White v. State

• Decision Date: 21 January 1981
• Docket Number: No. 66044,66044
• Citation: 610 S.W.2d 504
• Parties: Larry Wayne WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 504

610 S.W.2d 504

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

No. 66044.

Court of Criminal Appeals of Texas, En banc.

Jan. 21, 1981.

Charles O. Melder, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Larry P. Urquhart, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

KEITH, Commissioner.

The appeal is from a conviction of capital murder wherein the jury answered affirmatively the first and second issues, with the punishment being fixed at death.

The indictment alleged that appellant caused the death of Elizabeth St. John, a seventy-two year old woman, "by choking her with his hands and stabbing her with a screwdriver," while in the course of committing and attempting to commit robbery. V.T.C.A., Penal Code, § 19.03(a)(2). A second count was contained in the indictment alleging murder in violation of V.T.C.A., Penal Code, § 19.02(a)(1).

Appellant does not challenge the sufficiency of the evidence to support the judgment of conviction or the imposition of the death penalty as punishment. Nevertheless, in order to put into proper focus the questions before us, we present a short resume of the facts of the case.

It was proved that in early February 1977, appellant left his employment as a maintenance man at an apartment complex in Houston and went to Florida for approximately two weeks. Upon his return to Houston, late in that month, he went to work for Lavelle Wasson at the Airline Apartments where he and Wasson painted an apartment.

The deceased came to Houston from Austin on Sunday and stayed with Ms. Wasson until her apartment was ready for occupancy the following Wednesday, March 2, 1977. Appellant became acquainted with the deceased while she was using Wasson's apartment.

On March 3, Wasson noted that the deceased's Ford Pinto automobile was missing and that appellant's Plymouth Valiant was parked on the street in front of the apartment. The door to the deceased's apartment was locked but Wasson and one McGill, for whom appellant had worked earlier, were able to look through a window into the apartment.

They found the body of the deceased, partially nude, across a bed in the apartment. The police found that deceased had been stabbed in the back with a screwdriver. The assistant medical examiner testified that death resulted from both the stab wound and asphyxia caused by manual strangulation.

City police in Myrtle Beach, South Carolina, arrested appellant in that city while he was in the course of attempting to burglarize a restaurant. The deceased's Ford Pinto was parked a few feet from the restaurant and appellant had the keys thereto in his pocket. The police found several items of personal property belonging to deceased in the car.

Appellant gave a complete and detailed written confession to Florida officers in which he admitted stealing the car after choking and stabbing deceased with a screwdriver. The confession comes to us without complaint.

At the punishment hearing, it was shown that appellant had been convicted in Florida of the murder of an eighty-year-old woman in Orlando, Florida, and that he had been convicted earlier of forgery, resisting arrest, and assault and battery. A psychiatrist and a clinical psychologist, each of whom had examined appellant, testified that it was probable that a person who had committed the murder involved in this case and the one in Florida and who also had the other prior convictions mentioned, would commit further crimes of violence.

Appellant offered no testimony at the guilt/innocence phase of the bifurcated trial.

In his first and second grounds of error, appellant contends that the trial court erred in refusing to grant his motion for mistrial after one of the State's witnesses had given testimony relating to an extraneous offense. Houston homicide detective D. R. James, investigating the homicide on the morning of the discovery of the body, said that appellant was an early suspect in the case because his car was parked in front of the apartment. A computer check was run on the vehicle. We now continue with a direct quotation from the record:

"A. ... And it (the computer results on appellant's car) came back as stolen and wanted on a murder case out of Florida.

"(DEFENSE COUNSEL): Your Honor, I'll object to that last statement by the witness.

"THE COURT: Sustain objection.

"(DEFENSE COUNSEL): I would urge the Court, Your Honor, to instruct the jury not to consider that answer.

"THE COURT: Ladies and gentlemen, you will not consider the last answer of this witness for any purpose whatsoever.

"(DEFENSE COUNSEL): Also, Your Honor, I would move for a mistrial because of that inflammatory remark.

"THE COURT: That's overruled."

We readily admit, as has been held in several cases cited by appellant, that "an accused may not be tried for some collateral crime or for being a criminal generally." See, e. g., Hines v. State, 571 S.W.2d 322, 325 (Tex.Cr.App.1978). However, not every unresponsive statement of a witness followed by a ruling sustaining an objection and an instruction to the jury to disregard the remarks will result in a reversal of the judgment. Such an unresponsive answer is ordinarily rendered harmless by a prompt instruction from the trial judge to the jury to disregard such evidence. See Campos v. State, 589 S.W.2d 424, 428 (Tex.Cr.App.1979), and authorities therein cited. See also, Chambers v. State, 568 S.W.2d 313, 326 (Tex.Cr.App.1978).

Moreover, appellant does not argue that he was prejudiced by the unresponsive statement of the police officer. His guilt was established by an overwhelming amount of evidence and it is inconceivable that this single remark in any manner served to prejudice his right to a fair trial.

We do not find any error to have been shown. However, even if such an incident could rise to the level of a constitutional error, it could be found to be harmless, provided "the appellate court finds that from all the facts and circumstances in evidence the error was harmless beyond a reasonable doubt." Ex parte Smith, 513 S.W.2d 839, 843 (Tex.Cr.App.1974), and authorities therein cited.

From the record, only a small part of which has been set out in this opinion, we have no difficulty in finding, beyond a reasonable doubt, or hesitancy in holding that the error, if any, was harmless. The first two grounds of error are overruled.

The third ground of error reads:

"The charge authorized the jury to convict on a theory not alleged in the indictment."

From the statement and argument, we learn that the complaint is over a variance between the date of the alleged offense, as alleged in the indictment, and that set out in one paragraph of the charge. The indictment, which was returned on March 24, 1977, alleged that the murder was committed "on or about March 1, 1977."

In applying the law of capital murder to the facts, as set out in the margin, ^* the court erroneously fixed the date of the murder as March 1, 1979. Appellant made no objections to the charge nor did he request any special instructions be given to the jury. Our consideration of the question, under these circumstances, must be limited to whether "any of the fundamental evils condemned by our holdings infected appellant's conviction in the instant case." Robinson v. State, 596 S.W.2d 130, 133 (Tex.Cr.App.1980).

It is likewise clearly established that in the absence of objections to the charge or a specially requested charge, no errors therein can be considered on appeal "unless it appears that the defendant has not had a fair and impartial trial." Boles v. State, 598 S.W.2d 274, 278 (Tex.Cr.App.1980). And, in determining whether fundamental error is present, it is proper to view the charge as a whole. Robinson v. State, supra; Slagle v. State, 570 S.W.2d 916, 920 (Tex.Cr.App.1978).

In our examination of the several paragraphs of the charge, we note that the opening sentence gave the correct date, March 1, 1977, by advising the jury that appellant had pleaded not guilty to the charge of capital murder committed on that date. After setting out the elements of murder, capital murder, and robbery and defining certain terms, the court advised the jury in no uncertain terms that before it could find appellant guilty of capital murder, it must find from the evidence and beyond a reasonable doubt that "on the occasion in question" (previously stated to be the correct date, March 1, 1977), appellant committed the offense.

Appellant relies upon language found in West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978), but we do not share appellant's view of the holding of West. There, the conviction was reversed because fundamental error was shown by the omission of an element of the offense from the charge: a culpable mental state. Nor do we find the other cited...