*1 FEARANCE, Jr., Appellant, John Texas, Appellee.
The STATE of
No. 63342. Appeals
Court of Criminal
En Banc.
Sept.
On Rehearing May *2 regard penalty. with to the
attitude death regard, the record reflects as fol- this lows: (Prosecutor)
“Q. Therefore, of all to I want first “... generally with you you how feel ask capital punish- regard to the issue of are in favor By you I mean ment. it, it, against specific have some and, it, objections religious or moral would, your you ask to share you if I’d thoughts with us and the Court issue of you to how feel about punishment. capital Well, objections I would only “A. be capital would punishment have crime circumstances involved in the that was committed. DeShazo, Sullivan, J. Preston Thomas you be in “Q. saying You are would Dallas, appellant. of it in instances? favor certain Wade, W. Atty., T. West- Henry Dist. Yes, “A. sir. Mulder, moreland, Jr., Douglas D. Norman Dist. Atty., Kinne, Attys., Austin, David Schick and John Dallas, for the State. Robert Huttash, Hagler, State’s Asst. proper circumstances “Q. [*] ... Do [*] you [*] feel that under you [*] could [*] consider [*] penalty pun- as the
and assess death committed person has ishment burgla- during the course of a a murder OPINION ry? DAVIS, Judge. TOM G. Yes.” “A. Appeal is taken from a conviction for short questioned for a Randolph was then murder. After the answered concerning informa- personal data time special yes to three issues under Art. prosecu- out. The she filled tion sheet V.A.C.C.P., punishment was as- 37.071(b), of law explained certain rules tor then sessed at death. beyond a reasonable Randolph proof such as Appellant having was convicted of mur- doubt, of innocence presumption during the course of dered Faircloth testify. Ran- right not to the defendant’s 23, 1977, Dallas. on December burglary rules these that she understood dolph stated multiple result of The deceased died as a if to sit follow them selected and would stab wounds. jury. error, ap In his twelfth explained proce- then prosecutor court erred pellant contends that the trial trial. punishment phase of the dure at challenge sustaining for cause State’s she under- acknowledged Randolph juror Randolph. He prospective Patricia Art. special issues under the three stood Randolph was maintains that exclusion depending upon 37.071(b), supra, and Fourteenth violation Sixth evidence, to a issue answer Constitu Amendments to United States she stated that yes no. She might be tion. yes or no of the issues any could answer presented evidence upon the questioned depending Ran- initially The prosecutor concerning general trial. dolph voir dire around; “Q.
Randolph go- was informed if Let me all the twist I’m special issues were yes, you answered ask ing again to have to it to fendant would be sentenced to death. With me, would, try you to follow if respect knowledge to whether please: you you Can or would deliberations, affect her the record reflects: able state under oath that
“Q.
Now, knowing
...
ahead of time
mandatory sentence of life or death
*3
be,
what
ultimate result would
your
not affect
would
deliberations
you
do
feel that that
would
some
questions
or answers
those
three
way affect your
or
deliberations
of fact?
your answers to
ques-
those three
“A. No.
tions?
“Q. You
state
could not
under oath that
yes.
say
“A.
I’d have to
your—
it
not
would
affect
“Q. You feel that it would?
me, yes;
“A.
It
would affect
would —it
“A. Yes.
it
have to.”
would
“Q. Well,
just
I
you
be
want
honest
answers,
Following
Randolph
the above
appreciate your being
and
with us
I
challenged
for
cause
the State. The
Now, just
honest with
I
us.
so that
challenge
trial
was sustained
court
you: Knowing
understand
ahead
appellant’s objection
over
that:
time that
ei-
Defendant would
Honor,
get
ther
“MR.
Your
maximum
DeSHAZO:
at
sentence of life
object
or
knowing
death and
what
time the defense would
to the
would
occur, depending
you
excusing
lady,
on how
an-
the venire
Patricia
swered the questions, you
Randolph,
do
that a
feel
for cause
the reason
that that
your
would enter into
systematic exclusion of veniremen under
answering
12.31(b)
liberations in
right
three
a fair
violates our
questions?
impartial
by the
guaranteed
as
Sixth
and Fourteenth Amendments of
Well,
“A.
