*1 Cr.App., (delivered April S.W.2d 246
27, 1977), disposi I dissent to majority’s appellant’s grounds relating
tion of of error trial court’s mandate violation of the Witherspoon Illinois, 391 U.S. (1968), 20 L.Ed.2d and in
S.Ct.
particular, complaint of the er juror exclusion Till prospective
roneous
man.
PHILLIPS, J., joins in this dissent. FREEMAN, Appellant,
Leonard Wilson Texas, Appellee.
The STATE of
No. 51505.
Court of Criminal Appeals Texas.
May 1977.
Rehearing Denied June *4 Strauss, Pleasanton, car and get Vega coupe. B. R. Thomas Elida Garza Olin Franklin, Jourdanton, cars then left. Both Another witness later appellant. the highway observed the cars turn off onto Brite, Atty., C. Taylor Dist. Robert J. an empty a dirt road which led to farm Jourdanton, Koehl, D. County Atty., Jim house in a secluded County area. Atascosa Vollers, Atty., David McAn- State’s S. Shortly officers were notified. thereafter Austin, gus, Atty., Asst. State’s bodies Luis and Elida Garza were State. found in the farm house. Elida Garza was dead from a bullet wound in the of her back OPINION head. Handcuffs were one attached to GREEN, Commissioner. her wrists. Officer Luis Garza three had head, wounds in his but was still alive. He appeals Leonard Wilson Freeman hospital Antonio, was taken to San capital conviction for murder in which the a few where died hours later. The evi- punishment was assessed death. dence establishes that the death of both charged: indictment in case the Garzas was caused bullets fired from day or about the 19th . . pistol a .38 caliber which had in July, 1973, presentment and before the Vega coupe when stopped by deputy indictment, County of this Atas- sheriff. Both the Dodge and Vega were Texas, cosa and State of LEONARD found a barn behind at the scene (hereinafter WILSON FREEMAN called shooting, fingerprints with of appellant be- Defendant) did then there unlawful- ing found on the door Dodge. handle of the ly, wilfully, and with malice afore- *5 The pistol, shotgun, officer’s and a 30-30 thought, GARZA, voluntarily kill LUIS a rifle, caliber known to have been carried in officer, to-wit, peace Deputy a Sheriff of car, his missing. evidence, includ- County, (who Atascosa of State Texas ing the appellant, written confession of es- acting was then there and in the lawful appellant tablishes that fired the shots discharge duty of an official and the who causing the of death Luis Garza and his officer) defendant knew peace by was a wife. shooting him with gun.” a Garzas, shooting After the evidence The record reflects the evi- following appellant reflects that cut across a field to concerning dence this offense: the farm house of Melvin Jones. He bur- 19, 1973, July On appellant driving was glarized the (nobody house was at home at from San Antonio toward Cotulla in a 1973 time) stole gauge shotgun, and a .410 Vega coupe, joining with the intention of a .303 rifle and some changed shells. He confederates in a robbery at a bank there, leaving clothes Officer Garza’s hat. Charlotte, stopped Cotulla. He in Atas- starter, By “hot-wiring” the he stole a 1969 County, purchased cosa where he im- some Ford Ranchero and drove into Charlotte plements to used robbery. in the In he bought where some gasoline. He next leaving got road, Charlotte he the wrong on stopped at the Otto Mann home several becoming and after aware of his mistake where, miles form using Charlotte Officer the highway turned back on toward Char- pistol, he Garza’s forced his way into the intending proceed lotte to He Cotulla. house, up present, tied those stated he had stopped was speeding by near Charlotte for just killed deputy a sheriff and had “they” Garza, Deputy Sheriff Luis who was driv- better do he says, what took a billfold from fully ing County patrol a marked Atascosa Mann, dropped James a piece paper car, Garza, Dodge. a 1973 Elida wife bank, which was a sketch of Cotulla left Garza, Dodge. Luis was also in the Wit- the Ford Ranchero and stole a 1972 Mercu- ticket, writing observed Luis Garza a car, nesses ry and highway left to Pearsall. pistol saw a appellant point- and next with He was subsequently arrested while in the Next, ed toward Garzas. witnesses saw Mercury County in Medina by Texas De- appellant get partment Luis Garza and the officer’s Safety of Public officers. warning peremptory