*1 See, Tarver, this Court. Tarver v. (Tex.1965); Lee,
S.W.2d Honea (1962);
163 Tex. Robinson, Roebuck &
Sears Co. v. 154 Tex. case, present Rang
In the Park application
ers have filed an for Writ of preserving
Error cross-points their below. Appeals,
The error of the Court of Civil
however, is harmless. Since Hernandez et
al. are not entitled “police to recover as
men,” question whether the two or the year
four statute of applies limitations Application
immaterial. The for Writ of refused,
Error is no reversible error. CRAWFORD, Jr., Appellant,
Murriel Texas, Appellee.
The STATE of
No. 57602.
Court of Appeals Criminal
En Banc.
July 1980.
Rehearing 15, 1981. April Denied *2 Watson, employer
Jack a former of Ma- knife, they a hunting bra’s. There stole from an rope binoculars Interna- lariat parked property, tional on the farm Scout shotguns along gauge .410 with two .12 and *3 They then went to and a .22 caliber rifle. appellant’s apartment with the stolen goods. later, appellant
A short time and Mabra appellant’s pickup truck to a 7—11 drove in Store, intending They to rob the cashier. plan proceeded their and to an abandoned Exxon service station with similar inten- They again tions. became nervous and left robbing the station without the attendant. to a Finally, appellant and Mabra drove appel- parked Toot ’n food store and Totum readily lant’s truck where it could not be shotgun which had Carrying seen. the .410 Watson, pair been stolen from Jack night entered the store and robbed Whitfield, cashier, After $32.00. Edith appellant the con- Mrs. Whitfield handed bag, register paper in a tents of the cash her, narrowly missing her appellant fired at at Appellant head. then fired a second shot Mrs. Whitfield point range blank and struck eye, causing in the left her instantaneous death. Selden B. Hale and Charles W. Fair- mur- The two men fled the scene of the weather, Amarillo, Emmett, Colvin and apartment. der and returned to Botsford, Dallas, David L. appellant. for goods they gathered together There all the Curtis, Tom Atty., Dist. Morris L. Over- from the Watson which had been stolen Davis, street and John Asst. Loudder Dist. them, along placed farm and with the mur- Amarillo, Huttash, Attys., Robert State’s Mabra’s car. weapon, der in the trunk of Austin, Atty., for the State. headed pair got into the car and stopped en were
Jack Watson’s farm but police Tom Porter route Amarillo officer OPINION excessive noise. because the muffler made DOUGLAS, to Mabra and Judge. A citation was issued traffic by Offi- were interviewed both defendants appeals from his Murriel Don Crawford permis- gave the officer cer Porter. Mabra upon plea guilty conviction to the of- car, the officer de- to search the but sion capital fense of murder. Punishment Mabra were told clined and assessed at death. proceeded to they go. They were free to minutes The record reflects that a few replaced the they the Watson farm where midnight morning after on the of October items, weapon, including the murder stolen 22, 1975, appellant in his was awakened they had been from which Scout apartment by co-defendant David Mabra. drove back to Appellant taken. and Mabra later, Approximately forty-five minutes Mabra and farm appellant drove to the of Amarillo. Wayne Ricky Holik testified that in
Three weeks after the murder of Edith Janu- Whitfield, appellant and Mabra initiated a 1976, he, appel- ary, David Mabra and the White, neighbor conversation with Jim lant a concert in Amarillo. After attended and friend. In the course of this conversa- concert, appellant’s instigation, tion, appellant bragged to White that he Maywood, of them went Inc. three ’n and Mabra had robbed the Toot Totum they burglarized building There that he himself had shot the de- store‘and destroy number of tools. To evi- stole a “pushed her eye ceased in the brains breakin, appellant set fire to dence of the top Appellant out the of her head.” de- 25, 1976, August appel- building. On flight scribed for White their to the Watson lant and Mabra were arrested for bur- farm, their encounter with the Amarillo plant. While in cus- glary Maywood police crime. He and other details of the burglary tody, appellant confessed they related that scene returned to the Whit- and, later, of Edith to the murder intending or not crime to see whether was admitted confession field. His written *4 the Toot ’n with cam- equipped Totum was into evidence at trial. might eras which have recorded the murder robbery Appellant on film. stated to error are ad grounds Thirteen opened White that if Porter had Officer First he com vanced in brief. stabbed trunk of Mabra’s car he would have reference was plains testimony wherein appellant that him. Jim White testified as the co-defend made to an oral statement grisly of the crime he described the details Mabra. ant David shame, guilt. Appel- showed no sorrow or White, was, only regret lant’s as he told you thereaft- “Q. (Prosecutor) And did stop candy that he not to eat while in did and an inter- have a discussion er the Toot ’n Totum store. view Don Crawford? with police Jim White informed Amarillo de- Richards) did. (Detective I “A. Gary tective Richards of conversation named David “Q. with a fellow Also appellant appellant with and Mabra. Both Mabra? by and Mabra were interviewed Detective “A. Yes. concerning Richards the crime and were release, they re- Following released. their
