May v. State

of arson would in- committed offense attempted arson

clude the offense of on notice he was also

put a defendant

charged attempt with an to commit attempted

offense of arson. majority opinion fails to take into 37.09, practical result of Art.

account

V.A.C.C.P. as it was amended effective Jan- 1, 1974,

uary to coincide with the effective

date of the new Penal Code. The State’s

argument persuaded has me that I was joining the majority original

incorrect in on grant

submission. The Court should

motion for leave to file the motion for

rehearing argu- and consider the State’s appears

ment which to be The ma- sound.

jority opinion original applies submission

a rule which obtained under the old Penal 38.09,

Code before Art. V.A.C.C.P. was That

amended. rule should not now be

applied. overruling

I dissent to the without writ- opinion

ten Motion for Leave to State’s Rehearing.

File a Motion for J.,

McCORMICK, joins this dissent. MAY, Appellant,

Robert Allan Texas, Appellee.

The STATE of

No. 66248. Texas, Appeals

Court of Criminal

En Banc.

May 1981.

Rehearing July Denied 1981. once; body

shot his was found outside the Refrigeration Company located at Acme in Houston. 3111 Polk Street Smith, he shot the Arthur who admitted deceased, pled guilty to murder and testi- fied as a witness in return for the State’s promise penal- not to seek the death State’s ty against appellant him. The did not testi- fy-

Smith, part-time employee at a service Pardue, Troy testified as station owned concerning preceding the events follows offense: He became ac- commission of the quainted appellant in 1976 and in late October, September early appellant or approached killing him about the deceased upon and told him that the death deceased, Compa- Refrigeration the Acme ny, operated by a business then owned and deceased, pass appellant’s would mother who in turn would allow In for the operate to the business. return killing, appellant promised payments him $1,000 immediately and a 1968 Oldsmobile $4,000 killing approximately after and the following job year and a within the three period. preparation killing, In for the he McLean, House, Ken J. W. B. “Bennie” appellant ways and discussed various to kill Jr., Houston, appellant. the various alibis he could use. deceased and Holmes, Jr., John B. Atty., Dist. W. Susan occasions, appel- he and On four different Crump, Poe, Attys., and Ted Asst. Dist. Range Shooting Hot Wells lant went to the Houston, Huttash, Robert Atty., State’s practice shooting appellant’s to .30-.30 Win- Austin, for the State. rifle; chester the same rifle he used shooting

shoot While at the the deceased. in late range on one of these occasions October, 1977, seeing he remembered two OPINION police target practicing officers and he also appellant purchased a remembered that DALLY, Judge. In for the rifle. new box of ammunition appeal This is an from a conviction for November, 1977, appellant delivered early capital punishment murder. The is death. him, in pistol assisted him a .38 caliber appellant twenty-nine asserts barrel, on the placing a lawnmower muffler grounds complains of error. he Since kill the and instructed him to use it the evidence is insufficient to corroborate 12, 1977. Saturday, November deceased accomplice testimony, witness a detailed decided, however, attempt He to make no recitation necessary. of the facts is Saturday or either that kill the deceased on 19. Appellant following Saturday, the November indicted for murder of the 26, kill stepfather, Roy attempted his he Ayotte. Melton It was Then on November deceased, alleged appellant, shot he fired with that the for remuneration but the appel- remuneration, following week promise pistol and the hired Ar- missed. The rifle to thur Winchester Ayotte. Ayotte Smith to kill had been lant delivered his .30—.30 exchange pistol him in for the lant and he then drove and instruct- to his sister’s home 3, ed him to kill the deceased on December however, in following day, Louisiana. The Appellant 1977. park told him to on Polk he purposes returned to Houston for the across Refrigeration Street from the Acme collecting appellant from $350 Company and shoot the deceased with the revisiting Stovall. He was unsuccessful in rifle before the deceased entered the build- attempt his money ap- to collect the from ing. pellant, but he did revisit He Stovall. then returned to Louisiana where he was subse- Smith further testified as follows con- quently arrested for this murder. At the cerning surrounding the events the commis- arrest, driving time of his he was the 1968 sion of the offense: He left work on the given by appellant Oldsmobile to him on the morning 3, 1977, of December armed with day of the murder. appellant’s appellant’s rifle. He drove blue Dodge parked automobile and on Polk properly The trial court instructed across from Refrigeration Street the Acme jury accomplice was an wit Smith deceased, Company. waiting While for the ness as a matter of law. A conviction can he observed William Miller and a man upon testimony of accom not be had Wayne driving named around the area plice witness unless that is cor and he then recalled that Miller had been tending roborated other evidence to con present on a number of occasions when nect the defendant with the offense com killing ap- had discussed deceased mitted, is not suffi and the corroboration pellant. When deceased arrived around the commission of merely cient if it shows m., 9:30 a. he shot the one time deceased 38.14, V.A.C.C.P. offense. Art. with the rifle. At approximately this same time, he Wayne observed Miller and drive left Troy Pardue testified Smith away from the scene. He then left m. on De- approximately work at 9:00 a. scene, placed murder the rifle in the trunk did not return to cember Smith Dodge of the blue work and returned to day, of the same work until the afternoon Subsequently, afternoon. he hid the by his station the also came garage rifle attic of Pardue’s home. left work same afternoon. He and Smith Appellant by came Pardue’s service station over to his p. around 7:00 m. and went day Wayne. later that as did Miller and He thereafter, called appellant Shortly home. payment appellant did not discuss the with speak with phone on the and asked however, did, at that time. He discuss the thirty minutes after Approximately Smith. killing with Miller and he told Miller that call, phone he a car horn outside heard waiting appellant pay he was for him for not, however, ob- and left. He did Smith killing. evening he That and Pardue occupants serve the of the car. went to Pardue’s home and while he was wife, Stovall, estranged Rhonda Smith’s there appellant phone called him on the 1977, November, as early testified that as He, by get appellant, later came him. ap- killing mentioned a man for Smith had get and a woman named Vera then went to pellant. also testified that visit- She Smith going the 1968 Oldsmobile before over to night of p. her 10:00 m. on the ed around appellant’s home where he then received 1977, 3, about the December and told her cash, appellant papers from $150 appellant’s in- killing of the deceased and car, promise and a that an additional $350 killing. He left her some volvement in the envelope would be left for him in an at part of the her was money which he told arguing Pardue’s service station. After appellant from payment he received change appellant pay- about a in the following eve- killing the deceased. terms, estranged ment he left to visit his ning, again visited her. he wife, Rhonda He told Stovall. Stovall on based further testified killing appel- about the of the deceased and Stovall killing, told her about killing. lant’s He left what had involvement Smith police officers Houston paid by appel- her some of the he was she contacted $150 phone on corroboration of Smith because Miller was two different occasions. In the call, phone police accomplice first she as a matter of law. told officers that witness (Tex. thought she rifle Caraway Smith used could be See S.W.2d Chapman found in the trunk of a car was Cr.App.1977); blue which parked (Tex.Cr.App.1971). at Pardue’s service station. In the call, phone police second she told officers appellant told him Miller testified that on subsequently she learned the rifle 3, prior at three occasions to December least killing in the Smith used could be found in 1977, on (appellant) that he wanted man garage Pardue’s attic. (appellant) and that he Polk Street killed Deloney, R. L. an officer of the Houston killing. He fur- had hired to do Smith Department, Police testified that he re- present ther testified that Smith was phone killing ceived two calls after the and that least two of these occasions Smith the deceased and that the caller identified (Smith) been had also told him that he had herself as Rhonda Stovall on the second on Polk by appellant hired to kill a man phone information, call. Based on Stovall’s evening of December Street. On police spent officers recovered a .30 caliber him a cali- appellant delivered to .38 cartridge on a desk at Pardue’s service sta- pistol with a lawnmower muffler at- ber tion and a .30-.30 Winchester rifle in Par- morning, following tached. The he and garage due’s attic. These items were ad- Wayne Spring drove to Polk Street to wait mitted in evidence. man; carrying the .38 for a Miller was He pistol caliber with him at this time. Thysson Wiggens, G. E. and J. E. officers shot, waiting for but saw the man he was of the Department, Houston Police testified who the shot. He and did not see fired they appellant observed with Smith at Spring to Pardue’s service sta- then drove the Hot Shooting Range Wells in late Octo- appellant about the kill- tion where he told ber, 1977, and carrying that he was killing ing. Appellant said he knew rifle; a .30—.30 type Winchester the same he did not wish to discuss but stated that rifle as the one admitted in They evidence. time. Miller any of the details at also appellant coming observed out of the subsequently talked with and Smith Smith office of the Shooting Range Hot Wells just a man and told him that he had killed carrying a new box of ammunition. waiting paid by appellant that he was Hoffmaster, Larry an officer of killing. for the Houston Police Department, testified that identify the Miller was asked if he could he and other officers conducted a search of rifle offered in evidence the State. He appellant’s home box of discovered a the same rifle testified that was ammunition containing .30 car- caliber prior to had delivered to him about a month tridges. The box cartridges. was minus six killing appellant same rifle had the and the Lamar, Dallas the secretary/manager prior him about a week then obtained from the Shooting Range, Hot Wells testified killing to the of the deceased. price marking that the handwritten on the appel- box of ammunition recovered from appel that the The record reflects appeared lant’s home the handwritten request for court to lant withdrew his the price marking placed that she on boxes of jury that Miller was an accom instruct the shooting range. ammunition from her Offi- objected to the court plice witness and he cer Hoffmaster further testified that he However, submitting an instruction. such recovered the fatal bullet at the murder of whether submitted the issue the court Although badly scene. the bullet was dam- a fact accomplice witness as Miller was an chemist, aged, Warkentin, Robert a testi- Where jury to decide. question for the fied that it was a .30 caliber bullet. is an ac whether a witness there is doubt jury is submitting to the complice, William Miller the issue was called the as prepon Appellant argues though a rebuttal witness. the evidence sufficient even Miller’s conclusion that testimony may not be considered in derates in favor of the 340 If there such commission of the offense. is accomplice a matter of law.

