*1 23, September entry A docket sheet by court “Punishment set 1969 reflects: 1 year county jail fine.” $100 44.24, V.A.C.C.P., provides that
Article may
this court reform and correct
judgment as the law and the nature of the require.
case The docket sheet reflects punishment was assessed the court jail
at confinement in year for one
a fine Hundred of One Dollars. The sen- punishment
tence reflects the shown on the judgment
docket sheet. The reformed punishment
to show that was assessed county jail
the court at confinement in the County, Texas, year for one (1)
and by ($100) a fine of Hundred Dol- One
lars. judgment as reformed is affirmed.
Opinion approved by the Court. Appellant, CHERRY,
James Walter Appellee. Texas,
The STATE of
No. 44761. Appeals
Court of Criminal of Texas.
June 1972.
Rehearing Denied Dec. 1972. Rehearing
Second Denied Jan.
2. The same date the returned. verdict was *4 (Court-appoint- Bruder
Melvyn Carson
Koons,
(Court-ap-
Dallas
D.
ed), Donald
appellant.
appeal), for
pointed, on
Tolle,
Wade,
Atty.,
B.
Dist.
Henry
John
Dallas, and
D. Voll-
Atty.,
Asst. Dist.
Jim
Huttash, Asst.
Atty.,
A.
ers,
Robert
State’s
Austin,
State.
for the
Atty.,
State’s
neously
being kicked,
being
with
OPINION
bed,
propelled across the
Maddox drew his
appellant, striking
and fired at
revolver
DALLY, Commissioner.
appel-
the same time
him in the chest. At
murder;
appellant was convicted
fired at
but missed.
lant
Maddox
punishment at death.
assessed
upside
aftеr
Maddox landed almost
down
phone
As a result of
call received
having
appellant;
kicked by
been
the next
Mesquite
De-
from an officer of
Police
and ren-
he fired struck his own foot
shot
partment
January
morning
him unable to
Maddox
dered
walk.
Maddox,
1969, Deputies
and Ed-
Alvin
Jr.
around the
of the bed across
crawled
foot
Raymond
Dallas Coun-
die
Walthers of the
had been
around
kicked and went
Department
to the East-
ty
went
Sheriff’s
on his knees
Walthers who was
Officer
Boulevard
ern Hills Motel at 3422 Samuels
up
and around
reaching
appellant,
towards
investigation.
to make an
When
both
reached for
appellant; as
officers
arrived, appellant,
the officers
who was
“pulled
gun, appellant
it back
com-
Twyna Blankenship, a woman
with
up for
reached
Walthers
Officer
panion,
the room.
invited them to enter
Cherry
gun again and he
fired
missed
asked,
wrong?”
anything
“Is
and was
”
He
As
his heart
.
.
Walth-
right into
.
just
the officers
wanted
told
bed,
turned
ers fell off
handed
Appellant
to talk
him.
then
*5
Maddox,
in his
weapon
pointed
gun
at
license,
operator’s
a motor vehicle
Maddox
times,”
face,
it
misfir-
and “clicked several
Georgia,
he identified
issued in
which
ing each time.
Atlanta,
as Eldon
himself
Wildman
having
away
appellant
After
fallen
from
standing
Georgia. Appellant,
be-
was
who
him,
pointed
Maddox
pistol
he
when
clad
beds
the motel room
tween
two
in
appellant
hug
in
manner.”
grabbed
a “bear
shorts,
his
only
put
in
asked if hе could
woman,
had been
Appellant told the
who
and
Appellant reached
trousers on.
down
time,
“get
screaming all the
to
this son-of-
his
picked up
which had been
trousers
me.”
hit Mad-
a-bitch off of
The woman
lying partially
partially
on the floor
on
and
of some
head
a bottle
dox over the
“with
beds;
nightstand
between the two
kind,”
lose his
causing
temporarily
him to
pants
appellant
putting
Officer
was
on
Appellant
grip.
then hit Maddox over
a pistol
a shelf “four
Maddox observed
ap-
gun.
grabbed
Maddox
head with
inches” from
had
to six
the floor which
again and
hit Maddox
pellant
the woman
was
been hidden
the trousers and which
Appellant
telephone.
