McManus v. State

decision, m a calculated to result from the deliberate may which have resulted concern cause; light own ac- petitioner’s must be considered in of fact delay dismissal of the cause, prosecution was based a discarding that his on the in file tion speeding ticket which resulted in a $22.00 already had a petitioner the fact fine his do deem this first trial. We not may the cause considered trial particularly grave a serious or offense. a prejudice he suffered as any of mitigation the balanc- delay. applying In result of the delay Petitioner does contend Wingo, conclude ing we test Barker defense, resulting prejudice impaired his that he has failed to show petitioner petition: He in his him. asserts right speedy to a trial. was denied his passage “The of time has caused Defend- ant and witnesses to have less recall his sought is denied. The relief alleged of the transaction to have oc- charged on date in the com- curred PHILLIPS, JJ., concur in ROBERTS plaint; his file Defendant has discarded the result. matter, on this as Defendant’s law office routinely discards traffic files that have years.

not been tried after four Defend- therefore, adequate

ant does not have regarding the transaction to

information

properly this try cause.”

He he would not be also contended that properly

able to cross-examine witnesses against him. McMANUS, Appellant, Eugene Vernon it While is reasonable assume petitioner prejudiced somewhat Texas, Appellee. STATE of appears therefore delay, one reason he, himself, was because discarded his file No. 58886. Further, on the case. the fact that the trial Texas, Appeals Court Criminal sought petitioner was a trial de novo En Banc. merits some consideration. Petitioner had already had one trial on offense and Dec. 1979. present had had his opportunity to evi- an Rehearing Jan. 1980. Denied present prosecution dence observe the fact, plus peti- This theirs. the fact his own tioner discarded file his mitigation

may be considered in a

prejudice he suffered as result

lapse of time. balancing applying the test Wingo, we consider: there was

Barker appeal delay between filed

substantial novo; trial de County Court and the

however, prosecution set the cause for during period;

trial several times why had on these dates

reason trial record; appear petitioner

does not attorney, nature of well aware asserted

legal proceedings; petitioner never period during

his right speedy trial time; urge right the decision not may de have been speedy novo acting

victed of with Paula Derese Cantrell cause death of Paul Cantrell thereof, promise remuneration or the money proceeds to be from the of life Mary insurance the estate of Paul and Cantrell. error,

In fifteenth ap pellant challenges the sufficiency to show evidence that the murder com promise mitted for remuneration or the thereof. early morning July hours of deceased, the bodies of the Paul and Cantrell,

Mary were discovered their daughter, their home Paula Cantrell They were the floor lying Derese. found den, strangled of their and both had been days and had had their throats cut. Four Paula, later, only child of Paul Mary, gave impli- a statement in which she cated herself in the murders. Paula, testifying against appellant, stat- pled guilty ed that she had the murders conduct, parents, of her she her encouraged' the commission of the stated, crime. that she admitted her She part crime because she could parents’ money have taken her and lived like she wanted to. appellant