challenges his exhausted all of his Miranda-type1 full A arresting rights give by him one was challenges and his cause were overruled. mag- he was taken before a officers. Later panel Each of the members named Devine, explained who to him istrate in on voir dire that he or had above stated she 15.17, rights provided Article V.A.C. as occurred, heard the offense at the time it again fully and at He advised C.P. or by reading newspapers either it statutory rights length of his Miranda and by hearing viewing over radio and televi Taylor J. Brite. by Attorney District broadcasts, two all sion or of such acknowledging orally and Thereupon, after Some, read, means. because of what rights of writing that he understood his discussed, originally opin heard or formed silence, and he made and executed a counsel guilt prejudice ions of unfavorable to lengthy written confession of the offenses However, to, appellant. when examined as including the hereinabove referred any present prejudice opinion, and his wife each shooting of Officer Luis Garza persons complained definitely of stated Elida Garza. present prejudice that he or she had no along with days A few later against appellant opinion or an which would escaped from the Medina prisoners other verdict, if influence a selected on County being jail, where he was confined disregard any opinion feel jury would Antonio, In ex- safe-keeping. San earlier, ing and would formed decide Eldo- hibiting gun, attempted to force entirely upon case the evidence heard in highway, Dibbel to take him out on a rado existing Any present prejudice courtroom. telling already depu- had killed Dibbel he against minds of the and his wife and didn’t want have ty charged, crime not commission of the However, struggle in a Dibbel kill him. against juror A is not personally appellant. gun and took the overcame disqualified prejudiced merely because he is and has Appellant him. rearrested against the commission of crime. Cham since that time. been confined State, Tex.Cr.App., berlain v. no Appellant testify, and offered did State, Tex.Cr.App., Wilson arguing jury, defense evidence. S.W.2d 542. *6 murder, argu- of guilt counsel admitted not be convicted of ing only V.A.C.C.P., that he should 35.16(a)(8), provides: Art. penal- assessed the death capital murder or “(a) challenge objection to for cause is an ty- particular juror, alleging made to a incap- some fact which him renders punishment stage, the evidence At the jury. able or unfit to serve on the for prior a convictions number reflected may cause made challenge A for be felony offenses. the or the defendant either state grounds appel- error 7-15 inclusive In following the rea- one of failing to the court erred in lant contends sons: to certain named challenges defense sustain cused after his ple Ruple prospective overruled. Mangum, voir dire Appellant’s a bias or Some of these were Oakley. appellant’s prejudice against Burke, Cruz, Valdez, Hooge, challenges for cause had been Others, to-wit, jurors “after complaints are addressed Oakley, panel members served as trial peremptory challenges Mangum, Hooge, Ogden, the had admitted appellant.” Cooper, Ru- ex- entertained that uses the ant one The above statute [*] “(8) That ant.” in favor subject present who had at a time a [*] prejudice to of or tense, he a [*] challenge has a bias against against as of the time does not [*] prior for cause. or the [*] prejudice defend defend- to provide [*] It juror being is examined. None prospective had to their selection prior since Arizona, 436, 1602, U.S. 86 16 L.Ed.2d 1. Miranda 384 S.Ct. 694. 745, And Haiti v. persons by appellant testified named Court, applicable he bias or statement that or she “has a prejudice against contentions, appellant’s of or defendant.” In said:
favor
answers
each of the above
view of the
apparent
that,
“It
is
when questions
jurors on
dire that
prospective
named
voir
which
propounded Murphy
had been
prejudice against
or she
he
did
have
court,
explained by
without ob-
App.,
appellant, and that he
court’s discretion is shown in
strictly
as follows
he had formed an
lant’s
had heard and read
“[11]
that he
lows:
influence his verdict.
equivocated some as to whether it would
tion by defense
definitely
about the
enced
‘Q
“ ‘Q gather
when taken as a
“ that he was
‘“A Yes.’
the
“The
“
S.W.2d 578.”
‘A I think I
jury.