witness is an as sufficient; (Tex.Cr. evidence, State, the corroboration is v. 591 876 Carrillo S.W.2d State, State, otherwise, Colunga v. 527 S.W.2d v. su App.1979); it is not. Carrillo State, (Tex.Cr.App.1975); (Tex. Ward v. 520 State, 285 484 pra; v. 561 S.W.2d Brown (Tex.Cr.App.1975). Miller ad 395 State, S.W.2d Caraway supra; Cr.App.1978); v. of the scheme to kill mitted that knew State, (Tex.Cr. Etheredge 148 v. 542 S.W.2d present the deceased and that he was State, 489 App.1976); Reynolds v. S.W.2d carrying pistol deliv scene of the offense The corroborative (Tex.Cr.App.1972). 866 evi by appellant. ered to him There no directly link the accused testimony need not charged dence that Miller was ever in itself to crime or be sufficient to the any party this offense or that he was a State, v. 540 guilt. Lyman S.W.2d establish agreement appellant and Smith. between State, Bentley v. (Tex.Cr.App.1976); 711 accomplice A witness is not wit deemed (Tex.Cr.App.1975); Black v. 520 390 S.W.2d but ness because he knew of the crime State, (Tex.Cr.App.1974); 569 513 S.W.2d failed to disclose or even concealed it. Car State, (Tex.Cr.App. 273 472 Cherb v. S.W.2d State, State, supra; v. Easter v. 536 rillo only make 1971). need The corroboration (Tex.Cr.App.1976); v. 223 Gausman S.W.2d likely than testimony more accomplice’s State, (Tex.Cr.App.1972). 478 458 S.W.2d State, (Tex. 414 538 S.W.2d not. James v. of the offense presence Mere at the scene State, supra; Bentley v. Cr.App.1976); compel does the conclusion not (Tex.Cr. State, 458 514 v. S.W.2d Warren Arney v. accomplice witness is an witness. App.1974). State, (Tex.Cr.App.1979); 580 S.W.2d in the rec evidence State, (Tex.Cr. ample There is Villarreal v. S.W.2d testimony other accomplice not an wit to corroborate Smith’s App.1978). One is ord the of of the offense. prosecuted ness who cannot be for mere commission than the charged. Miller and testimony fense for which the accused is hold that We State, State, witnesses, supra; Villarreal v. is incrimi Carrillo v. the other State that of State, supra. A witness’ supra; Easter v. appellant nating, to connect tends in commis complicity offense, with the accused and makes commission make his sion of another offense does not likely than not. more Smith’s accomplice to the of testimony that of an sufficiency of challenge to the Appellant’s is on trial. for which the accused fense testimo corroborate Smith’s the evidence to State, Caraway v. supra; Carrillo v. isny overruled. State, supra. We hold supra; Easter v. court the trial asserts Appellant next' did not err submit the trial court quash his motion failing grant erred in Miller was an ting the issue of whether quash In his motion indictment. question a fact accomplice witness as is in- indictment states compare Carrillo jury. See alleges “remuneration in that it sufficient supra; Ward S.W.2d indefinitely .. . ab- vaguely, and generally, State, 502 (Tex.Cr.App.1975); Zitterich v. making impossi- thereby specificity, sent (Tex.Cr.App.1973). himself to defend for the Defendant ble the court’s instruction In view of enigmatic accu- cryptic against such verdict, may consider the jury’s and the we sation.” in corroboration of testimony of Miller part pertinent indictment accomplice testimony of the witness Smith. De appellant on or about the alleges the corroboration sufficiency To test the of 3, 1977, cember witness, one must elimi accomplice of an unlawfully, there then and . . did “. evidence of the from consideration the nate cause the knowingly and intentionally witness, the and then examine accomplice employ- Ayotte Melton Roy of death to ascertain of the other witnesses evidence Smith, another, Arthur namely ing incriminating which of character if it is and for remuneration murder the commit the to connect the defendant tends

341 promise prepare lant to of remuneration and said Ar- his defense and is not sub- ject quash. thur Roy Smith did cause the death to a motion to McManus v. See State, (Tex.Cr.App.1979). Ayotte pursuant Melton 591 505 to the afore- S.W.2d State, agreement compare and Haecker v. 571 by shooting mentioned him See (Tex.Cr.App.1978); Moore v. gun.” with a S.W.2d 920 State, (Tex.Cr.App.1976). 532 333 S.W.2d An allege indictment must facts suffi give cient to precisely defendant notice of the trial Appellant next asserts charged 21.11, what he is with. Art. V.A.C. overruling objection court erred in his However, C.P. unless a fact is essential for police of a officer that he defendant, notice to part appel the indictment observed no remorse on the plead need not Deloney evidence relied on lant. Officer testified that had State, State, Phillips appellant days v. 597 929 a three S.W.2d conversation with deceased, (Tex.Cr.App.1980), State, appel shooting Cameron v. 401 after the of the emotionally upset, (Tex.Cr.App.1966), appear S.W.2d 809 lant did not to be Bedwell v.

State, 599, weeping, appellant crying 142 was neither nor Tex.Cr.R. 155 930 S.W.2d evidenced,” (1941), “there was no remorse that he exception and it is a rare when an ques became nervous when indictment drawn in language of the objec Appellant’s tioned about the rifle. penal legally pro statute is insufficient appellant showing tion was made relative to vide a charged defendant with notice of the “no that he for the remorse evidenced” Phillips State, offense. supra; v. v. Parr reason a conclusion on the State, that it called for 575 (Tex.Cr.App.1978); S.W.2d 522 part Deloney. of Officer State, Ames v. 499 (Tex.Cr.App. S.W.2d 110 1973); Lopez State, (Tex. 494 S.W.2d 560 consistently held that This Court has Cr.App.1973). lay opinion when a as to the mental atti is tude or emotional state of an accused Code, 19.03, V.T.C.A.Penal in part Sec. facts, rendering mere shorthand of the provides: of de opinion is admissible as indicative 19.03(a) person “Sec. A commits an of- meanor, subject to cross-examination as to fense if he commits murder as defined upon the facts which it is based. See 19.02(a)(1) under Section of this code and: State, (Tex.Cr. 561 484 Brown S.W.2d * * * * * * State, App.1978); Ashley v. 302 S.W.2d “(3) person commits the murder for State, (Tex.Cr.App.1975); Miller v. 145 Tex. promise remuneration or the of remu- (1943); Hernan Cr.R. 168 S.W.2d 864 employs neration or another to commit State, 159, dez v. 110 Tex.Cr.R. the murder for remuneration or the (1927); Willis v. 91 Tex.Cr.R. promise of remuneration.” (1922); Beaupre v. 239 S.W. 212 Code, 19.02, part pro- V.T.C.A.Penal Sec. (Tex.Cr.App.1918); Crowell v. S.W. 517 vides: 480, 120 (1909). Tex.Cr.R. S.W. 19.02(a) person “Sec. A commits an of- that, shoot We find the evidence after the fense if he: deceased, ing Deloney spoke Officer

