White v. State

• Decision Date: 15 February 1989
• Docket Number: No. 69332,69332
• Citation: 779 S.W.2d 809
• Parties: Larry Wayne WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 809

779 S.W.2d 809

Larry Wayne WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 69332.

Court of Criminal Appeals of Texas En Banc.

Feb. 15, 1989.

Carolyn Garcia (Court appointed), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This automatic appeal ¹ results from a conviction for capital murder pursuant to V.T.C.A. Penal Code, Section 19.03(a)(2). ² Upon the jury's return of affirmative findings to two special issues submitted at the punishment phase, Article 37.071(b), V.A.C.C.P., appellant's punishment was assessed at death. Article 37.071(e), supra.

The indictment presented against appellant alleged, in pertinent part,

[That on] March 1, 1977, [appellant] did then and there unlawfully while in the course of committing and attempting to commit robbery, intentionally cause the death of Elizabeth St. John, hereafter styled the Complainant, by choking her with his hands and stabbing her with a screwdriver.

The record establishes the 72 year old complainant, Elizabeth St. John, moved from the Austin area to return to Houston, in late February of 1977, about a year after her husband had died. Mrs. St. John moved in with Lavelle Wasson, her friend of 25 years, who owned some apartment complexes. St. John was to occupy number three, an upstairs apartment of the Airline complex which was in front of the Wasson's house.

Appellant had been employed by the Wassons to do maintenance work at their Shepard apartment complex. On Monday, Tuesday and part of Wednesday of the first week in March, ³ appellant and Wasson spent their time painting St. John's apartment while she looked on. Her furniture had already been moved in, so they "painted around it".

As the three left the apartment on Wednesday afternoon, St. John pointed out a locking device she had installed on her door that made it impossible to turn the knob or open the door from the outside, even with a key. Wasson asked appellant to move a box spring mattress that was in a hall corner across from St. John's apartment. Appellant said he would carry it out the next day.

Appellant asked St. John if she were planning to stay up in the apartment that night; she told him "yes".

Later in the day, St. John returned to Wasson's house to obtain envelopes and paper for writing her children, then headed back to her apartment. Appellant also came by Wasson's house to return keys to a storage room. Before he left, appellant told Wasson--who was also an elderly lady--"Bell, that sure is a cute jumpsuit. I like what's in it." Wasson passed the comment off. Appellant told Wasson he was going back to the Shepard Apartments.

However, before Wasson went to bed at 8:30 or 9:00 p.m., she noticed appellant's car was still parked in the parking lot. She also noticed St. John's car in the lot in front of the complex.

At approximately 10:30 p.m. Wasson and her husband were awakened by the tenant across the hall from St. John who reported the mattress in the hall had been "completely engulfed" in flames. After the tenant had doused the flames and reported the incident to the Wassons, they all returned to the hall, pulled the mattress out to a front balcony, threw it down to the ground and poured more water on it.

Wasson at this point noticed appellant's white Valiant was still parked out front. St. John's Pinto, however, was gone. ⁴ Wasson assumed her friend had gone to visit the people who had moved her to Houston.

Wasson had told St. John she had an early doctor appointment on Thursday, March 3rd, but she would be up to the apartment to measure for blinds after that. When Wasson went to the apartment at 8:30 or 9:00 a.m., she noticed appellant's car was still there and St. John's was still gone.

Because the special lock was still on the door and St. John's car was gone, Wasson became alarmed. She went home and told her husband they needed to see about St. John, that something was wrong. No telephone had been installed in St. John's apartment. Just as the Wassons were leaving, Pat McGill, the manager of Shepard Apartments (and appellant's boss) called and said something that caused Wasson concern about St. John. She told McGill to come over.

About dusk on March 3rd, McGill and Wasson went to St. John's apartment door. Mrs. McGill crawled through a window, accessible from the balcony. She told Wasson, "Bell, she's in there dead." Dave Calhoun and L.E. Doreck of the Houston Police Department Homicide Division were the first officers on the scene. Because of the lock device on the door, the officers had to break it in. The temperature in the apartment was so hot in the March evening, it was "staggering." Calhoun discovered a gas floor heater was on as high as it would go. The apartment was neat; there was no sign of forced entry or a struggle. St. John's body, clothed only in a bra, pullover blouse and stockings which were rolled to the ankle, was covered with a blanket. Upon uncovering the body, Calhoun observed bruises on the chin, neck and throat. When the body was rolled over, the officers found a screwdriver protruding from the lower back.

