# White v. State

> Court of Criminal Appeals of Texas · February 15, 1989 · 779 S.W.2d 809

URL: https://www.frixlaw.com/law-library/cases/9681138

## Case

- **Full name:** Larry Wayne WHITE, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 15, 1989
- **Citations:** 779 S.W.2d 809; 1989 Tex. Crim. App. LEXIS 21; 1989 WL 11460
- **Precedential status:** Published
- **Opinion:** Dissent by Teague
- **Judges:** Miller, Duncan, Clinton
- **Cited by:** 74 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9681138

## How later opinions describe it (automated extraction)

- explaining that the point at which the appellant 'formulated his intent is critical to differentiating between the commission of capital murder in the course of a robbery or a lesser offense
- holding substantial compliance with the phrase: “[i]f you desire to make a statement or answer questions, you have the right to stop at any time”

## Opinion text

*829 TEAGUE, Judge,
dissenting.
One of the ways that an individual commits the offense of capital murder is if the State properly alleges and proves beyond a reasonable doubt that he committed the offense of murder and also alleges and proves beyond a reasonable doubt that he committed the offense of robbery and also alleges and proves beyond a reasonable doubt a connection between the two, i.e., that the offense of murder was committed in the course of committing the offense of robbery. See V.T.C.A., Penal Code § 19.03(a)(2). As easily seen, the statutory requirement of conjunctive pleadings and establishment of conjunctive proof places an extremely heavy burden on the State because, even if it alleges and proves both a murder and a robbery, unless it proves that the murder was committed in the course of committing the robbery, it has not proved a capital murder. “A killing and unrelated taking of property do not constitute capital murder under § 19.03(a)(2).” Ibanez v. State, 749 S.W.2d 804, 807 (Tex.Cr.App.1986). In that instance, the offense is murder, not capital murder.
In this instance, given the facts of this cause, I find that the State has clearly failed to prove the offense of capital murder against Larry Wayne White, henceforth appellant. The majority opinion, however, erroneously believing that “A killing and unrelated taking of property does constitute capital murder under § 19.03(a)(2)”, holds that the evidence is sufficient to establish that appellant committed the offense of capital murder. Because the evidence is clearly insufficient to establish that appellant committed the offense of capital murder, as alleged in the indictment, and as required by V.T.C.A., Penal Code, § 19.03(a)(2), and because the majority opinion erroneously holds to the contrary, I am compelled to file this dissenting opinion.
The question that must be answered, regarding appellant’s first point of error, that the evidence is insufficient to establish all of the elements of capital murder, as alleged in the indictment, is not whether the evidence is sufficient to establish that appellant murdered his victim, Elizabeth St. John, or whether he committed the offenses of murder and theft, but, instead, is whether he murdered St. John in the course of committing the offense of robbery. As this Court recently pointed out, “A killing and unrelated taking of property do not constitute capital murder under 19.-03(a)(2).” Ibanez, supra. In sum, before the offense of capital murder can be found to exist in this cause, the evidence must show beyond a reasonable doubt that appellant not only murdered St. John but that he murdered her in the course of committing the offense of robbery. The term “in the course of committing or attempting to commit robbery” is not defined in the penal code. The term “in the course of committing theft” is defined in the penal code 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 V.T.C.A., Penal Code, § 29.01(1).
One very simple way to make the determination whether the State proved beyond a reasonable doubt that appellant committed the offense of capital murder in this cause is to first make the determination whether he committed the offense of murder, and then next independently make the determination whether he committed the offense of robbery, and then independently make the determination whether there is a connection between the two offenses, i.e., whether he committed the offense of murder in the course of committing the offense of robbery. In its efforts to hold that the evidence is sufficient the majority opinion appears to employ the mortal or lethal assault first to elevate the theft of St. John’s property to robbery and then to employ the mortal or lethal assault a second time to create the offense of capital murder. I have yet to find where the Legislature, in enacting § 19.03(a)(2), intended to sanction this kind of “double dipping.” In this instance, however, the State in the indictment did not engage in “double dipping”, in that the indictment clearly alleges that appellant committed the offense of capital murder when he murdered St. John in the *830 course of committing the offense of robbery; it is the majority opinion that in order to uphold the jury’s verdict implicitly uses “double dipping.”