turned to the farm and stole Watson you event, “Q. any your after —did shotguns they gauge the .410 and .12 defendant, have occasion to ask the previously guns had were sold stolen. or Crawford, inquire whether Don Maywood, by appellant workers at to two Mabra or David not he or Richard Inc., employed. where he was robbers as the had been involved arrest, admitted to appellant Prior to his ’n To- in that Toot and murderers Maywoodthat he employees three fellow tum murder? had the deceased. Karen Richie murdered Yes, “A. I did. her he had appellant testified that told it, it, or what? “Q. deny they Did admit laughed He about the shooting. done the incident. Carreker testified Sandra They it.” “A. denied break, appellant stated to her on a coffee Mabra since David Appellant contends get for shoot- “Maybe they’ll come and [me] testify any not on trial and did not too, occasion, ing lady.” that old On that was inadmissible by him statement made laughed murder. Keith Car- he about the appellant. him that appellant reker testified that told testimony. objection to There was no bitch in the face.” Car- he “shot that old hearsay as to statement, although Mabra’s reker stated that when he asked Under inculpatory. appellant, was not drunk, he if he was answered that circumstances, committed any error such said that if Carreker cold sober and State, 533 S.W.2d Thomas v. was harmless. murder his anything about the anyone (Tex.Cr.App.1976). partner would “waste him.” Appellant contends that the trial court Appellant signed testified that he permitting attorney erred in district confession in order to clear his conscience read sections of David Mabra’s inadmissible great sense of relief after and that he felt initial cross-examining confession while reading having done so. It was after appellant. prosecutor He contends appellant said to Mabra’s statement did not cross-examine from God, “My putting Detective Garrett: he’s statement, but that he used cross-examina- chair,” whereupon he us both in the electric guise tion as a under which to introduce ad- immediately gave a statement written large portions of the co-defendant’s confes- mitting in the crime but his involvement sion before the jury. complains He also shooting on David placing the for the blame the following by statement made the dis- Mabra. attorney during trict his cross-examination V.A.C.C.P., 38.24, provides: Article appellant: act, declaration part “When of an sticking “You are still version given in evi- writing conversation or you gave fingered you, after Mabra on the party, dence one the whole Mabra gun] took in.” [the subject may inquired into same be Appellant argues prosecutor’s that the re- other, read, as when a letter is all letters marks made reference to the confession of same subject on the same between the the non-testifying in which co-defendant parties may given. be When a detailed appellant was blamed for the actual shoot- act, declaration, writing conversation or ing. evidence, act, given other decla- *5 light jury of the fact the re writing necessary ration or which is to turned a upon appellant’s directed verdict explain fully make it understood or to the plea guilty, it cannot be said that the may given same also be in evidence.” improperly admitted confession contributed State, In Vanderbilt v. 563 S.W.2d appellant’s to plea guilty conviction. A that (Tex.Cr.App.1978),we observed Article jury before a admits all elements of act, explanatory 38.24 does not restrict the the offense and is conclusive of a defend declaration, conversation, writing or to the State, guilt. ant’s Fierro See v. 437 S.W.2d declaration, act, time conversation when the (Tex.Cr.App.1969). explained writing sought or to be occurred however, Appellant, contends that the ev- to render such but extends the rule so as idence bore heavily jury’s on the determina- admissible, necessary if acts or statements which, tion of special the issues under Arti- of, understanding explain or to the to a full 37.071(d)(2),(e), V.A.C.C.P., cle resulted in in evidence acts or statements introduced the assessment of the penalty. death In his by party. the adverse written confession which was introduced ap- to was read aloud Mabra’s confession into evidence defense counsel he admit- during the pellant by Detective Garrett ted that party robbery he was a to the appellant’s confes- preceding conversation murder of Edith Whitfield. He also testi- his own