I’d have to answer all —each
”. .
United
Constitution..
States
question on an individual
basis
the best of my ability
my
hon-
Code,
12.31(b),1
Penal
V.T.C.A.
Sec.
esty myself.
ques-
I’d take each
recently
scrutiny by
under
came
United
tion
an
individual basis and not
Texas,
Supreme Court
Adams v.
States
as a whole.
“Q. Right. Okay,
suggest-
and I’m not
(1980).
be
The Court found the statute to
ing you wouldn’t answer
them
could,
constitutional and that
State
“[t]he
truthfully. My question maybe
Witherspoon,2
consistent with
use Sec. 12.-
—
there;
last
confusing
one was
31(b)
jurors
prospective
to exclude
whose
least wasn’t in
with what
line
capital punishment
are such as to
views
you
you
I’d asked
before.
feel
Do
obey
law
make them unable to follow the
that, although you’d
answering
be
their oaths.”
It was noted that “[i]f
questions
'the
truthfully,
your
juror
obey his
is to
oath
follow
law
questions
answers
to the three
not
willing
only
must
be
be
would
affected
the fact that
accept
death
in certain circumstances
you already know what the ultimate
penalty
to answer
acceptable
is an
but also
outcome
be?
would
questions
statutory
without conscious
“A. Yes.
bias. The
not vio-
distortion or
State does
provides
mandatory penalty
1. That section
as follows:
of death or im-
that the
prisonment for
not
his deliber-
life will
affect
jurors
“Prospective
be
shall
informed that
any issue
fact.”
ations on
imprisonment
sentence of life
death
mandatory
capital felony.
on conviction of a
Illinois,
Witherspoon v.
U.S.
prospective juror
disqualified
A
from
shall
20 L.Ed.2d
serving
juror
as a
unless he states under oath
Randolph’s
testimony
We find that
doctrine when it ex-
Witherspoon
late the
the evi-
showed that she
consider
who are unable or
prospective jurors
cludes
honestly
dence
answer the three
penalty questions
unwilling to
address
penal-
issues.
fact that the death
The mere
degree
impartiality.”
with this
affect
delibera-
would have an
on her
However,
found
the State
the Court
not
basis
tions or answers was
a sufficient
12.31(b), supra,
impermissibly
used Sec.
challenged
upon
could have
which she
challenge against
several
for cause. We hold that
excused
jurors
Adams’ trial. These
prospective
for cause
inconsistent
exclusion
they
veniremen
after
stated
were excused
Witherspoon.
possibility
penalty
of the death
the cause
judgment
reversed and
on their deliberations.
would have
affect
remanded.
finding
improper,
their
to be
exclusion
the Court noted:
ON APPELLANT’S MOTION
OPINION
*4
“Nor in our view would the Constitution
FOR REHEARING
jurors
of
the
permit
the exclusion
from
CLINTON, Judge.
phase
trial if
penalty
of a Texas murder
the
reversed
original
On
submission
Court
honestly
will
find the
they
they
aver that
of conviction and remanded
judgment
the
questions in the
facts and answer the
trial, deciding only that
new
the cause for a
beyond
they
affirmative if
are convinced
improperly
juror
had been
prospective
otherwise,
doubt,
yet
reasonable
but not
Illinois,
Witherspoon
391
v.
excused under
frankly
prospects
that the
of
concede
776
20 L.Ed.2d
U.S.
affect
their
penalty may
the death
what
(1968),
judicial gloss applied
given the
or
judgment of the facts will be
honest
Code,
recently by
Y.T.C.A.,
12.31(b)
Penal
§
they
what
deem to be
reasonable
may
in
of the
States
Supreme
the
Court
United
judgments
doubt. Such assessments
38,100
Texas,
Adams
v.
jurors
jury system
in the
by
are inherent
his motion for
jurors who would be
and to exclude all
we did
complains that
rehearing appellant
by
slightest
prospect
the
way
the
affected
forty
of his
not
rule on several
but should
views
the
or
their
penalty
of
death
present
do not
five
of error which
deprive
would be
penalty
about such a
our
additionally,
that
voir dire error and
impartial
jury to
the defendant of the
a new
for
disposition of the cause —remand
which he or she is entitled under
im-
be so advised —is
trial should
State
v.