In Ibanez, supra, Judge Campbell implicitly touched on the subject of “double dipping” when he clearly pointed out for the Court that before the offense of capital murder can be committed pursuant to 19.-03(a)(2), where the underlying offense is robbery, the State must present sufficient evidence that the murder occurred in the course of committing or attempting to commit the offense of robbery. Based upon the facts of that case, Judge Campbell stated for the Court the following: “Since the State alleged the same assaultive conduct for both the murder and and the robbery, it had to prove that the appellant intentionally strangled the deceased with the intent to obtain control of the deceased’s property. (Emphasis in original.) A killing and unrelated taking of property do not constitute capital murder under 19.03(a)(2): 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. (Citations and footnote deleted.)”. All of the statements are correct to the extent of the facts of that case. There, the indictment alleged that the defendant committed the offense of murder in the course of committing the offense of robbery, with the State additionally alleging the elements of the robbery offense. The State, however, when it introduced into evidence all of the defendant’s confession, which contained statements therein that negated one element of the underlying robbery offense, itself actually nullified the robbery offense, and the Court so held. Thus, when this occurred, the State in Iba-nez, supra, was thereafter left only with evidence that would support the offense of murder, and the Court so held, albeit implicitly. Here, although we do not have any such affirmative statements in appellant’s confession, as we had in Ibanez, supra, that might negate any of the elements of the offense of robbery, we also do not have any evidence in appellant’s confession that might supply the “nexus between the murder and the theft of St. John’s automobile”, i.e., there is insufficient evidence that might establish that when appellant committed the murder of St. John he was then in the course of committing the offense of robbery, the object of which in this cause was clearly the theft of St. John’s automobile. Thus, as far as the proof goes, there is no substantial difference in meaning between what occurred in Ibanez, supra, and the facts of this cause.
I find it rather amazing, given the fact that since the present Penal Code became effective January 1, 1974, and the fact that this Court since then has been confronted with hundreds of robbery convictions and capital murder convictions where the underlying offense is robbery, that the author of the majority opinion cannot cite at least one “white horse” case, or even one that is slightly greyish in color, that will support his conclusion that the evidence is sufficient to sustain appellant’s conviction for committing the offense of murder in the course of committing the offense of robbery.
Is this perhaps because the author of the majority opinion’s research, like mine, has yet to reveal a similar factual situation where this Court affirmed a like conviction for capital murder? Amazingly, I do not find where the majority opinion ever mentions Ibanez, supra, which may be the one decision of this Court that is closest in point to the facts of this case.
I also find it rather interesting, in disposing of appellant’s first point of error, given what he states therein, that the author of the majority opinion never mentions the State’s brief that was filed by Hon. Winston Cochran, Jr., who represents the Great State of Texas in this cause. I find that Cochran spends more time arguing in his brief on appeal why the State should be entitled to retry appellant for the offense of murder than he does defending the jury’s verdict finding appellant guilty of capital murder. However, given the facts that Cochran had to work with in preparing his appellate brief, I, for one, can easily understand why he almost confesses reversible error on behalf of the State, and why counsel for appellant, Hon. Carolyn *831 Garcia, because of the facts that the State presented in the trial court, in this instance has the better position in arguing that the evidence is insufficient to sustain an essential element of the offense of capital murder.
Cochran concedes in his appellate brief that “The keystone of the State’s case was the appellant’s confession ..." (Page 4, State’s Brief.) Because of its importance, I attach a copy of appellant’s confession to this opinion as “Appendix A” so that the reader might better understand why I take the stand that I do on appellant’s first point of error.