Appellant having sion. introduced helped fied that he prepare for and commit evidence, was statement into the State denied, however, the robbery. carrying He of other properly permitted give evidence gun the shooting the deceased. The writings, transactions conversations and prosecution, cross-examining appel- the appellant’s confes- fully explained lant, portions read certain of David Mabra’s sion, given and the in which it was context appellant first confession which named as short, prosecu- it. In the the motive behind the weapon one who carried the into the whole prove tion the was entitled appel- store and shot the deceased. It is appel- immediately prior to what was said theory jury lant’s that assessed the 38.24, supra. lant’s confession under Article death belief penalty the basis of its for the man”, if it had been error appellant “trigger was the and that Even the co-de portions read prosecutor without David it would Mabra’s confession cross-examining have while assessed a life sentence. fendant’s confession appellant, such error would not rever- truth of merit his second written Ap- statement. sal. The other appellant evidence pellant prosecutor theorizes that knew was, whole, overwhelming. as a The evi- polygraph, knew results of the which, appel- dence particular, showed appellant carry gun into the did not trigger lant to have been the man was so Totum, Toot ’n consequently, should great as to render the co-defendant’s state- implied jury not have relatively insignificant. ment Appellant brandishing walked ’n into the Toot Totum he admitted to four friends that shot had weapon. prosecutor For murder Florida, Edith Whitfield. As in Schneble so, asserts, do introduce was to before the evidence which he knew to (1972), min- confession was be false. utely completely detailed and consistent contention is without merit. This objective And, with the evidence. as in Appellant assumes that the district attor Schneble, “the average jury’ ‘minds of an ney obligated to believe David Mabra’s sig- would not have found State’s case (in second statement which he admitted nificantly persuasive” less had the prosecu- store) and disbe carrying gun into the tor’s recitation of Mabra’s confession been (in which lieve confession he Mabra’s initial excluded. joint There was a trial in the gun). stated carried case. present Schneble In the case there obligation no prosecutor under such joint was no trial. We conclude that regardless polygraph ex reasoning applies case fact here. Schneble committed, If error Results of it was harm- conducted. amination had been examinations, less. of their polygraph virtue consistently been unproven reliability, have Next, appellant prosecu- asserts any purpose. held to inadmissible be permitted inject tor was erroneously State, (Tex.Cr.App. Reed v. 522 S.W.2d During false evidence at trial. cross-exami- (Tex. 1975); King v. nation, following exchange place took Cr.App.1974); Lewis attorney between the and appellant: district State, 496 (Tex.Cr.App.1973); White v. “Q. You something had to shoot Mrs. *6 prose (Tex.Cr.App.1973). The S.W.2d 642 with, though, you Whitfield didn’t ? rely on such whatever to duty cutor had no my possession. “A. Not in data potentially unreliable inadmissible “Q. gun, Walked in there with a loaded con Mabra’s determining which of David you didn’t ? no prosecutor had fessions were true. No, “A. sir. state duty to of Mabra’s believe either “Q. sticking You are to the still version voluntarily taken having Appellant, ments. you gave fingered you, after Mabra stand, subject being discredited the to (Appel- that Mabra took it in ?” attempt In like other witness. his lant’s emphasis) testimony, prosecu impeach the appellant’s Appellant by these remarks contends that reject tor was the co-defendant’s free to prosecutor implied ap- the to the that cross- vigorously versions the crime pellant carrying denied lying when he pos concerning his appellant examine the shotgun ’n the .410 into the Toot Totum. weapon immediately session the murder argues Appellant prosecutor’s re- that State, 545 shooting. Myre v. prior to the carrying of concerning marks the mur- v. (Tex.Cr.App.1977); Weber 820 S.W.2d weapon der were made in bad faith and State, (Tex.Cr.App.1971); 136 472 S.W.2d knowledge falsity. with of their The basis (Tex.Cr. State, 469 Patterson v. for this contention is the fact in his App.1960). Mabra second confession David denied court contends that Appellant shooting Edith Whitfield but admitted that extrane into evidence erroneously allowed initially gun he carried the into the store. Ricky brief, burglary and arson. ous offenses of appellant poly- In his claims that a concerning supported length graph Wayne examination of Mabra testified Holik
931
appellant’s
burglary
commission of
the three
Supreme
ar-
factors which the
Court
Maywood,
objec-
son at
Inc. There was no
Illinois,
deemed relevant
in Moore v.
