to kill somebody." Laquisia asked who, but appellant would not say. She assumed appellant was joking.
On Wednesday, June 15th, appellant went to the EZ Pawn Shop and picked up his .45-caliber pistol that he had pawned for a short-term loan on an earlier occasion. Driving his white Suburban and wearing a white shirt 2 and black slacks, appellant then went and picked up his wife, 3 Rosemary Whitaker, 4 from whom he was separated, their two small daughters, and Rosemary's nine-year old son. Eventually, the group picked up Donald Carter ("Junior"), whom appellant had earlier asked to take a ride with him. Junior did not know where they were going, but Rosemary had been informed that they were going to take Catina's belongings back to her. Rosemary believed she was brought along to prevent anything from happening if a fight broke out.
On the way to Catina's parents' home in Crosby, appellant drove through the Kroger parking lot where Catina's father works. Then, at some point about halfway to Crosby, appellant pulled over and asked Rosemary to drive. Appellant and Junior got in the back seat and, after driving a little farther, appellant showed Junior the .45-caliber pistol and said "this is the gun I told you about." Junior did not think much of this because appellant had told Junior about a week before that he had bought a gun. Appellant then put the gun away and they kept riding.
Closer to their destination, appellant had Rosemary exit and pull into a gas station with a pay phone. As appellant exited the vehicle, he asked Junior to come with him. Upon reaching the phone, appellant dialed it and then handed the receiver to Junior and told him to ask for "Kiki." Junior complied and the person on the phone said, "just a minute." Junior then handed the phone back to appellant who listened for a second or two and then hung up without saying anything. The two returned to the Suburban and continued driving to the Carrier residence.
Meanwhile, on this same day, the Carrier family began their day as usual. Donald Carrier, Catina's father, went to work at Kroger's as he had done for many years. Catina's mother, Mary Carrier, stayed at home with Catina's sisters, five-year old Ashley and sixteen-year old Shakeitha ("Kiki"). Catina's ten-year old brother had gone to a friend's house to play. At about 3:00 p.m., Mary and Ashley were watching television when the phone rang. Mary answered the phone and the man on the phone asked for Kiki. Mary told him to hold on for a minute and she called for Kiki who was upstairs getting ready to go to work. Kiki said she had it so Mary hung up.
About fifteen to twenty minutes later, someone began knocking on the door. Mary and Ashley went to the door to discover appellant with Catina's tote bag, some toys and baby things. Mary told appellant she was surprised to see him because he had not called to say he was coming over. 5 Appellant indicated he would like to come inside, but Mary told him to just set the things outside the door and she would get them. Mary testified that she did not allow anyone into the house without her husband being there and she specifically did not feel comfortable about appellant.
Appellant went back to the Suburban and asked Junior to help him with the next load. Junior testified he observed Mary pull the first items into the house. On the way back to the door, appellant pulled out a gun and aimed it at Mary and Ashley. As Mary tried to shut the door, appellant forced his way into the house pushing the door. When this started, Junior dropped the clothes he was carrying and went back to the Suburban.
Once in the house, appellant stood about ten feet from Mary and Ashley pointing the gun at them. Mary begged appellant not to hurt her children and to "just leave." Mary then told Ashley to get out of there and run upstairs. As Mary continued to plead with appellant not to hurt her or the children and to explain that they had not done anything to him, appellant shot Mary in the shoulder. Appellant then ran upstairs. Mary heard Ashley screaming and Kiki holler, "[Appellant] please don't hurt me." Then she heard a gunshot.
Mary, bleeding and in pain, ran outside to look for help. Neither Rosemary nor Junior would respond to her pleas and it appeared her closest neighbors were not home, so Mary ran around to the back of the house to see if she could rouse the people that lived behind her. As she was running around the corner of the house, Mary saw appellant come out of the house and go get something out of the back of the Suburban. She hoped appellant was leaving. She was mistaken.
Junior testified that when appellant came back out to the Suburban, appellant retrieved another bullet and loaded it into the weapon. 6 Appellant then ran behind the house and caught up with Mary. Mary again pleaded, "Please don't shoot me." Appellant, at only arm's length away, shot her again anyway. Mary fell to the ground and stayed there until she was sure appellant was gone. She then went back into the house to phone for help. When she reached her children, she found them sitting up next to each other against a wall in Kiki's room.
After leaving the Carrier residence, appellant and Rosemary drove Junior home and dropped him off. Appellant told Junior not to tell anyone about what happened. Rosemary also eventually went home with her children in the Suburban. Appellant was apprehended later that evening after attempting to flee from the police when they located him at his uncle's apartment drinking beer and watching television with another of his girlfriends, Selena Jackson, his uncle, and his uncle's lady friend.
Kiki died from a gunshot wound to the head. Ashley was revived after some effort and "life-flighted" to the hospital where she underwent extensive surgery for blunt head injuries. She retains some permanent neurological damage. Mary suffered two bullet wounds to the right shoulder area, has permanent nerve damage, and no use of her right hand.
In reviewing a legal sufficiency question, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Cr.App.1995), cert. denied, 116 S.Ct. 717, 133 L.Ed.2d 670 (1996). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Cr.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Cr.App.1986).
In reviewing a factual sufficiency question, we view the evidence without the prism of "in the light most favorable to the prosecution," and we set aside the verdict only if it is "so contrary to the overwhelming weight of the evidence...
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