*1
n ¶ n
Floyd
display
any photographs
confusing, and
did
meager
Floyd
was
CHAMBERS, Appellant,
Ronald Curtis
complaining
witness did
testify
(Tex.
depends there was on whether a distinct which, at the time of the event
observation circumstances, light surrounding of the enough credible to serve can considered origin for independent as an the in-court Clay identification. 518 S.W.2d In the case (Tex.Cr.App.1975). instant Floyd adequate opportunity to observe range during close appellant was robbery, appel
course told as he fled from scene. lant’s name origin independent There was an for the Clay in-court su identification. pra. totality surrounding From a circumstances, we do not conclude that was
photographic display, any, impermis- if sibly suggestive.
Further, it should be remembered appellant his witnesses and all testified that he was scene at the on the time of testimony
robbery. The defense was that good took appellant was a Samaritan and away from Newman in an at- knife Floyd’s It was tempt Floyd. aid testimo- ny participated in the rob-
bery ques- him. There was no and stabbed present time
tion that at the error, The question. any, if events procedure, identification pre-trial beyond reasonable doubt. harmless is affirmed. judgment testimony “A I I called to our does don’t remember. But do he’s 1. attention know me, Floyd support assertion that the one brought because that stabbed when he picture— testified his in-court identification was based Floyd testify Well, pictures. “Q you frightened on the did that he could when the man assaulting up you put man him not remember which said walked behind his arm your The record then re- “Give me that watch.” around neck?” following on flects the cross-examination: “Q frightened and don’t re- You were member?
315
SI 7 Perini, Dallas, appellant. Vincent W. Wade, Henry Atty., Dist. W. T. West- moreland, Jr., Burnham, D. Douglas Jim Asst. Dist. At- Stephen Tokoly, Mulder and Vollers, Dallas, Atty., tys., Jim D. State’s Austin, for the State.
OPINION
DOUGLAS, Judge. from a appeals
Ronald Curtis Chambers capital for murder wherein the conviction punishment was assessed at death. 11, 1975, Shortly midnight April after Sutton, col- Mike McMahan and Deia both students, lege nightclub left a Dallas Appellant, entered McMahan’s car. Clar- Williams, Jr., Ray ence and two other men adjacently parked an automobile. occupied appellant Williams and exited that automo- way bile and forced their into McMahan’s ordered gunpoint. Appellant vehicle at get into the back seat with him. Sutton shotgun a .410 on the rear laying After floorboard, pointed pistol he a at her face threatened to kill her. passenger McMahan was moved to the seat. Williams then drove side of the front while Trinity the car to the River bottoms watch, coat, robbed of her appellant Sutton purse and its contents. parked the car on a levee when
Williams arrived at the river bottoms. He and they down the appellant pushed the students and, a they got when .22 hollow-point side of the levee near caliber rifle which bullet bottom, stop. ordered them right recovered from his hip. them, point At this shots were fired at five lodged one of which Sutton’s skull. Both I. The Voir Dire Examination at ground fell to the bottom of the complains Appellant entire levee. process selection was infected appellant, apparently Williams and be- Initially urges constitutional error. he dead, lieving that the victims returned the court excusing upon challenge erred in Sutton, car. to the McMahan shouted prospective for cause jurors seventeen for asking her if were hurt. The she assailants bias against punishment the minimum heard him back to the and came levee. prospective expressed murder. Each Appellant dragged McMahan to the water against punishment bias minimum viciously where he beat him with the shot- and stated that was unable to consider gun. Williams beat woman with his punishment such in a murder case. her. fists and then choked When McMahan upon challenge by court excused each stopped appellant hit screaming, Sutton State. shotgun with the times. several Williams (Tex. In Moore v. S.W.2d 664 “Well, remarked, dead, she’s go.” let’s 35.16(b), held Cr.App.1976), we that Article left, After Williams and had V.A.C.C.P., authorizes the to chal State crawled over McMahan and at- Sutton lenge jurors op cause tempted He was to aid him. dead. Some- pose punishment. the minimum Appellant got how she Le Baron Hotel where adversely concedes that Moore decided police were summoned. him, argues that there is no basis Heyse subsequently Officer C. R. found challenge sustaining a to veniremen who body McMahan’s river bottoms. He oppose punishment the minimum for a less gauge shotgun also found a .410 shell which er included offense. primer been which had its fired but (b)(3) of provides Subsection Article 35.16 indented, breech, shotgun part may challenge that the prospec- if the gun stock. *6 juror prejudice tive bias or against “has a Stephanie Jones observed later any phase upon of the law which the State morning her mother’s house. He is entitled for rely conviction punish- or hair washing shotgun. was blood and off ment.”
Appellant tried to sell Sutton’s coat that For these reasons we find no error in the robbery. had been taken in the excusing prospective jurors chal- H. arrested appel- Officer 0. Wilkerson lenged on the of their against basis bias shotgun, A day. lant the next which was minimum punishment murder. pieces, broken into several several .410 car- also Appellant urges prospec tridges, hollow-point and a .22 caliber rifle juror tive was erroneously excused in Veltman bullet were the Jones’ house. found against his bias the minimum punish belonging cards Credit and identification ment for The record murder. discloses were also the deceased and discover- Sutton excused Veltman was not on this basis ed there. he recalled news excused because autopsy An revealed massive skull offense, concerning the accounts instant injuries caused McMa- fractures and brain recently home had and because his been the deceased’s han’s death. Part of cranial burglarized and was disturbed that the bur brain, into the bone had been driven and glars received No probation that case. one of his ribs fractured and had been driv- error is reflected. en He also lung. into the had suffered Next, gunshot right to the arm and to the contends that eighteen wounds wound was excused in abdomen. The latter made veniremen were violation
SIQ
cert,
Illinois,
510,
(Tex.Cr.App.1976),
denied
v.
391
88
430
Witherspoon
U.S.
U.S.
1770,
(1968).1
959,
1610,
L.Ed.2d 776
(1977).
20
97 S.Ct.
vacillated
I
“A. No.
don’t work with him
his deliberations on the fact
issues
affect
directly.
I see him in the hall. He —he
finally
to the jury.
submitted
He
decided
works in another section and I’m in
beliefs would not influence his
these
just
him,
another section and I
see
you
deliberations
those issues. While it
know,
him;
speak
other than
argued
might be
as to whether Godbolt’s
that—
would have
him un
testimony
disqualified
Oh,
“Q.