In the instant stated plaints. for she could and vote the death consider penalty for who committed a murder one reject we the conten outset At the during burglary. of a ac- course She the cause disposition of tion the initial knowledged understood the three that she alone Witherspoon violation finding on a of 37.071(b), supra,
special issues under Art. reform That we will not was incorrect. no questions yes or and could answer those punish jury reached at verdict of the presented at upon evidence depending render as to stage way ment in such excused, However, Randolph trial. set now imprisonment is judgment of life objection, overruling after stated appellant’s over she tled the action penalty rehearing in the Gri- possibility death for motion State’s April trilogy jalva-Loudres-Pierson or answers to would affect her deliberations 1981.1 the three issues. (Tex.Cr.App., State, State, (Tex.Cr. 414 Grijalva 614 S.W.2d 420 ans v. 614 S.W.2d rehearing State, 1980) 1980); App., State’s motion in which S.W.2d Loudres April 1980); (Tex.Cr.App., overruled also Pierson 1980). (Tex.Cr.App., also Ev See threshold, Code,
Still at the
are
con
combination
V.T.C.A.Penal
ground
one, reading:
fronted with
is,
19.02(a)(1)
19.03(a)(2);
§§
alleged
county
date and
the stated
Penalty
“The Texas Death
is
Statute
“intentionally
did
cause the death
it is
unconstitutional because
inflicted
stabbing
. .
. .
.
Faircloth ...
.
prosecutorial
a result of
discretion which
with a knife ...
...
in the
by guidelines
is not limited
while
or standards
[him]
determining
appropriateness
committing
attempting
its
in in-
course of
prosecutions.”
dividual
burglary.”
commit
offense of
charge
jury
ab-
of the trial court to
This
is derived from the trial court’s
burglary,
part,
one
stractly defined
if
overruling a motion to dismiss the indict
enters a
“with intent to commit
effect,
habitation
ment to the
hearing
same
after
testi
theft,”
felony
applying
the law
mony
prosecutors concerning
from two local
coming
respective
factors considered in
authorized
to convict if
facts
conclusions to
the potentially
treat
indict
it found that
caused
death
able
murder case as murder in two
com-
the deceased while “in the course of
particular matters. The thrust of that tes mitting
attempting to
of-
commit the
timony, appellant says, is to show that
burglary,
fense of
as that term has hereto-
“only standard” utilized
“the strength
is
Thus,
you
fore been defined to
...”
case,”
points
State’s
and he
out that one
based,
finding
guilt
part,
on the
Code,
incorporated
not
in V.T.C.A.Penal
theory
undisputed entry
was with
19.03(a)(2). Yet, the
§
notion that authori
felony
intent
to commit either a
or theft.
*5
ty
a
prosecutor
state
to select
those
error,
string of
num-
The next
persons
prosecute
whom he wishes to
for a
six,
through
along
bers two
with the last
capital
by guide
offense
must
fettered
one,
forty six,
number
relate
the state of
lines was dispelled generally by
Opinion
sundry respects.
the evidence in
To treat
Stewart,
Stevens,
Powell
and
JJ.
testimony,
these issues
must
review the
Gregg Georgia,
153, 199,
50,
n.
U.S.
but since the
are
basic facts
not controvert-
(1975);
by
ed their record-referenced
recitation
appellant
standard
claims to have
State is the source of much of what is about
very
White, J.,
shown is the
by
one assumed
to be related.