Juror
testimony
You know
you
that and
I
exposure
impartial
not what
even
on the
with
by anything
guilt
would
challenges
from Adami
hear
upon
Scott v.
case,
though you
an
Woodal,
disqualified
or
evidence,
open
here
not,
693, at
can,
try
examination
you
then
counsel,
verdict,
innocence,
of Woodal on voir
*7
whole,
State,
opinion
he
mind and
heard previously?
I know I can.
as a
on voir
can?
or
that you
you
However, he
had
render
concerning appel-
p.
have had
answer
cause.
no abuse
she
answered as fol-
Tex.Cr.App., 490
from
based
does
juror,
700:
courtroom,
can overcome
from what he
heard
would
dire,
try
not
serving
overruling
to a ques-
We
the court
feel
fair and
previous
at
Tex.Cr.
or
reflect
stated
stated
quote
influ-
enter
what
read
dire,
first
case
on
preme Court said:
S.Ct.
jection, Murphy was shown to
error.”
lenge
raise
qualified
dispositive
involved.
panel
“[4-6]
fairness requires that a defendant have ‘a
“At the same
opinion
be
751].
remains
strate ‘the actual existence of such an
Irvin
possible standard.
more,
partiality would be to establish an im-
any preconceived
sumption
Id.,
or innocence of an
“ ‘To hold that
totally ignorant
Murphy
*
81 S.Ct.
the presumption
opinion
at
juror
of impartial, “indifferent”
Qualified jurors
for cause as to him
The constitutional
in the
open
is sufficient
Dowd,
and the
Likewise,
Ruple
you
“Let
ask this:
there
of
voir dire of
and of
you
feel
do not
these
either
who
like
understand
to show that
would
Mangum fails
so, please
If
hold
may
up your
instructions?
juror by anything they
influenced as a
you
hands. Are there
of
who feel
concerning appellant’s
heard
read
have
you
like
follow these instructions
record,
cannot
appellant’s
as contended
criminal
_ _?”
-
just given
I
that
have
grounds.
Murphy
17th and 18th
See
Florida,
supra.
supra; Adami
Thereafter,
appellant were
the State and
Adami,
Also,
all
these
practically
as
given the
opportunity, which
exercised
past
had heard about his
panel members
parties, to
each
of
by both
examine
member
the evidence at
record
shown
individually
apart
panel
voir dire
trial.
panel.
the entire
7-15 inclusive and 17-18
of error
Grounds
presented.
Error is not
overruled.
are
error,
his
of
ground
first
com
ground, appellant
In his 16th
overruling
court’s
mo-
complains
his
pro
the court to
refusal of
plains
change
for a
venue. Said motion
tion
following
jury panel the
to the entire
pound
(1)
great
alleged
prejudice
that so
existed
questions:
two
County
him
against
in Atascosa
anyone’s mind
established in
“(1) Is there
impartial
could not obtain a fair and
guilt
as
or inno-
a conclusion
(2)
county
complained
also
of the
accused, Leonard Wil-
cence
television,
magazine
“newspaper,
radio
son Freeman?
circulated, publish-
publicity which has been
so established
“(2)
such conclusion
Would
ed and broadcasted.”
your verdict?”
influence
hearing
A
was conducted
con-
authority
as
relies
Appellant
reply on Feb-
motion and the State’s sworn
V.A.C.C.P.,
35.17,
(2),
28, 1974,
on Art.
Sec.
tention
a little
seven months
ruary
over
prior
reads:
which
and seven weeks
after
offense
population
case,
trial.
It was shown that
the court
felony
capital
“2.
In a
according to the 1970
County
Atascosa
panel
the entire
propound
shall
18,696 with
small
increase
concern-
census
jurors questions
prospective
given
The number
households
applicable
as
since.
ing
principles,
5,300.
registered
total number of
trial,
reasonable
the case on
*8
9,580.
hearing
at the
of the
return of
voters
date
doubt,
proof,
of
burden
Pleasanton,
presump-
principal
The
towns included
grand jury,
indictment
Jourdanton,
5,300;
county
the
innocence,
opinion.
population
and
tion of
Pleasanton;
seat,
Poteet, about
the
less than
Then,
demand of
State
1,300;
3,000
Charlotte,
population;
ex-
about
defendant,
entitled to
either is
population not
Atascosa
Lytle,
given.
indi-
juror on voir dire
each
amine
County
adjacent
lies south of and
Bexar
apart from the entire
and
vidually
County
range
with
of
five
county
and within the
of the three
each
the
banks in the
television
and all radio stations
stations
acting
collecting agents.
as
Benefit dances
broadcasting from San Antonio. The San
Poteet,
sponsored
fund were
in
the
Express,
Evening
Antonio
Antonio
San
Pleasanton and Charlotte.