Well,
see.
you
I
if
think it
holding Witherspoon,
der the
record
affect,
might
you know, your business
per
the court excused him for
reflects that
or,
matter,
for that
listening to the
objection
sonal business reasons over
testimony in
way,
some
then that’s
appellant.
fine.
the manager
stated that he was
Godbolt
know,
“A.
I don’t
you
I don’t
think —
shop
only
and that he had
one
of a barber
think it would.
also
called for
employee
jury
had been
“THE
you
COURT: Both of
work for the
duty at
time. He related that he
government?
to close
his business if he
would have
down
“MISS MINICKS: Uh-huh.
he was
already
and that
served on
“THE
government?
COURT: Federal
trouble because
was attend-
in financial
You all have lunch
place?
in the same
managing
as well
ing school
barber
No,
never
“MISS MINICKS:
I’ve
shop.
him,
lunch with
no.
of the voir dire examination
The conduct
How
know
you
“THE COURT:
did
largely
sound
must rest
within the
discre
dad?
tion of
Moore v.
court.
Somebody
me
“MISS MINICKS:
(Tex.
—let
supra; Abron v.
Article Now, “Q. Miss I won’t bela- Brightman, that: asked point, just bor the I had but challenge objection for is an
“A cause same you you question particular juror, alleging some to a you made some require said him or unfit incapable which renders fact premeditation. evidence of mistrial. fair and party that such a worked in the same building as defense counsel’s father did not ble or unfit S.W.2d 673 to serve The record in the instant case is devoid of the defense cause In sons: juror’s “8. That U hint Pigg [*] “only when he favor of may impartial ¤ that Miss verdict and (1956), on the to serve on [*] be made relationship he has a any juror. against jury. Minicks could not juror saw him.” We held was not the jury.” We find bias or render her Tex.Cr.R. either The fact that would not affect knew the A the defendant.” following challenge the State prejudice grounds “incapa- injured be a rea- she or “A. “A. Yes. “A. “Q. « “Q. “Q. Yes. “A. [*] premeditation? —yes, All you have Is that going of death swered it. question, Your Honor. She’s “MR. HUDSON: My personal feeling— where he’s Well, my— [*] go by the right, my could [*] by the that’s or a still find going have some evidence law, law. sentence him question way way you guilty Object get I would I feel. But is: Before a sentence life, would of murder feel have an- ? Well, abused the court its discretion in ex- “THE COURT: since she’s cusing her. ways answered both —. I would have My personal feeling, “A.
However, showing because there is no to, law, by the I would have to did not receive a fair and my go everyone else. This is impartial jury, because the exer- have personal feeling. 13 of its 15 I would only peremptory cised chal- evidence, which had to lenges, one of could been used have some but if I have Minicks, re- remove no the law—” go by *9 “MR. TOKOLY: much vacillation —because Although there was accord- ing to question— that she would part, appears Brightman’s premedi- evidence require Nobody some “MR. HUDSON: probably made that follow the law. kind of innuendo. could not and thus tation element of a mur- Well, see, is not an Premeditation I girl. “A. don’t know the I she was ruling that family; The court’s don’t know the I der case. don’t basis was sanc- challenge anything on this know about them subject to at all. er- All I know is that 35.16(b)(3), supra. they No are custom- by Article tioned or, ours, ers of I Further, say my not ours hus- did shown. ror is band’s. challenges. peremptory its two of exercise prospec- Well, “Q. used on this put you could have been let me it to this way One prospective explain as with the and I’ll how there juror tive as well could be a perhaps: You conflict find a de- Minicks. juror guilty fendant not after she says the trial Appellant contends happened, perhaps what this is the overruling challenge in court erred man and so forth. You have go Bolin Rayford Mrs. to venirewoman cause your tell home and husband that grant him an additional refusing to and in guilty,’ ‘We found him not and he’s with challenge in connection peremptory going to have to tell— her examination. Oh, no, “A. this —this would have no— juror last Bolin was the Mrs. think, bearing, no I don’t at all. During juror last chosen. interrogated and “Q. you ‘How could do that to my best examination, she stated that the voir dire customer?’ husband, agent, had an an insurance her Oh, we’re not on that close a per- “A. with Deia relationship ongoing business relationship sonal with our custom- Mr. Bolin han- Although father. Sutton’s ers. Most of our customers are insurance matters and Mr. dled Sutton’s names. Bolin family, Mrs. did the Sutton knew “Q. Okay so— related personally. them She know I say “A. And use the term ‘ours’ —I with the business connection learned of she because, know, strictly I you don’t when she and her husband family Deia’s agency work in the and I don’t —. months case several discussed “Q. You don’t know the extent of the follows: then testified as to trial. She prior business then that Mr. has Sutton you feel that this would “Q. Yes. Do husband? your serving in you any problems cause earthly “A. I have no idea. seeing her in court as a would “Q. feel that you And don’t course, and, husband would your arriving any way influence you know, I family know and the at a decision? assume, trying We’re possibly. I don’t don’t think so because “A. I get a fair— people. know the “A. Yes. “Q. Well— see, “Q. we’re —you and that’s what know, a, they are you But that “A. for, thing— looking this sort of con- we have that —that people that Yes, right. “A. tact with. “Q. —exactly. telling me that you are “Q. Okay. And Well, object to “MR. I TOKOLY: influence this would innuendo— that as if there’s some testimony listening to the way in reaching a decision? “MR. HALSEY: No. No, don’t, really I could think so. —that she “A. I don’t “MR. TOKOLY: that, see. only say but I can not be fair— Right, right. “Q. not— That’s “MR. HALSEY: *10 Appellant really what I think. next contends that saying I’m “A. unreasonably trial court restricted the voir can “THE COURT: That’s all prospective juror dire examination of Mrs. you’ve here lady, do told Court Carl Nelson. not, right? is that it will
“MRS. BOLIN: ‘Yes.
discloses that
record
defense counsel
right,
get
attempted
question
“THE COURT: All
let’s
Mrs. Nelson about
term
something
meaning
“deliberately”
on to
else.”
