Loudres v. State
614 S.W.2d 407
Tex. Crim. App.
1980
Check Treatment

*1 407 LOUDRES, Appellant, v. Woodie Texas, Appellee.

Thе STATE No. 63676. Snodgrass, D. Coffey and Marvin Frank Worth, appellant. for Fort Texas, Appeals of Criminal En Banc. Kane, Atty., William Curry, Dist. Tim Roach, Asst. and Charles Jack Strickland 10, Sept. 1980. Worth, Huttash, Fort Robert Attys., Dist. 29, 1981. Rehearing April Denied Austin, for Atty., State. State’s Marshall, Atty., Fort Asst. Dist. C. Chris Worth, rehearing only. for the State OPINION DALLY, Judge. for appeal

This is an from conviction is death. punishment murder. pro- contends that certain improperly excused. spective decisions of agree: We the rationale Texas, Supreme Adams v. 448 Court in 2521, 38, 65 L.Ed.2d 581 100 S.Ct. U.S. Illinois, Witherspoon (1980) 391 U.S. 510, 1770, (1968), 20 L.Ed.2d S.Ct. requires the reversal this case. Illinois, Supreme Court stated:

United States of death “... hold a sentence we jury if the out cannot be carried was chosen imposed or recommended it simply excluding veniremen cause objections to general voiced because expressed conscien- penalty or the death its in- religious scruples against tious or fliction.” Accord, 522, 88 at 1776. U.S. at S.Ct. Holmаn, S.Ct. Boulden v. (1969); Maxwell v. 22 L.Ed.2d 433 262, 90 Bishop, U.S. Ohio, (1970); Lockett v. 57 L.Ed.2d 973

(1978); Ocker Grider v. Cr.App.1972); Martin, ‍‌​‌​‌​‌​‌​‌​​​‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌​‌‌‌​​‌​​‌​‌‌‍(Tex.Cr.App.1971); parte Ex (Tex.Cr.App.1972). *2 408 However, provides New recent case of Adams v. Penal Code of 1974 in the a Texas, supra,