Paula first met when she lived Beaumont and worked for La- University, was appellant mar where an married assistant football coach. She later Chad, son, Derese and had a Herbie parents did not December 1973. Her Schneider, approve marriage In of Paula’s to Herbie. Stanley Mark Vela and G. Houston, separated Pau- Smith, Paula and Herbie appel- Don Baytown, la, son, parents’ with her moved into her lant. Baytown. lived with her home in She there Vance, Carol S. Michael Atty., Dist. C. parents July their deaths in 1976. until Kuhn, Hinton, J. Stu Stewart and Michael time, During period of there was con- this Houston, Huttash, Attys., Asst. Dist. Robert over parents, flict Paula and her between Austin, Atty., State’s for the State. hus- to reconcile with her Paula’s desire Paula’s testimony band. There was that bat- wage threatened to a court father had Paula legal custody of Chad if tle for the OPINION with Herbie. reconciled DAVIS, Judge. C.W. 1976, appel- January February In appeal This an from a conviction for contact with Paula. Pau- lant reestablished murder, punishment time, wherein the to la testified that at this she refused However, Appellant go was assessed at déath. was con- out with him. she talked like accident.” Paula something look telephone. A few several times on the him argument what this later, had serious did not know weeks she that she stated and was parents her about Herbie of the deceased’s Appellant knew meant. ap- upset. agreed to lunch with She have weekend, him and Paula told plans Easter her pellant, prob- and at this time discussed staying. they would the motel parents her with him. She testi- lems with parents left her testified that when Paula appellant she would fied that she told that thought something trip, that she for their parents. Ap- do her anything to be free of weekend. happen to them that going was way of a pellant responded that he knew was serious thought appellant She care of so that she could be taken questioned murdering them. When about again. worry would not have to them, she tried to warn about whether she how much also asked her about Appellant them just could not tell that she stated had, and whether she insurance Herbie admitted that situation. She about the. responded wanted him killed. Paula mur- encouraging the was she started when did Herbie killed. she not want testified that she parents. her She ders of February, co- during appellant Sometime Still, she on the situation. turned her back $1,500 took out. signed a loan which Paula week- parents several times that called her About after their first meet- two weeks safely. end, home they returned appellant ing, during which time Paula and with Paula May, appellant discussed times, they telephone talked on the several union; money from a credit borrowing ap- again meeting, for lunch. At this met pay person money to be used was pellant things told Paula that been killings. He do the supposed who was so care of that she would have taken person” or the “contact her that also told he worry again. about it He told her that time. sick in Ohio at that “hit was man” people for people knew some who killed money, already been a and that there had time, fa- also became During this Paula parents have her killed. payment made to knew T.” and name “Ben miliar with the supposed was Paula testified that she involved in the somehow that he was proceeds her pay out murdered. parents her scheme have insurance; parents’ appel- estate and life June, drinking was During told her he lant wanted one-third. She frequently gone and was heavily although expressly she never testified that Testimony showed that business. him, pay told him would she “let it that she to have the was not able trying, but time, slide.” stated that at this she did She Paula that he soon. He told murders done that he serious. not believe anyone else counted should not have 1976, appellant In March of and his busi- have done killings, that should to do the partner, Olney, ness Vernon came Pau- walk that he would himself. He said them to parents’ la’s house discuss a business like he house and act up to the deceased’s mother, matter, Paula, showed and with her and kill going to talk about business appellant through the house. them himself. appellant

Paula and maintained commu- nication, 23rd, to Friday, July to work Paula talked April, Paula went and On secretary appellant plywood as his in his her house. telephone for on the appellant that at brokerage business. testified She her house him drive had observed She time, was serious thought appellant she “the man told her that day. Appellant that having parents her murdered. about to her leave area” and told her not previously warned house. He had weekend, had Mary Paul and On Easter man” came. when “the to be in house in Austin plans to meet some friends made over to a friend’s evening, Paula went That weekend, appel- play golf. Prior shortly before home returned in- house and Paula about had a discussion with lant “making midnight. indemnity and surance double then, again “Q. you, Paula talked to To appellant knowledge Satur- [of 24th,

day, July planned and told him she encourage- that had a murders] evening; date words, that she told further him ment? knowing In other parents that her would be at home that about it you and didn’t tell some- night. night, That when she returned home body? date,

from her she discovered the bodies of right. “A. That’s [Paula] her parents their den. Over the next “Q. you Is this what meant? few days, appellant visited Paula several Yes. “A. times, and repeatedly “keep told her to her “Q. concerned, And so you mouth far as are shut and not to He then crack.” told that really brought you her how murders is what had occurred and that has present he during courtroom, you had been to this is that them. Accord- had Paula, ing appellant knowledge to his statements to never you really but en- had couraged rented car from the airport Houston . ? . up picked They had two men. then got And saying “A. he proceeded to the Cantrell All house. agreeing third of the and me estate gloves. They pipe them wore had used that, right. that’s head,

hit the victims then had Oh, “Q. you agreed it? cut their throats. The started three had Well, guess. anything I I do “A. didn’t house, pulled ransack up but a car about it.” street, across they Appellant so left. had also made a comment if one hair Tabor, appel- Ben acquaintance an deceased, found on bodies of the lant’s, appellant testified that in March [appellant] “he was dead.” finding profession- approached him about á Appellant al killer or “hit man.” told Ta- confession, In her written Paula stated killed, people bor that two to be were that during the months that she worked for daughter their would be the benefi- appellant, always “he talked about it [the ciary, that he was to receive one-third talking ... He kept murders] of the estate. The further recorder reflects it all the time until it happened.” On the payments twice made day murders, called and $6,000 give each to Tabor to to the “hit “told me the man had him Fri- called procured man” whom Tabor said he had day and three is said a crowd. I knew what appellant. me in meant because he had told past might that it not matter if I and Chad French, girlfriend appellant’s Donna were something there. He was afraid during July, these June and testified that happen get would to me and he couldn’t months, appellant leaving had mentioned money.” insurance However, vacationing town or somewhere. appellant told would not be her that this trial, testimony