tion to such testimony until after Holik had
U.S.
completed his testimony on direct examina-
(1)
suppres-
Those factors are
Thereafter,
tion.
appellant took the stand
prosecution
sion of such evidence
and,
on direct examination
defense coun-
defense, (2)
request by
after a
the evi-
sel, testified
having
committed the bur-
defense,
dence’s favorable character for
glary of Maywood, Inc. The admission of
(3)
materiality
of the evidence.
improper evidence will not constitute re- Considering
applied
these factors as
versible error where the defendant volun-
case,
present
facts of the
we conclude
tarily gives testimony the same as that
no reversible error is shown.
which is admitted
objection.
over
Cowan v.
record before us does not re
State, 562
(Tex.Cr.App.1978);
S.W.2d 236
requested police report
flect that
State,
Lovell
(Tex.Cr.
v.
S.W.2d
suppressed by
prosecution.
Prior
App.1976);
State,
Allen v.
Appellant argues next prosecu- report was material. United States tion erred in failing provide the defense Agurs, 427 U.S. with a copy of an exculpatory police report (1976), L.Ed.2d 342 Court held prior to trial. The requested report stated (1) possibility the mere that an item of had been cleared after his might helped undisclosed information have interrogation initial concerning the murder the out- might defense or have affected of Edith Appellant alleges Whitfield. come of the trial does not establish “materi- *7 report was relevant on numerous issues sense, (2) ality” in the constitutional particularly but so on the issue of the vol- must have been the omitted evidence untariness of his confession and that it such doubt as would create a reasonable should, therefore, produced have been at a guilt. police about the defendant’s re- pretrial hearing. Jackson v. Denno1 case, provid- port present had it been State, upon He relies Ridyolph v. 503 trial, prior ed not have created a S.W.2d 276 (Tex.Cr.App.1974), and cases cit- reasonable doubt as to the voluntariness of ed therein proposition for the it appellant’s Regarding the re- confession. prosecution reversible error for the to ei- port’s relevance to other issues raised at ther actively suppress inadvertently fail trial, appellant position to com- not in a might disclose evidence which exonerate plain report, including the inasmuch as the or be of material value to the accused. portions, into evi- exculpatory was admitted
In determining copy whether dence and was furnished to reversible a thereof occurred, error has this Court must look to counsel.
1. 378 U.S.
932 Honor, Your appellant pled guilty, it was imma- “MR. FAIRWEATHER: I
When might not have con- terial that the officer mistrial at this time.” move for a enough upon cluded that he had evidence answer, although un The witness’ charge appellant. which to appellant responsive, prejudiced neither nor complains of the appellant Next upon guilt reflected his or innocence. negative prosecution’s failure to disclose statement made no witness’ reference day fingerprint test results until rather, the co-de appellant, but concerned any harm allege trial. He does not Error, any, if David Mabra. fendant delay resulted from this in disclosure. Nor harmless. results were has it been shown that the test nature, exculpatory obligating in thus prosecutor urges that Appellant appellant. them to Had State disclose appellant refusing erred in to furnish they exculpatory, any error in their been statements witnesses’ copy of the State’s appellant must be con delayed disclosure to had testified. until after such witnesses light appellant’s sidered harmless is without merit and Appellant’s contention weight guilty plea overwhelming v. holding in White contrary to this Court’s the evidence. State, (Tex.Cr.App. 645 496 S.W.2d State, alleges 1973); v. 514 Appellant next and Hoffman S.W.2d juror Mar excusing potential court erred in (Tex.Cr.App.1974). 