37.071(b)(1),
in Article
term is used
Thereafter,
inquired
defense counsel
special
first
issue
V.A.C.C.P.—the
to be sub-
prejudiced against
Mrs. Bolin was
whether
at the
punishment phase
mitted
responded that she did not
blacks. She
of the trial. He first asked her whether she
was, “any
average
more than the
think she
thought deliberate conduct meant carefully
person my age who’slived in Texas all their
responded
considered conduct. When she
life.” She later stated that she was not
prosecutor
affirmatively,
objected
on
bigoted and that she would be a fair and
ground
that defense counsel was infer-
juror.
impartial
ring
was required
prove
that the State
accepted
as the twelfth
Mrs. Bolin
premeditation. The court sustained the ob-
juror. Appellant challenged her on the
jection on the basis that the term “deliber-
prejudiced
was racially
that she
grounds
ately”
statutory
as used in the
provision
her husband had a business rela-
and that
given
its commonly accepted meaning,
Deia
How-
tionship with
Sutton’s father.
(Nelson).”
“what it means to her
The court
we find on the record before us that
ever
permit
refused to
defense counsel to
challenge
overruled the
properly
the court
explore the matter further. Appellant’s ob-
ground of racial prejudice.
cause on the
jection was overruled.
35.16(a)(8),supra.
Article
See
bar,
In the case at
the voir dire examina-
respect to the business rela
With
tion was
with respect
limited
to certain
juror’s
husband
tionship between
questions
prospective juror only.
as to one
Sutton,
Mr.
we stated in Moore v.
juror
She was chosen as the second
when
supra,
following:
defense counsel stated that
“will
(Article 35.16,
“.
.
. The statute
happy
accept
juror.”
this
Voir dire
V.A.C.C.P.,
parts,
is divided into three
examination could take an unreasonable
providing challenges for cause which both
length
attorneys
of time if
on both sides
make,
may
and the defense
State
throughout
selected different words
con-
those which the
may
State
make
prospec-
each
templated charge and asked
those which the defense
make. Wé
may
juror
those words meant. We
tive
what
nothing
find
in the statute which renders
find no abuse of discretion.
these lists an exclusive basis for chal-
error,
ground of
appel
In another
lenges
Challenges
for cause.
for cause
complains
lant
that the trial court erred in
any ground
not based on
mentioned
excusing prospective
Delgadillo with
ordinarily
the statutes are
addressed to
challenge
out
either
or the
judge.
the sound discretion of the trial
not,
A court should
defense.
on its own
...”
jury;
(3)
testimony
and
not state
may
(Tex.Cr.App.1975);
Next, appellant urges that Dr. argues that permitted the court erroneously Grigson’s testimony improperly was admit Grigson Dr. to describe sociopaths as mani ted because he failed to with the comply pulative. 46.02, (3)(d),
provisions of Article Section The record reflects that Grigson, having V.A.C.C.P., provides: which diagnosed appellant as a sociopath, testified report “A written of the examination persons suffering person- from such shall be submitted to the court within 21 ality disorder develop never a conscience or days examination, of the and the court remorse, feel guilt, shame. He further copies report shall furnish of the sociopaths testified that are convincing liars defense counsel and the prosecuting at- ability and have the to manipulate “people, torney. report shall include a de- lawyers, preachers, jurors doctors” and “as scription procedures of the used in the long as it’s advantage. to their . . .” examination, the examiner’s observations Appellant’s objection was overruled. findings pertaining defend- His analysis sociopathic personality trial, competency ant’s to stand and rec- permissible expert testimony and thus ommended treatment. If the examiner was properly admitted. It is further ob- incompe- concludes that defendant is served that did testify at tri- trial, tent to report stand shall in- No al. error is shown. clude the examiner’s observations and Appellant complains of several answers findings whether is about there a sub- given by Grigson during Dr. cross-examina- probability stantial defendant tion. competence will attain the to stand trial in the foreseeable future.” The record reflects the challenged first remark was made follows: Dr. Grigson appointed court “Q. (Defense counsel) Grigson, Dr. re- wheth- to examine and determine ally, not trying I’m to belabor the competent er he was to stand trial and point, be, well, not trying I’m whether he was sane at the of the time that, or anything offensive like I psychiatrist was thus re- offense. must that I say ques- don’t think the quired a report to submit of that examina- tion pat- was answered because record, however, tion. The no such contains tern I’m speaking of has to be report is no showing and there that one was supported some , other incidents— But ever submitted. also reveals record Yes, “A. sir. insanity no issue time at the incompetency “Q. offense or of stand you— —that ing society. Grigson threat Dr. Yes, sir. “A. that “I don’t need to see him commented aware of. “Q. —are again put my jeopardy. life . I misunderstood. Yes, sir, sorry, I’m “A. objection The court sustained have one Yes, is true. You disregard and instructed the that did being that dead human contends the court Appellant remark. natural causes. And in die of overruling the motion for mistrial. erred in want, we get what order dead, three would have to have two prompt The trial court’s instruction in the dead, dead, With twenty dead. four Appellant error. instant case cured experience, my my training my to a mistrial. Cf. Tristan was not entitled states, ‘Doctor, you are profession (Tex.Cr.App.1974). S.W.2d call, diagnose somebody qualified to Appellant complains next that Dr. diagnose can is like this. You him as a “cancerous sociopathic personality Grigson referred to them as a degree.’ removed from very of a severest who should be type person” disorder I’ve doesn’t state that profession Grig record reveals that Dr. My society. The twenty until he kills got to wait earlier metaphor used the cancer son had him a socio- I can call people before was waived. objection. Any without error State, supra; Hayles path.” Watson *13 supra. objection was overruled. An as previously testified Grigson had Dr. grounds appellant In two of error
follows: improper complains Grigson that Dr. made Now, person the sometimes “. . . Dr. to extraneous offenses. references die, but, now, problem type this doesn’t “previ he Grigson stated that had discussed has, a con- without an individual where and later type appellant, ous trouble” science, being’s life another human taken he things had told him some appellant done, was in which this the manner in was objection done.” No (appellant) had shooting in war somebody this was Error, any, if either statement. made to somebody was not person; another State, v. was waived. Braxton 528 S.W.2d defending their defending their home or State, v. (Tex.Cr.App.1975); Vera 473 844 killed, was wife; stranger that this was a (Tex.Cr.App.1971). 22 S.W.2d itself, without the This in murdered. and conscience, says, ‘Say, that is a socio- it challenges the Appellant kill a dozen He doesn’t have to path.’ limitation of his cross-examination court’s we ‘Now then you say, can before times testified on direct ex Grigson Dr. already you it,’ know. He’s you know appellant sociopath was a — amination that now; you know it.” now is when know continuing threat to he was a and that cross-examination, appellant society. On tes objection no to this was There testified to the him whether he had asked of evi admission improper timony. many on behalf of the State same effect error if reversible not constitute dence does responded that Grigson Dr. capital cases. to by facts were shown same facts occasions so testified on numerous Watson he had was addressed. objection which no objected. The court whereupon the State State, (Tex.Cr.App.1976); 619 532 S.W.2d v. no in objection. There was State, (Tex.Cr. sustained the 213 Hayles v. 507 S.W.2d consider the jury not to struction for App.1974). statement. further cross-examination During the excluded tes Appellant contends another exami why was asked Grigson Dr. bias, preju to show timony was admissible He not needed. appellant was nation part State’s or interest on dice examina psychiatric that another answered therefore, and, heavily bore witness expert unnecessary to deter appellant tion of however, did Appellant, credibility. a continu- on his present he would mine whether
327 court to he “The answer jury ask the retire so to all three questions is develop yes going I’m to proffered testimony. simply could Ab ask to your yes. follow oaths and answer them showing testimony sent a of what such been, would of a have an offer statement containing what the excluded evidence objection No was made to the argument show, nothing presented would re Hence, challenged. nothing now is present- 40.09, 6(d)(1),
view. Article
V.A.C.