“(1) intentionally knowingly or causes actions appellant’s with and observed the demeanor, the death of an competent individual.” is and the com describing plained appellant’s of statement The indictment in the instant case merely ren mental attitude is a shorthand contains all of the constituent elements of occurring visit. dition of on that the facts an offense provisions under the of V.T.C.A. ground of error is overruled. This Code, 19.03(a)(3). Penal Sec. The additional requested information by appellant Appellant in his next asserts in thirteen related quash provisions motion to of Art. evidentiary grounds and not re that the error quired 38.14, purposes plea supra, applicable of notice and are to the extrane- by the bar. We therefore find indictment suf offered in evidence ous offenses stage of his trial. ficiently alleges appel- punishment facts to enable the State at 342 2642, (1977); grouped grounds

We S.Ct. 53 L.d.2d 250 have these of error Gholson State, general (Tex.Cr.App.1976), into whereby appellant three areas and Ross v. 542 S.W.2d 395 urges (1) denied, testimony 911, that: the accom- 432 of an t. U.S. 97 cer plice 2960, witness must be before it (1977). corroborated 53 L.Ed.2d 1084 S.Ct. In may support State, the jury’s (Tex.Cr. be used to answers v. 578 699 Hammett S.W.2d 37.071, special to issues of Art. both V.A.C. App.1979), it was said: C.P.; (2) the court erroneously failed constitutionality “In of upholding the submit, timely request, charges after a on procedures, penalty the the Texas death “accomplice punishment witnesses” at the Supreme Court United noted: States “ trial; (3) evidence, stage of the the if requires that a defend- ‘Texas law excluding testimony accomplice of the the capital ant of a of- has been convicted witnesses, the is insufficient to sustain fense, court must conduct a the trial jury’s findings that his was deliber- conduct sentencing proceeding separate before ate probability and that there was a tried the of jury issue same would commit criminal acts of violence that guilt. may evidence be Any relevant continuing would constitute a threat to soci- proceeding .... introduced at this ety. 37.071, supra. Art. procedure capital-sentencing The Texas 38.14, supra, provides:

Art. guides jury’s objective and focuses cir- upon particularized “A cannot be of the conviction had consideration testimony accomplice of an corrob- the individual offense unless cumstances of tending evidence to con- offender before it orated other the individual nect the defendant with com- can of death .... impose the offense a sentence mitted; essentia] suf- have jury and the corroboration is not is that What is merely ficient if it shows the commission relevant informa- possible before it all of the offense.” individual defendant tion about Texas must determine. whose fate it 38.14, supra, sufficiency Art. concerns the all law such evi- clearly assures support evidence needed a conviction [Emphasis adduced.’ dence will be and to connect the with the of- defendant added.] charged relying fense when the is 262, Texas, testimony. “Jurek 428 U.S. 96

accomplice witness Before the v. S.Ct. 2950, (1976).” punishment stage of trial is reached the 49 L.Ed.2d 929 been found has guilty defendant has —he information about a Relevant punishment only been his re- convicted — admitting evidence defendant includes Nothing mains to be assessed. in Art. 38.- conduct,” or not “prior his whether criminal suggests “yes” supra, answers final such in a conviction. conduct resulted 37.071, the special supra, issues of Art. at State, State, Jurek supra; v. Hammet v. punishment stage cannot be trial accomplice witness supra. Uncorroborated accomplice had wit- upon uncorroborated range falling “prior within testimony. ness infor would be relevant criminal conduct” 37.071, pertinent part pro- supra, Art. find and we mation a defendant about punishment stage of a vides that 37.071, preclude supra, to nothing in Art. trial, capital murder affirmative answer supporting from “(a) may presented be as to . .. evidence has consist special This Court either issue. the court relevant any matter that deems 38.14, provisions of Art. ently held that to sentence.” every facet of supra, applicable are not by uncorroborated interpreted supported case provision This has been to allow testimony. See Russell accomplice judge wide in the evi witness trial discretion State, (Tex.Cr.App.1977) 710 v. v. may dence that admitted. Wilder S.W.2d (Tex. 476 S.W.2d 684 (Tex.Cr.App.1979); 583 S.W.2d and Moreno inapplicable to revoca (Tex.Cr.App.1976), Cr.App.1972) (rule Livingston v. denied, hearings); Komurke of probation t. tion U.S. cer 343 Ross, State, shot but Ross did not die from the (Tex.Cr.App.1978) 562 230 S.W.2d State, and Carnathan v. 478 490 gunshot appellant S.W.2d When discover- wound. Code,

(Tex.Cr.App.1972), V.T.C.A. Penal alive, ed was still he instructed that Ross (rule inapplicable testimony 8.07 to of a Sec. hospital go them to where Ross was complainant young that is too to be crimi plan recovering and finish him off. This nally responsible conduct); for his Cranfil against dangerous they was too and decided State, (Tex.Cr.App.1975) 525 S.W.2d 518 hospital. killing Ross while he was in the State, (Tex. and Jenkins v. S.W.2d Appellant them then instructed that Ross (rule Cr.App.1972) inapplicable testimony to going to to New be transferred Orleans accomplice an witness the ac called they every- and should shoot Ross and cused); State, Brown v. S.W.2d one in the car en route to New Orleans. else (Tex.Cr.App.1972) (rule inapplicable to evi refused, however, They carry appel- to out accused); dence introduced the Saunders lant’s was never instructions and Ross 944 (Tex.Cr.App.1978) testified killed. Miller and Smith also (Tex.Cr. and Carr v. 495 S.W.2d 936 appellant next wanted the deceased’s father App.1973) (rule inapplicable testimony to ap- added that killed. And Smith further an accomplice witness when the accused killing pellant discussed with him the of a takes the stand and admits all acts constitu killing merchant seaman and the of an un- ting charged.) the crime also Rice v. See known man wife wanted him mur- whose (on (Tex.Cr.App.1980) 605 S.W.2d 895 testimony of and dered. We find the Smith motion rehearing this Court withheld its Miller, combined with the evidence adduced ruling on whether accomplice witness trial, guilt stage sufficiently at the testifying guilt stage at the of a trial about supports jury’s ap- an extraneous determination that offense need corroborated before the extraneous offense is admissible pellant’s appel- conduct was deliberate evidence.) We hold that evidence of lant would commit criminal acts of violence fered prove special to issues of Art. continuing threat to that would constitute 37.071, supra, is not included within the 37.071, society. supra. Art. These thirteen provisions 38.14, Therefore, supra. Art. grounds of error are overruled. the “yes” answers to special issues of prosecu- Appellant next asserts 37.071, Art. supra, supportable are on the argument. improper jury tor made an He accomplice relevant witnesses’ attempted bring to says prosecutor concerning appellant’s prior criminal jury’s attention matters not admissible conduct failing and the court did not err in During closing ar- in evidence. the State’s to submit an “accomplice charge witness” trial, gument guilt stage of the at the punishment stage at the of the trial. following occurred: punishment At stage of the tri Mr. Mil- You heard “[PROSECUTOR]: al, the State re-offered the evidence ad here, you what testify up ler heard guilt stage duced at the of the trial. In you hear. say, he had what the law let addition, following introduced the you— He could have told appellant evidence to show that had been schemes; involved in other murder for hire ATTOR- “MR. McLEAN [DEFENSE night Miller testified of Decem object. something inad- I That’s NEY]: 2, 1977, appellant pistol ber delivered a hear, they couldn’t Your missible that him and asked him to kill a man on Polk Honor. Street; $1,000 appellant offered him for the It’s what “MR. POE [PROSECUTOR]: job. Both Miller and testified that Smith hear. you the law lets appellant had hired them to kill Howard has heard the jury “THE COURT: prior killing Ross the deceased. Smith evidence. attempts After one of their unsuccessful ruling? May I have “MR. McLEAN: life, them, “(h]e end Ross’ told ain’t dead. I want him dead.” then “THE COURT: Overruled. Smith presented in the instant They reading