the head with
over
a
obscured from Officer
viеw
Walthers’
and he
from
Maddox
shook loose
Officer
standing
appellant,
between
who was
door, across
ran out the
the woman
and
nightstand.
and the
As Maddox
Walthers
patio,
into a
got
blue Chevrolet
ap-
Buddy,”
saying,
gun,
was
“Watch the
left the motel.
pis-
turning
pellant
grabbing
was
tol;
said,
one?”
he
“You mean this
“died
Raymond
Eddie
Officer
Walthers
grabbed appellant’s
whirled and
Walthers
chest with
wound
left
of a bullet
to the
holding
in
hand
which
bleeding from
penetration of the heart and
appellant’s
gun.
grabbed
Maddox also
that wound.”
the bed
and the three of them fell on
hand
appellant’s
of error number
The
erupted,
struggle
the door. As the
nearest
insuf-
urging that
fourteen
the evidence
screaming
midst
and in the
of the woman’s
of-
guilt
ficient
of the
to show
fired;
’em,”
“Kill
first shot
murder
is without
with malice
fense
Appel-
in
hand.
wounded Maddox
the left
and is overruled.
merit
the stomach
lant then kicked Maddox in
feet,
er-
grounds of
propelling him over the
The
first two
with both
complain
change
to
against
Simulta-
of the
of venue
other bed and
the wall.
ror
county
in an ad-
transferred the case to
County and
County from Dallas
Tarrant
district,
Court
District
joining
Criminal
change of venue
grant
the failure
County.
County.
1 of Tarrant
No.
County to Denton
Tarrant
from
objected
change
appellant
The
County
in
The offense occurred
Dallas
from Dallas
venue and transfer
case
indictment was docketed Crimi-
and the
County,
County
Tarrant
in both
County.
nal
Court No. 4 of Dallas
District
4 of Dallas
Criminal District Court No.
requested change
appellant
of venue.
The
County
District
No.
and Criminal
Court
the case was
request
granted
His
urging
case
County,
of Tarrant
that the
to the
District Court
transferred
27th
should be transferred to a district court
County.
Bell
adjoining
County,
being
Denton
County,
ob
In Bell
No.
District Court
district
the Criminal
jected
county
to trial
County
subject
4 of
which was not
Dallas
within
County
that Bell
was not
required the
to the same condition which
adjoining
the same district nor in a district
County.
appel-
transfer from Dallas
Dallas
District Court No.
Criminal
proof that he could
lant offered to make
Appellant
alleged that
County.
further
Tex-
County,
obtain a fair trial in Denton
dis
adjoining
there were counties within
as.
District Court No. 4
tricts to Criminal
subject to
County
were nоt
Dallas
file
did not
a motion
required the
the same conditions
Dis
change
for
from Criminal
of venue
County.
transfer of the case from
County in
1 of Tarrant
trict Court No.
re
the case be
Request was made that
being tried
objections to
that court. The
provi
County under
turned to Dallas
County
in Tarrant
Criminal District Court
Ann.C.C.
sions of Article
Vernon’s
motion
be construed to be a
No.
cannot
back
The case was transferred
P.1
County.
change
from Tarrant
of venue
*6
4 of Dallas
No.
Criminal District Court
position that he was
appellant’s
It was the
County.2
(1)
entitled to one of three alternatives:
“district
transferred to a
Mead,
that the case be
Judge of Crimi-
Honorable John
Texas,
County,
County,
because
court of Denton
4 of Dallas
nаl District Court No.
adjoining
county
31.03,
provides:
in
and the
his own
Article
V.A.O.O.P.
subject
change
may
granted
is
to the same con-
district
not
in
“A
of venue
be
required
any felony
punish-
the transfer.”
ditions
or misdemeanor
which
case
by
able
mo-
confinement
written
objection
appellant’s
by
the transfer
defendant,
supported
2. The
the
tion of
County
grounds
the
Bell
on
of the case to
of at
own affidavit
and the affidavit
adjoin
county
the
persons,
“a
in his own or
that
residents of
least
two credible
subject
ing
con
county
prosecution
to the same
is not
district
the
is
the
where
required
following
the transfer” was
instituted,
ditions which
for either of the
objection
timely;
sufficiency
to the order
causes,
that
not
of
the truth
and
County
changing
should
tо Bell
venue
the court shall determine:
which
County. Ellzey
county
in Dallas
have been made
That
there exists in the
“1.