Section
State,
Rodriguez
ed
review.
v.
530
C.P.;
(Tex.
S.W.2d 927
Stein
(Tex.Cr.App.1975);
S.W.2d
Jackson
Cr.App.1974); Hicks v.
493 S.W.2d State, 516
167 (Tex.Cr.App.1974).
S.W.2d
(Tex.Cr.App.1973).
Appellant next
contends
court errone-
ously overruled his motion
after
mistrial
The Rev. R.
testified that
Hunter
prosecutor
following
made the
comment
appellant
since
four
had known
he was
during argument:
years old. After Rev. Hunter stated
.
.
going
suggest
“.
And I’m
to
appellant’s reputation
community
something
you,
to
ladies and gentlemen:
good,
inquired
defense counsel
whether
If Mr. Hudson
seriously
believed that
thought
com
minister
would
this man was sick
not a
criminal of
mit
a similar offense in
future.
kind,
the worst
as the evidence
him
shows
objection
court sustained the
State’s
to be—”
question.
permitted
Rev. Hunter then was
the objection
The court sustained
in-
that,
testify
knowledge, appellant
to his
disregard
structed the
the comment
had committed no other acts of violence.
and overruled the motion for mistrial.
Appellant contends
court errone-
an
Generally,
instruction
dis
ously
opinion
excluded Rev.
Hunter’s
regard is
sufficient
cure an error
represent
con-
whether
would
argument. McClure
544 S.W.2d
tinuing
society.
threat
Since he did not
(Tex.Cr.App.1976);
Gholson and Ross v.
show
testimony
what
excluded
*14
State, supra. We find that
the court’s
been, nothing
have
presented
is
for review.
prompt
the
instruction in
instant case was
40.09,
6(d)(1), supra;
Article
Section
Stein
harm,
to
sufficient
remove the
if
in the
any,
State,
State,
supra;
supra.
v.
v.
Hicks
prosecutor’s unfinished statement.
The
motion for
was properly
mistrial
denied.
grounds
In three
appellant
error
State,
v.
(Tex.Cr.
Thomas
doubt in the case. he wanted . . “. And you don’t know as he you today to turn him loose and he wants sits here today he wishes with all disregard belief you your in the death that heart he had struck her harder . penalty, maybe sitting he wouldn’t be where he
is.” objection An was overruled. Now, . gentlemen, “. . ladies and standing I and I know believe I’m prosecutor referring was to the vi here, you talking from folks over a beating cious which inflicted on long days, you period that would (cid:127) Sutton, to give Deia who lived the most jury unless believed the on this in against damaging testimony him. She in penalty proper death case. . shot and choked before struck thought
her. When the two robbers their 328 leave, dead, State, Her they prepared App.1972); supra; v. Smith
victims
475,
667,
his com
Texas,
called to
74
young
the
man
nandez v.
347
after
U.S.
S.Ct.
fur
went
and inflicted
they
back
panion,
(1954).
We our adhere hear State, (Tex.Cr. you. I can’t 64 “THE COURT: 487 S.W.2d also Hill McLarty pre- quently objections property is is made other not destruc- 1. error as This objection, clearly appellate of which was over- the trial tive review. After served for by judge. going judge ruled the he was to excuse it clear that made counsel, excep- your McLarty, told “Take he preserved. The error as to Nixon was also preliminary Except mat- for a few short tion.” timely exception Appellant a reserved ters, McLarty had voir of dealt the entire dire excusing Although no of Nixon. counsel made ability favor the death to vote in of with her specific Witherspoon, ground of mention of his only judge penalty. clear, only Thus the trial objection subject the of since be; objection appellant’s during what notice voir Nixon’s dire was his examination ability objection granted anticipated actually willingness pen- the and inflict the and death alty. That subse- it it was made. counsel before
329 alty of is My religious qualitatively “MR. NIXON: death from different —no. however, imprisonment, long. sentence of religion? Against your “THE COURT: finality, Death in its differs more life get back to from right, your go All card and imprisonment than a term 100-year prison the central room.” one only differs from of a year or two.”3 objected on Wither- occupies position This statement rela- of prosecutor and the spoon grounds continued insignificance tive in the midst of over two his examination. Nixon stated be- pages penalty hundred of death opinions religious never cause of beliefs he could 2, Supreme July issued Court on unless, penalty you the death “not vote for Nonetheless, 1976.4 I believe that believe, know, know, only, you I extremely important prop- statement is to a know, prosecu- says.” what Bible er interpretation death as it penalty law asked if the mandatory tor then sentence of under our today exists federal Constitution. life imprisonment death or would affect deliberations in When Nixon’s the case. 2nd, opinions July Supreme In its would, Nixon said “submitted” become, Court re-affirmed what had judge and the him over excused some,5 proposition: a dubious exception. not, penalty itself, death is in and of cruel punishment. and always reasons stated in dissent in unusual This my For the has do not believe were been Shippy, jurors my State, supra, I these view. See Tezeno v. 377; disqualified.2 process require- The due 484 S.W.2d Jurek v. 522 Witherspoon 950, ments were vio- 934, therefore S.W.2d note 11 (Tex.Cr.App.1975) lated, reversal and should result. See Opinion Davis (Dissenting Roberts, J.). This (1976). 429 122 Georgia, U.S. supported conclusion the Constitution itself, particularly in the of the language
II.