“MR. POE: could have asked him case. Our any question they wanted to on cross of this record as a whole reveals over him, impeach they whelmingly guilt examination to but of and we They didn’t. up wanted to come with one perceive prosecutor’s argument do not conflict. manifestly improp to have been extreme or er, statute, violative mandatory of a or as “Remember how House Mr. [Defense injected having new facts harmful Attorney] up came here with that state- State, accused into the trial. Little v. up really ment and See folded it little and (Tex.Cr.App.1978); Taylor 567 S.W.2d 502 handed it to Miller so he read would one State, (Tex.Cr.App.1977). v. 550 695 line? S.W.2d You remember that. You saw State, supra; also Todd v. Hardeman v. See that. State, (Tex.Cr.App.1977); 552 433 S.W.2d you “And he told under oath there is State, (Tex.Cr.App. Mims v. 317 466 S.W.2d more in that statement than what he State, 1971); (Tex. Hoover v. 449 60 S.W.2d They any- testified to. could ask him State, Cr.App.1969). 487 Cf. Stearn v. thing they They say wanted to. he’s a (Tex.Cr.App.1972). 734 As a result S.W.2d big buddy Why and all that of Chester’s. overruling appellant’s of the court first ob they go didn’t into all of that stuff on jection, prosecutor merely commented you cross examination? It makes won- present appellant’s failure to evidence der, it, doesn’t about what Miller knew. through the Miller. McMahon witness See object “MR. McLEAN: I to that. State, State, supra; supra; v. v. Bolden That’s an inference that there is some State, supra. sustaining Brown v. And the jury inadmissible should appellant’s objection of second followed have heard. That’s inadmissible. I ob- disregard jury an instruction to the ject to that.” prosecutor’s argument sufficiently cured Appellant’s objection was sustained and an the later error. disregard given. instruction to His motion for mistrial was overruled. Appellant the trial next asserts admitting court erred in evidence seized argument An will not constitute during appellant’s of home. Af the search unless, light reversible error of the record his appellant’s ter arrest and removal from whole, a argument as is extreme or home, his wife was asked if she would con manifestly improper, of a violative manda home. said sent to a search of their She facts, tory injects or statute new harmful to signed would consent and she then that she proceeding. the accused into the trial Todd was consent to search form that a written State, (Tex.Cr.App.1980); v. 286 598 S.W.2d police by three Houston officers. witnessed State, Simpkins (Tex.Cr. v. 590 129 S.W.2d up caliber The search turned a box of .30 State, App.1979); Kerns v. 550 91 S.W.2d cartridges papers. and various other (Tex.Cr.App.1977). If prosecutor’s re during jury argument may marks be rea State, (Tex. In Nastu v. 589 S.W.2d 434 sonably referring construed as to the de Cr.App.1979), it was said: present fendant’s failure evidence right every is citizen to “It himself, through a re witness other than warrantless secure in his home from State, required. versal is not McMahon v. How in all but a few instances. searches (Tex.Cr.App.1978); 582 786 S.W.2d Bolden ever, specifically established ‘[o]ne State, (Tex.Cr.App.1974); v. 504 418 S.W.2d both a requirements of exceptions to the State, (Tex.Cr. Brown v. 475 761 S.W.2d is a search probable cause warrant and State, App.1971); Alvear v. 170 Tex.Cr.R. consent.’ pursuant is conducted 378, (1960). 341 426 S.W.2d 87, (Tex.Cr. State, 89 532 Kolb v. S.W.2d can be effec consent App.). But before prosecutor’s argument If the can be by clear tive, prove prosecution must construed to refer to inadmissible testimo consent that the convincing evidence ny, we are conclude that the error unable to Bump voluntarily. given freely and is reversible under circumstances was 345 probable both a warrant and Carolina, 543, quirements of 88 er 391 U.S. v. North Bustamonte, supra; v. 1788, (1968); Arm cause. Schneckloth 20 L.Ed.2d 797 S.Ct. 582, States, 66 v. United U.S. State, (Tex.Cr. Davis strong v. 550 S.W.2d (1946); Nastu v. 90 L.Ed. 1453 State, supra. S.Ct. App.); Kolb v. “ State, supra; 578 S.W.2d Doescher ‘Whether a consent to search extent of a (Tex.Cr.App.1978). The fact to be voluntary question consent search is limited consent the cir- totality determined from the May v. particular instance. in a obtained Brem cumstances.’ (Tex.Cr.App.1979). 582 S.W.2d (Tex.Cr.App.). case, consent to the written In the instant Bustamonte, 412 v. U.S. “Schneckloth police officers to form authorized search 218, 2041, (1973).” 36 L.Ed.2d 854 93 S.Ct. appellant’s complete search of a conduct hearing on The evidence adduced at the letters, materi- any papers, and seized home appellant’s suppress to reflects that motion als, they This property desired. or other capias appellant’s issued for arrest at error is overruled. ground of p. he was approximately 3:00 m. and that in two next asserts Appellant subsequently arrested at his home around the court com error that trial grounds of morning. 1:00 a. the next Hoff- m. Officer admitting in evi error in mitted reversible master, officer, arresting then talked wit written statement State’s dence a appellant’s wife to determine whether was recalled Smith ness Arthur Smith. she would execute a consent to search form. attempt to discredit and in an the defense right He informed her that she had the portions read counsel testimony, his defense purpose refuse her consent and the that had made to statement Smith of a written impli- the search was to look for evidence On cross after his arrest. police officers cating appellant in this offense. The con- the examination, requested that the State signed by sent to her at search form was introduced. entirety be in its statement approximately 1:20 a. m. and it included the state objected urging Appellant statement that she had been informed testimo improperly bolstered Smith’s ment her right constitutional not to have a search to extraneous ny contained references police made. testified that the officers She appellant’s overruled The court offenses. her; polite they had been did not threat- objections. en her to obtain her consent for the search. Although appellant introduced evidence to however, reflects, the The record alcoholic, show that his wife is or was an by the later withdrawn statement was specifically she testified that she was not pres- the on its own motion. Outside court any under the influence of intoxicants at following occurred: jury, the ence the time she the consented to search. Giv- Arthur As to Smith’s “THE COURT: en the totality of the circumstances this statement, record going let the I’m case, ample support we evidence to find any of the not seen jury has reflect judge’s appellant’s trial decision that and the Court of the statement contents voluntarily wife consented to a search of objection you made going is to sustain State, Swinney 529 premises. v. See matter concerning the extraneous earlier Jemmerson (Tex.Cr.App.1975); S.W.2d 70 deleted, portion that it be and order State, (Tex.Cr.App.1972). 482 201 S.W.2d dis- says, ‘He which of the statement Miller.’ killing with me and cussed complains that Appellant also Miller,’ will portion saying, ‘and “The this case the consent to search form in from that statement. be deleted allowed the to circumvent the war going is His Honor “MR. HOUSE: it was used to requirements rant because state- rest of the let in the go ahead and exploratory search. We general conduct a Is that correct? ment in total? pursuant that a search conducted reiterate look at Let me “THE COURT: specific to consent is one of the established again. exceptions Fourth Amendment re- statement

