Whitmore v. State

• Decision Date: 13 October 1976
• Docket Number: No. 52325,52325
• Citation: 570 S.W.2d 889
• Parties: James E. WHITMORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 889

570 S.W.2d 889

James E. WHITMORE, Appellant, v. The STATE of Texas, Appellee.

No. 52325.

Court of Criminal Appeals of Texas.

Oct. 13, 1976.

On Rehearing April 6, 1977.

State's Motion for Rehearing July 12, 1978.

State's Motion for Rehearing En Banc Denied Oct. 4, 1978.

Brantley Pringle and Robert Schmidt, III, Fort Worth, for appellant.

Tim C. Curry, Dist. Atty. and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death. The indictment alleged in substance that Whitmore caused the death of Judy Carol Rummel by employing Harrell Totty for remuneration to kill her.

The evidence presented shows that at approximately 5:00 p.m., on September 26, 1974, appellant, James Whitmore, had gone to the Dos Gringos Bar in Fort Worth. Joyce Walton, a waitress who served appellant, testified that he appeared to be upset. She further stated that he told her that his girlfriend had tried to run over him with a car and attempted to stab him on two previous occasions and that in response to her comment, "You mean to tell me you're going to put a contract out on her?" he replied, "Well, I can't let her kill me." Whitmore then related that he had talked with a security guard as to exactly what could be done about the situation without elaborating on the details of their plans. He also stated to her that he would not be caught because no money would be transferred between them. As he left he said, "Well, you'll probably read about this in the paper."

Allen Bailey, his neighbor, testified that on the evening in question he had gone skeet shooting. He returned to his apartment around 9:30 p.m. and began cleaning his shotgun. Shortly thereafter, Whitmore came over and told him ". . . that if I heard two shots about two o'clock in the morning, not to worry about it, just open my door and he wanted to use the phone to call the police" because he did not have a telephone in his apartment. Bailey then testified that Whitmore had told him about his girlfriend's two previous attempts to kill him and about the details of his plan with the security guard, Harrell Totty, to kill her. The plan called for him to invite his girlfriend over to make amends for their past disagreements. Totty would be making his rounds of the apartment complex and would be in appellant's bathroom and he would yell, "Totty, Totty, Totty", and Totty would come around the corner and shoot her twice. Then they were going to take a knife from the sink and use a sock to put it in her hand. Whitmore would make sure she was dead and then call for a doctor who lived in the complex to come over. Bailey stated that he did not believe Whitmore.

Tory Schroeder came into the apartment and Whitmore told him of the attempts made on his life by his girlfriend to which Schroeder kiddingly replied, "I would have her shot." Some ten or fifteen minutes later Schroeder and Whitmore left to buy some beer. On the way to the Quik Sak grocery he told Schroeder that he was going to have his girlfriend, Judy Rummel, shot and that he was going to pay the security guard to do it and related the same plan to him as testified to by Bailey.

Judy Rummel, the deceased, was employed as a waitress at Pinto's, a restaurant and bar. Whitmore knew that the place usually remained open until 2:00 a.m. Judy closed Pinto's early on the evening in question because there were no customers. Susan Cowell, a friend and former roommate of the deceased, testified that she was with her at Pinto's at approximately 9:30 p.m. and that Judy was very happy that evening because it was her first day back at work after having been in the hospital for pneumonia and she was going to see Whitmore that night.

Anita McCasland, the deceased's roommate, testified that she was with her at Pinto's from 8:00 p.m. until it closed at 11:30 p.m. and that her roommate had been in a good mood all evening. The deceased gave her a ride to their trailer house and after dropping her off said that she had received a call from Whitmore and was going to his apartment.

Schroeder, Totty and Whitmore were still in Bailey's apartment when the deceased arrived. Schroeder then returned to Dr. Horn's apartment where his mother was visiting and as he looked back he observed appellant, Totty and the deceased going into the apartment together. He then told Dr. Horn and his mother of Whitmore's threats and began watching the apartment through the window of Dr. Horn's apartment. Ten minutes later he heard two shots and then saw Whitmore go next door to Bailey's apartment. Bailey, who had left his apartment for a few minutes to go to the store, also heard the two shots as he was unlocking his door after which he heard a woman scream, "Oh, God." Shortly thereafter, Whitmore came into his apartment and said, "That was a cold blooded son-of-a-bitch, wasn't it, Allen?" Whitmore called the police and then went to Dr. Horn's apartment and told him that there was a woman in his apartment with two bullet holes in her. Dr. Horn told him to call an ambulance and police and to "get the hell" out of his apartment. Prior to going to Dr. Horn's, Whitmore had yelled to Bailey as he was leaving, "Al, come over and look at this s---." Bailey stepped outside his apartment and looked into the apartment. The deceased was lying on her side with her left arm draped over her forehead and her back toward the fireplace.