604,
259 S.W.2d
prosecution
Tex.Cr.R.
158
is
so
where the
commenced
(Tex.Cr.App.1953)
Hill
and
great
prejudice against
211
that he
a
him
(Tex.
552,
trial;
impartial
123 Tex.Cr.R.
obtain a fair and
cannot
recognize
Cr.App.1933).
there
that
We
and
31.03,
change
dangerous
in
V.A.C.
Article
some
com-
there is a
“2. That
predecessor
1965,
C.P.,
statutes
instigated
the
against
from
him
in-
bination
authority for
be
persons,
cited would
the cases
which he
but
reason of
fluential
objection
requiring
to be made
expect
the
a
trial.
cannot
fair
course,
transferring
county
not
changing
court. Of
a
venue to
“An order
Dallas
adjoining
back to
beyond
transfer
this cаse
error to
shall be
an
district
appel
upon
County
timely
the
upon
reversal,
it was done
as
if
con-
for
request.
by defendant,
the
lant’s
of
the record
test
any
affirmatively
that
shows
contest
interpretation
law row
pleadings
Supreme
and as a matter of
under
Court
opinions
Illinois,
in
Witherspoon
tried
in
he
to have his case
391 U.
was entitled
Texas;”
1770,
(2)
that
County,
S.
In in of questions propounded proper of this were under the appellant error advances a rather nar dire standards of voir examination dic- * ** original. Emphasis in Emphasis supplied. Illinois, by Witherspoon supra-,
tated
v.
sions of this court which
bewill
found
appellant’s argument is without merit and
collated and
discussed
the late cases
119,
Stalcup
130 Tex.Cr.R.
and Beard v.
S.W.2d
Tex.
appellant’s ground
of error
Cr.App.
96],
Tex.Cr.R.
[146
complains
prospective
number four
ju
reasoning
869. In line with the
set forth
erroneously
rors Musick and
were
Sanders
in these cases and those therein dis
They
excused for
excused be
cause.
were
cussed we think the evidence of the
cause they said
could not consider as
pending punishments
these
shown
sessing
years
the minimum
sentence
two
previous
convictions could be utilized
imprisonment
in the event the
in order to
State
show a motive for
guilty
was found
with malice.
murder
killing.
this
.
though
seeking
Even
State
penalty,
jurors
properly
death
ex
were
“ .
permissible
.
.We
think it
to
cused on the
for cause un
State’s motion
such,
only
show
to evidenсe motive
provisions
der the
of Article
V.A.C.
homicide,
in this
but
to
justify
also
Huffman
C.P.2
S.W.2d
in attempting
appel-
deceased
to retake
(Tex.Cr.App.1970).
lant
having
possession
without
in his
a
warrant.”
In
of error num
alleges
ber
“The trial
erred
five
Stalcup
In
130 Tex.Cr.R.
testify
witness to
permitting State’s
this
(Tex.Cr.App.1936),
S.W.2d
offenses not admissible at
extraneous
court wrote:
appellant’s trial.”
“It
to us that the former con-
occurs
motive,
purpose of showing
For
might
bearing
victions
have a distinct
Doyle
Georgia
Warden
Smith
State
escape
upon
degree
his desire to
and the
permitted
Board of Corrections was
to tes-
desperation
with which it
reckless
20, 1968,
tify
May
that on
appellant es-
might
attempted.
.
.
.
One
caped
prison
from
in that state where he
charged
burglary
with
would not reason-
serving
had been
impris-
a sentence
life
expected
ably be
to resort to the same
large
onment and that he
at
escape
extreme
to enable him
means
time of the instant offense.
already
had
been
as one who
convicted
imprisonment.
and sentenced to life
Stephens
In
147 Tex.Cr.R.
former convictions were
that counsel was “Appellant was denied number nine is The trial overruled own witness. it; by the of counsel objection, then the effective assistance but decided sustain dis refusal authorize the disregard the trial court’s was instructed to necessary funds to secure testimony regarding the criminal bursement of witness’s *9 in properly mistrial and to Appellant’s expert motion for needed witness record. apрellant’s com- vestigate case.” This was overruled.