News, and
Light
San Antonio
have reason-
rebuttal,
the
used
State
a number of
ably large
in
county
distribution in the
rela-
parts
county
witnesses from various
of the
tion
total population.
to its
expressed
opinion
appellant
who
the
that
Appellant
representa-
called as witnesses
impartial
could obtain a fair and
trial
in
tives of the television and radio
in
stations
County.
Atascosa
Milton
an
Hurley,
opera-
San Antonio and of the above named news-
tor
parts
of an auto
in
store
Pleasanton for
Pleas-
also
of the
papers,
representatives
and
years,
testified that while
people
the
Express
anton
County
and Atascosa
News. were
the
killing
horrified at
time of the
Copies
pictures appearing
of articles and
in
very
had heard
little of
case
past
the
in the
mostly
papers
immediately
those
short-
Harris,
six
George
months.
a merchant
ly
stating
after the date of the offense
the Lytle
years,
had not heard
killing
the
mentioned, ap-
facts of the offenses above
right
happened.”
discussed “since
after it
confession,
pellant’s
escape
and subse- He thought appellant could receive a fair
quent re-capture,
record,
his past criminal
county.
trial
the
Other witnesses who
presentment
the
indictment,
of the
and the
against
testified that the talk
appellant had
various
court pre-trial
hearings, were
died down
shortly
since
after the commis-
evidence,
placed in
as
as copies
well
of the
sion
the
Byron
of
offense
Cough,
included
a
papers up
local
of
date
the trial with
Poteet;
Pursch,
merchant from
Walter
an
Likewise,
stories regarding
copies
the case.
automobile dealer
in Pleasanton for 47
of
pictorial
television broadcasts with
views
years;
Mertz,
Rodney
a merchant
from
of scenes connected with the murders and
Pleasanton;
Bishop,
person
Paul
a retired
descriptions of the
funerals
the Garzas
Pleasanton;
Little,
Franklin
munici-
and radio
broadcasts are included
Pleasanton;
pal
judge
Powell,
court
Burt
record. The evidence indicated that most
police
special
chief of Pleasanton and
rang-
of the news
coverage
media
occurred
Association;
er for the Cattle Raisers’
Mur-
immediately following
weeks
the commis-
Potts,
ry
year
a 40
resident of Atascosa
sion of the offense and
publicity
County.
witnesses,
Each
these
and also
was not
to any great
renewed
extent until
Koehl, county
Robert
attorney,
Tay-
and J.
shortly prior to the trial.
Brite,
lor
attorney,
district
expressed the
The witnesses who testified that in their
opinion that appellant could receive a fair
opinion appellant could
not obtain
fair
impartial
trial
County.
Atascosa
impartial
County
trial in
in-
Atascosa
Fact
appellant
issues as whether
would
county
except
cluded the entire
bar
likely
or would not be
to obtain a fair and
county attorneys.
district and
Most of
impartial
trial before an
County
Atascosa
lawyers agreed
against
these
talk
jury were
raised
the evidence at
appellant,
greater
immediately
much
pre-trial hearing. These issues were decid
time;
present
the offense than
after
at the
adversely
appellant
ed
the contentions
however, they
opinion
were each of
court,
facts,
when
trial
trier
notoriety given
because of the
the case and
change
overruled the motion for a
of venue.
publicity given
approaching
trial it
Tex.Cr.App.,
See Ransonnette
an unprejudiced
would be difficult
obtain
509; Chappell
witnesses,
county.
