*1 sеlling and authenticating items so made clearly proscribable under V.T.C.A. Pe- Code,
nal Sec. 32.22.
Since there were conflicts between the
theft statute and the criminal simulation both
statute as to of proof elements
penalty provisions and penalty since the
provided for awas misdemeanor under statute,
latter appellant should have been
charged with criminal simulation. Williams
Because offense under V.T.C.A. Penal
Code, 32.22(b) misdemeanor, Sec. is a
district court jurisdiction did not have
try the ease.
The judgment is reversed and the indict-
ment is ordered dismissed. J.,
McCORMICK, dissents. BANKS, Jr., Appellant,
Delma Texas, Appellee.
The STATE of
No. 68933.
Court of Appeals Criminal
En Banc.
Nov. 1982.
Rehearing Denied Jan. *2 Texarkana, Lee,
Clyde E.
Raffaelli,
Atty.,
El-
Dist.
James
Louis J.
Texarkana,
liott,
Atty.,
Asst. Dist.
Walker,
Alfred
Huttash,
Atty., and
State’s
Austin, for the State.
Atty.,
Asst. State’s
OPINION
Nash and drank beer. The
resi-
dence was
little more than a half mile
DALLY, Judge.
park.
At approximately
11:00 or
appeal
This
from a
conviction
p.m.
11:15
Hicks was tаken home.
capital
punish-
the offense of
murder.
*3
Patty Bungardt
appel-
testified that the
ment is death.
the
lant and
deceased
at her
visited her
appellant
the
The
contends that
p.m.
house
11:30
April
They
around
to
He
support
insufficient
the verdict.
stayed for
ten
approximately
to fifteen
further contends
following
the
error minutes.
change
occurred: his motion
a
of venue
Mike Fisher testified
he
about
lived
overruled;
jury panel
was
the
was preju-
yards
park
one hundred
in Nash.
by
diced
contact
prosecutor’s
with
4:00
approximately
April
At
a.m. on
pre-
to
vestigator;
appellant’s right
a
gun
heard two
shots.
violated;
of
sumption
innocence was
Charles Cook testified that he met the
prospective jurors were
excused
improperly
appellant
morning
of
12 in
April
cause; gruesome
hear-
photographs and
appellant
driving
Dallas. The
was
a vehicle
admitted;
say
improperly
evidence were
which
description
had the same
the de-
as
proseсutor’s
and the
argument during the
ceased’s. Cook and his wife befriended the
opening
closing
guilt-innocence
of the
stay
allowed him to
with
of
stage
the trial was improper.
them at
grandfather's
Cook’s
home. Cook
complains that
the evi-
a sprinkle
appel-
had noticed
of blood on the
dence is insufficient
the verdict
support
to
pants
lant’s
and asked the
about
of guilt for the
capital
offense of
murder.
it. The
told
he had shot
The case
was submitted to the
on a
boy.
a white
Later that evening
appel-
ap-
circumstantial evidence
but
charge,
that he
lant told Cook
had killed someone.
pellant contends the
does
ex-
riding
told him he had bеen
all
clude
reasonable hypotheses except guilt.
friend,
a
boy
girl
around with white
and his
He also contends that evidence does not
after
they
girl
took
home
establish that
murder occurred in
boy
together
the white
went to the woods
course of committing
robbery.
a
V.T.
See
beer. The appellant
drank
decided to
Cоde,
C.A. Penal
19.03(a)(2).
Section
person
kill the
for the hell
take his
deceased,
body
Wayne
Richard
to
eventually
automobile
Dallas. Cook
Whitehead, was found in an abandoned
pistol
from
obtained a
and the automobile
park
near Nash on
morning April
pistol
was later identi-
1980. The deceased had been shot three
through
testing
fied
ballistic
as the murder
times, twice in the
once
head and
weapon.
later
to
returned
One
upper back.
fired at a
shot
been
pistol
Texarkana
bus. Cook
sold
eighteen
twenty-
maximum distance
neighbor
and took the automobile to
four
empty
inches. Near the scene several
Dallas and left it.
It was never re-
West
bеer
two spent
casings
cans and
shell
were
pistol
covered. The
was recovered from the
found.
neighbor,
Lee
Bennie
Jones.
Patricia Hicks
she was a
testified that
they
Cook’s wife and sister testified that
friend of the
deceased and that she
driving
green Mustang
saw the appellant
a
during
evening
with
deceased
April
grandfather
12. Cook’s
stated that
April
driving
1980. Whitehead was
a
appellant stayed
night
at his house for
automobile,
Mustang
Jones,
with
neighbor,
two-door
testi-
or two.
also
Cook’s
vinyl
a light green
body,
during
colored
a black
fied that he met the
top,
During
and red hood.
course of
him he had had
Appellant
same time.
told
evening
joined by
appel-
pair
misunderstаnding
a little
with someone
pur-
“something like
jaw
lant and at his
beer was
had broken his
suggestion
park near
asked
“did want
Appellant
chased. The three
that.”
