Case Summary - Thomas Bartlett Whitaker v. State

This was a movie-of-the-week type case, but guilt was not really an issue. Thomas Whitaker, convinced his pretty well-to-do parents that he was enrolled in college. Then he conspired with his roommate to murder his parents for the insurance money. His roommate, Brashear, hid inside the parent's home while they all went out to celebrate his fictitious graduation. When they returned home, Brashear shot and killed Whitaker's mother and brother, and injured Whitaker's dad. The State did not seek the death penalty against the shooter, Brashear. Oh yeah, Whitaker had planned this scheme several different times in the past and he even made one attempt a few years earlier with different friends.

This was not a guilt case.

Whitaker's attorney all but conceded guilt at trial, and didn't challenge the sufficiency of the evidence. In fact, the Court noted that the evidence of guilt was overwhelming, but hey, it usually is when the State can call the defendant's father to prove up its case. Prior to trial, Whitaker had offered to plead guilt to two consecutive life sentences, and he supported this with a proffered statement that did not end up as part of the record. However, the State chose to seek the death penalty. During the punishment phase of the trial, Whitaker offered evidence that he was sorry, that he tried to plead guilty, and that his father (and the mother's side of the family) did not want Whitaker to be put to death.

On appeal, Whitaker raised nine points of error, but the one that got the most attention was the State's reference to Whitaker's plea negotiations. During closing argument at punishment, the defense referred to the fact that the State had not sought the death penalty on Brashear, and noted that Whitaker had tried to plead guilty numerous times. However, Whitaker complained that the first reference to the offer to plead guilty came from the State's exchange with Whitaker's father during the guilt phase. There, Whitaker's dad volunteered that there had been this proffer in exchange for a plea when the State asked him about whether Whitaker had confessed.

During the punishment phase, Whitaker himself testified that he never intended to contest the guilt of his offense. He also volunteered that he would have plead to as many life sentences as the State wanted. The State had Whitaker read his proffered statement silently during cross-examination, but Whitaker testified that he did not write the statement. Moreover, he was upset that he had not been given the opportunity to write it as that had been his plan all along.

The Court of Criminal Appeals rejected Whitaker's claim that the State erroneously referred to the plea negotiations and his own proffered statement. Judge Hervey, writing for the majority, noted that it was difficult to understand Whitaker's complaint as the plea negotiation testimony made up a significant part of Whitaker's mitigation case. Thus, any unobjected-to reference to this evidence was waived by Whitaker's failure to object. Moreover, the error was clearly harmless because the evidence of guilt was overwhelming. [Note, the Court set out portions of the State's brief verbatim here, so the appellate attorney must've done a pretty good job.]

The Court also rejected Whitaker's complaint that the proffer should've been made part of the record at the hearing on the motion for new trial. The trial record contained significant references to the proffer and clearly reflected what transpired during trial regarding the proffer. The Court was not persuaded that abatement to supplement the record to support unpreserved claims would assist the Court.

The other big issue in this case was the State's introduction of an audiotape between Whitaker and Adam Hipp, one of the conspirators in the failed attempt to murder Whitaker's family. Whitaker complained that the tape was admitted without deleting inadmissible hearsay. The Court noted that Whitaker failed to specify the portions of the tape that were inadmissible hearsay even though he had specifically stated the grounds upon which he sought to have the portions of the tape excluded. Consequently, Whitaker failed to preserve error with regard to the admission of that audiotape. [And even if it was erroneously admitted, the evidence of guilt was overwhelming so the error would have been harmless.]

Finally, Whitaker made numerous challenges to the constitutionality of his death sentence that the Court had previously rejected. They rejected them again without any significant discussion. Here's a link to the case information. Judges Price and Johnson concurred without an opinion. There was no underlying opinion because this was a death penalty case and direct appeal to the Court of Criminal Appeals is automatic.

[The only weird thing about this case is that it was even published.]