753 plaint appellant’s specific aggravat- motion to tion on intent to kill relates to the and opinion and a bal- ed assault are without secure the of merit. Where expert. same contention was made v. listics Gamblin State, (Tex.Cr.App.1972), 18 476 S.W.2d appellant acknowledges The that said; investigatory per- sum for fees maximum are such by provisions mitted law under of Arti- “Whenever means used as V.A.C.C.P.,3 provided ordinarily commis 1(d), cle would result in the 26.05 § offense, the expended in sion of an intention to com and his behalf. The presumed. mit offense is Article then asserts “The record this case 45, intent adequately shows for funds in ex- Vernon’s Ann.P.C. The the need by provided may bе shown the use cess of for law for ex- commit murder $250.00 per pert weapon Stallings of a v. investigation (As deadly witness and costs se. State, (1- Tex.Cr.App., court), and 476 679 recognized trial S.W.2d State, ; money Tex.Cr.App., 11-72) denial such Hall v. 418 of consti- weapon pistol deadly A deprivation right to ef- is a tutes a of the an S.W.2d 810. per se, presentation shooting deceased of all defensive issues of fective such range weapon available to the accused.” The close with a autho finding rized of Taylor conclusion and does brief makes above malice. v. State, Tex.Cr.App., 693; any portions not refer to of this volumi- 470 S.W.2d showing Tex.Cr.App., how the Ratcliffe v. 464 nous record S. find to kill we been unable to 664. intent harmed and have W.2d Since showing presumed, charge aggravated as any part record harm of appellant.4 required. sault v. Suber 293; Davis Tex.Cr.App., 440 S.W.2d error, ground of The last discussed State, Tex.Cr.App., 291.” 440 S.W.2d error, twenty-first ground well as the contention, are over- raises same testify appellant did not The Eggleston ruled. S.W.2d Cf. record find no evidence and we 460 (Tex.Cr.App.1967). charge on self-de require which would S.W.2d fense. Gonzales appellant’s grounds of error ten and State, 171 Davis v. (Tex.Cr.App.1968); are eleven “The trial court erred over- (Tex.Cr. Tex.Cr.R. appellant’s special requested Tex.Cr.R. Field App.1961); charges” and “The trial court erred in fail- (Tex.Cr.App.1950). 232 S.W.2d ing respond appellant’s objection to “fail chargе as the such Objections to the charge appel- to the court’s on the issue taking to the facts the law apply ure to guilt lant’s or innocence.” ad facts mitigating all into consideration These merit. are of no in the trial” duced grounds These of error are error are specific they compliance not in are provisions Article 40.09 with the V. § ap twelfth In his arguments under each A.C.C.P. erred in “The trial court pellant contends ground of error multifarious. are How for mis motion failing grant ever, penalty, in view the extreme injected prosecutor facts ap trial after will be considered and discussed. The argument.” during oral pellant’s into the requested case charge instruc- only to those 1(d), Appellant’s are references 3. § Article 26.05 V.A.C.C.P. has since requests for provide: expenses parts record where amended to “For been purposes investigation reflected. funds are additional incurred for expert testimony, fee a reasonable to be the court but no event to exceed set $500;” *10 complained The remarks of are as fol- go
low:
“The State didn’t even
to the trou-
ble to make a test.”
At
(Prosecuting
“MR. SPARLING
torney)
prosecutor’s
conclude
:
As far as
run We
that
re
tests
burns,
marks were invited
powder
as to
will
defense counsel’s
clothes
I
argument,
were,
stated,
response
they
as
say this—and
criticized us for not
it,
criticism that “The
State didn’t even
running a test on
but
didn’t tell
go to the trouble make a
er
you
test.” No
the clothes
submitted
that
wеre
Appellant’s
ror is shown.
twelfth
analysis. The
type
blood
State never
of error is overruled.
Cuellar v.
knew .
Cf.
(Tex.