346

“We will ruling conspiracy withhold the in the this instant case did not time. Prior to being given upon the statement terminate completion of the mur jury, we contemplated will make that der. It was conspira determina- tion. Go ahead.” tors that compensation Smith would receive job. for night On the of December A careful examination of the remainder yet had Smith not received all of the of the record reflects that the statement compensation agreed upon; only he had was never readmitted in evidence for the paid given been the 1968 $150 Oldsmo jury’s any consideration for purpose what- bile. object We find that of the con Error, soever. if any, thereby rendered spiracy completed. had not been See State, harmless. See Furtick v. 592 S.W.2d State, Brown (Tex.Cr.App. S.W.2d 616 (Tex.Cr.App.1980); Nelson v. 1978) (rev’d grounds on other Motion S.W.2d 271 (Tex.Cr.App.1974); Hopkins v. Rehearing); Adamson v. 21 S.W.2d State, 480 S.W.2d 212 (Tex.Cr.App.1972). (Tex.Cr.App.1929). also Bates v. See Appellant next asserts the trial court (Tex.Cr.App.1979). erred in admitting objection over the testi- ground This of error is overruled. mony of Rhonda Stovall that bolstered the Appellant next asserts he was de unimpeached testimony of Smith. Stoval rights impartial nied his to a fair and trial permitted was testify as to statements State, process and due of law because the by made to her night Smith on the of knowingly, “intentionally, deliberately and 3, 1977, December implicated that appellant presented patently false evidence amount in the murder. ing subrogation perjury to a on the issue Where indepen there is sufficient of whether William R. Miller was an accom dent evidence to establish a conspiracy, plice guilt stage as matter of law” at the hearsay acts and conspira statements of a Appellant argues of the trial. that because tor which prior are made to the time the presented the different versions of State object of conspiracy completed the is are complicity Miller’s in the murder of the admissible, State, Denney v. trial, stages deceased at the two of the he (Tex.Cr.App.1977); Delgado State, process was denied due and a fair and im S.W.2d 929 (Tex.Cr.App.1977), Helms v. partial trial. State, 493 (Tex.Cr.App.1973), S.W.2d 227 guilt stage of testimony Miller’s at the they and are though admissible even occur already the trial has been set out in the ring presence hearing out of the and of the punishment recitation of At the facts. conspirator Lapp trial. trial, stage of the Miller testified that S.W.2d 443 (Tex.Cr.App.1975); Saddler v. present on a number of occasions when State, 320 (Tex.Cr.App.1959). S.W.2d 146 appellant killing discussed the and Smith The independent evidence of a con permitted deceased. He was further to tes- spiracy appellant between and Smith 2, 1977, tify night that on of December quite Appellant instant case is sufficient. appellant when to his trailer home came however, argues, that “if the statements pistol, appellant with the .38 caliber asked Arthur Smith Rhonda Stoval on the gun kill man on Polk him to use the night 3, 1977, of December were after the had Appellant told him that Street. Smith ended, conspiracy they had were inadmissi (up time) or three until that failed on two bolstering ble and proper objec was the job occasions to do the and that he would tion.” (Miller) $1,000 killing. pay him for the In (Tex.Cr. Robins v. 117 S.W.2d 82 stages of Reviewing the evidence at both App.1938), it was said: trial, perceive we fail to that the State stage “A conspiracy finally guilt not terminated presented testimony false at until everything complici- has been done that was of the trial on the issue of Miller’s contemplated Moreover, us conspira- present to be done does not ty. appellant tors.” of false testimo- any specific instances ny. “Q. merely presented thing, One other a more sir. On State’s detailed recitation complicity of Miller’s at says: Exhibit No. there is a block that punishment stage date, of the trial so that ‘Date Issued.’ What is that sir? attention alleged could be focused on the “A. 9-14-77. involving extraneous offense appellant and 14th, “Q. September 1977? guilt trial, Miller. At the stage of the Right. “A. may have improper been an reference to an “Q. Does that sound consistent with the extraneous offense if the State had been you May bought time that and Mr. permitted prove had also automobile, sir? hired Miller to kill the deceased. This Yes, sir, “A. it does. ground of error is without merit. “Q. time, Smith, Shortly after that Mr. Appellant next asserts he was de talking begin you did the defendant rights nied his to a fair impartial trial job, say, about a shall we in relation to process and due of law because the Roy Ayotte, Jr.? “intentionally, knowingly, deliberately Yes, sir, “A. he did. presented patently false evidence amount “Q. job What was the of the nature ing to subornation perjury on the issue of done, he wanted sir? guilt remuneration” stage of the “A. He wanted him shot. trial. Appellant argues the State “Q. killed, Did he want him sir? presented false evidence on the issue of Yes, sir, “A. he did.” remuneration through trial, Smith at guilt stage punishment At the stage of the of the trial. following colloquy occurred as Smith was guilt At stage trial, the follow- being questioned about the 1968 Oldsmo-

ing colloquy occurred as being Smith was bile: questioned about the 1968 Oldsmobile: And, Smith, “Q. you previ- Mr. testified “Q. Smith, Mr. at [PROSECUTOR]: ously in this case that the ’68 Oldsmo- some time during 1977 May did Mr. bile given you by May that was Mr. approach you doing about some work actually bought job. was for another for him? job, What was that sir? Yes, sir, “A. he did. “A. For Howard Ross.” C. “Q. part And as you of this work that Reviewing testimony at both Smith’s him, were to do for any was there trial, stages say of the we are unable to payment mention partial of or payment presented that false evidence at for that being work accomplished by guilt stage of the trial on the issue of transferring an you? automobile to “A. “A. “Q. “A. “Q. What kind of automobile was it? “Q. And bought by to do for him? any was purchased, session of that automobile or drive it in paying you for 1977? ^[*] Mr. Yes, sir, Yes, ’68 Oldsmobile” manner, Smith, ^[*] sir. was an automobile Mr. it was. except at the time that it did ^[*] this work that May until December you for ^[*] ever receive ^[*] purpose you actually were ^[*] pos- 3rd, of ceased. The fact that the car was ly purchased as killing ly bought Moreover, extraneous offense if the State had been permitted becoming may remuneration for the murder of the de- whether mony at the ation for the establishes that September by appellant for a have been an does not the 1968 at the remuneration guilt stage prove appellant to serve as remuner- killing preclude the car was remuneration guilt stage improper that the car was actual- Oldsmobile of Ross. of the trial it from reference to an of the “job” Smith’s purchased in this for another was eventually original- that he trial, killing. merely partial testi- No, sir, thereafter, “A. I did not. appellant. Shortly was to do for (Tex.Cr.App.1978), Easley appellant asked him to kill the deceased and (Tex.Cr.App.1973). remunera- partial car was then used as punishment tion for At this offense. appel- testifying, Prior to Mizelle Miller trial, stage of the testified that the Smith County lant called three Harris inmates to actually purchased car was before the at- they testified that the stand and all Smith Ross; tempted killing of he and them that he killed the deceased in had told killing September, prior discussed Ross in then robbery. the course of a The State any killing concerning discussion of a rebuttal called Mizelle Miller as witness attempted deceased. He to kill Ross on had appellant had told him and he testified that having three occasions and failed to kill that he would during their incarceration by appellant Ross he was then told to kill legal if he would receive free assistance partial the deceased and the car became perjure testify himself at the trial and that ground remuneration for this offense. This (Smith) killed had told him that he Smith of error is without merit. robbery. the course of a the deceased in Appellant asserts that next amendment to Art. 38.- Prior to the 1977 disprove State’s failure to the statement of 29, 1977, August there supra, effective punishment stage Smith of the trial long standing that an oral state- was a rule that the 1968 “was remunera Oldsmobile accused, re- whether made in ment of tion for another offense and not for the not, interrogation or while “in sponse to an instant sub exculpatory offense was such of confinement or in the jail place or other stantive evidence that a reversal mandat officer,” ipso facto inad- custody of an punishment ed.” We reiterate that at the statutory within a missible unless it fell trial, stage of the testified that the Smith 38.22, exception supra. Art. Oral state- as originally purchased car was to serve jail inmates an accused to ments made Ross; partial killing remuneration for concerning for which the accused a crime testify not the car was in fact did custody not fall within one was in did offense rather the remuneration for that exceptions and were there- statutory these than the instant offense. The there su- Jimmerson fore inadmissible. fore, nothing disprove had other than the State, supra. Easley v. pra; fact the car was not used for the 38.22, to Art. The 1977 amendment bought. original purpose for which it was the limitations supra, provides now trial, guilt stage At Smith apply only to statements the statute partial he the car as testified that received interrogations; custodial product are His remuneration for the instant offense. if admissible voluntary oral statement is a by was other cir corroborated “stem of” or does not is not the “result find that the cumstances in the case. We The state interrogation.” from custodial corroborating plus the testimony of Smith Miller, to Mizelle from ment was guilt stage evidence at the of the trial the effective was made well after which ear was re disprove sufficient to that the amendment, prod not the was date of the muneration for another offense and suffi interrogation,” as of a “custodial uct partial ear was re prove cient to that the Arizona, 384 in Miranda v. term is defined offense. muneration for the instant See 1602, 436, 16 L.Ed.2d 694 86 S.Ct. U.S. (Tex.Cr. State, Granger v. 605 602 S.W.2d State, 552 S.W.2d (1966). Newberry v. See State, supra. App.1980); McManus v. State, v. 532 (Tex.Cr.App.1977); Bailey 457 Moreover, (Tex.Cr.App.1975). 316 the trial court S.W.2d Appellant next asserts was Miller that Mizelle is no evidence admitting objection over the testi- there erred in law enforcement Miller, acting agent of as an an inmate at ever mony of Mizelle appel with the his conversation Appel- officials in County Harris Detention Center. appellant’s find the We therefore court violated the lant. urges lant that the trial properly V.A.C.C.P.; was Mizelle Miller 38.22, re- statement provisions of Art. objec- appellant’s State, in evidence over 5 admitted lies v. 561 S.W.2d on Jimmerson 349 v. formed to confinement life. Evans Bubany, tion. The Texas Confession See State, 414, (1980) (Roberts, Statute: New Wine in the Old 614 418 Some Same S.W.2d Bottle, 67, (1978). J., 29, 10 April Tex.Tech.L.Rev. 73 — 6 dissenting), reh. denied 1981. State, 8, supra