Other
includ-
However,
court ordered additional an court and additional summoned, after the presented again was tory challenge thereafter each chal- when completion dire the second overruled, of the voir of lenge for but such cause panel, again and after the twelfth trial requests were denied. sworn. Each
juror had been selected and
However,
that, although
we find
change
a
of venue was
time the motion for
large majority
jurors
prospective
had
overruled.
case,
heard and read of the
all of
twelve
Shep-
by
Supreme
As stated
Court
who
jury
served
the trial
testified that
Maxwell,
333,
1507,
pard v.
384 U.S.
86 S.Ct.
try
she
and
the case
or
could
would
Mason,
600,
v.
quoted
Pamplin
16 L.Ed.2d
strictly on the evidence introduced and
(5th Cir.)
this Court in
by
to determine supra; Taylor Chappell from outside “impartial an free Tex.Cr.App., 420 Clifford v. State, supra; Adami v. influences.” See Mason, Pamplin supra. State, supra, quoted we In Adami voir dire A review of the record of State, supra, Morris v. as follows: “ prospective of reflects that examination Dowd, ‘In Irvin v. U.S. S.Ct. ordered summoned jurors drawn and Clark, speak- 6 L.Ed.2d Justice jury before the actually were examined Court, it is not ing for wrote of examined completed. At those least ignorant of required jurors totally be 7 were case. had heard or read day in this the facts and issues involved not read or they could excused because widespread and diverse methods write, of conscientious scru- and 9 because He noted that an communication. also inflicting penalty. the death ples against expected case can be important criminal they had Many those examined stated public to arouse interest opinion formed an previously vicinity scarcely any of those best read, or had heard they what guilt from jurors will as not have qualified serve could and stated many of those opinion as to impression or formed some disregard opinions and decide such would case. merits of the strictly if selected on the evidence the case however, 55 juror; as and sworn “ opinion of fixed for cause because excused operate cannot and do ‘Our courts verdict, or bias influence their which would with people a vacuum. Courts deal acquaintance with the or close prejudice To newsworthy. are and crimes which deceased. never who had require a trial would publicized crime highly heard of used record reflects impractical impossible. if not Certain- challenges plus three peremptory his fifteen
297
ly,
jurors
it was never intended that
were
Little testified on voir dire when
by the
did
examined
State that he could not
to be selected from those who
not
any
impose
under
circumstances
the death
or
current
newspapers
keep up
read
with
“regardless
penalty
bad the
how
facts
through other
se-
events
media.
Jurors
or
must
how heinous
facts might
be
be
group,
lected from such a
if there are
or
might
any
whatever
facts
be” in
case
enough
called a
not be
group,
to be
would
in which he was
eyewitness
not an
To
representative.
hold otherwise would
crime. He testified:
perpetrator
very
be to hold that the
of a
“Q
you yourself impose
Could
the death
highly publicized crime such as the assas-
penalty
you
where
did not see it
president,
or
governor
any
sination of a
happen on
being,
another human
or
person
widely known
could never be
consider
imposition?
even
its
tried.’
No, sir, I
“A
couldn’t.”
“See,
State,
v.
supra,
also Garcia
[Tex.Cr.
In view of the definite statement of the
State,
82];
App., 513
Creel v.
Tex.
S.W.2d
prospective juror,
reversible error
is not
814;
State,
v.
Cr.App.,
Taylor
493 S.W.2d
Witherspoon, supra;
shown. See
White v.
Tex.Cr.App.,
S.W.2d 601.”
State, Tex.Cr.App., 543
104.
We have examined the
contents
During
panel
the voir
dire
mem
the newspaper accounts and television and
Southern,
options
punishment
ber
radio
broadcasts
find them to be fair
capital
event of a conviction of
murder
designed
the purpose
informing
for
explained
were
to him
the following
public
of current events. The fact of
testimony
given:
“
publicity
by
in the news media
not
does
.
. .
you
.
Let me
legal
ask
this
prejudice
require
itself establish
or
question: That
mandatory
penalty of
State,
change
Knight
supra;
of venue.
v.
life,
or imprisonment
death
for
will this
82;
State, Tex.Cr.App.,
Garcia v.
513 S.W.2d
your
affect
deliberations
an issue of
State,
Creel
Tex.Cr.App.,
v.
493 S.W.2d
fact if
knew that the answer to the
State,
State,
supra;
Adami v.