Fifth
Amendments,
and Fourteenth
both of
provide
which
Carolina,
v. North
428
state or federal
In Woodson
U.S.
280, 305,
2978,2992,
government may
life,
96
deprive
S.Ct.
944
anyone
49 L.Ed.2d
(1976),
Stewart,
Justice
for three
speaking
liberty,
property
without
process.6
due
Court,
pen-
added).
course,
members
wrote that “the
(Emphasis
Of
what
prospective jurors
I
Gregg,
2.
do believe
Hamilton
4.
In
addition Woodson and
the cases
absolutely disqualified
Florida,
242,
under
Chase
are Proffitt v.
428 U.S.
S.Ct.
96
Witherspoon,
though
prefers
majority
2960,
even
Texas,
(1976);
Due Process Clause
life,
may
deprived
liberty,
case,
is
one
be
only
process
not
because due
penalty
or
if the
in accord with
property
taking
it,
is
our
only
society’s
demands
because
process.
simple enough propo-
This is a
due
it,
values affirm the need for
but also be-
sition,
any proper
yet it is at the heart of
finality
cause the
penalty
of the death
itself
understanding
penalty.7
of the death
imperative.
makes it
matter how
No
inno-
be,
an
guilty
may
cent or
individual
no
implies
Process
also
The Due
Clause
greatly
rights may
matter how
his
have
just
any
something
important
which is
as
violated, he
no relief
gain
been
can
from
By its
penalty:
of the death
consideration
already
court if he has
been executed.
language,
the Clause states
choice of
importance
emphasizes
relative
even
every
to say
This is not
error in a
protect.
the three values
seeks to
penalty case
presumed
is
to be harm-
life,
liberty,
speaks
terms of
Clause
ful;
deny
importance
nor is it
meant to
that order.
property — in
prosecution
vigorous
capital
defend-
meaning.
however,
order which
obvious
It is an
has
is necessary,
ants. What
is that
Americans,
liberty
we
above
value life
indeed,
As
every court —take spe-
this Court —
It follows
liberty
property.
above
care to assure that a death penalty
cial
is due when one is on trial
process
more
be
scrupulous
defendant
treated with the
depriva-
a
only
than when
faces
his life
process requires.
that due
We may
fairness
liberty, just
procedural
more
as
tion of
violating
not do otherwise without
the Con-
protection
required
is
when an individual’s
we have
uphold.
stitution
sworn to
when it
necessary
at stake than is
liberty is
property which the State
is
individual’s
III.
expropriate.
seeks to
determining
In
whether
defendant’s
all death
Thus,
process requires that
due
process rights
due
have been violated
guided with
juries be selected and
examination,
conduct
voir dire
we
is
in other
greater
than
demanded
care
look to the entire voir dire and
should
Illinois, su-
Witherspoon v.
criminal trials.
except
portions
course
isolation —
v.
Georgia, supra;
v.
Woodson
pra; Gregg
portions standing
where those
alone consti-
Carolina,
in accord
supra. This is
North
error,
Davis v.
g.,
Georgia,
tute reversible
e.
For ex-
precedents.
with well-established
take,
we
supra.
approach
This
process
due
demands that
ample,
example, when we review the court’s
in a
greater
proof
burden of
put
charge
when
a record to
or
we review
de-
liberty
is at
trial —where life
criminal
erroneously
whether
admitted
termine
evi-
required
in a civil
stake —than
other
harmless.
dence —or
error —is
In re
issues are involved.
property
where
362-364,
358,
90 S.Ct.
Winship, 397 U.S
316,
Bailey
Thus in
532 S.W.2d
v.
Mullaney v.
1068,
(1970);
368
25 L.Ed.2d
(Tex.Cr.App.1975), we
322
held
“[i]n
1881,
684,
44
Wilbur, 421 U.S.
95 S.Ct.
considering
appeal,
we
charge on
will
Randall, 357
(1975); Speiser v.
508
L.Ed.2d
will
portions,
not review isolated
con
525-526,
1332,
513,
78
2 L.Ed.2d
S.Ct.
U.S.
charge
Yet in
sider
a whole.”
Ranso
v. Loui-
compare
And
Duncan
(1958).
1460
36,
(Tex.
550
42-43
nette
S.W.2d
145,
1444, 20
194,
siana,
U.S.
88 S.Ct.
391
(Opinion
Appellant’s
on
Cr.App.1977)
Mo
(1968),
v. Vir-
with Alexander
L.Ed.2d
Rehearing),
we held that an in
tion
2803,
836,
ginia, 413 U.S.
93 S.Ct.
evidence is
circumstantial
re
struction
(1973).
L.Ed.2d
evidence is
quired if circumstantial
relied
then,
guilt
upon
to establish the
as a
summary,
I
hold that
In
charge
court’s
safeguards
though
a criminal
even
procedural
principal,
afforded
Illinois,
spoon
522-523,
Georgia,
Gregg
supra,
supra,
391 U.S.
331 principals. includes an instruction on And IV. (Tex.Cr.
in
We may thus derive
exception
an
death
general
penalty,
would affect his
Bailey.
rule of
We will review
delibera-
charge
except where the absence
as a whole
case,
tions on
especial-
the fact issues in this
is,
alone,
given charge
standing
sig-
a
a
ly his deliberations on
questions
the three
deprivation
nificant
defendant’s
punishment
asked at the
stage of the trial.
guaranteed to him
rights,
the Consti-
V.T.C.A.,
Code,
See
Penal
12.31(b);
Section
statutes,
or
well-settled
tution
case
37.071,
Art.
V.A.C.C.P.
law.