169 Tex.Cr.R.
say
Cherry did not
we know [James
Error, Crimi-
Appeal and
5See Tex.Jur.2d
away
gun
‘wrestle
and (stick)
error,
if any, was
nal
45. The
Cases §
him
Buddy’s
(shoot)
heart and
aby
been cured
have
it could not
such that
eight
away’]
inches
? Because
seven or
are
proper limiting instruction. We
think
things
that I don’t
even
some
in-
a case where
reverse
inclined to
attorneys
up during
picked
the State’s
argu-
improper
disregard
struction to
this trial.
record
any error and
cure
ment could
request therefor. Schreiner
powder
(sic)
are
tests.
reflects no
“One
(Tex.Cr.Aрp.1972);
*11
755
State,
Further,
Blassingame
appellant
477
600
did not
he was in
S.W.2d
show
ground
digent
prior
This
of
(Tex.Cr.App.1972).
error
at the
of the
convictions
time
or
did
is overruled.
that he
not waive counsel. Marti
State,
nez v.
469
(Tex.Cr.App.
185
S.W.2d
ground
his
of error
In
fifteenth
State,
1971);
474
Green
S.W.2d
appellant alleges
the
that
trial court
the
214 (Tex.Cr.App.1971); Martin v.
admitting
reversible error
committed
;
463
449 (Tex.Cr.App.1971)
S.W.2d
Hath
prior
of
into evidence certain
convictions
orne v.
(Tex.Cr.
he counsel and the was In his of seventeenth that of a recitation sentence absence appellant urges “The trial court erred in present reversal. counsel was necessitates grant during argu refusing to a mistrial punishment ment on the issue of when the prior proof of convictions in Dallas prosecutor prejudicial statement made a County one-page cop- consisted of certified new facts into the case.” injected judgment ies of and sentence in each top judg- case. At the of each form that of Complaint portion is made of “ defendant, . . . ment recites attorney argument by the assistant district person, Cherry appeared in said, Walter “You can consider the wherein he James present being his also . . .” counsel you tell the deceased. will character of I being the court of after admonished Buddy He embalmed about Walthers. was plea, consequences of his entered knew him. people of the who with the tears plea the court. of before guilty fine He didn’t have a He was a man. objec- Appellant’s . .” to die. . page on a judgment each Below in- tion sustained and the each in- which in copy the sentence disregard the statement structed day as pronounced the same stance was prosecutor. judgment. context We conclude from entire granted relief was sufficient absence of recitation for a mistrial was motion denial appellant the face of the sentence State, 50 Tex. Compare Mays v. proper. represented determina by counsel is not (Tex.Cr.App.1906). Cr.R. S.W. tive; where, here, in the judgment reflects the cludes such recitation and eighteenth sentence, In presumption
same date as the argu complaint is made of the appellant at had counsel of error obtains said, prosecutor wherein time 456 ment of the sentencing. Gutierrez anything less than Tinsley a verdict “To return (Tex.Cr.App.1970); S.W.2d would in this case death a sentence 605 (Tex.Cr.App.1970). S.W.2d Raymond cally declined to say family, to Eddie Walthers’ make a further concerning them—.” that time search God bless Counsel or the ad- said, going object any missibility then “We’re evidence. The does designate family.” any part further reference to Mr. record other Walthers’ *12 prosecutor suppress than objec- the the motion where The trial court directed to record, on these “stay please.” to in the tions were made and a
ruling of the trial court secured. upon It was incumbent defense appellant not clearly The was arrested or object
counsel to to the remark recaptured in the motel room which he made and to secure a definite there After the of abandoned. abandonment on. Piraino v. 416 S.W.2d room, Further, had no to com (Tex.Cr.App.1967). the record plain Compare a search. Abel request about reflects be in no States, United 362 U.S. S.Ct. structed to consider remarks. (1960). Blassingame L.Ed.2d 668 supra-, Schreiner v. ground This of error supra. complaint аppellant’s The in ground twenty-two error number re garding the as to admission urged ground next in
It is
of er
length
Deputy
Maddox
of time
ror number nineteen that “The trial court
hospital
recovering from
spent
finger
admitting
in
in
erred
evidence the
the scene at time of
wounds inflicted at
prints
appellant (made)
taken of the
while
shooting
question
in
is without merit.
ground
custody.”
he
in
of error
This
authority
is overruled
of Burton v.
on
twenty-third ground
er-
appellant’s
In
(Tex.Cr.App.1971).