statutory majority the imposition scheme for of of the United Court reversed Adams v. Supreme States penalty require death which includes the State, supra, rejected the contention juror ment that each take an oath that the 12.31(b), supra, provides that a Sec. basis mandatory penalty imprison or death excluding prospective juror indepen- a ment for life will not his affect delibera dent of Witherspoon considerations. The any tions on issue fact. V.T.C.A. Penal Court held that the United States Constitu- Code, 12.31(b). jurors’ Sec. answers to tion permit does not State to exclude a questions certain factual determine wheth juror 12.31(b), prospective supra, under Sec. capital er a guilty defendant found mur grounds which excеed the limitations set der will be to or impris sentenced death to Witherspoon: out in 37.071, onment for Art. life. V-A-C.C.P. could, consistently With- “The State repeatedly holding This Court has found the erspoon, 12.31(b) use to pro- Sec. exclude in remains alive and well in spective jurors on capital whose views State, v. Hovila light procedure. 532 punishment are such as to make them (Tex.Cr.App.1975); Livingston S.W.2d 293 to law obey unable follow the or their State, v. (Tex.Cr.App.1976), 542 655 S.W.2d But oaths. the use Sec. to 933, 2642, cert. denied 431 U.S. 97 53 S.Ct. grounds exclude on broader based State, Brock v. (1977); 556 opinions concerning on their death (Tex.Cr.App.1977), 309 cert. S.W.2d denied penalty impermissible.” 1002, 647, 434 U.S. 98 54 L.Ed.2d S.Ct. 498 48-49, 100 448 U.S. S.Ct. 2528. (1977). Although majority might a of this Court Court, construing This in however agree Rehnquist, well that Mr. Justice in statutory scheme enacted Leg the Texas dissenting his opinion, proper states the islature, prospective jur- determined a view permitted that Texas should be under require juror the Constitution might disqualified serving оr from to each to pun- swear he or will she answer capital 12.31(b) independent trial under Sec. questions ishment case without any from determination that his exclusion regard consequences, to their cumulative See, was consistent with Witherspoon. e. we implement must adhere to and the ma- State, g., Moore v. (Tex.Cr.App.1976), 542 664 S.W.2d jority opinion, which now the law. 949, 431 t. denied U.S. 98 cer 2666, (1977); Boulware S.Ct. 53 266 L.Ed.2d case, present In the State, v. (Tex.Cr.App.1976), 542 677 S.W.2d argues requir court the trial erred 959, 1610, cert. denied 430 U.S. 97 51 S.Ct. ing confine his voir dire to State, Burns v. (1977); 811 L.Ed.2d 556 jurors, prospective examination of certain (Tex.Cr.App.1977), 270 cert. denied cause, questions who were excused for to 935, 422, 434 98 S.Ct. 54 L.Ed.2d 294 relating only 12.31(b), U.S. supra, Sec. and not State, Witherspoon. Freeman v. (1977); 287 (Tex.Cr.App.1977), cert. denied 434 U.S. The State moved to exclude venirewoman 1284, 1088, (1978); 98 S.Ct. 55 794 L.Ed.2d 12.31(b), Betty Workman under Sec. Hughes State, (Tex.Cr.App.1978), 857 because she could not state that her deliber- 903, t. denied 439 U.S. 99 cer ations wоuld remain unaffected (1978); Hughes 268, v. mandatory penalty 250 S.Ct. L.Ed.2d imprison- death or (Tex.Cr.App.1978), counsel, life. in his ment for The defense 950, cert. denied 440 U.S. S.Ct. examination, asked: Bodde (1979); L.Ed.2d “Q. you telling you ... Are me that (Tex.Cr.App.1978), S.W.2d 344 cert. denied never, circumstances, would any under 59 L.Ed.2d 784 any which take affirmative action (1979); Adams S.W.2d 717 would result of the imposition (Tex.Cr.App.1979), case, rev’d 448 penalty regardless death (1980). 65 L.Ed.2d 581 facts? however, believe, that is “I do not “MR. STRICKLAND [PROSECU- with Article 12.31 compliance Honor, we would have Your TOR]: says you have to which Penal Code course, ‍‌​‌​‌​‌​‌​‌​​​‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌​‌‌‌​​‌​​‌​‌‌‍be- object question, start that the you state oath before scope of this cause it is outside your mandatory penalty will not affect inquiry voir Our should limited dire. *3 I any issue of fact. can on deliberations be limited to 12.31. and it’s not all you how feel understand objec- I’ll the “THE COURT: sustain that unusual. tion.” that the time I think “At the same to permitted counsel was not The defense oath is rather se- in that qualificаtion ve- question to this from elicit an answer yes an absolute requires vere one and his perfect in order to nirewoman Workman or, maybe or T would probably instead exceptions. Venirewoman Workman bill of try.’ 12.31(b), under was excused for cause Sec. telling you’re what “I do understand supra. me, going to the State’s so I’m sustain Similarly, exclude ve- the State moved to challenge 12.31.” under 12.31(b), nirewoman Beatrice Grant on Sec. reveals that the defense voir The record supra, inability to grounds because of her jurors Karl prospective dire examination defense at- required follow the oath. The Betty Kuykendall, and Frances Kroeger, objected her was not torney that exclusion Brownlee, These similarly limited. The Witherspoon. under defense required Lawing jurors and Arthur C. prospective attorney venirewoman Grant: asked solely ground on for cause the excused “Q. automatically ... an- you would 12.31(b), disqualified under Sec. they were posed special you swer issues ... to the be im- penalty may The not supra. death nega- by the Court’s instructions the juror prospective one has been posed if even regardless case of the facts? tive Da- Witherspoon. in violation excluded STRICKLAND “MR. [PROSECU- Georgia, vis Honor, object. we have to Your TOR]: (1976). again Snodgrass Mr. “Once [Defense judge trial argues The that the did State confusing Witherspoon with is counsel] not his discretion when he restricted abuse question, 12.31. That’s a prospec- voir examination of these dire dire, it, voir as I understand and the relating to the questions tive upon to 12.31based limited State’s 12.31(b),supra. challenge under Sec. State’s challenge on that basis. Quite understandably, and both State Strickland, the “THE COURT: Mr. apparently relying the trial court were interrogation limiting holding that a upon previous decisions 12.31; however, particular ques- that for cause prоperly be excused juror could en- could be considered tion ... supra, 12.31(b), independent of under Sec. 12.31,so I’ll compassed by overrule Witherspoon. g.E. requirements objection.” supra, Boulware Moore v. supra. ex judge, subsequently The trial cause, clear