However, upon closer examination by de-
We follow a similar rule when we con-
fense counsel and the
judge,
Godbolt
sider whether the error in the admission of
unequivocally
stated
that he could set aside
unconstitutionally
obtained
evidence
feelings
about
the death penalty and
Generally,
harmless.
we review the record
answer
the three punishment questions
the case as a whole and
determine
“honestly
based on the evidence .
[and]
whether
the error
is harmless beyond a
though [appellant]
even
get
reasonable doubt. Cole v.
484 S.W.2d
penalty.”
In accord with Wither-
779,
(Tex.Cr.App.1972),
783-784
and author-
spoon,
However,
12.31(b),
as well as
supra,
there cited.
Section
ities
there are some
rights “so basic
declared,
constitutional
to a fair trial
trial judge
“All right,
quali-
he’s
infraction can
that their
never be treated as
point.”
fied on that
Chapman
California,
error.”
harmless
prosecutor
then asked Godbolt if his
18, 23,
824, 827,17
386
87 S.Ct.
U.S.
L.Ed.2d
business or personal life would suffer if he
(1967), quoted with approval
705
and fol-
were forced to
sequestered
for several
Arkansas,
Holloway
435
lowed
U.S.
nights
following
week with the rest of
489,
1173,
475,
55 L.Ed.2d
98 S.Ct.
panel.
the jury
replied
Godbolt
that he was
(1978).
barber,
every day
a
away
from
of the entire
An examination
voir dire
day
work was a
he received no pay, and
especially
seems
mandated
review of
that he was behind on his bills. He also
capital
Witherspoon’s
a
re
case because
that he was
only
stated
one of
two barbers
.
quirement
“produce
that the
shop
worked,
in the
where he
and the other
jury
condemn a
uncommonly willing to
barber had been
jury duty
summoned for
man to die.”
391 U.S.
[Footnote omitted.]
following Tuesday.
Godbolt concluded
nation judge, jury by though presented the trial no evi- from the even State exciised motion the benefit of a without re- Initially, Brightman, who acted motive. dence of agree- or the defense or the State so, she could not do then indi- that sponded juror. them to excuse ment between “prefer” to have only she would cated that in a exception counsel noted his Defense evidence, finally unequivo- and stated such timely manner.10 that she would not prosecutor cally to the finding of motive before require confronted evidence judge the trial Thus opposed the capital murder. personally guilty someone of venireman a qualify as a could still penalty turned to the issue prosecutor The then Godbolt was case. Since this juror defining of it as “kind of a premeditation, cause, it was challenge for to a subject explain- pre-planning pre-scheming” excuse him. court to for the error require the ing that does not Texas law in a murder prove premeditation State B. prosecutor’s In response case.11 prospective of examination voir dire Brightman that she would questions, stated represents anoth- Brightman Patricia require the some evidence present State to process of due of the denial er instance premeditation could find of before she a whole. voir dire as by the demonstrated murder, Texas person guilty though of even questions, prosecutor’s responding In require law did not it. The State she believed the stated that Brightman juror. “submitted” the only in imposed should be followed the lead State’s raped young girl where a man cases those nev- premeditation assumed that also otherwise, opposed she was baby; or a proof capital in a part required er exami- Upon further capital punishment. began ques- The defense its murder case.12 her answer Brightman qualified nation that out indicating might tioning Brightman by pointing that she be in favor of of cases: of punishment insusceptible in some murder capital premeditation is often know, depends, you on what of all in the mind only because it exists proof “[I]t case is about.” acknowl- Brightman then the assailant. and not edged she could follow the law that Bright- then determined The State premeditation require prove punish- range full consider the man could despite personal feelings her to the con- mur- offense of included the lesser ment Brightman trary. Next, asked prosecutor der. capital consistently 03 of our Penal Code defines murder. it is held has This Court
10. (a)(3) judge of that section sets out one of to excuse Subsection for the error motion; however, committing capital this erro- jurors murder: his own the methods of unless the person is deemed harmless removal re- neous when “the commits the murder for g., injured. E. he was promise shows that defendant of remuneration or muneration or 477, (Tex.Cr. 545 S.W.2d employs Valore the murder for re- another to commit Nonetheless, App.1977). it should be remem- promise or the of remuneration.” muneration holding on the is conditioned this bered requirement beyond dispute capital mur- It seems to be nor the Constitution that “neither proved der this subsection cannot be under Rogers v. violated.” statutes [be] premeditation, that a without evidence of 260, 261, 289 S.W.2d 163 Tex.Cr.R. prosecutor present evidence who fails to such seen, my not with (1956). concern is will be As Thus, proof. has not met his burden of alone; juror standing it is of this the exclusion prosecutor’s statements on this issue played part exclusion this instead with constituted, part, an overbroad and at least pattern which de- selection an overall general mur- statement of the law of incorrect process right law. to due nied der, portion of that which was the focus voir examination. dire one point be observed it should 11. At proof require capital murder does form 11, supra. spe- although 12.See note word is not premeditation, cifically Section 19.- the statute. mentioned in
33 n *19 its examination (Em- then resumed “MISS BRIGHTMAN: Yes.” The juror. What follows phasis added.) ex- remaining voir dire entirety of emphasized portion of Brightman’s Brightman: of Patricia amination response makes it evident that she was in Now, “Q [By Bright- Miss Prosecutor] process of repeating her assertion that man, I won’t but point, I belabor “go by she could the law” and require just you ques- had asked same provide to proof premeditation. the State you you tion and said that judge juror The trial then cut the off and require pre- would some evidence of her, disqualified again once on his own mo- meditation. tion. Yes. “A “Q way you Is that still feel? Thus, the second time the judge My personal feeling— prospective juror “A with a was confronted strong “Q initially expressed Yes. who had reserva- inflicting penalty tions the death about —yes, way that’s I But “A feel. law, going by it, then I would have all cases that the law but allowed go by to law. qualified was nonetheless to serve as a words, then, “Q you In other if juror. penalty death Again, was error you selected on a knew that qualified for the court to excuse a charged capital the man was with whose answers made it nevertheless clear you murder and know he’s if that she would be less than many inclined guilty found of that he’s you, prospective jurors other to inflict the death sentence of or going get to appellant. life, you know sentence of that. Uh-huh. “A C. question “Q right, my All is: Before him you guilty could find of murder began examination Doris Minicks get to going where he’s a sentence with a discussion whether she was ac- life, or a sentence of quainted with appellant’s some of the rela- you to have some evidence have tives; she concluded that she was not and premeditation? also stated she did not know Nannie Well, my— “A Jones, Marshall, Fay Wayne Linda Robert “MR. HUDSON [Defense Counsel]: Bickems, Trotter, Larry four of the Object question, Your Honor. witnesses in the case. Minicks State’s listed it. She’s answered that, of her knowl- then to the best testified Well, “THE COURT: since an- she’s Next, appellant. edge, had never seen she ways swered both —. knew prosecutor asked if she either of My personal feeling, “A I would have Halsey or attorneys, Steve Sam to, law, I would have Hudson replied, “I know Sam Hudson. She go everyone my with else. This is him out somebody pointed indirectly; personal feeling. I would have pro- dire me.” The voir examination evidence, have some but if I had follows: ceeded as go by the law— HALSEY “MR. [Defense Counsel] No, “THE you’ve got COURT: if answer, sorry, your I missed I’m evidence, have disqualifies some know how? you Sam Hudson you. your Get card. Indirectly; “MISS MINICKS: “MR. excep- Note HUDSON: our somebody pointed him out to me and tion, Your Honor. works father same de- his “THE excep- COURT: Take your I work Other than partment for. kind, tion. You’ve very been Miss that, per- I don’t —I know him Brightman. don’t sorry I’m you had wait me. long. sonally; so he doesn’t know personally, know Hudson don’t Sam see, okay. I “MR. HALSEY: dad, know his would it you but since you know Do “Q [By Prosecutor] position an uncomfortable put you in well? pretty father client, against found Sam’s you if in another He works really. “A Not go back and had to example, I department the same section his dad? work with there and work in. him See, work with “A No. I don’t his fa- talked ever “Q Have in the hall. I see him directly. ther? *20 section He —works in another Yeah. “A just and I see I’m in another section do? you do of work “Q type What him; him, know, to you speak Depart- secretary for Well, I’m a “A than that— other Devel- Housing and Urban ment Oh, Well, it you I see. if think “Q Regional Council. opment, affect, know, might you your busi- father do? what does Sam’s “Q And or, matter, listening for that ness equal specialist, he’s an EO “A I think testimony way, in some specialist. opportunity fine. that’s that like the fact Well, feel “Q you do know, I don’t you “A I don’t think — dad, that that know Sam’s you think it would. know, rath- you’d you might make — you “THE COURT: Both of work don’t you where some case er sit on government? either side? lawyers know the MINICKS: Uh-huh. “MISS might be that think you Don’t govern- “THE COURT: Federal bit better? little lunch in the ment? You all have I—I because you Well, up it’s “A place? same I personally; him know don’t No, I’ve never MINICKS: “MISS know— him, lunch with no. had his dad to see Well, you’re going “Q you How did know “THE COURT: to be course, going and, we’re that was his dad? and afterwards case trying this Somebody “MISS MINICKS: —let and work go back going to you’re attorneys I work me see. One of the And, of dad, know. you with his me his son was an with told that position agot have course, sides both know, and, somebody attorney you know, in all and, you case in this me. him out to pointed that’s sides and to both fairness never had You’ve “THE COURT: question. that I asked reason only with him? dealings any business that know, juries other there’s You No, he don’t MINICKS: “MISS cases other on and serve can you all. me at know party. know either don’t you where What’s the State’s “THE COURT: Okay. “A position? might be better that think “Q you Do BURNHAM “MR. [Prosecutor]: way? like that since Well, Judge, we feel “A Yeah. might dad it know Sam’s she does so, too, since I think COURT: “THE on another case her to sit better family. of the a member you know neither side would way just let me Judge, “MR. HALSEY: they jury someone on have ask her— know; want someone wouldn’t we know. that we
“EXAMINATION on the think that’s more I “THE COURT: MR HALSEY: “BY Don’t proposition. fair or less a an uncomforta- put you “Q Would like an awful fair- You look you? you I know I mean position, ble going excusing by stating Minicks young lady. I’m the State minded because, all, with after agree agreed to excuse him when this is over you’d run into police “who knew a officer or had a relative be, you’d you with and there know. a police that knew officer.” The prosecu- very minded. Thank You’re fair supported tor’s assertion is not by the rec- sorry you much. had to wait so I’m prospective jurors ord. Nineteen long to find this out. so they, acknowledged a relative of we’ll ex- guess “MR. I HALSEY: theirs, police knew one or more officers.14 cept ruling. to that these, two, only Rings, Of Claxton and your “THE COURT: Go about busi- judge excused the trial because of this ness. Go back work he knowledge because admitted —Claxton government. bad feelings police toward officers as a “MR. I’m a TOKOLY [Prosecutor]: juvenile Rings son’s result of his arrest and Halsey surprised light little Mr. because admitted that he didn’t “really agreed fact that we’ve know” an friendship whether his Irv- police people excuse knew a of- *21 ing police judg- lieutenant would affect his relative knew a ficer or had a that police ment of the witnesses in the case. lady officer this has indi- police and Of the seventeen remaining prospective like she a cated she felt knew rela- jurors, ten were by appellant, struck three of the Defendant she knew tive and by the struck and four served met Hudson or least had his Sam jurors. as In contrast with the examination dad. Minicks, juror of the judge trial made no juror.” Next “THE COURT: effort to intervene when these prospective judge excusing in The trial erred Minicks jurors acknowledged they were ac- appellant’s objection, over since was not she officers, quainted police with nor did the subject 35.16, a challenge cause. Art. any spontaneous State make or oth- offer — Ordinarily, Vernon’s Ann.C.C.P. this error any erwise —to excuse of these seventeen Valore be deemed harmless. jurors, though even several of them were supra; Rogers supra. How- closely acquainted much more police with ever, voir the dire examination of Minicks officers than Minicks with counsel’s fairly compar- cannot be considered without father.15 ing it the voir dire of other several jurors to the ex- especially This to say is not these seventeen Rayford of amination Mrs. Bolin.13 prospective jurors have should been excused automatically by judge. However, the trial D. together when taken with the examination Minicks, First, the judge’s I observe that the failure prosecutor to intervene in sought justify judge’s aspect the trial action in this of the voir dire only Blackmore, opinion, supra. Juror 13. See Part III of this who was also struck appellant, stated that he had met or