Morris v.
would
issues
determine whether he got
supra;
Florida,
Murphy
supra (95 S.Ct.
life
death?
or
Dowd,
2031);
supra; Pamplin
Irvin v.
“Yea, it would.”
Mason, supra.
Reversible error is
presented
in the
sustaining
challenge
court’s
the State’s
for
We
that the
conclude
trial court did
Code,
V.T.C.A.
12.31(b);2
cause.
Penal
Sec.
overruling
not abuse
appel
its discretion
Moore
lant’s
a change
motion for
of venue and in
White v.
supra; Boulware v.
conducting
County.
in Atascosa
677,
.App.,
Tex.Cr
Shippy
Tex.Cr.App.,
ground
latitude
As
stated in
summary
heretofore
our
parties
the court
given by
in their
evidence, supra,
the record reflects that
question-
interrogation, and the extensive
the killing of deceased and his wife oc-
members,
panel
we
ing of the
find the
route
curred while
was en
to Co-
Burkett,
opinion
supra,
in our
comments
commit,
confederates,
tulla
with
a rob-
concerning
opinion
our
Grizzell
v. State
confession,
bery at a bank.
he stated
case.
applicable
quote
instant
We
days
killing
that a few
before
stole a
*12
from Burkett as follows:
Atlanta, Georgia,
car in
drove
and
it
to
“
. Although
State,
.
.
.
Grizzell v.
Rock,
Little
Arkansas. There he was met
164 Tex.Cr.R.
did not
his,
by
he,
an ex-convict friend of
and
to-
question
the
involve
denial of a
sought
gether
another,
with this friend and
con-
expressly for the
of a perempto-
exercise
spired
robbery
to commit this
in Cotulla.
challenge, we
test
ry
find the
stated there
The three
in
drove
the stolen car to Dallas
situation,
appropriate for this
to be
in
and
Antonio,
then to
plans
San
where
the
light of
latitude which should be ac-
the robbery,
including
securing
the
preparing
counsel in
himself
corded
to weapons,
completed.
were
Appellant went
exercise
client’s
intelligently
peremp-
his
to Cotulla
“check
to
out the bank” and went
State,
tory challenges.
In
v.
Grizzell
su-
back to
Antonio to report
San
to his confed-
pra,
rehearing,
on motion for
at
Cotulla,
erates.
then
They
left for
he in a
Morrison,
Judge
speaking for a unani-
car,
rented
one
and
of his friends in the car
court, gave guidance
mous
on the issue
stolen in Atlanta. Appellant stopped en
following
us in
before
the
manner:
route
buy
to
some articles
use in
to
connec-
setting
questions
out
“After
the
which
tion
robbery.
with the
It was while he was
ask,
sought
the defendant had
and
on his way to Cotulla
join
his fellow
setting
qualifi-
then
out the
court’s
trial
conspirators
in
robbery
he was
exception,
cation of the bills of
which
deceased,
arrested
in
resulting
the kill-
qualifications
questions
showed other
ing here involved.
asked,
which were
it was stated:
“
Atlanta,
The
theft of
car in
and the
we view
questions [sought],
‘As
conspiracy
rob
appellant
formed by
and
were no more
they
than
restatement
his co-conspirators, and the acts committed
the court’s qualification
of what
shows
by appellant with his
in
confederates
their
actually asked.
was
“
conspiracy,
closely
interwoven with
‘The
court must
allowed some
the instant offense and were
links
all
in the
limiting
discretion
examination
leading
chain of events
to the murder of
jurors or
prospective
some trials
deceased, and reflected the context
would never terminate. We remain
which
Query
the crime occurred. See
appellant
convinced that the
has failed
Tex.Cr.App., 485 S.W.2d
Tinsley
deprived
to show that he has been
Tex.Cr.App., 461 S.W.2d
Sus
by the
right
valuable
limitation
taita v.