S.W.2d
permit-
he
that the trial court
ror
contends
See
perceive Tex.Digest, no error. 11A See twenty-seven that thе trial court *13 erred Law, Criminal overruling appellant’s motion for a new trial because the evidence adduced at the twenty- Ground of error number hearing upon such motion indicated the ex- alleges four “The denied a was prejudice supported istence of is not by the fair trial because comply the State did not record and is overruled. with the trial court’s order and make the witness Thacker appellant’s available to prior
counsel calling him as In final er a witness.” alleges deprived ror he that he of evi The record reflects that Carl Thacker no dence to his in that favorable defense was called to the stand on 1970. June inquest required Arti was conducted as Thaсker preceding was available on the 49.01, cle V.A.C.C.P. day and given opportu- the defense was an nity time, to interview the witness at that Appellant does not reveal the nature of 25th, morning as well as on the Further, the evidence to refers. prior to proceedings. the commencement of nothing support there is in the record to When court convened on the 25th it was appellant’s assertion, raised for the first determined that defense counsel had not appeal, inquest time on that no held. availed opportunity. themselves of either This of error is overruled. The trial pro- court then called a recess to vide a third occasion for the witness to be During argument appellant’s oral counsel questioned and made it clear that “it would directed the court’s attention to the record cooperate obtaining any addition- immediately which reflects that the order al they subpoena witnesses wished to following quash motion to reason of piece some controversial of testi- the indictment shows the motion to have mony or evidence wish to offer con- granted. been The order reads “This Mo- cerning of [Thacker].” day April, tion was heard on this 17 hereby (Granted) (Overruled), and is
Appellant given ample opportunity to which action of the court the defendant prior to interview the witness to the time open excepted.” then and there in he testified. This contention is overruled. appears inadvertently
It that the trial court twenty- Ground of error number struck the word “overruled” rather than the complains argument five of the order of “granted.” Undoubtedly, of word awas argument counsel. The order of of coun clerical error. It is that the inconceivable sel is may within the discretion of and parties trial court and the have con- would regulated by court, except the trial tinued with the trial for a num- of the case State’s counsel shall have the days, ber which resulted a record con- concluding jury. make the address to the sisting 3,500 approximately pages, had Article V.A.C.C.P. No abuse of dis quash fact motion to the indictment in cretion is shown. granted. been Also, it inconceivable signed “excepted” to a not received notice nor had he any have would quash permit in- any the motion to waiver or consent which granting would any procedure
dictment. official take toward “unrequested and unwanted commutation.” judgment is affirmed. Opinion approved by the Court. appellant or at Notification to his
torney necessary either to effectuate the Governor’s or the Board Pardons OPINION powers regarding commuta and Paroles’ n MOTION ON APPELLANT’S State; (Stanley tion of sentence. v. FOR REHEARING State; Curry State; Thames David v. v. State; State; State; Wright v. Smith DAVIS, Commissioner. State; State; Tea v. Branch Matthews State; State; Morales v. Huffman v. In light recent decisions of State), 490 S.W.2d regarding United Suрreme States Court penalty, appellant that his urges death re- conviction be reversed and cause pro Appellant further manded trial to the court. se brief since had been sentence *14 case, pronounced his had the Governor Supreme Court of United States nothing to commute. This contention prior holding of overruled the this and oth- v. adversely decided Whan Georgia, er courts in Furman U.S. State, supra; supra, and Antwine v. 238, 2726, 346, and L.Ed.2d 92 S.Ct. State, supra. Hall v. 238, Texas, S.Ct. Branch v. 408 U.S. in ef- 33 L.Ed.2d when held contentions considered other have We penalty may fect be as- that the death pro se brief raised present our sessed under statute. find them to without merit. be Smith, The Honorable Preston Governor commutа- As result Governor’s Texas, acting upon the recommendation State, su- authority of tion and Whan Board of Pardons and Paroles is or- judgment of trial court pra, the September 13, dated Proclamation punishment to reformed to show dered in this cause punishment has commuted at life. assessed imprisonment. life from death to is affirmed judgment as reformed Tex.Cr.App., Whan v. rehearing is appellant’s motion for 41,789, contrary ap (No. 1972), cannot pellant’s that this Court contention judgment such commuta under
reform Court. Opinion approved life punishment assessed tion so that State, 486 imprisonment. Antwine v. See S. (1972); Hall S.W.2d 578 See ONION, J., dissents. Whan P. (1972).
W.2d 94 and Stan- opinion) supra (dissenting opin- supra (dissenting al., et ley v. pro mo- brief filed on In se ion). rehearing, he had tion for