cusing venirewoman Grant for However, jur- prospective these because doing only that he was so ly 12.31(b), indicated solely Sec. ors were excused 12.31(b),supra, grounds: Sec. of whether their exclu- supra, inquiry Witherspoon was fore- comported sion “THE .... COURT: Texas, closed, light of Adams we must in Grant, my impression both “Miss it’s judgment. Our decision reverse those questions and attorneys’ from the again preclude the State from does not your answers to you I’ve asked seeking penalty on retrial. the death try very hard you would them the cause evi- is reversed and any questions based on the answer alone. remanded. you hear and dence that PHILLIPS, Judge, conсurring. Although appellant was charged with in- tentionally Gregory’s causing death while in wholeheartedly I agree that this cause committing kidnapping, the course of of Adams v. Tex light must be reversed prosecuted appellant State on a theory as, 65 L. enveloped more than facts of of- I (1980). Ed.2d 581 write this concurring theory prosecution fense. was best opinion points. in order to make two opening set forth in the State’s statement First, emphaticаlly must disassociate jury: to the myself majority opinion’s implicit from the you’ve thought I don’t know if ever endorsement of Mr. Justice Rehnquist’s dis- about it but’ our community within we matter, Adams. sent As a factual worlds, separate have —we have two two penal routinely oper- of our code right worlds the same community. here in deny ates to right defendant his is composed One world is that *4 decent, to a fair impartial jury hardworking, law-abiding and the people. Sixth They jobs, work they have hard for what and Fourteenth Amendments. § they life, get they provide out of and does by eliminating jury this from the all they their families as best can. persons except qualms those who have no Gregory David from came that world. sending about to a defendant his death. As was man young David a in his middle result, capital juries a in Texas have been wife, Shirley, twenties. He and his had unacceptably prone to ver- administer death in They two children. lived a small house dicts. Adаms points properly out this con- in Riverside. rented They the house infirmity 12.31(b). of stitutional Neither mother, morning from —from her and the other any nor state court “should got up of December 14 of David and permitted” apply deny be to its law so toas just he went to the did way work he right a criminal defendant his to jury. a fair life, every day of and he me- his was a Second, I to wish note the of existence by chanic trade. worked He with ham- error appellant’s further reversiblе in trial. pliers mers and are and wrenches that The error the involves admission of numer- tools of He paint the trade. was a guilt/in- ous extraneous offenses at the body man. and He worked for a used car phase nocence the trial. town, lot out on the East Side East Lancaster, Danny Used Cars. Sides 14, 1976, On the afternoon December That’s one world. appellant, girlfriend Hughes his Marlene There’s another world. It’s also here in (then Smith), his and cousin Charlie Brоoks community. very our a It’s different traveling were in down East Lancaster Fort narcotics, stealing, world. It’s a world of Hughes’ when Worth car broke down. violence, a world who people take what nearby Brooks walked a lot and to used car give want they anything and don’t asked to test drive a Pontiac Prix Grand people return. It’s a who live world Gregory, was on lot. the David a people outside our laws. a world of It’s lot, mechanic at the cаr was accom- told to anything who don’t to our contribute pany Brooks on the drive. Brooks drove to community. This a world that few of Hughes’ appellant Hughes car where and have to This is us deal with. a few —a waiting. joined were Appellant Brooks and that few have to world of us to —have Gregory, and Brooks drove to Lin- the New see, but there’s here in place our com- a. coln Motel. was her Hughes left with dis- munity called the New Lincoln Motel and abled car. part New Lincoln Motel of that Gregory Brooks and took to appellant by place frequented world. It’s a that’s Room 17 of the New Lincoln Motel. Gun- prostitutes and a narcotics users. It’s shots heard motel sub- employees; place where rooms the —the rent sequently hour, Brooks and left mo- and patrons that the can do as Gregory’s body tel. Police later discovered please those no one asks rooms Room questions. 17.