concurring in judgment, with whom The
J.,
Chief Justice and Rehnquist,
joined, in
Benavidez,
ex-husband,
Vicki
her
Roland
finding it
system
“does not cause the
to be
and her
two
children arrived at
small
standardless,” id.,
The alleged burglary indictment in this this Dallas case was made to the kind of murder that is denounced Department. Police escape penal- supplied throughout emphasis “Thus defendants will the death All prosecutorial through charging opinion decisions this indi- writer of cated. unless otherwise only sufficiently because the offense is not seri- ous; proof or because the is insufficient.” wearing was agreed spend Roland Benavidez and then went out into the night possibility yard police. because front await burglar, who now key the resi- broadcast, police transmitting might dence return. Vicki and Roland Betty report, given by account Faircloth’s retired midnight. sometime after as initially characterized the incident Meanwhile, nearby, two-story in her shooting. partner, Officer Hull and his on house, Betty asleep Faircloth fell on in bed call, patrol when went they heard this evening of December with the residence; they the Faircloth were admit- husband, Larry bedroom on. television Her Faircloth, by Betty gave ted them a Faircloth, up woke her told clothing description appellant and the house; someone had into broken wearing. They Larry was observed Fair- Johnny Tonight Carson was at the Show upstairs cloth the bed in an bedroom beside time. got She out of bed saw that the large pool breathing in a He of blood. stairway light It was on. had not been heavily. Two ambulances arrived and took point appellant earlier. At came into Larry Betty Faircloth to Parkland Hos- struggle appel- the bedroom and a between pital where he died. lant, Larry Betty Appellant ensued. autopsy indicated nineteen stab Betty stabbed the abdomen with knife. wounds and that had bled to death. Betty went to the phone police call He also had defensive cuts his hands. stabbing fell Larry. Larry Officer Jarvis of the Dallas Police De- bed, face down on straddled partment Crime Section ar- Scene Search him and stabbed him a number of times He rived at the Faircloth residence. as- Appellant back. then came toward Bet- molding certained that which held the ty, who to protect turned her back to him glass in French doors in the rear of the telephone, and stabbed her in the twice Faircloth residence had been removed and back. Larry up, only stood to fall back to panes glass had also broken and that two floor; appellant ran from the room.4 photographs been removed. He took Betty completed police, her call to the unable molding, French door and but was though difficulty. not without The stab *6 prints. lift latent He also any readable penetrated lungs wounds had both her and in a of pool found a steak knife blood under having problems breathing. Betty she was bed. This edge the of Faircloth’s then went downstairs to await the arrival into knife was admitted evidence. police of the and let them in. was She alone, Meek, patrol on heard over Officer get upstairs. unable to back report police the radio of the incident at the house, Back at Vicki’s Roland Benavidez and also of the the Faircloth residence a key heard turn in the back door lock. residence; he prowler at the Benavidez an- was opened door could not be because it description He got swered the latter. a also him- bolted. Roland arose and armed saw a prowler the from Benavidez. Meek key with He a self a knife. then heard going away from the Benavi- trail of blood lock; being turned in the the front door joined by was Officer dez residence. Meek door was secured with a chain. Roland Barber; descrip- while the Barber radioed door, went to the the front unfastened prowler Meek followed the trail tion the jerked open. Appellant chain and the door apart- to trail led of blood. blood there, he bleeding badly; was his hands ment which was later determined be said that he had hurt and like to appellant’s residence. telephone. use the shut the door Roland from police. police He the a a call for assistance gave and called the Meek radioed appellant’s description clothing patrol he car and returned appellant and the emphasizes Along way appellant gained money, and the where which from appel- entry many port- while not disturbed were items of State concedes were the bedroom personal property, including house. a and lant was inside the able wallet coat; apartment joined by where he was Officer was shown scientific Barber. Meek aware Hull was that Officer molding evidence match the off broken had made a broadcast from the Faircloth of the Faircloth residence.