two three Harrell, Department Price, Dallas jurors Mary Police Mar- officers and also 14. These were Funk, Blackmore, deputy, tin, Chamness, Valentine, knew one reserve been a had guest Carter, Shanks, Claxton, Christian, deputy in Rings, Blackmore’s home. The was a good Bums, McFadden, Barker, Hunnicutte, friend of Legg, Blackmore’s son. Price, nineteen, Juror Shanks stated a of his and Shaw. Of the friend Cecil daughter’s Minicks, Department was a Dallas Police of- first were examined before ten Similarly, prospective juror ficer. remaining testi- nine Barker afterwards. fied that he had two that I went to “friends high school with that members Dal- are example, juror that one 15. For Harrell stated Department.” las Police stated Juror Bums nephews police was a officer in California police that he “a knew few” Dallas officers nephew and another was a court bailiff there. that one a All three of “close friend.” Treasury Harrell himself had been a De- once prospective jurors these were struck subject partment investigator. He was the appellant. challenge. peremptory second After several prosecutor’s personal ques- assertion on additional undermines issue, the error in tions, it also accentuates counsel asked Bolin if she any knew Brightman. of Godbolt and the excusal officers; prosecutors police replied she prospec- Unfortunately, the examination did not stated she and also that neither other, similar error. juror Bolin reveals tive she her ever belonged nor husband had any neighborhood organi- law enforcement E. zation or the like. stated that neither She determined that Bolin did The State first any she her family nor member of had ever attorneys. or his not know crime, charged been nor a had felt asked Bolin about how prosecutor them a victim crime. been of a “I penalty. She answered believe acknowledged belonged that she She for it in penalty. I’m certain in Vance, Judge church as John a same later she added instances.” A few moments Dallas, district testi- judge criminal the death she had believed in they well-acquainted. fied were not She long time. as a stated that she had served questions asking Bolin several After case, and that misdemeanor background and as- personal her about a verdict. Defense counsel then reached difficulty have no certaining that she would points her on several covered re-examined sequestered jury, the being part prose- of a testimony. earlier in her her assurance that she would cutor received a list solely her on the evidence. He Defense counsel then showed Bolin base verdict nature of explained to her bifurcated if she of the witnesses the case asked well as the nature and content anyone on the list. replied knew She punishment issues at special Sutton, she knew of Deia deceased’s *22 her stage. stated that answers Bolin killed, when was companion because Sut- on the evidence issues would based these ton’s was my father “a customer of hus- them would not be her deliberations on in the Al- band’s insurance business.” sentence of by mandatory the affected Bolin stated that she did not know though also imprisonment. She stated death or life personally, or her father she testi- Sutton as explained she follow the law that could fied she and her husband had discussed that prosecutor require and not evidence by the in this It Sutton’s involvement case. premeditation. She also testi- of motive or noteworthy testifying in about her range the she could consider full fied that husband’s insurance business with Sutton’s of- punishment for the lesser included of father, family Bolin referred to the Sutton the agreed She follow fense murder. though as customers” even Bolin did “our prove the its case by requiring State to law in the work business. doubt, presuming by reasonable beyond a stated, however, that Bolin she did proved guilty, by appellant innocent until this by think that she would be influenced ev- appellant’s indictment no considering relationship if she chosen as a business guilt, by according the idence of his Then, juror. interrogated after counsel Bo- right his to remain silent. appellant the briefly lin about her husband’s views on his of Bolin Appellant began examination possible and her own racial her questions more about asking several prejudice, the defense concluded its exami- background. Bolin stated personal judge of Bolin and asked the nation the case at the time she had read about grant challenge cause on the basis of its a sum- gave occurred and short the offense in “knowledge complaining of the witness she remembered from her mary what testifying, being this a customer of her case of the case was reading; knowledge her The chal- judge denied this husband.”16 testified not extensive. She accurate but lenge, prosecutor judge told the and the disregard what she had read she could accept juror. that the would the evidence alone. her decision on and base racially prejudiced. urged also that Bolin was 16. The per- Godbolt, jurors five Brightman, had exhausted Because and Min- icks, addi- challenges, seating juror he asked for an and in emptory Bolin. challenge. judge denied tional such Bolin was seated as V. request, the case.
final
Finally, I
point
would
out that reversal in
required
this case is not only
by the Federal
F.
Constitution;
Texas
our
Constitution man-
majority
that it
not an
concludes
was
I,
19,
dates
also.
Article
See
Section
chal-
of discretion to overrule this
abuse
Constitution, quoted
the Texas
in footnote
an
lenge
deny
request
cause and
6, supra. This section was construed in
peremptory challenge. But
so
additional
35 Tex.Cr.R.
Paris
course of law tes- evidence in admission of rules of application of rules of timony, and the testimony, admitted are much law to part by the land as trial law of may These rules of law be jury itself. technicalities, they some termed trial, impartial with a and an accord fair experi- in the wisdom of and are founded moreover, ence; and, these some of con- safeguards and bulwarks of stitute and, rights, whenever and wher- human ig- they disregarded have been ever nored, marked the decadence that era has added). (Emphasis freedom.” human 858. 31 S.W. at Tex.Cr.R. Paris, judgment should re- As in remanded. versed and cause PHILLIPS, J., joins in this dissent. Houston, appellant. E.
Larry Meyer, J., ONION, P. and DALLY and Before VOLLERS, JJ. HILL, Glynn Appellant,
James OPINION Texas, Appellee. STATE of The DALLY, Judge. No. 58035. The waived a trial Texas, Appeals Criminal Court of plea guilty entered a the court to before No. 2. Panel robbery, violation the offense of of V.T. Code, punish- Penal C.A. Sec. 29.02. 31, 1978. May imprisonment years. for 10 ment asserts that the indictment *24 says He fundamentally defective. alleged which it is he property since the to take in the took or intended course committing was not de- particularly theft scribed, he not on notice of offense charged, which and he cannot plead judgment prosecu- later in bar tion for the offense. same alleges appellant, that the indictment committing in the theft of while course property complainant with the intent prop- and maintain control of the obtain