4H State, wife, Alvarez v. 511 S.W.2d App.1977); was Shirley Gregory, deceased’s State, v. (Tex.Cr.App.1973); first wit- Jones to stand as the State’s called Young that her husband had (Tex.Cr.App.1972); ness. She testified S.W.2d a worker. good a father and hard State, (Tex.Cr.App.1953). been that her Gregory’s testimony showed Mrs. may be of extraneous offenses Evidence decent part had been a husband probative it is to be only if shown admitted opening to world referred in the State’s case, and issue in the then of a contested Hughes was called argument. Marlene regard probative to if its value only next, facts sur- and she testified about the outweighs prejudicial its issue contested rounding car on De- the breakdown her State, impact. 486 S.W.2d Albrecht 14,1976. addition, Hughes testi- cember (Tex.Cr.App.1972); Brown offenses that fied to numerous extraneous Cobb v. (Tex.Cr.App.1974); part of the “other showed (Tex.Cr.App.1973); opening world” referred State’s Hernandez v. statement. Cr.Apр.1972).1 According Hughes appel- both she and probative of offense is An extraneous addicts, and Brooks had lant were heroin helps only as it guilt insofar defendant’s presence. heroin in their At the time used On the disputed issue or issues. resolve supporting she herself the offense hand, an extraneous of evidence of other she appellant, with whom lived *5 inherently prejudicial, tends to con is fense Motel, engaging prosti- in by New Lincoln trial, at and forces de fuse the issues Appellant shoplifting. accompa- tution and against charges himself fendant to defend ventures, Hughes shoplifting her nied on Al has not been notified. which he participated in the offenses distract- and Cobb, brecht, supra; supra; Carrillo v. employees. Appellant also sold ing store State, (Tex.Cr.App.1979) 591 876 S.W.2d accompanied Brooks property. the stolen J., Accordingly, the (Phillips, concurring). Hughes shoplifting on their apрellant and admit an extraneous of trial court should Hughes seen ventures. had both only subjecting it to careful fense after firearms, possession Brooks in and in and concerning its relevance. scrutiny handgun. appellant’s case firearm was a urged the extraneous of- The State Hughes when her further testified that were admissible to show fenses this case car broke down on December of the criminal act. shop- and the context way engage three were on their motive engaged theory basically had sexual in- was that absent lifting. Hughes The State’s appellant’s lifestyle, with a used car dealer in order to criminal tercourse evidence day, on explain why obtain the use of the car and would be no evidence there arrangements past. had made similar Gregory. appellant kidnapped and killed they shoplifting to go Before left the motel relevant, is Although always it motivе 14, 1976, appellant and December Wigmore, 1 Evidence never essential. Hughes used heroin. (3d 1940). being element Not an 118 ed. § objected specifically to the ad- Appellant offense, proved it need not be a criminal offenses, the extraneous and mission all of an offense. to establish the commission his error. preserved thus State, (Tex.Cr. Rodriguez State, S.W.2d App.1972); Jones rules of of the fundamental It one evidence to war (Tex.Cr.App.1949). For рrose law that the accused is to criminal motive, it proof as must rant admission charged, committing ‍‌​‌​‌​‌​‌​‌​​​‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌​‌‌‌​​‌​​‌​‌‌‍the offense cuted for in favor raise inference fairly an committing some collateral not for part on the of a motive being generally. a E. existence or criminal crime offense for which State, (Tex.Cr. defendant to commit the g. Riles S.W.2d Albrecht, g. ally employed previously are to resolve. E. has enumerated the 1. This Court gener- supra. types of that extraneous offenses issues he is on Rodriguez, supra; trial. Barnes v. fense properly was admitted to show mo- 112 (Tex.Cr.App.1936); tive. This clearly evidence -lessened the Ann.P.C.2d, Branch’s p. 364. § need for other evidence of motive. Evidence that appellant carried gun a Nor were the extraneous offenses admis- addict, and was a shoplifter, heroin and a sible to show the context of the criminal “fence” for stolen property way in no act. Such evidence is admissible only when part showed a motive on his kidnap “. .. two or more offenses are so connected kill Gregory. State, In Powell v. 478 with each other constitute an (Tex.Cr.App.1972), S.W.2d 95 the defendant indivisible criminal transaction ...” charged with the theft of a lawn mow- Tex.Jur.2d, Evidence, 196, p. 303. As er. The State introduced evidence ap- Albrecht, stated the reasoning be- pellant heroin, used theory hind the rule is that: such evidence wоuld tend to show a motive ... do not events occur vacuum and for the theft. This Court reversed the con- .. . the jury right has a to hear what viction, stating: immediately prior occurred to and subse- ... The chain of inferences long is too quent to the commission of that act so and contains many gaps too to allow the they may realistically evaluate the introduction of evidence of needle marks evidence . .. alone possible to show motive for theft. Thus the extraneous offense must occur prejudicial effect of such evidence at a time near that of the main offense. outweighs probative far value it See Saunders v. might have. To admit such testimony Cr.App.1978); Jackson v. without showing some affirmative link 901 (Tex.Cr.App.1977); Calverley v.