Officer C. P. Chessar of the Fort Worth Police Department testified that upon his arrival at the apartment he had the following conversation with Totty "Q. Did Totty describe to you the circumstances under which he had gone to the apartment that evening?

"A. Yes, sir, he did.

"Q. What did he say had happened?

"A. He stated he had been making his rounds, and knew that Whitmore had been having trouble, and he had gone to the apartment, One Seventy-One, to use the restroom. He stated that while he was inside the restroom he heard Whitmore screaming for help, and he went to the entranceway. He said, 'I drew my pistol and fired twice, I think.'

"Q. All right. Did he say who he shot at?

"A. He stated that he had shot at a white female, coming at Whitmore with a knife extended."

Detective E. W. Cole of the homicide division testified that upon his arrival:

"He (Totty) told me he was the security guard there at the apartments that he They had had trouble with Mrs. Rummel before at the apartments, that they had had complaints of her trying to run over Mr. Whitmore, that he was making his rounds, and that he had stopped into Mr. Whitmore's apartment to use the bathroom, or restroom, and while there, in the restroom, he heard a call from Whitmore, and when he came around he saw Mrs. Rummel coming at James Whitmore with a knife, and that he fired his weapon."

The Tarrant County medical examiner testified that the deceased had died as a result of blood loss into the thoracic chest due to two gunshot entry wounds. Several other witnesses who had known Whitmore testified that he drank heavily and was an alcoholic. There was also testimony that there had been problems in the past between him and the deceased.

Whitmore testified that he had talked to Judy Rummel at 4:30 p.m. on September 26, 1974, approximately seven hours before her death and he knew that she worked until 2:00 a.m. each morning. He further testified that at 6:00 p.m. on September 26, 1974, he had asked the security guard, Harrell Totty, to come check on him around 2:00 or 2:15 a.m. because he was going to have a date and the deceased knew of this fact. He related that when Totty was making his rounds at approximately 11:30 p.m. and asked to use his bathroom, just before the killing, he told Totty there would be no need to come by at 2:00 a.m. because he was going to spend the night at his mother's place.

In his first ground of error, he contends that the trial court erred in not granting a new trial based on newly discovered evidence, the newly discovered evidence being that Harrell Totty, also indicted for this offense, had been acquitted.

The jury returned its verdict on May 30, 1975, and the motion for new trial was not filed until June 30, 1975. Assuming that we could consider the late motion for new trial, a subsequent acquittal of a co-principal of the crime does not by itself entitle a convicted co-defendant to a new trial. Another jury often has different evidence involving a single transaction. Different juries could reach opposite results on the same evidence. Rozell v. State, 502 S.W.2d 16 (Tex.Cr.App.1973).

Next, he contends that the trial court erred in filing "Conclusions of Law" overruling the motion for new trial over his objection. He urges that the action of the trial court is in violation of Article 40.07, V.A.C.C.P., which provides:

"In granting or refusing a new trial, the judge shall not sum up, discuss or comment upon the evidence in the case, but shall simply grant or refuse the motion without prejudice to either party."

The court, in its conclusion, found that the motion was untimely filed. In order for such action to constitute reversible error, there must be a showing of injury to appellant. Mims v. State, 378 S.W.2d 318 (Tex.Cr.App.1964). No harm is shown. Ground of error number two is overruled.

In his third ground of error, he contends that the trial court erred in sustaining the State's challenge for cause of venireman Ray E. Rugg. He argues that Rugg was a qualified juror under the constitutional standards of "Witherspoon " and that the Legislature is without authority to impose stricter standards as to a venireman's qualification on the death penalty.

He is apparently contending that V.T.C.A., Penal Code, Section 12.31, is in conflict with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and that the prospective juror Rugg was...