The record reflects that appellant was found guilty of capital murder by the jury on an indictment that charged, “while in the course of committing and attempting to commit robbery, [he] intentionally caused the death of Elizabeth St. John, hereafter styled the Complainant, by choking her with his hands and stabbing her with a screwdriver.” (My emphasis.) It was thus incumbent upon the State to establish, beyond a reasonable doubt, not only that appellant intentionally committed the offense of murder of St. John but that he also committed the offense of murder of St. John while in the course of committing the offense of robbery. Unfortunately for the State, unless one desires to engage in some sort of “double or triple dipping”, the evidence is simply insufficient to support the conclusion that appellant is guilty of capital murder, as alleged in the indictment.
As far as I can determine, the reason that the majority opinion gives for overruling appellant’s first point of error is because it finds that the evidence established that appellant was shown to have been in recent possession of St. John’s automobile when he was arrested in another state several days after the murder, and also finds that after he murdered St. John appellant did not flee in his personal motor vehicle, but instead fled in her motor vehicle. This might be sufficient,to show murder and theft, but it most certainly does not support the conclusion that appellant murdered St. John in the course of committing the offense of robbery.
Cochran also concedes in his brief that “appellant’s confession did not state verbatim that [the items found in the deceased’s motor vehicle, a stereo, a lamp, some cash, and some jewelry, which were recovered after he was arrested,] belonged to [the deceased].” (Page 5 of State’s Brief.) The State further concedes that it did not have any witness testify at trial and identify those items as belonging to the deceased. (Page 5 of State’s Brief.) There is also no evidence that any item of property found in the car was shown to be missing from the deceased’s apartment after her body was found. Contrary to the majority opinion’s insinuation, there is no direct evidence that might support the finding that appellant was shown to have unlawfully taken the deceased’s automobile, although there is evidence that six days later when he was arrested in South Carolina he was located near the deceased’s automobile and had keys to the car in his pocket. However, there is no evidence that might reflect or indicate when appellant received or may have gotten the keys to the car, nor is there any evidence that might reflect or indicate that this was the only set of keys that existed when appellant was arrested near the deceased’s car.
I find that in deciding appellant’s first point of error, what is undisputed is critical to the issue.
The following is not in dispute, although I do find that a rational trier of fact would be warranted in not giving many of the items any credence whatsoever: Prior to her death, St. John invited appellant inside her apartment; there were no signs of forced entry into the apartment or signs of a struggle inside of the apartment; after being invited inside of the apartment, appellant had consensual sexual intercourse with St. John while she was still alive; when St. John’s body was found, several pieces of jewelry that were on the body's hands and attached to its ears had not been disturbed; money was also found in her purse; appellant’s prints did not match any of the prints taken from inside of the apart *832 ment; when arrested, appellant was not driving the deceased’s automobile, but it was shown that appellant was arrested near the door of an empty building, with a set of keys to St. John’s vehicle in his pants pocket, and St. John’s vehicle was parked nearby; appellant never admitted that he killed St. John while in the course of taking her vehicle; nor did he ever admit that the killing had anything whatsoever to do with his taking St. John’s vehicle, nor is there any evidence that might reflect or indicate that prior to appellant’s entry into St. John’s apartment he planned to commit either theft, robbery, or any other offense, in particular, there is no evidence that when he entered St. John’s apartment he then planned to murder her and then steal her motor vehicle.