253 grounds that tha B. Stulce for cause on the the court contends Next he requirements Witherspoon neither the v. writ appellant’s erroneously admitted Illinois,2 V.T.C.A., Code, nor Penal Section grounds into evidence on ten confession 12.31, objection was were satisfied. No prom by police officers’ that it was induced object improper raised. Failure to would not be penalty ises that the death such potential juror exclusion of a waives at the Jack adduced sought. The evidence State, appeal. error v. 542 Boulware appellant’s hearing showed son v. Denno (Tex.Cr.App.1976); Granviel v. S.W.2d 677 freely and volun State, (Tex.Cr.App.1977). have been 552 107 confession to S.W.2d duly warned of Appellant was tarily given. error grounds In four coercion or subjected to no rights refusing alleges that the court erred find, nor do not any kind. We abuse of intro grant prosecutor after the mistrial toward attention appellant direct our does an oral duced before the evidence of confession any evidence that in which statement made the death by promises was induced charged offense. committing he denied Moreover, sought. not be penalty would inculpatory nor The statement was neither introduced the confession was objection was sus prejudicial. Appellant’s its vol- regarding Any complaints himself. disregard was tained and an instruction to Morales thereby waived. untariness were Error, Sternlight given. any, cured. if (Tex.Cr.App.1971). State, v. S.W.2d State, (Tex.Cr.App.1976); v. S.W.2d (Tex.Cr.App. Smith S.W.2d sufficiency Finally, appellant attacks (Tex. 1976); Marlow jury could upon which the of the evidence State, 500 Cr.App.1976); Paredes v. finding on affirmative have returned an (Tex.Cr.App.1973). e., probability that a special No. i. issue following testi- complains He also commit appellant would existed that *8 mony by Karen Richie: would con- of violence criminal acts Prosecutor) you society. talk to Arti-
“Q. (By the Did to continuing threat stitute a Appellant to Mabra —about yes, David 37.071(d)(2), V.A.C.C.P. cle David — shooting of Mrs. Whitfield? no because required urges that reversal specifi- by the State testimony was offered his lie detec- “A. No sir. When he took special issue. this cally support tor test— 20 L.Ed.2d 2. 391 U.S. (1967).
It is well
that the intro
candy
following
established
in the Toot ’n Totum store
expert
duction of
psychiatric
psychologi
the murder. We find that sufficient evi-
testimony
jury
cal
a
prerequisite
is not a
presented
jury
from which
dence was
finding
“yes”
special
on
issue No. 2.
probability existed
could conclude that a
State,
(Tex.Cr.App.
Brock
S.W.2d
future acts of
appellant
would commit
1977);
State,
(Tex.
Burns v.
pose
a con-
criminal violence which
State,
Cr.App.1977);
Granviel v.
S.W.2d tinuing
society.
threat
107 (Tex.Cr.App.1977).
testimony
The
ad
shown,
having been
No reversible error
concerning
duced
trial
at
the crime itself
judgment
is affirmed.
and
surrounding
the circumstances
its com
may
probative
special
mission
be more
on
CLINTON, J.,
participating.
not
issue No. 2
any
than
other evidence which
PHILLIPS,
dissenting.
Judge,
might
State,
the State
offer. Brock v.
su
court
majority holds that
the trial
pra;
State, supra.
Burns v.
allowing
prosecutor
did not err in
present case,
Brock,
In the
inas
portion of co-
read to the
the critical
evidence showed that
committed
confession,
defendant David Mabra’s first
a brutal and senseless murder in the course
implicated appellant
in which Mabra
as the
robbery
of a
though
even
the deceased had
majority
“triggerman” to the offense. The
surrendered the
regis
contents of the cash
were
further concludes that even if error
ter to him and
Ap
offered no resistance.
committed,
beyond
was harmless
the error
pellant’s intent
merely
was not
to terrorize
accept ei-
reasonable doubt. As I cannot
shotgun
the deceased with the initial
blast.
conclusion,
compelled to dissent.
ther
I am
His intent was
firing
to cause her death
again
point
defense.
range.
Appellant
blank
He was later
testified in his own
laugh
brag
heard to
and
being
party
about the fact He
to the offense.
admitted
that he had
However,
shotgun
seen Edith Whitfield’s brains
carrying
he
denied
pushed out
top
of her head. His state
He
killing
into the store or
the deceased.
ments to Keith Carreker and Jim White
killed the deceased.
testified that Mabra
reflected
willingness
again.
his
to kill
Af
confession
Appellant introduced his written
admitting
ter
responsibility
for the mur
testimony.
The confession
support of his
Carreker,
der to Keith
appellant threatened
related the
facts as testified
same
to have him killed if Carreker
revealed
appellant:
anyone
Appellant
what he knew to
else.