residence changing shooting call to a Sgt. was patrol Williams on the down- cutting stabbing and call giving and regarding town he area when heard call scription suspect of the as a black male prowler request and Officer Meek’s approximately tall wearing navy 5'8" blue appellant’s apartment. He assistance at toboggan cap or black and a blue denim latter and answered the call went pants descrip- coat and which matched the apartment. Williams was able to follow given tion that had Benavidez Meek. Meek way apart- trail of blood all the from the door, knocked called out was ment to the Faircloth residence. police open officer the door. A Samples of the were collected blood minute, responded, woman’s voice “Wait residence, appellant’s out- both inside and wait a minute.” Meek was not wheth- sure side, trail, at the blood blood Benavidez er was talking she to him or to someone residence, blood at the Faircloth resi- inside, but frightened. she sounded When door, dence. opened she officers rushed inquired as to whereabouts Williams, serologist, Sara a forensic testi- man. The pointed woman to the bathroom. samples fied that had she examined known
Appellant was found in there was tak- appellant’s blood and of the blood of the en into He custody. was nude and was Through application deceased. of the ABO washing clothes in the full of water bathtub ap- and MN systems, she determined that and blood. Officer bloody Barber observed proximately percent population .018 bloody clothes and shoes on the bathroom had appellant’s type, blood of rags floor and and clothes in the tub of percent population .00354 bloody water. After was hand- type Among blood of the of the deceased. cuffed Officer Barber undertook deter- other things, Williams found that the blood mine whether anyone apart- else was in compatible knife steak might attempt ment who harm offi- blood of the deceased as the blood cers. Officer Barber bloody observed a the butcher knife. shirt in a jacket bedroom and an army field Since the case must be reversed for the in the kitchen bloody and a knife butcher error, Witherspoon though evidentiary the kitchen sink. He also saw a denim coat by appellant contentions made will ad- on a living table in the room. dressed, chary we shall be our comments Officer Barber seized the various items they unduly lest influence new trial. which he had plain observed in during view In his second his tour of apartment and certain of *7 of contends the evidence raises the issue them were appel- received evidence over whether there is an demonstrated intention- objection.5 lant’s The items included a killing during strug- al act of or shirt, murder a a bloody coat, a blue denim a dark navy gle course, for opts, after a breakin. He of toboggan blue cap, pants, blue a butcher then, concludes, knife, socks, the latter that evi- pair T-shirt, a the pair of a a of trousers, support judg- blue dence is not sufficient to a and blood stained shoes. His pocket jacket of the denim ment of conviction for murder. were found jewelry key ground similarly Vicki’s and the to third the affirma- house asserts A piece molding house. of wooden special was also tive to one is infirm. answer issue Hay- grounds thirty thirty setting 5. In the factual of error four and five smacks Warden v. den, 294, 1642, tangi- contests the admission 782 387 U.S. 18 L.Ed.2d such enter, (1967) lacking, however, photographs ble evidence and several taken of its consent to — apartment, respectively. the interior of the As did not in the element that trouble grounds with other that does not situation confronted in Nich- somewhat similar decision, pretermit State, (Tex.Cr.App.1973). now advance for our we ols v. S.W.2d 501 107 issue, merely noting consideration of the that 584 State, (Tex.Cr. charge. The matter academic
Warren 562 474 has become S.W.2d App.1978) single authority is the cited and may of a for in the event new trial it not be discussed. But is wide the mark of Warren again presented. We overrule the fourth error, respect ground ap- ground of error. pellant use it Warren concluded error five states that the con- Ground of support evidence was insufficient an af- felony merger viction “is barred special firmative answer to issue two —“fu- and, again pointing to the “either- doctrine” dangerousness.” ture charge respect or” feature of hand, On the other resort other appellant may the intent with which have sufficiency of evidentiary determinations entry, lays premise his made down issue one is instructive for we theory “the derived from advanced “deliberately,” know now that as used in argument” the effect State question charge punishment, burglary was based his intent to commit is the linguistic equivalent not of “inten argument murder. From that flows an tionally,” guilt-in used in charge use” of the State thus made “double nocence, State, Heckert v. 612 549 S.W.2d be pre- offense which should of murder rather, (Tex.Cr.App.1981); thought is the “by into merger of intent one cluded process more which embraces than will to may may not aban- offense.” The State engage