Jones
went
iron, whatever,
buy
to make
change
it back
Whether motion
for a
to Texarkana.”
be granted
prejudi
venue should
because of
publicity
question
cial
of constitutiоnal
After the
body
deceased’s
found
dimension. McManus v.
placed
under surveillance
505 (Tex.Cr.App.1979).
ap
to be
test
law
April
enforcement
On
23 or
officers.
plied is whether outside
affect
influences
they
the appellant,
observed
Marcus Jef-
community’s
opinion
climate
as
ferson,
Farr,
together
and Robert
drive
suspect.
inherently
a defendant
are
The appellant
Texarkana
Dallas.
Maxwell,
Sheppard
384 U.S.
driving
after a few
vehicle and
(1960);
Eckert
stops he
eventually went
where Cook
was alive. panel asserts that the Dallas the follow deceased’s automobile in jurors prospective unduly of influenced ing day. weapon belonged The murder to Leathers, in an by the actions of Charles The evidence sufficient attorney’s of office. vestigator the district support jury’s verdict. dire, that, voir he had prior He testified help pass by been asked the bailiff asserts the trial with clipboards questionnaires court veniremen abused its discretion in overruling by questions his He was asked some motion for a of them. change venue. The probably added he panel members and properly filed the alleg- motion half of approximately had contact with pretrial that because of publicity there Leathers’ panel. Appellant argues that existed in Bowie County great “so preju- a pro developed rapport a with against dicе conduct that he not obtain [could] jurors credibility spective a fair See Article bolstered impartial trial.” However, tes 31.03, of Leathers prosecution. filed an affida- V.A.C.C.P. State none of the veniremen motion for tified that told controverting vit district or that he worked for the change V.A.C. name of venue. See Article seen with hеaring subsequently He was attorney. The trial court conducted C.P. Department personnel presented, Sheriff’s and after all We jury. not before the motion. and he did overruled the against penalty, fail to see how the vote the death prejudiced ly conduct; of what the facts were. ground regardless Leathers’ error is without merit. Yеs, “A. sir. “Q. feeling And take it this The appellant argues that error oc deep-rooted deep-seated no when deputy attempted curred sheriffs fact, no matter how horrible set
to escort the appellant out the courtroom change how gruesome, or would presence jurors. the prospective opinion. Is your that correct? During recess but panel before the had left the courtroom the started to walk “A. No.” out of the courtroom. He was flanked Amy Rogers on voir dire Ola testified: either side deputy uniformed sheriff. “Q. feeling your part Is so firm argues The appellant their behavior automatically vote infringement upon against penalty, regard- the death
presumption of innocence because it indi
less
what
facts
the case
cated
veniremen that
the appellant
be?
dangerous.
was hostile and
Yes,
“A.
sir.”
deputies did
put
appel
handcuffs on the
prospective jurors
Both
ex
properly
lant or
him any
restrain
manner.
Illinois,
Witherspoon
suрra;
cused.
Ad
appellant was not wearing jail
prison
supra;
ams v.
Vanderbilt v.
clothing.
judge
sheriff
ex
*5
709 (Tex.Cr.App.1981);
629 S.W.2d
Wil
pressed
security;
concern over
they wanted
State,
liams v.
622
116 (Tex.Cr.App.
S.W.2d
the appellant removed from the courtroom
1981);
State,
v.
622
(Tex.
Bass
101
S.W.2d
first so that he would not have to be moved
Cr.App.1981).
through
hallways.
crowded
We cоnclude
appellant complains
The
that
light
that
in
restraints
minimal
prosecutor’s opening
statement
to the
and the
security
concern for
scope
exceeded the
of Article
V.A.C.
the trial court did not abuse its discretion.
by implying that
the appellant
C.P.
had
The appellant’s
presumption
prosecutor
confessed to the crime. The
innocence was not violated. Thompson v.