. .. We went in the Toot N Totum
also told Jim White that he would have
shotgun. He had
carrying
David was
stabbed Officer Tom Porter if he had at
leg.
lady
watching
it beside his
tempted to search the trunk of David Ma-
cash
me and he stood in front of the
bra’s car.
hamburg-
register.
got some
I went and
Three months after the murder of Edith
and came
er buns and some lunch meat
Whitfield, appellant committed the offenses
said “You
back to the counter. David
of burglary
committing
and arson.
money”.
said
give
want to
us some
She
offense,
latter
appellant knowingly created
give
you
He
“Do
want
“What”.
said
a risk that
loss of human life could occur.
no,
“Why
money”.
us some
said
She
o[f]
probative
Both offenses were
on the issue
shotgun
top
put
He
course not”.
likely
of whether
to commit
register
“Any-
said
of the cash
and she
subsequent
criminal acts of violence
thing you
opened
want”.
the cash
She
charged
offense
in the indictment.
See
got
money out of the
register all the
Granviel v.
supra, and Felder v.
register
put
in a little sack
cash
it
For said his actions showed up the no remorse or His is under the drawer”. raised sorrow whatever. She dime, noted, only this regret, appeared as has been to be drawer and said “There is he I said “Well opportunity money did not seize the to eat there is no here”. *9 give put us the dime”. I the dime in the and missed the first I shot. saw the bag bag and I the lunch took the and lady’s hair fluff out I kinda and saw the hamburger meat and the buns and try- was shot hit wall. I turned and the stepped back from the counter and ing get yelled out of the store and dropped picked up them. I them back out, running I I “Crawford”. As was put shotgun top and David the back on pay I did not for heard the second shot. did, the register. cash When he he the snuff and I was so scared that I popped register it down the cash my of snuff in hands. I crushed the can up and it went off. It her hair and blew got pickup Donny back in the and scared her and it hurt her because she right behind me... just again. moaned so he shot her He defense counsel On redirect examination just open stood there with his mouth and confession attempted to read from another shotgun the register. on the cash I gave given by day after he Mabra the grabbed dragged him him the coat and read one set That confession forth above. got got out of the store. We outside and pertinent part: in pickup my apart- in the and went back to up to One and I drove other fellow ment .. . early morning in the Toot ’n Totum store On cross-examination over and defense hours, midnight, and we went well after objection, prosecutor counsel’s elicited robbing the store. in with the intention of gave from confession that he and I held it shotgun, I in carried a .410 police after showed him a confession clerk, I now who lady on the who was the given by day earlier that excul- Mabra Whitfield, while we to be named know pated placed responsibility Mabra and her, threatening robbed and I also entirely appellant. offense we robbed her shotgun with after her prosecutor produced then Mabra’s confes- gun grabbed my companion when began sion and to cross-examine twice, shooting the clerk it went off strenuously with it. Defense counsel ob- killing her. the head and jected that the confession was inadmissible hearsay prosecutor’s reading and the it vio- the store companion I ran from My appellant’s right lated Amendment Sixth confront and cross-examine witnesses. The gave I previous statement appellant’s objections, court overruled night Collins last Officers Kirkwood and prosecutor following from Ma- read the my participation left out the truth about bra’s confession: Toot ’n Totum attempt in our to rob the Donny parked pickup . .. in front gun and I way and the handled get my got of the store and I out to shot, Was she threatened the clerk before got I out of the Donny snuff. said as truthfully described this but statement truck, place.” I “I think I’ll rob this crime, (emphasis my part real thought joking as we are all the he was added) like making time comments this to each at- counsel’s objected The state to defense picked up other. I went in and a can of The court tempt to read this confession. put Copenhagen snuff and started it ap- objection, prohibited sustained the time, I on the counter. At this heard reading pellant from the confession open looked around Donny the door and way. alluding jury or to it Donny shotgun and I saw that had the motion for hearing on At the lady Donny behind him. said to the stipulated that at the time new trial it was said, clerk, your money.” “Give me She of Ma- prosecutor was aware of trial got kidding. “You’ve to be Is this some was further It bra’s second confession. joke?” Donny pulled kind of then knew that prosecutor stipulated that shotgun placed top of the out and it on test adminis- of a lie detector money results register. gave
cash him the She second tered to indicated that paper Donny in a sack and then shot one Mabra holding time. He it with one hand confession was the truth.