Eduardo Bellas, M.D., a Harris County Assistant Medical Examiner who assisted in the autopsy, would later testify the 92 pound, 5'4"' St. John, a woman of "slight" build, had died as a result of "two mechanisms of death": asphyxia due to strangulation; ⁵ and, the penetration of the screwdriver four inches into the diaphragm, liver and right chest cavity. There was no evidence of defensive wounds. Acid phosphatase tests and microscopic study of vaginal swabs revealed sexual intercourse had occurred within 24 hours of the discovery of the body. Bellas opined St. John had been stabbed first, then strangled, but stated there was no way to be sure. In addition to the clothing, six gold rings and small diamond stud earrings remained on the body.

At the crime scene, Calhoun was directed to the white Valiant in the parking lot in which appellant had recently arrived after a trip to Florida. [See n. 4, ante.] The National Crime Information Center (NCIC) computer indicated the car was "wanted." Officer Joe Herrin, who was in charge of the mobile crime scene unit, attempted to lift finger prints off of things "the suspect would touch", such as the front door, the screwdriver and the car "that was wanted in another homicide." ⁶ One print was lifted off a Coors beer can found in the white Valiant.

Homicide Sergeant D.R. James went through St. John's purse which was found in the apartment. Identification and other papers were obtained from the purse, but "nothing of great value". James testified he would have checked the purse for money and valuables, and did not recall finding any money.

Another Homicide Detective, John L. Bonds, went to the scene the following morning, Friday, March 4th, to do follow up investigation. He checked out the missing car which had belonged to the victim and found it registered to her. He entered it into the NCIC, requesting a hold on the vehicle and any occupant for examination of evidence. Norbent L. LeBlanc, a senior latent print examiner, testified none of the prints lifted from the apartment or the Valiant, other than the one off the Coors can, could be identified as appellant's.

Three days later, at 3:23 a.m. on March 8th, Police Officer Donald Edge of Myrtle Beach, South Carolina, was patrolling the south end of the deserted resort town. He observed appellant near a restaurant which was closed for the "off season". About three feet away from appellant was parked a light green Ford Pinto station wagon bearing Texas tags. The driver's door was open. Edge arrested appellant, ⁷ warned and searched him. Edge found a set of keys in appellant's left front pocket; the keys fit the ignition and doors of the Pinto.

Numerous objects were in the Pinto "ranging from jewelry to tools to a stereo plus clothing". The glove compartment was open, and from it Edge obtained the car registration papers. The car was registered to Elizabeth St. John of Leander, Texas.

Lieutenant Mitchell Glen Kemp was the Investigator on call in Myrtle Beach on March 8th. He arrived on the scene of appellant's arrest at about 3:30 a.m., then back at the station around 4:00 a.m. For the next five hours, Kemp was "gathering information," by computer, as well as from speaking with officers in Houston by telephone regarding appellant "and a homicide in Houston." Kemp and his supervisor, Lieutenant Luke, interviewed appellant starting at around 10:00 a.m. Appellant waived his rights and his inculpatory statement was reduced to writing. The salient content of that statement, admitted before the jury, is as follows:

The car that I was in this morning came from Houston, Texas. I took it from the Airline Apartments in Houston, after I choked Ms. Elizabeth St. John and stabbed her in the back with a screwdriver. I was drinking at the time, and she had offered to give me a bonus of $20.00 for painting work I had done. I met Ms. St. John through the manager of the apartments when I was working at the apartments. I was in Houston for about a week before I killed her. I killed Ms. St. John a week ago Tuesday; it has been one week ago today, and I left the screwdriver there. * * * we had had intercourse on the couch before I killed her. I would say that she was 52 to 56 years old maybe. * * * ⁸ After I choked her and stabbed her, I left Houston that night and I took the stereo that is in the car now, $45-$50, a lamp, and the jewelry that is in the toolbox on the front seat. I got to Myrtle Beach last night between 6:00 and 6:30 P.M. and went to Dorothy's Green Bar or Green Lounge.

In his first point of error, appellant contends the evidence is insufficient to prove he murdered his victim "in the course of committing or attempting to commit robbery" as was required for a...