Cf. Jimmerson v. note 1. CLINTON, dissenting. Judge, Appellant next asserts trial grounds by In the final of error treated improperly juror court prospective excused majority opinion, appel- the merits of Anthony Rein in violation of Adams v. Tex as, 38, 2521, complaints regarding lant’s ex- 448 100 State’s U.S. S.Ct. 65 L.Ed.2d Schlosser, (1980). record, 581 A clusion of veniremen R. L. D. C. careful review of the however, objection reflects that no Merdian and Ellis are avoided Clarence raised to the exclusion of Rein. Failure to asserting review of the rec- that a careful object to improper poten exclusion of a objections ord reflects that his “were direct- juror tial waives appeal. such error on jurors disqualification ed to the of the un- State, White v. 610 (Tex.Cr.App. S.W.2d 504 Code, 12.31(b);” thus, der Penal V.T.C.A. § 1981). See Evans v. 414 S.W.2d according majority, appellant’s to the fail- (1980); Crawford specify objections ure “to in his (1980.) jurors’ exclusions were inconsistent with appeal.” Witherspoon waived such error on Appellant next asserts in three It seems to me that evasion of meritori- grounds of improperly error the trial court nothing ous claims on this basis is more prospective jurors Schlosser, excused R.L. late no- than a semantical variation on the Ellis, Clarence and D.C. Merdian in viola Code, 12.31(b) tion that V.T.C.A. Penal § Texas, tion of Adams v. supra. A careful Illinois, 510, Witherspoon v. U.S. review of specif the record reflects that no 1770, (1968) “sepa- S.Ct. 20 L.Ed.2d 776 are objections ic by appellant were made to the independent excluding rate bases for challenge State’s any for cause that of the jurors inadequacy Whatever Texas.” prospective juror’s exclusions were incon majority might otherwise at- the Court Witherspoon Illinois, sistent with Supreme guidance in tribute to the Court’s U.S. 88 S.Ct. 20 L.Ed.2d 776 selection, capital jury the realm of it cannot (1968). Rather, appellant’s objections were gainsaid premise offered directed disqualification jurors here, majority opinion quietus, has its Code, under 12.31(b). V.T.C.A. Penal Sec. already constitutionally been interred: We appellant’s find that the spec failure to matter, beyond “As it is clear an initial ify objections juror’s in his exclu Witherspoon is preadventure that not sions were Witherspoon inconsistent with challenging any prospective ground for waived appeal. such error on and com See on the juror. It is rather a limitation pare Evans v. supra. prospective if power to exclude: State’s judgment is affirmed. be- jurors jury are barred from service capital punish- cause of their views about ROBERTS, Judge, dissenting. ‘any inability basis’ than ment on broader oaths, by to follow the law or abide their agree I Judge with Clinton that the ob- cannot be carried out. the death sentence jections during made voir dire were suffi- point may Witherspoon. . . . While this preserved cient grounds have the for repetition, obvious to bear it is seem too my review. generally dissenting opin- See apparent frequent references from their 925, ion in Crawford v. 617 S.W.2d ‘disquali- Witherspoon ground as a for (1980). 937 Venire Member was Schlosser jurors the improper fying’ prospective excused on an basis. Because of Appeals, the violation of the and the Texas Court of Criminal Sixth and Fourteenth Amendments, judgment the error of as- might should be re- have fallen into the juror 12.31(b) rected to

suming Witherspoon impermissi- exclusions under and § ”1 grounds are for exclusion. . . ble, both . incorrect applica- and unconstitutional 12.31(b).2 tions of But majority opin- the § 38, 100 Texas, 2521, Adams v. 448 U.S. S.Ct. having ion’s no more substance 2527-2528, (1980). 65 L.Ed.2d 581 conclusion — apparitional premise entirely than its dis- — 12.31(b) The idea that Witherspoon and § sipates inspection. on closer may separate independent coexist as and excluding capital bases for veniremen was Indeed, very inspection suggested, the specifically rejected 12-31(b) because fo- § undertaken, though by majority not the inquiry prospective jurors’ cuses the on the opinion appropriate: is most “a itself the “attitudes,” “opinions,” regarding “beliefs” careful review” of the voir dire 12.31(b) the penalty, any death thus § and, thus, —like supplies meaning the context other criterion which the in- so focuses objections of the voiced and the under- quiry scope within the of Wither- —falls standing parties of all concerned. The voir spoon. scope Witherspoon And the con- dire examination of venireman Schlosser is power stitutes “a limitation on the State’s point. fully illustrative of the It is treated jurors prospective exclude” because of “A,” is Appendix to which the reader their capital punishment.” “views about now referred. Adams, supra, 448 at at U.S. S.Ct. examination of Easily discerned from the 591. part on the is the focus of interest Schlosser In Witherspoon view of the fact then that judge, as questioners. of the The trial ground disqualification, identifies not a for indicated, questions clearly stated and his but appli- a constitutional limitation on the really felt that what was in issue was any ground cation of of exclusion which juror say could that his deliber- whether the capital punish- focuses on attitudes about ations on fact issues would not be “affect- ment, appellant’s objection— it seems that penalty. by possibility ed” of the death as majority hy- described —was Code, 12.31(b). V.T.C.A. Penal Ultimate- § pertechnically jurors correct one: this, ly sensing prosecutor abandoned being impermissible were excused under leading attempt to exclude his Schlosser application 12.31(b), were not thus § against . ground that he had “a bias .. excludable thereunder at all. As the Su- is phase upon law which the State [a] stated, preme specifically Court 35.16(b)(3), V.A.C. rely,” entitled to Article could, consistently “The with With- C.P., citing Hovila erspoon, 12.31(b) pro- USE exclude § challenged for cause (Tex.Cr.App.1978), spective jurors capital whose views on unwitting upon incantation Schlosser’s punishment are such as to make them would be affected.” his “deliberations obey unable to follow the law or their correctly analyzes Clearly, majority 12.31(b) oaths. But USE § disqualifica- referencing the the record jurors grounds exclude on broader based 12.31(b).” being “under tion of as Schlosser opinions concerning on their the death just record discloses the basis But as the Adams, penalty impermissible.” is cause, prosecutor’s challenge for so too 2528. U.S. S.Ct. at ground of defense counsel’s does reveal then, In disagreement sum I have no objection thereto. majority opinion’s characterization of Indeed, nothing oblique about the appellant’s objections, for it is clear to me there counsel’s being orientation of defense complaints preceptive that his were indeed di- emphasis 1. All otherwise indi therefore not is mine unless not be affected and were would 12.31(b) provision cated. as that excludable under § This, being interpreted how- at the time. objec- only possiblemeaning 2. The other of an ever, seriously simply be- be advanced cannot disqualification tion ... under “directedto other- reflects cause the voir dire 12.31(b)” ... would be that the defense be- § post. Appendix “A” wise. See jurors lieved the had stated their deliberations