Tex.Cr.App.,
at stake” and that the Appellant was not notified that a contends in ground cient that he peace for murder of a officer in that the court punishment reversibly erred refusing performance duty provide of his is death. As a him with sufficient funds for fact, matter of the officer had not died investigative expenses expert testimo given. the warnings when were first Dis- ny. Attorney trict Brite testified before The record reflects that at gave on the trial that when he first request pre-trial the court at a hearing Feb- warning yet Luis Garza had not died and he 1, 1974, ruary appointed Charles Stefano as of murder told was accused investigator, defense authorizing a fee of and assault to murder of a Elida Garza Thereafter, $250.00. March pre- during officer “and the time of tak- peace trial hearing the court authorized an addi- statement,
ing
why,
the written
we re-
tional
complete
$250.00 to
“the maximum
ceived word that Mr. Garza had died and he
amount allowable.” Appellant excepted to
told,
immediately
and before he ever
the refusal to allow more expense money as
statement,
signed
explain
but I did
follows:
charges
him the nature of
that would
”
STRAUSS;
Honor,
“MR.
Your
I would
against him at that time .
.
pending
just
clear,
like to
make
record
if I
Sanchez
already,
strongly object
haven’t
that we
*15
assessed,
penalty this
where the death
except
and
ruling
to the Court’s
on our
expressly held that
the failure to
Court
investigative
Motion for additional
ex-
that death could be a
the defendant
warn
penses. We feel that there
four in-
are
for his offense
punishment
did
possible
dictments
we
required
and
are
at least
the confession inadmissible. See
render
statutory
minimum
fee on each of
State,
473
Tex.Cr.App.,
v.
Babcock
also
these and that
notwithstanding the
this—
941;
State, Tex.Cr.App.,
v.
Elliott
S.W.2d
says,
fact of what the statute
I think of a
444 S.W.2d
capital
proportion
case of this
that the
right
constitutional
of counsel even su-
of error
overruled.
ground
28th
The
persedes
placed
the limitation
in the stat-
ute itself and without these additional
ground
appellant challenges
investigative expenses, this constitutional
State,
in Jurek v.
opinion
Court’s
this
counsel,
right of
effective assistance of
934, holding Texas statutes autho
S.W.2d
counsel cannot be met in order to receive
penalty in certain murder
rizing the death
guaranteed by
a fair trial as
the Four-
constitutionally valid. He con
to be
cases
teenth Amendment to the Constitution of
violative of the
statutes to be
tends such
States,
strongly object
the United
and we
of the United
14th Amendments
8th and
appellant’s
except
ruling
brief
and
to the Court’s
on this
Since
Constitution.
States
constitutionality
and filed the
Order.”
prepared
Cherry
v.
by
record fails to show harm in the
As stated
Court
refusal
p.
753:
expense money
S.W.2d
the court to authorize more
26.05,
than
by
allowed for one case Art.
Sec.
acknowledges
“The
appellant
1(d), V.A.C.C.P. See also Henriksen v.
investigatory
per
sum for
fees
maximum
State, Tex.Cr.App., 500
491;
Shel
by
provisions
mitted
law under the
S.W.2d
State, Tex.Cr.App.,
V.A.C.C.P.,3
285;
ton v.
26.05,
1(d),
Article
Sec.
S.W.2d
Chamberlain v.
provided
expended
in his behalf.
Tex.Cr.App.,
appellant
490;
The
then asserts that ‘The rec
Eggleston Tex.Cr.
adequately
ord in this case
shows the App.,
ground
vided for
witness
ground, appellant
In his 27th
com
investigation
(As recognized by the
costs
plains of the court’s refusal
to strike the
court),
and that
the denial of the
controverting
State’s
affidavit
to the mo
right
money
depri
to such
constitutes a
change
tion for a
of venue. The motion to
right
presen
vation of the
to an effective
strike was based on the fact
State’s
tation of all defensive issues available to
controverting
signed
affidavit was
the accused.’
brief makes
by
sworn to
the district attorney and the
the above conclusion and does not refer to
county attorney
prosecuted
who
this case.
any portions of this voluminous record
The hearing on the motion for a change
showing how
was harmed
controverting
of venue and the State’s
affi-
any part
and we have been unable to find
began February
davit
1974. Both
sides
showing
appel
record
harm to the
”
ready.
announced
lant.4
After 20 witnesses had
testified,
presented
filed and
Footnotes 3 and 4 Cherry
read:
his motion to strike the State’s controvert-
26.05,
1(d), V.A.C.C.P.,
“3. Article
Sec.
ing affidavit. The motion to strike was
has since been
provide:
amended to
overruled,
hearing
continued. Un-
expenses
‘For
purposes
incurred for
circumstances,
der the
the motion to strike
investigation
expert
testimo-
presented
was filed and
court
too
ny, a reasonable fee to be
set
error,
late to preserve
any,
if
and the al-
court but
in no event
to exceed
leged
controverting
defects
the State’s
$500;’
Puryear
affidavit were waived.