In her denied Paula mid-August “because he was until around that she told expressly she money.” going to run into some him, pay expressly would or that she ever promised pay that, him. She testified Candy of Paula’s and Campbell, a friend instead, he had told her was to pay that she acquaintance testified appellant’s, him proceeds one-third estate. trip planned that she and Paula had thought She testified that she had not during Paula had received California June. through give she how was to him mon- employer, her permission appellant, to ey, “the reality really because of it never However, changed his mind go. appellant hit [her].” let Paula leave. in June and would not this, extensively spoke appellant about about Campbell

Paula was examined murders, her, “Well, just beyond you her all will appellant involvement her told if entry pleas go], pay I will for August confession to crime and wait until late [to asked, of guilty to the murders. was everything.” She

513 finding support the that Janowski, jury’s sufficient acquaintance Don another for February the murders remu appellant’s, appellant testified that committed approached him in- appellant anticipation thereof. neration or “hit Janow- quired finding man.” the evi- contends that Appellant further appellant testified that he believed said ski to sustain the convic- dence is insufficient people. going that was to “hit” two of the is no corroboration tion because there We hold that the evidence is sufficient to jury The testimony. accomplice witness’ appellant show that committed murder “for was an ac- charged Paula Derese promise or the of remunera- remuneration of law. On complice witness as a matter alleged tion” as in the indictment. See testimony that he Ben Tabor’s the basis of Code, 19.03(a)(3). Penal V.T.C.A. Section that he had appellant had to believe led proscribed by The conduct this section of but appellant, “hit man” for procured killing is murder statute of' so, not done but rather that he in fact had receive, any person in order to him out of appellant “con” told purpose receiving some benefit or com- they charged money, Thus, pensation. the focus of the criminal accomplice witness as a could Tabor an find upon is the actor’s state of mind. culpability matter of fact. The clearly record reflects that pro- Ann.C.C.P. Article Vernon’s expected proceeds share from the in the vides: estate of the victims and that he acted out upon “A be had conviction cannot expectation of an that he would receive accomplice unless corrob- testimony of an payments such remuneration. He made to- tending to evidence con- orated other killer; taling $12,000 professional to hire a with the offense com- nect the defendant he made statements to others that he was mitted; is not corroboration suf- of the estate receive share victims’ commission merely if it shows the ficient deaths, upon their and he indicated two offense.” people expected that he to “come into” State, (Tex. 902 v. 566 S.W.2d Carrillo money August. some we reiterated that: Cr.App.1978), Further, appellant could have inferred sufficiency of the test to the “[t]he agreed from Paula’s conduct that she to and accomplice witness’ corroboration [of acquiesced in his request for one-third of considera- testimony] is to eliminate from proceeds of the estate. Paula knew accomplice wit- tion the evidence having was serious about her then examine the evidence ness and murdered, and, parents according to her view to as- witnesses with the other testimony, own listened she evidence, inculpatory if there be certain plans frequently. discuss these She dis- incriminating charac- evidence of is parents’ cussed her financial status with ter connect the defendant which tends to appellant, gave him con- information If commission the offense. with the activities, including their cerning their evidence, there is such the corroboration whereabouts certain times. record sufficient; otherwise, is not.” appellant perceived Paula’s clear that promise a benefit implicit conduct as an State, Bentley 520 v. See also he acted that basis. and that v. (Tex.Cr.App.1975);, Edwards S.W.2d 390 (Tex.Cr.App.1968). State, 629 427 S.W.2d Court, Upon the evidence review Further, showing an offense the mere light most favorable must be viewed in corroboration. is not sufficient State, occurred 582 jury’s verdict. Jones v. v. State, supra; Windham Carrillo v. (Tex.Cr.App.1979); Seaton S.W.2d It is not (Tex.Cr.App.1972). 564 S.W.2d directly corroboration necessary (Tex.Cr.App. Rogers or be (Tex. the crime suffi link accused to 1977); 543 S.W.2d Clark Carrillo v. guilt, cient itself to establish find that the evidence We Cr.App.1976). State, supra; State, Attwood v. Appellant quash filed his motion to There cated that he quired fied that ey August, he expected Don Janowski testified that The record reflects that two witnesses testi well appellant’s contention is without merit. 342 (Tex.Cr.App.1974); it App.1974). likely 1976, appellant approached him and in Warren v. accomplice as than not. Carrillo Even if we assume that Paula, appellant testimony finding the month after the murders. wanted two witness’ “coming 514 S.W.2d 458 indicated to them that a “hit man” and indi accomplice appellant testimony into” some mon need people in February only Tabor, (Tex.Cr. witness, rented supra; killed. make more as court overruled the motion. that: indictment on was held on that V.T.C.A. Penal “(a) commits murder as defined under Section 19.02(a)(1)of this code and: promise of added) the murder for remuneration or the remuneration “(3) neration ¤ A person ^[*] person or employs March remuneration.” commits an offense if he date, Code, ^[*] commits the murder for after which the trial Sec. 19.03 another to commit ^[*] promise 1977. A ^[*] (Emphasis of remu- provides hearing ^[*] a white Monte Carlo from the Houston air charging appellant indictment with port on the afternoon before the murders capital alleged part murder appel- and returned it the morning. next Two lant: witnesses, other Ken Giles and Reid “. . did then and unlawfully, there Hughes, both they testified that saw a car intentionally knowingly, acting as a matching description around the de party with Paula Derese Cantrell ceased’s neighborhood and house the after persons Jury other to the Grand un- Further, noon of Hughes the murders. known, Harvey cause the death of Paul identified as the driver of that by choking Cantrell strangling him car. The appel record further reflects that knife; cutting with a cord and him with a lant physical appearance altered his day and said murder was committed for re- murders, after the juris and then fled the promise muneration and the of remunera- diction immediately prior to his trial set tion, namely, money proceeds from the ting. We hold that inculpatory this other life insurance and the estate of Paul Har- evidence tends to connect vey Mary Bright Cantrell and Cantrell.” the commission of the offense arid makes accomplice testimony probable more 21.02, pro- Article Vernon’s Ann.C.C.P. Thus, than not. testimony is sufficient indictment, vides that in an the offense ly corroborated. See Carrillo v. su plain intelligible must be set forth in pra; Bentley supra; Warren Further, words. an indictment “shall be State, supra. Appellant’s challenges to the charges deemed sufficient the com- sufficiency of the evidence to sustain the ordinary mission of the offense in and con- conviction are overruled. language cise such a manner as to enable in. error, person understanding his first common to know meant, contends that: degree what is and with that certainty give that will the defendant no- overruling Ap- Trial Court erred in “[t]he pellant’s particular tice of the offense with which he quash motion to the indictment charged.” apprise Appellant that it failed to Article Vernon’s Ann.C. capacities in which he was al- C.P. murder, leged to have committed Appellant wit; now contends that the in promised whether he someone apprise charge dictment him of the promise failed