935 majority ap- because concludes that and the lie detector test confirmed this. pellant introduced his confession in evi- Given that the court admitted Mabra’s first dence, prove the state “was entitled to confession, go absolutely it was critical to immediately prior whole of what was said forward and admit Mabra’s second confes- confession,” appellant’s to pursuant to Art. prevent j'ury sion in order to from re- 38.24, willing accept Y.A.C.C.P. I am to ceiving totally impression of the a false scope of Art. 38.24 extends to the evidence, jury to assess and to enable the presented situation pro- here —the statute The ad- credibility Mabra’s as a witness. part vides in that: mission of the first confession without declaration, act, . .. When a detailed error. second constituted in evi- writing given conversation or Moreover, recognize to dence, fails act, majority any other declaration or writ-
ing
necessary
fully
application
which is
to
in this
make it
of Art. 38.24
may
understood or
explain
the same
Amendment
case
appellant’s
violates
Sixth
given
also be
in evidence.
right
to confront and cross-examine wit-
U.S.
85
nesses. Pointer v.
380
However,
egregiously
the trial court
(1965).
erred in
923
This
admitting Mabra’s first confession S.Ct.
13 L.Ed.2d
admitting
without also
second con
Mabra’s
right
long
recognized as essen-
been
[“has]
requested
fession as
by appellant. As this
Mississip-
process.”
tial to due
Chambers v.
out,
Court previously
pointed
pur
has
1038, 1045,
284, 295,
pi,
35
410 U.S.
S.Ct.
pose of Art. 38.24
possibility
is to reduce the
Oliver,
L.Ed.2d 297
In re
See
the fact finder will
a
receive
false
257, 273,
we?
Witherspoon -qualified
to excuse a
12.31(b).
ground
the broader
of Section
“A.
I think.
(Tex.Cr.
Moore v.
Honor,
“MR.
Your
we would
CURTIS:
began
case
six
App.). Jury selection
this
challenge for
respectfully
cause based
11, 1977). Now
(April
months later
on Section 12.31.”
appellant was at fault
Court holds that the
very thing
This is the
that the Constitution
*13
objection that we had six
raising
for not
an
could,
did,
forbids.
a
ex-
“Such
test
legally
earlier held to be
worthless.
months
jurors
they
clude
who stated that
would be
require
ungracious
is
of us to
At the least it
possibility
‘affected’
the
of the death
recognize merit
in an
defense counsel to
penalty,
apparently
only
but who
meant
not;
worst,
it
argument when we could
potentially
consequences
that
the
lethal
of
process
due
and due course of
denies him
their decision would invest their delibera-
saying
to
appeal.
law on
It is tantamount
greater
tions with
gravity
seriousness and
opinions
or would
Ad-
our
on constitutional
law are
emotionally.”
involve them
49,
Texas,
ams v.
notoriously untrustworthy
attorneys
S.Ct.
so
2521, 2528,
(1980).
following
(reversing
Court
decision which held
Wither-
may be waived
guarantee
a constitutional
waived).
spoon error
This error affects
by a
counsel for the failure
defendant’s
fact-finders;
very
it is not like an im
organiza-
object
improper
such as
proper grand
trying
jury venire or
of a
trial level
grand jury
tion of
at the
jail
defendant
in a
uniform.
waiver,
our
above discussed
decisions
question
We have decided this
waiver
object to
we
the failure to
hold
in an off-handed manner
three weeks
member
venire
improper exclusion
v.
after the decision in Adams
be con-
right and
cannot
waives that
it
(No.
U.S.
Hovila
appeal.
sidered on
[532
79-5175, 1980). It should receive full con-
they
insofar as
and all cases
S.W.2d 243]
sideration, but
I
it has not.
dissent.
contrary
See
hold
are overruled.
also
Tezend
[484
J.,
PHILLIPS,
joins in this dissent.
(Tex.Cr.App.)].
that,
objection,
“We
absent an
hold
ON
OPINION
APPELLANT’S MOTION
excusing
err
trial
did not
court
FOR REHEARING
Holt,
jurors,
though they
Hurse and
even
thoroughly as
DAVIS,
questioned
were
Judge.