between the theft and narcotics would (Tex.Cr.App.1974). 511 S.W.2d 60 Virtually show only that the accused is “a criminal all of the extraneous offenses committed generally.” prior occurred to December offense; *6 thе date of the some of them See also U. Mullings, (2d S. v. 364 F.2d 173 may substantially predated have the main 1966). Cir. offense. Hughes also testified appel appellant’s In case the chain of inferences lant used morning heroin on the of Decem necessary longer to show motive is ber 1976. The main offense was com Indeed, weaker than in Powell. it is un- m., p. p. mitted between 5 m. and 6 at least any logical clear how connection can be five or six apрellant hours after used the made between the extraneous offenses and heroin. appellant’s Evidence of use of her present offense, the commission of the un- necessary oin was not for a realistic evalua less the appellant, connection as a tion of the main offense. criminal, heroin addict and a career would Likewise, Hughes’ testimony appel- be more likely to commit murder lant was accomрanying Brooks and her on a than someone who was neither an addict shoplifting Hughes’ venture when car broke general nor a criminal. The rule previously helpful evaluating down was not expressly designed prohibit stated is context of the The sole offense. material admission of extraneous offenses on this down, Hughes’ fact was that car broke leav- basis. ing the necessitating three stranded and appeal State asserted that absent acquisition some transpor- other mode of the extraneous offenses by testified to tation. Hughes, there was no evidence of motive. testifying This is incorrect. It was shown at addition to to extraneous trial that by appellant, Hughes and Brooks stole the Grand offenses committed Prix. It is by reasonable to infer that testified to similar offenses committed herself, Brooks killed Gregory because he was a Brooks and and further testified witness to the theft. Evidence of this of- that she committed acts of prostitution. upon facts which charged finding with of- against admitting extraneous The rule made, Witherspoon com- applies principally to offenses the assessment fenses As this has by holding1 gives way mitted the defendant. Court to another doctrine noted, however, rule of the qualification rationale of veniremen testing the for applies the admission of an extraneous pains express took Witherspоon ... by committed another where is, offense subsequently as preclude. not to That implies guilt by as- the defendant’s offense Ohio, 438 developed in Lockett v. U.S. Davenport sociation. 2954, 2960, 586, 596, 57 L.Ed.2d 98 S.Ct. lived Appellant 165 (Tex.Cr.App.1972). (1978): Brooks. Hughes, and associated with veniremen in ‘Each of excluded of- many involved in Appellant was “unmistakenly clear” this case made it by Hughes fenses committed and Brooks. be trusted “abide could not ex- properly These offenses are viewed as “to existing law” and follow consci They traneous offenses. were inadmissible of the trial entiously the instructions” for same as were extrane- reasons Holman, 394 judge. Boulden v. by appellant. committed ous offenses 1138, 1142, 22 478, 484, L.Ed.2d Summing up, the evidence of extraneous (1969)’.” probative offenses was not contested good in Russell —“that a My conclusion prejudicial impact issue in the case. merely than ac- deal more manifestation great. The the evidence was harm phrase’ of 12.- knowledging magic ‘the theo- enhanced the State’s “two worlds” 31(b) disqualifica- be for required should ry which prosecution, appellant’s stressed submit, is, the conclu- I more “like” tion” — lifestyle. It would lower-class criminal Adams v. Supreme sion posit example of difficult to a more classic Texas, supra. being attempt an to convict defendant for and, of Today the Court follows Adams generally. a criminаl course, I concur that. do intro- The State would well avoid ducing any re- the extraneous offenses at ROBERTS, Judge, dissenting. trial. I the reversal dissent to