One of the ways that the offense of capital murder may be committed is if a person commits the offense of murder while in the course of committing or attempting to commit the offense of robbery. See V.T.C.A., Penal Code, § 19.03(a)(2). Also see Ibanez v. State, supra; Fierro v. State, 706 S.W.2d 310 (Tex.Cr.App.1986); Cannon v. State, 691 S.W.2d 664 (Tex.Cr.App.1985); Riles v. State, 595 S.W.2d 858 (Tex.Cr.App.1980). One of the ways that the offense of robbery may be committed is if a person, in the course of committing theft, and with intent to obtain or maintain control of the property, intentionally, knowingly, or recklessly causes bodily injury to another. See V.T.C.A., Penal Code, § 29.02(a)(1). “In the course of committing theft” is defined as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. See V.T.C.A., Penal Code, § 29.01(1). Also see Rohlfing v. State, 612 S.W.2d 598 (Tex.Cr.App.1981). “Bodily injury” is defined to mean “physical pain, illness, or any impairment of physical condition.” See V.T.C.A., Penal Code, § 1.07(a)(7). Obviously, a person who has been murdered has sustained “bodily injury”. However, “A killing and unrelated taking of property do not constitute capital murder under 19.03(a)(2).” Ibanez, supra.
The issue as I see it is whether the evidence that was presented by the State to the jury will support the jury’s implicit finding that the State proved beyond a reasonable doubt that appellant caused the death of the deceased while in the course of effectuating the theft of her motor vehicle or caused her death while in the immediate flight from the scene of the theft.
This Court has previously stated the following: “This new definition of robbery proscribes the use of violence not only in the taking of the property, but also in the immediate flight of the thief to keep the property.” Lightner v. State, 535 S.W.2d 176 (Tex.Cr.App.1976). Also see Brown v. State, 535 S.W.2d 640 (Tex.Cr.App.1976). Thus, under the definition of “in the course of committing theft”, a person commits the offense of robbery even if he is not seen committing or attempting to commit the offense of theft, provided that he assault his victim or another while in immediate flight after the attempt or commission of theft. It should therefore be clear that a thief does not become a robber unless in effectuating the theft, during the course of committing the theft, or in the immediate flight therefrom, he intentionally, knowingly, or recklessly causes bodily injury to another. See Lightner, supra; Brown, supra. Thus, what is missing in this cause, evidence wise, is the connection between the deceased’s death and the taking of her vehicle that might make the offense capital murder. Under our law, even if it is established that the appellant committed the murder, if there is no evidence or insufficient evidence that the murder was committed in the course of committing or attempting to commit the offense of robbery, it is not capital murder. See § 19.03(a)(2).
In this instance, there is no evidence that anyone witnessed appellant committing the offense of theft of St. John’s vehicle, either before, during, or after the murder. Thus, the crucial question becomes: Is there any evidence to support the jury’s implicit finding that appellant committed the offense of murder “while in immediate flight after the attempt or commission of theft of the de *833 ceased’s motor vehicle.” Given the evidence that was presented to the jury in this cause by the State, the answer should be obvious to almost anyone: “OF COURSE NOT!!!!!”
The only evidence that the State had to show that appellant murdered St. John in the course of committing or attempting to commit the offense of robbery was through appellant’s confession. However, all that appellant’s confession shows is that after he was invited inside of St. John’s apartment, he had consensual sexual intercourse with her, killed her, after which he left her apartment, took her car, and was later arrested in another state. “A killing and unrelated taking of property [, however,] do not constitute capital murder under 19.-03(a)(2).” Ibanez, supra.
In this instance, given the facts that the trier of fact was presented, there is sufficient evidence that would have permitted the jury to find that appellant committed the theft of St. John’s automobile. See Hardesty v. State, 656 S.W.2d 73, 77 (Tex.Cr.App.1983). Also see Browning v. State, 720 S.W.2d 504 (Tex.Cr.App.1986), and Aguilar v. State, 682 S.W.2d 556 (Tex.Cr.App.1985).
However, the inquiry does not stop at this point because, in order to establish the offense of capital murder, the State’s evidence also had to show, not only that appellant stole St. John’s vehicle, but that he committed the murder of St. John in the course of committing or attempting to commit the offense of robbery. What is missing from this cause, evidence wise, once again, is evidence that would establish that appellant murdered St. John and that he killed her in the course of committing or attempting to commit the theft of her automobile. Once again, I emphasize: “A killing and an unrelated taking of property do not constitute capital murder under 19.-03(a)(2).” Ibanez, supra. Thus, the mere fact that the State established a killing and a theft will not, standing alone, establish capital murder.