351 Indeed, having been “af- prosecutor, concern; he genesis every question of objec- to remove the opportunity an forded of Supreme to was the Court put Schlosser took a dif- testimony” supply other tion or Witherspoon in the United decision States’ tack, maneuvering easily Schlosser’s ferent Illinois, juror consider supra: would the it (as prosecutor characterized “bias” case; would penalty proper the death in a for a punishment as a first) against death against imposition of automatically he vote defendant, into the capital non-trigger the evi- capital punishment regardless of court the trial “magic he knew words” dence; given and follow the law as could he approve. this would on and Court would act what- by instructed the court? And indeed short, nothing done here clear that In it is “equivocation” ever this record reflects defense counsel differed had would have Schlosser, was never in his part of it “Witherspoon.” word uttered the questions. responses to defense counsel’s sense —an the classic was —in Schlosser State, In Zillender v. 517 depart once did he juror.” Not “Adams (Tex.Cr.App.1977), it was stated: that he believed initial statements from his generally acknowledged policies “The cases, appropriate in capital punishment in requiring specific objections are two- law, impo- consider follow the would would First, objection is re- specific fold. never and would penalty, of the death sition quired judge to inform the trial imposition. against vote its automatically objection basis of the and afford him the Yet, was excluded because with ease he Second, opportunity spe- rule on it.1 scruples, his hesi- swear that his could not oppos- objection required cific to afford would process, involved tancy ing opportunity counsel an to remove the this recurrent him. It was not “affect” * * objection testimony. supply or other finally forced Texas cases which anomaly in Thus, [objec- ground where the correct Supreme States the hand of the United judge oppos- was obvious to the tion] Court. counsel, ing from a no waiver results Adams, has no the State According to general imprecise objection. or excluding jurors “legitimate interest” by the law and abide who would follow important 1 A collateral but ramification of notwithstanding opinions their their oaths provide this function is to trial court with fur- capital punishment; or beliefs about opportunity any attempt to cure harm ther, by the State resulting giving implementation from rise to the the action objection. [Citations omitted].” “legiti- which exceeds any “practice” interest,” prejudice[s]” the “seriously mate majority seriously Does the contend that 43, 100 Adams, at supra, 448 U.S. accused. court, it was not obvious both to the trial 588. In the L.Ed.2d at S.Ct. prosecutor and the that defense counsel be- objection was case, the defendant’s instant being lieved the venireman was excused in belief convey his adequate more than Witherspoon? Clearly, violation of neither itself failed to show had the State judge felt that prosecutor nor the trial of venireman the exclusion entitled to on exclusion established the limitations Schlosser. Tex- Witherspoon constituted “the test” in cor- as, Furthermore, was approved application of defense counsel in view of the its entitle- 12.31(b), But that did not show supra, by this Court.3 rect: § trial court appreci- exclusion and the they fully failed ment to the does not mean excusing on the State’s Schlosser position on the matter. erred appellant’s ate (Tex.Cr.App.1977); here, Burns v. this 3. As of the date of the voir dire Court 1977), granted (Tex.Cr.App. held, reaffirmed, relief S.W.2d 270 when a venire- had then Estelle, (5 592 F.2d 1297 CA person sub nom. Burns v. “State statu- was excludable under the granted, 12.31(b), 1979), rehearing disqualification, F.2d tory” ground en banc § aff'd, 1979), (5 granting “unnecessary prospective order relief CA to consider” 1980) (5 Witherspoon. juror’s “qualification” and Moore v. E. 626 F.2d 396 CA under 1976). Hovila, (Tex.Cr.App. supra; g., Shippy 556 S.W.2d 542 S.W.2d 664 “Now, Adams, would the fact that the . .. two supra. I challenge for cause.4 possible punishments of death or life . .. disqualification would hold that the of your on requires would that affect deliberations Schlosser alone vacation of * * * Georgia, any fact issue in the case? death sentence. Davis v. 429 U.S. 122, 399, (1976).5 50 L.Ed.2d 339 S.Ct. feel really trying you find out how I’m penalty. imposition about the of the death Schlosser, the As in the case of venireman disqualified would be unless the you Now fully record that Merdian was discloses imprisonment for penalties of death or qualified jury to sit on the which tried your deliberation on life will not affect murder; capital conversely, for any issue of fact. the record does not indicate that the State establishing met its burden of its entitle- mandatory penalty of death Would the Witherspoon, supra. ment to his exclusion. imprisonment your affect delibera- or life practice, by The State’s as revealed this any issue of fact? tions record, seriously prejudiced appellant by de- A: No sir.” priving right him of his constitutional to an that The court informed Schlosser impartial jury under the and Four- Sixth “go principles into the of attorneys would teenth Amendments to the United States in the case and cautioned law involved” 1, Constitution and Article 10 of the Con- § required to take an oath to jury that the is Adams, supra. stitution of this State. base its decision principles follow those and At time when the Court should lead the point this “solely upon the evidence.” At repair damage effort this has over, during his prosecutor took through sustained the unchecked use— told that preliminary comments Schlosser 12.31(b), recently an at- condemned —of § hiring for another appellant was indicated tempt by major- continue its sanction victim; explained that alleged he to kill the ity opinion uncommonly inappropri- seems capital offense such conduct constituted I ate. am therefore constrained to dissent whether asked in Texas. He then Schlosser majority to the invitation extended that law. disagreed” or “agreed opinion spectre for to haunt us for may be more the replied that “it Schlosser many years to come. actually of the man that responsibility prosecutor re- trigger.” pulled the

TEAGUE, J., joins. plied: “Now, person provides that the law “A” APPENDIX subject to the hiring is who does the also. life or death introducing penalty and the attor- After himself maximum * * * charged with is charge This Defendant neys, advising of the Schlosser doing the charged with mandatory He is not against appellant, as well as the that. continued, penalties, judge murder itself. the trial penalties provided consider all of the Apropos is the

4. of the exclusion of Schlosser irrevocably law, not be following passage Witherspoon, and that he U.S. state committed, from begun, to vote trial has before the 1777 n. 21: n. 88 S.Ct. at regardless against penalty of death “Just as veniremen cannot be excluded from emerge might in circumstances facts and ground they general cause on the [voice proceedings.” course of the objections express penalty or to the death against religious scruples its conscientious or 12.- § of the abuse 5. As further illustrative infliction], they so too cannot be excluded Supreme 31(b), supra, the decision of simply they cause because indicate that there Adams, designed patently supra, in Court check, they in which would are some kinds of cases examination the voir dire I will address capital punishment. refuse to recommend “B,” Appendix but of venireman Merdian suggest juror expected prospective cannot be And a published it not be Court say in advance of trial whether he would space For sim- considerations. the interest of ple brevity, penalty in the in fact vote for the extreme completely pretermit discussion I be de- case before most that can him. The Ellis. venireman willing is that he be manded of a venireman know, open his situa- with an mind on tion. law I would have follow the as a A: to asking you Juror. He’s not THE COURT: * * * He case. going to do in this

Q: you law what are you Could if the follow toward your attitude asking you is about you tells Defendant or Court that * * question *. The hiring capital punishment person that does the is sub- capital punishment in ject you the . .. of is: Do believe penalties to death or hires . . . applied person a who as to imprisonment? life killing? someone to do < : Yes sir. * * * going try : I'm to not to talk O’ my where MR. That’s SCHLOSSER: you position way a into one or the problem is. * * * you disagree other. If with the to answer— You have THE COURT: you your law or if own mind think in I think MR. I don’t SCHLOSSER: you put your couldn’t out of mind the could. * * * feel, way you that’s fine. Now if me. MR. Excuse POE [Prosecutor]: you disagree you with or if law] [the through, Your Honor? you Are ought don’t think that that be the THE Yes. COURT: looking you your law or don’t think in BY mind, can, MR. POE: as only you you own that * * * q. could be fair to we would we need ¾¾6 answers that just like to it now. know about it’s yes or I know you from are no. say it all Well, nature —and I capital punishment.

A: I believe human in could, could, blood, I I If a man sheds man’s time —I I think another believe thing, of I don’t think type then that man blood and that or that should It required. seems to me that the man I could.

Q: Under our A: A: Q: Q: What are you answer on that son who don’t on that ment. that’s too see how here to abide I know as That’s what this is all about Well ... But how are I couldn’t ... I would have to long one . . . subject thinking could, actually think, sir, type you you actually as your feelings late but sometimes our you after will feel. about it. did the murder would be law he your .. . without jury, just want. does the obey give you you go by give * you feelings? law. * * are on the capital about the is us an answer. could * * * the law. We will take let us know. hiring? law [too]. studying yes ... sit personal punish- as best If fairly or no is to jury per- you I’m * * it yes what he is problem say no. fine. object the ease.... ruling ing is not the with will THE COURT: MR. HOUSE [Defense MR. SCHLOSSER: MR. POE: But So I will a hypothetical what or no tell capital to this [of] you is he’s ^[*] you law, requires charged judge, trigger man in this just murder— he’s know, type I have a If he wants to getting into the ^[*] ask questions. not, Overruled. type question, in with. that the you again. questioning. but order n ¤ right I would have you he is Counsel]: to make to tell Defendant n to answer present charged facts case, I Know- that’s him n I know, Q: fairly not sit to the State feelings, important You could you are to us. charged is the Defendant you knowing no difference

However feel makes cannot, hiring opposed can, doing as you you if fine. If to me. trigger; pulling the actually

just let us know. right? right . . . really

A: I couldn’t decide sit, Right. A: you I could ... on whether

now question this in a proper case —but Q: I think yes that was a answer? you could assessing consider the death A: Yes. penalty proper punishment as a if that Q: was in you And fact an element thought punish- have about this and

you ment person have come to for a allegedly the conclusion who your hired mind, own you that someone really to kill couldn’t be someone else? In other totally words, fair to the you just State because of the wouldn’t automatically nature of the offense he charged vote no penalty; to the death you could with; is that correct? in fact proper consider it in a case? Is A: That’s that true? correct.