CLINTON, concurring. Judge, my opin stated in guilt, for the reasons in Evans v. 614 S.W.2d 414 ion provocative observations But two Cr.App.1980). dissenting single sentence in the made opinion I not in this cause. ‍‌​‌​‌​‌​‌​‌​​​‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌​‌‌‌​​‌​​‌​‌‌‍would write exception also to the statement take my Since dissent Russell majority “a opinion the Court’s *7 238, was (Tex.Cr.App.1980) well that Mr. Justice might agree opinion majority handed down with the dissenting Ad Rehnquist, opinion in his [in 12, 1980, rehearing April March was denied Texas], proper view ams states ” 23,1980 opinions published and the opinion was Rehnquist's .... Justice 1980, 24, I June the advance sheet dated longer, followed no Witherspoon need be matter Rehnquist to Mr. Justice leave unguided have longer no dis juries because 25, his June 1980 dissent whether A impose penalty. the death cretion to 38, 100 S.Ct. Texas, 448 U.S. Adams has indicated majority of this Court nevеr 2529, (1980) “like” 2521, is Witherspoon anything was any doubt dissent in Russell. my well Texas. alive and See other than Russell, opined: at supra (Tex.Cr. Hovila v. the cases cited in Adams v. App.1975), jury not the assessor

“Where the is Texas, 38, 4, 47 n. capital case but punishment supplied throughout emphasis 1. All opinion otherwise indi- of this unless writer cated. (1980). 2527 n. Only 65 L.Ed.2d 581 Clinton,

recently Judge like Justice Rehn EVANS, Wayne Appellant, Michael quist, Witherspoon concluded that should apply capital punishment not to Texаs’ scheme; Rehnquist’s, like Justice his reason Texas, Appellee. The STATE of was longer no have the discretionary assessing punishment task of No. 60016. capital case. Russell v. Appeals Texas, Court of Criminal (Clinton, (Tex.Cr.App.1980) En Banc.

J., dissenting). No judge joined other opinion. today Yet we are told that “a Sept. 1980. majority might of this Court agree” well Rehearing April Denied 1981. position. with that me, record this Court is clear to and it changed cannot be now. This Court

always has held Witherspoon applied

to our sentencing procedure, and independent it,

that Section

and that was not violated

the excusing juror of a under Section 12.-

31(b). simply support There was no for this long-held

Court’s position

opinions in Adams v. Texas.

CONCURRING OPINION TO OVERRUL-

ING STATE’S MOTION FOR

REHEARING WITHOUT WRITTEN

OPINION

TEAGUE, Judge.

I concur in majority’s action for the

reasons my Concurring Opinion set forth in Overruling ‍‌​‌​‌​‌​‌​‌​​​‌​‌‌​‌‌‌‌​​​‌​‌​‌‌​​‌​‌‌‌​​‌​​‌​‌‌‍Rehearing State’s Motion for Opinion

Without Written in Pierson v. (1981). S.W.2d 102

DISSENTING OPINION TO DENIAL OF

STATE’S MOTION FOR REHEARING WRITTEN

WITHOUT OPINION

McCORMICK,Judge. my

For the reasons set forth in dissenting

opinion in Pierson v. 614 S.W.2d 102

(1981), majori- dissent to the action

ty reversing remanding judgment guilt admittedly free of error.

Pursuant to the motion filed in this cause should be re- punishment

formed to reflect a of life im-

prisonment.

DALLY, J., joins.