The majority opinion relies upon Banks v. State, 643 S.W.2d 129 (Tex.Cr.App.1983), as authority for its holding that the evidence is sufficient to establish that appellant murdered St. John while in the course of committing the offense of robbery. The majority opinion also tells us: “See also Fierro v. State [, 706 S.W.2d 310 (Tex.Cr.App.1986)]; and Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983)”, which I will do.
Given the distinction between the facts in this cause and the facts in Banks, supra, Banks, supra, clearly is no authority for the majority opinion’s holding.
The facts set out in Banks, supra, reflect that the murder of the defendant’s victim occurred in Bowie County. The facts also show that the defendant made inculpatory admissions to another individual, apparently not too long after the killing, that in the course of drinking beer with the deceased he “decided to kill the [deceased] for the hell of it and take his automobile to Dallas", (my emphasis), which the opinion states is just exactly what he did. Given the quoted admission, it should be clear to almost anyone that, just like the defendant stated, he first intended to kill the deceased and then take his automobile, which is exactly what he did. In any event, the defendant’s admission made it clear that he killed his victim either in the attempt to take his car, during the commission of the theft, or in immediate flight after the commission of the theft of the ear. Given the definition for “in the course of committing theft”, how the author of the majority opinion can state that “Banks’ statement ... was unclear in the sense that Banks did not state that his intent to take his victim’s vehicle had been formed by the time he killed him” clearly escapes me. By his admission, the defendant clearly telegraphed his intent to the world.
Fierro, supra, is also distinguishable from this cause. There, the facts clearly show that the murder occurred during the course of committing a robbery. The defendant, while riding in his victim’s taxicab, first shot his victim in the back of the head and then took the victim’s taxicab as well as his personal property. Clearly, this showed, at least circumstantially, a murder *834 committed in the course of committing a robbery.
Russell, supra, is also distinguishable from this cause because there the facts clearly demonstrated that the murder occurred during the commission of a robbery, i.e., the murder occurred either in an attempt to commit theft, during the commission of the theft, or in immediate flight after the attempt or commission of theft. A clear reading of Russell, supra, makes it clear to me that the State established that the killing was related to the taking of the deceased’s property.
In this cause, the following critical question must be asked: If there had been no murder, would the facts support a finding that a robbery was committed? Of course not. In the paradigm case, where the defendant goes into a convenience store and thereafter in robbing or attempting to rob the clerk he murders the clerk, if the robber had not killed his victim, would he still be guilty of the robbery? Of course. But, if the State’s evidence shows that the robber went into the store, killed the clerk, and thereafter, believing that the clerk no longer needs the money in the cash register, takes it, is that capital murder? Of course not. Why? Because the State’s evidence itself disproved the element that the murder was committed in the course of committing the theft. Ibanez, supra. If the State’s evidence shows that the defendant went to his victim’s residence on foot, and saw his victim’s car parked in front of the residence, and thereafter went inside the residence and killed his victim, and thereafter took his victim’s car, is that capital murder? Of course. A reasonable inference could be drawn from those facts that the defendant murdered his victim while in the course of committing the offense of robbery, i.e., that in the course of committing theft of his victim’s vehicle he murdered his victim. But if the defendant drove his car to his victim’s residence, and thereafter killed his victim, and then left in his victim’s car rather than his own, unless it was shown that his vehicle had become disabled, it would not be a reasonable inference to infer that he murdered his victim so that he could take his victim’s car. And that is this case. Let us return to Ibanez, supra.