stated:
State,
argues their admission solved own. 1A the statement as his Whaley upon adopted and he relies part in Evidence, and Borr Ray, Law Section (Tex.Cr.App.1963) oum v. 168 Tex.Cr.R. prosecutor asserts that the In Martin testify. appellant's failure alluded cert. denied 409 U.S. (Tex.Cr.App.1972) closing argument guilt-in- at the During his (1972), we S.Ct, following stage of the trial noсence though held that photograph even transpired: gruesome it be admissible if a verbal de- why Cooksey about Mr. “Think [the admissible; were description of the scene call this a would want to fense counsel] grue requirement we overruled the that a trails, all rabbit poor Drugs, these case. some admission in evidence photograph’s you he wants all smoke screens that those disputed tend to Here solve a issue. He down. behind chase hide admissible there verbal description except anything to think about wants were photographs fore admissible. old three bul- year boy with that sixteen record While there is no evidence Anything at all. The let holes in him. enlаrged, photographs produced only has State en they may mere fact have been case.” does them larged not render inadmissible objection argument that the enlargement unless the in the purpose sole failure alluded to Quin the jury. is to inflame the minds of continued, prosecutor overruled. tanilla (Tex.Cr. stating: App.1973). interruрt- pick up “If where I was may argues prejudi- next ed, in this case only credible evidence hearsay cial admitted improperly produced by has the State.” been evidence. Jefferson testified Marcus objection was overruled. Again, appellant’s Farr to went with the argues that *6 Dallas. to the They drove residence comment on remarks were a prosecutor’s Two- Cook, whose nickname was Charles rights testify and his violated failure house up walked to the two. States Constitution under the United in the pair while the remained automobile. violated Article the Texas Constitution tes- the returned Jefferson When 38.08, In to violate order V.A.C.C.P. said some that Two-two tifiеd “He said or Article self-incrimination against gave Two-two gun, had his and so girl when viewed language, supra, argues that gun.” Appellant another mani standpoint, must be jury’s hearsay. statement was inadmissible or of such a character festly intended we note the State’s Initially, naturally necessarily Farr, witness, testified about next fail accused’s take as a comment it objection. State, without Lee v. the same conversation 70 628 S.W.2d testify. ure to State, said his testified, appellant] “He Angel v. Farr 627 (Tex.Cr.App.1982); [the v. Dallas, Nowlin and Two-two gun was West (Tex.Cr.App.1982); 424 S.W.2d complained (Tex.Cr.App.1974). him a .22.” 534 Since objection from without language of was admitted is It not sufficient Boles source, presented. is indirect allu implied no error as an or another be construed re If the v. supra. v. Nowlin sion. S.W.2d ab to the jury’s statement attention Additionally, appellant’s mark called testimony of as only Farr was admissible sence of evidence both Jefferson implication portion supply, could The critical defendant an admission. failure оwn as a on the defendant’s appellant’s comment upon was based statement conviction necessary one and the Furthermore, is a it is ir knowledge. personal State, Myers v. must be reversed. of the statement portion that a relevant instructions, judge’s including answer (Tex.Cr.App.1978); Angel S.W.2d State, supra. evidence;2 questions based оn the question preced- and answer which ultimate language if the can used ed her exclusion were: referring be reasonably construed as “Q: being Mrs. Rogers, a conscientious appellant’s produce failure to evidence oth would, county, you citizen of our if testimony, er than it his own is not improper State, supra. remark. Nowlin v. chosen as in this juror case In the bar prosecutor’s case at remarks instructions, case judge’s follow the not naturally necessarily did refer you any ques- would answer failure Here testify. judge gives you tions that the from myriad evidence, there was a other than you evidence that heard own testimony, that the could courtroom, yоu? wouldn’t have did offered. remark not refer to I certainly A: would.” any particular aspect only of the case that Similarly, Swanger venirewoman could testimony refute. The —after language hearing explained that the jury’s used was a function comment the fail produce ure to testimony other than his questions judge is to answer that the аsks own. Antwine v. evidence, Judge, about the “then the based Edmond v. 566 upon answers, those imposes the sentence” (Tex.Cr.App.1978); Wood —concluded her voir dire as follows: State, 374 896 (Tex.Cr.App.1964); case, “Q: juror If seated as a in this Nowlin supra. ground Judge tells evi- is error overruled. dence, questions, answer these The judgment is affirmed. would you Judge’s follow thе structions? ROBERTS, J., participating. seated, to, A: If I would have wouldn’t CLINTON, Judge, dissenting. I? It is true that what majority opinion Q: Right. you? And would extracts from the 20 odd pages of voir dire seated, IfA: I would.” examination of Rogers, ap- venirewoman majority’s continuing From the applica- pears the record. significance That its tion dictates of v. Illi- Witherspoon to establish the State’s entitlement nois,3 “ground as a challenge bias,1 for cause on exclusion” in direct ground however, unlikely. Rogers For after contravention of Adams *7 excerpted response, fully 38, it was (1980), 100 S.Ct. explained to her defense counsel that my disassociate myself. must See dissent- jurors Texas do not for” “vote the death oрinion May v. penalty, instead, but are to answer special remanded, vacated questions according judge’s to the trial U.S. L.Ed.2d 374 structions, by applying ad- (1981). duced. The effect of her answers were I dissent. explained even Rogers by detail to trial judge. nevertheless insisted sev- She TEAGUE, J.,
eral times thereafter joins. that she would follow up- Presumably, 1. basis for the exclusion 3. 391 V.A.C.C.P., bias, 35.16(b)(3), held is see Article majority opinion identify but does not it. Though she “af- admitted that she be knowledge fected” effects of her an- . swers.