TOM G.
not
as
been
reference
they might have
with
Appeal
is taken from a
conviction
penalty
their
render
death
ability to
capital
Following
murder.
plea
may reveal.”
no
what
the trial
matter
guilty,
jury
the court instructed the
to re-
Id. at
and 683.
turn a verdict
guilty.
then
*14
recently
The
of
Supreme Court California
“yes”
answered
questions
to the first
two
People
issues in
v. Velas
considered similar
37.071(b)
punishment
under Art.
306,
425,
Cal.Rptr.
606
quez,
162
26 Cal.3d
assessed
death.
(1980)
People
Lanphear, 26
P.2d 341
v.
Appellant contends the court erred in sus-
601,
689
814,
Cal.Rptr.
608 P.2d
Cal.3d
163
taining
challenge
for
State’s
cause to
cases,
were
(1980).
In those
defendants
prospective juror Matha
record
Stulce. The
murder and sentenced
convicted of
reflects
that
challenge
State’s
on
were reversed
death. The convictions
Code,
upon
based
V.T.C.A. Penal
12.-
Sec.
pro
appeal
after the Court concluded
31(b).1
original submission,
On
it was held
viola
spective
had been
jurors
excused
appellant’s
object
failure to
to the al-
510,
Illinois,
Witherspoon
of
v.
tion
leged improper exclusion of
waived
Stulce
1770,
(1968). The
L.Ed.2d 776
88 S.Ct.
20
error for purposes
appeal.
rejected
Court
the State’s contention
This
held
consistently
Court has
that the
ex-
object
failure to
to the
the defendants’
object
improper
failure to
exclusion
Witherspoon
jurors
cusal of
waived the
prospective juror
capital
of a
in a
murder
appealed and in Cali
error.
then
The State
trial,
purposes
ap-
903,
waives the error for
448
100 S.Ct.
Velasquez,
fornia
U.S.
v.
State,
peal.2
3042,
(1980)
In Boulware v.
542 S.W.2d
65
1132
and California
L.Ed.2d
57,
677,
66
following:
Lanphear,
U.S. -,
this Court stated the
v.
448
101 S.Ct.
State,
provides
Cr.App.);
238
1. That statute
v.
S.W.2d
as follows:
Russell
598
State,
Esquivel
(Tex.Cr.App.);
v.
595 S.W.2d
“Prospective jurors
shall be informed that
State,
(Tex.Cr.App.);
S.W.2d
516
Burks
583
v.
imprisonment
sentence of life
or
is
death
State,
(Tex.Cr.App.);
S.W.2d
389
Earvin v.
582
mandatory
capital felony.
on conviction of a
State,
(Tex.Cr.App.);
Byrd
569
Von
v.
794
prospective
disqualified
juror
A
shall be
from
State,
(Tex.Cr.App.); Hughes v.
S.W.2d 883
juror
serving
aas
unless he states under oath
State,
(Tex.Cr.App.);
v.
Hovila
recommended it
BY ex-
sup-
WAS CHOSEN
jurisdiction
appear
would
relevant
simply be-
cluding
ground
of exclu-
veniremen
cause
narrower
port
they
objections to
general
cause
voiced
sion.”
1772; (3)
Witherspoon
Observing Witherspoon’s
“ve-
943
“pro-
but
“the
neutrality”
merely prejudices,
of
and
obliterates
line
“crosse[s]
to
its
legitimate efforts
administer
State’s
jury uncommonly willing
to con-
duce[s]
penalty
constitutionally
valid
death
die,” may
by
demn a man
be
waived
11 Adams,
nal process in this State and the
integrity of the law. requires It no extra- that,
ordinary insight given conclude “harmless,”13
Witherspoon error cannot be
neither can it be “waived” a failure to
object. But like one who stands with his
back to the street because no one told him parade passing by, majority in-
dulges a delusion liability for the bar-
rage of today reversals it énsures lies else- where; in truth it lies here.
I dissent.
TEAGUE, J., joins.
Harvey HACKBARTH, Herman
Appellant, Texas, Appellee.
The STATE of
No. 61085. Texas,
Court of Criminal Appeals of
Panel 2.No. 1,
July
1981.
947,
523,
22,
Witherspoon,
versed in Harris v.
403 U.S.
91 S.Ct.
See also
at
391 U.S.
n.