conduct activates inten do perceived theory, we not don the but Thus, say may tional conduct.6 we that the sufficiency real regard the matter as a repeated stabbing by appellant of Faircloth problem evidence that would bar another enough while him is like the astride conduct is, ground The of error trial at all. fifth that caused the death of the deceased accordingly, overruled. State, (Tex.Cr. Duffy 567 209 S.W.2d App.1978) deliberately to find it was done ground of error turns the The sixth and, perforce, intentionally. Granviel v. over, lack of evidence to coin and asserts State, (Tex.Cr.App.1976) 552 123 entry with to commit theft. show intent denied, rt. 97 ce evidence, enough insists there State L.Ed.2d invoking flows from presumption of error are overruled. entering breaking a build “the act Adverting charge to that feature nighttime,” ing at which the Court seemed noted abstractly entry ante included an grafted code in penal to have into the new steal, to murder or and because in its State, (Tex.Cr. g., e. Clark v. 543 S.W.2d charge abstractly the court also defined dropping the ele App.1976), and often murder and then instructed the “breaking” just as code dis ment of — felony, ground murder is in his in, State, g., e. Jones v. carded it7 — appellant perceives possibili- number four 115, 117, (Tex.Cr.App.1979) S.W. the jury may have believed he en- (Tex.Cr. 574 S.W.2d Moss tered commit murder rather than theft present purposes pre App.1978). For asserts the evidence not sufficient in connection with sumption that obtained finding. support any such Be that as it residence entry into the Faircloth present may, the of error does not midnight show the intent pure issue, around does evidentiary intertwined as it is attempt commit theft. possible with one construction of commit *8 will, person poses, engages a deliberation 6. in besides actual The certain conduct [Emphasis persistence." deliberately upon in has consideration said to and original] continued himself, “Let’s do it.” Still conduct committed “premeditated.” “deliberately” As need not be following Commentary V.T.C.A. 7. See Practice (Fourth Dictionary explained in Black’s Law Code, requirement “The 30.02: § Penal 1968) Rev.Ed. at 1343: force, threats, breaking or fraud ... or of ... essentially “Premeditation differs from will is also discarded.” crime; sup- which constitutes the because it
585 ground grounds over Jumping forty being to of error of error without mer- it, appellant’s rehearing for is six, motion should, finally says we we nied. complaint find his the evidence is in to support
sufficient
the affirmative answer
McCORMICK, Judge, dissenting.
to
issue
a probabili
two that there is
judgment
in
Since the
this case does not
would commit criminal
require
finding
guilt,
a reversal of
acts of violence that would constitute a
Roberts,
Judge
myself
Judge Dally and
continuing
problem
threat
society.
judgment
reflect a
reform the
reviewing
we have with
ground
this
of er
See,
punishment
imprisonment.
gen-
of life
ror
proceeds
is that
assumption
on the
State,
erally, Pierson v.
614
102
S.W.2d
going
punish
the State’s evidence
(1980) (On
Rehearing,
Motion for
overruled
ment has been excluded from consideration
29, 1981,
opinion
April
without written
on
by
sustaining
prior grounds
our
ten
attack McCormick,
dissent,
J.,
joined
Dally,
by
J.
ing
Yet,
admissibility.
its
ruling out all or
joined
Roberts, J.);
part by
Evans v.
in
some of that
evidence on the
ad State,
(1980) (On
State,
(Tex.Cr.App.1980).
The last is overruled. alia, State, by pointing language regarding opinion Inter in reliance on Porter v. su- of an pra, appellant complains erroneously expert ad- v. William March educational Coffee prison testimony (Tex.Civ. mitted were University, certain records Rice 408 S.W.2d gleaned adversely from them e.) that reflected App. noting refd n. r. — Houston the Court particular his conduct and revealed scores on a recognized “rule” in Burrow multiphasic 895, 898, examination earlier made while he State, (Tex.Cr.App. v. 1972). 481 S.W.2d n. 1 was confined. Yet, just the text above opinion quotes approvingly from another upon Spread the record in front “unwilling which a court was testimony to hold Grigson fact was the that Dr. to visit witness, went opinion expert of an whose conducting but was hindered in his actually largely based on known to him facts appel now familiar examination refusal true, proved automatically to be rendered cooperate by right exercising lant merely because valueless inadmissible during just remain silent authoritatively such now investigation interview — some of his he heard course Supreme recognized hearsay which one make a casual statement Smith, Court of United States in Estelie v. part perhaps slight in the formation had some -U.S.-, at-, at Grigson opinion.” do well All concerned would of his thwarted, Thus light carefully in to reexamine this matter sources, secondary resorted much as he did State, Smith, Holloway supra, and Estelle v. supra. Holloway supra. sup in ports The State gathering of such data and information