“4. Appellant’s only references are to
Lewis
Tex.Cr.App., 510
parts
those
of the record where the
Ward
Tex.Cr.App., requests for additional funds are re-
State,
“Q you let me ask this. Sheriff And defendant, Williams, has the Leon- counsel, On cross-examination defense Freeman ever made ard Wilson the sheriff testified: going to you threats to he was what “Q you Can envision any possibility of during the do in the court room him acquiring any doing means of of this trial? progress harm to someone? Yes, he has.
“A “A going try We are to see that he doesn’t, chance, but there’s always a he made “Q today, Prior to the trial has uncuffed, if he is that he possi- could you against other offi- threats to bly get an officer’s revolver and violence that he physical cers of may somebody there killed if he got take if he the chance? would does.” Yes, he “A has. No other evidence was offered either “Q you prior to to- Would relate now— party. ruling The court was as follows: the nature of day, would relate “THE you? COURT: On the basis of the pre- what the defendant related made, sentation the Court will overrule “A a number of occasions he has On the Motion. The Court finds that there is got to said that before that we ever ample basis upon or basis the testimony Huntsville, him die in that he see which Sheriff stands undenied that would take three or four of us with security of the Court and officers him. He has made this remark require placed that he as he is with the numerous occasions. during cuffs the remainder of the trial. I “Q And now him you bring did from this, however, will state that as far as morning? Antonio this San humanly possible, the will Court not —the Yes, sir, yes, “A we did. Court will ask that the defendant be “Q To Court House? Did he make brought in before the brought regarding remarks morn- —this and seated as he was this morning before ing, regarding during his conduct (cid:127) during the —and the remainder of the trial? be—I’m suggesting this is keep very “A He said that we better route, only but I believe there is a eye close on him that he because route through the Clerk’s office and into liked action and that before it was hallway going without through the over, there would be action in the crowd close to the stairway, in other Courtroom. words, possible as much as keep him “Q And— right. from —all morning “A This remark was made this “MR. FRANKLIN: We except to the rul- ing enroute to here. of the Court.” “Q You have talked to him numerous Thompson July times 19th until upheld a trial court’s per- Court order present date? mitting the trial of the defendant while Many security “A times. handcuffed for reasons. We said: *18 306 say cannot that he abused his discretion within discretion
“[6,
It is
7]
uniforms and hand
require
presented.”
to
under the circumstances
judge
trial
parte
Ex
Sla
See
for a defendant.
cuffs
Under the circumstances of the instant
(1972);
102
ton, Tex.Cr.App., 484 S.W.2d
case,
considering
and
also the nature of the
Beto,
F.2d 634
supra,
v.
Hernandez
[443
appellant’s prior escape
case and
from cus-
Cardwell, 487
Kennedy v.
(5th Cir.)] and
we
tody,
conclude that
the trial court did
it
1973). We hold that
(6th
F.2d 101
Cir.
entering
not abuse its discretion in
require that
within his discretion
is
trying appellant
above order and in
while
and be
in uniforms
be dressed
witnesses
Tex.Jur.2d, Trial,
64, p.
56
shackled.
Sec.
so warrant.
shackled,
circumstances
if the
400;
State, supra;
parte
v.
Ex
Thompson
whether the
appeal
test on
The
“[8]
State,
Slaton,
supra, supra;
p.
Romero v.
requir
in
its discretion
trial court abused
State,
450,
214; Mouton v.
155 Tex.Cr.R.
jail
in
uni
appear
ing the witnesses
also Walthall v.
is shown.
overruled. of the ad complains next
Appellant examining doc in evidence
mission per concerning autopsy testimony
tor’s objection was His Elida Garza.
formed relevancy on had “no testimony
that such