Q: although And you totally could be fair A: Yes. in another type capital case, murder MR. object I will HOUSE: to the you could not be fair in this case be- challenge. cause he is not trigger man? MR. May POE: I have a moment? A: That’s correct. THE COURT: Yes. Q: Is your answer for the Record BY and for MR. the Court ? POE:

A: Yes. Q: My question you was: Could be fair Q: I you take I spend you really could told me couldn’t the rest be

day talking to fair to you about because of way that and State would your answer, you still be feel. apparently would it And Mr. House not? you talked to a little different and a aspect just A: different try- Yes. comes in. I’m ing you: you to ask totally Can fair MR. him, POE: We will challenge to the knowing State that the Defend- Your Honor. * * * ant shooting? didn’t do the And BY MR. HOUSE: you you I believe told me that couldn’t Q: Schlosser, Mr. question really boils really State; starting be fair out to the down to case, the fact that in proper a you bias, type maybe, have some regardless of what the circumstances against type being capi- of offense may you be—because don’t know the murder; tal right? is that Is that you circumstances and don’t know the right? you facts and won’t you know until Is you that what told me? hear it coming from the witness you understand that —but stand — question object MR. I to the form. HOUSE: proper is: In a you case—can captioned question to be in has any think of case that proper would be you terms could con- of whether or not in you which could consider the death * * * penalty. sider I don’t the death penalty person for a allegedly who agree I with that statement. think it’s hired someone to kill someone else? In whether or not he could consider it words, other you just are saying not proper case. automatically you wouldn’t vote agree THE I’m inclined to COURT: for the penalty; you death could con- you, Counsel. I think the issue sider trying it ? That’s what I’m you comply here is whether with the find out. 12.31. A: You questions. ask some hard Would right, MR. POE: The has the

you repeat that? Defense, to have 12 as well as the Q: key question Sure. The here as I see case, any criminal unbiased Jurors in it is or proper whether not in a case capital offense or misde- whether it’s a —and we don’t know what it could meanor. you conjure up could all kinds of be— horrendous things your you you one THE COURT: Let me ask mind — asking you questions, need to do that while I’m more [sic] person who You would as else? him, death consider the allegedly hired Schlosser, hire in a murder for Mr. right? penalty; is that Juror, selected as a you case if were circumstances, A: Yes. any could not under you it, and inflict I understand vote where that’s

as certain cases Q: There are hired person who penalty death true?

plain my answer. someone not do less of what tioned— tion. want ally doesn’t matter body is entitled to his own MR. SCHLOSSER: THE COURT: THE COURT: MR. to know how it; SCHLOSSER: else to commit is that facts You answer what We don’t care —it why you feel. you arel You could you Well, he men- I want murder feel. are my ques- opinion. regard- saying? Every- to ex- We re- A: Yes. A: Yes. Like ty]? tions. you have with [the disagree us ^[*] MR. POE: MR. HOUSE: get hiring is * * * a different ^[*] with that. law that the some subject I told It seems Let me ask ^[*] difficulty or I think answer. you to the death ^[*] person who does like each one at the some ^[*] * * * qualifies. problem start, I penal- ques- ^[*] Do justify You don’t have to it. way feel that Q: you The fact that * * * carry that feel- you you, you if were selected means that would Can trial, you? Juror, imaginable set of wouldn’t any ing throughout as a under penalty facts vote to inflict the death Yes, sir. A: * * * hiring some- person on a convicted of word bias. Q: I hate to use the to commit murder? That’s the one else you your own mind you But feel in question. feeling aside really put that wouldn’t any Not under MR. SCHLOSSER: feelings really put our because we can’t circumstances, no. aside; right? is that impossible; that’s my challenge. I MR. POE: renew right. A: That’s * * * THE I sustain the chal- COURT: this a Juror in Q: you And if are lenge. put you be able to case would object I the sustain- MR. HOUSE: can’t, you just tell the or not? If aside ing challenge. Court. counsel, obviously skeptical that Defense No, A: sir. continued, occurring, communication challenge for It will be a MR. POE: asking whether he had understood Schlosser bias. explained that Judge’s question. He couple a I need to ask MR. HOUSE: “you just is that wouldn’t what is crucial * * * Schlosser, Mr. questions. more penal- automatically [against vote the death there already indicated you have . . assess- ty]; you could in fact consider . you could in which certain cases are proper if it was a case ing penalty the death proper penalty death consider the [as proper under the circumstances?” Schlos- who al- person for the punishment] I could replied, “Certain conditions ser kill person to . . another legedly hired . where I of where I could and certain think proper punishment? party a third point —as Defense counsel at this couldn’t.” A: Yes. that, stressed to the fact Schlosser Now, here is: Even Q: question case or “You don’t know the facts of this bias, question is: have a though you are cases that any other case. But there Judge is the law? The you follow Can

you imagine you would definite- can if that give you law and it, going to consider, assessing ly as I understand seeking the law is that . . . the State penalty person to a who al- the death individu- penalty particular on a kill someone death legedly hired someone to MR. question. POE: One more al, law and consider the death biases. spite your question bias'! Because we all is: Can you penalty follow the got de- Q: correct? ^[*] You disagree ^{[*] [*]} with the ^[*] law, ^[*] is that ^[*] A: Yes.

A: A bias —I have been influenced always perfect.

biases. The law is not Q: you Can answer out? * * * * * * A: Yes. Q: not, Q: question is whether or And you strong feeling be- have a that it bias, your you

cause of your would automati- would affect deliberations in the case; cally veto a right? consideration the death is. that case, penalty type in this . .. [mur- Right. A: My bias. person der for as to the who hired hire] Q: We call it bias. I hate to use that proper him if in fact it were a case and term. But let’s call it that because we you whether or not could follow the * * * talking know what we’re about. law . . . ? you] had to make the decision [If Well, A: I think I would still be influ- whether it penalty was a death or life enced bias. imprisonment, way you feel would Q: you your Could set aside bias really your deliberations, affect follow the law and at least consider the wouldn’t it ? words, penalty death In ...? other Yes, A: sir. you automatically would veto the death penalty or the consideration of be- Q: talking We are [it] not about ... whether your cause of bias? you or not could follow the law because A: Yes. Q: Q: A: in So So I couldn’t ^[*] you your proper ^[*] would consider it? bias itself could be overcome automatically case; ^[*] is that what ^[*] veto. ^[*] you’re ^[*] A: it? you ations. about sworn to follow the Right. would be a Juror and your It would affect Yes. bias affecting your law. you, you I’m would be wouldn’t deliber- talking saying? be a you. MR. POE: Thank It will

[*] ^{[*] [*] [*] [*] [*]} challenge. sup- In MR. SHAVER [Prosecutor]: yes A: I couldn’t answer or no on Honor, that, we port of Your would because are influenced one you always State, which was like to show Avila vs. way or another. Appeals Court of returned Criminal Schlosser, Q: is, question But Mr. year.1 of this February 8th you prop- could follow the law and in a way.2 very question was answered that penalty er case consider the death de- spite your ques- real bias? That’s the judge was juncture, At this the trial tion. thereafter, opinion question; in shown the Yes, A: I could. stated, will sus- right. The Court “All excused, challenge. You will be object

MR. tain the HOUSE: I to the chal- lenge. Mr. Schlosser.” Boyd upheld because her Venirewoman apparently 1. This to Hovila v. reference is (Tex.Cr.App.1978). that she would voir dire examination disclosed 562 S.W.2d 243 “unconsciously deceptive.” Hovila, supra,

2. In Venireman Glass was held Boyd Schlosser in the Both Glass and —like appropriately excluded on the have been possi- readily that the admitted instant case— challenge 12.31(b), § State’s supra, for cause under bility penalty “affect” their death would “perception because it was clear that his deliberations. by the man- of the facts” would be “affected” datory Similarly, penalties. the exclusion of objected But defense counsel question ruling

court’s before he could

venireman further. The trial court told go

him to ahead. Counsel elicited reaffir-

mations from Schlosser that he did believe capital the law punishment, that he

personally disagreed with the law in the discussed,

respect previously and then

asked,

“Q: question Despite your But the is: your disagreement

bias or with that

law, you could follow the law? object

MR. I that. POE: That

not issue.

THE COURT: Sustained.

Defense requested opportu- counsel then

nity to exceptions. make a bill of parte Ray

Ex Michael ALLEN.

No. 61099. Houston, appel- E. Hopkins, Gerald Texas,

Court Appeals of Criminal of lant. En Banc. Vance, Douglas Atty., Dist. Carol S. June 1981. O’Brien, Houston, Atty., Dist. Rob- M. Asst. Austin, Huttash, Atty., for ert State’s

Rehearing July Denied 1981.

State. MOTION ON STATE’S

OPINION REHEARING FOR DAVIS, Judge. G. TOM granted relief we original submission On application post-conviction upon a 11.07, V.A.C. corpus. Art. of habeas writ opinion original our We withdraw C.P. there- opinion substituted following

for. it unneces- we find reconsideration

Upon petitioner’s validity sary to examine the district examining trial waiver jurisdiction valid waiver Absent court.

Case Details

Case Name: May v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 20, 1981

Citation: 618 S.W.2d 333

Docket Number: 66248

Court Abbreviation: Tex. Crim. App.