In Ibanez, supra, the facts showed that the deceased, a 38 year old male homosexual, “picked up” the 17 year old defendant, who was also a homosexual, and the two later “retired” to the deceased’s apartment, where the two agreed to engage in homosexual activity, with the deceased agreeing to become the “woman” and the defendant agreeing to become the “man”. However, the deceased apparently reneged on the agreement, and, in violation of the agreement, attempted to have the defendant be “the woman” and give him a “blow job”. The defendant objected, which resulted in a struggle, with the defendant, acting out of anger and fear, strangling the deceased to death. The defendant then left the deceased’s apartment. Thereafter, he took the deceased’s automobile. When the deceased’s body was found, it had on it two gold chains, a bracelet, and a watch. The defendant stated in his confession that his taking of the deceased’s automobile was only “incidental.” The deceased’s vehicle was found in Juarez, Mexico, locked, with the keys in the ashtray.
This Court held that the evidence was insufficient to establish the offense of capital murder, and stated: “A killing and unrelated taking of property do not constitute capital murder under 19.03(a)(2): 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.” “Since the State alleged the same assaultive conduct for both the murder and the robbery, it had to prove that the appellant intentionally strangled the deceased with the intent to obtain control of the deceased’s property. (Footnote omitted.)” (807).
In rejecting the State’s contention that because the evidence established that the deceased normally kept a jewelry box in his dresser drawer, and a jewelry box was found in the deceased’s vehicle, which automobile had been taken by the defendant after he had killed the deceased, this was sufficient to establish the offense of robbery, this Court stated that “the jewelry *835 box found in the deceased’s vehicle was never identified as being the deceased’s jewelry box; moreover no one ever identified the contents of the jewelry box to establish if any jewelry was missing, or if any of it belonged to the deceased.” The opinion also pointed out that the jewelry was turned over to relatives of the deceased.
In reference to the fact that the defendant took his victim’s car after he killed his victim, the Court in Ibanez, supra, pointed out that the defendant Ibanez had stated in his confession, which the State introduced into evidence without any deletions, that he killed the deceased out of anger and fear, and not in order to obtain and maintain control of the car. This Court held that the State was bound to disprove this exculpatory statement, and found that it didn’t. Although in this cause appellant in his confession admits taking St. John’s car, there is no admission that might reflect or indicate that he murdered St. John “while in the course of committing the offense of robbery.”
The Court in Ibanez, supra, implicitly at least, asked itself the following question: If the deceased had not been murdered, would the evidence have sustained a conviction for the offense of robbery, and answered the question in the negative. We should ask the same question in this cause.
Let us carefully read appellant’s confession, see “Appendix A”, in order to make the determination whether, if St. John had not been murdered, the State proved a robbery. Let us then carefully read appellant’s confession in order to make the determination whether it states an admission that appellant murdered St. John in the course of committing the theft of her car. Based upon appellant’s confession, the questions should be answered in the negative because nowhere in his confession does appellant admit that he killed St. John “to obtain and maintain control of her car”, and nowhere in his confession does appellant admit that the murdered St. John in the course of committing a robbery.
The facts of this cause simply do not give rise to the reasonable inference that appellant caused the death of St. John while committing or attempting to commit the theft of her motor vehicle, which in this instance is a necessary and critical element of the offense of capital murder. In sum, given the facts of this cause, the evidence is clearly insufficient to sustain the allegation that appellant caused the death of St. John while committing or attempting to commit the offense of theft of her car.
The majority opinion states: “We hold a rational trier of fact could find appellant’s murder of his victim occurred ‘during the course of robbery’ beyond a reasonable doubt.” Given the facts in this record, and the definition of “in the course of committing theft”, I find that that dog just won’t hunt, and that only an irrational, not rational trier of fact, would have found appellant guilty of capital murder.
By this dissenting opinion I am not saying that the State could not have established a capital murder case against appellant. I am simply saying that if the State wants to convict an individual of capital murder, and subject that individual to a premature death, it should first be required to establish with proof, beyond a reasonable doubt, the elements of the offense of capital murder, and should not rely upon either an irrational jury’s finding or this Court’s reluctance to reverse a capital murder conviction and the sentence of death to prove its case.
For the foregoing reasons, I respectfully dissent.
*836 APPENDIX A
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681138. Public record. Not legal advice.