remuneration and whom did he promised by against particularity or was he him with such as to remuneration and whom.” prepare enable him to his defense. This

515 trial, alleged appellant that The indictment prior contention was raised and murder, “acting party constitutional therefore the fundamental as committed protections adequate and due per- notice Derese and other with Paula Cantrell process unknown,” involved. Haecker Jury are v. and that Grand sons to the Drumm S.W.2d for remunera- was committed such murder (Tex.Cr.App.1977). language is import clear of this tion. The protections require These fundamental promise or the that the remuneration careful examination and consideration from supplied was to be remuneration perspective the accused. Haecker by person or party named to the offense State, supra. model, While no persons unknown. whole, does, indictment, when read as a allege An indictment must facts suf indeed, appellant sufficient notice of give give ficient to accused notice supply him or was to him the promised who particular charged. offense with which he is evi- there is some remuneration. While 21.11, supra. Article As we stated in appellant attempted dence in this case State, supra: Haecker v. hiring someone perhaps succeeded in to and say is not sufficient to that the ac- him, “[i]t this is not the killings to do the cused knew with what offense indicted appellant was offense for which rather, charged; inquire we must as to gravamen capi- prosecuted. whether the face of the instrument sets charged in this indict- tal murder offense plain intelligible language forth in notice, ment, given appellant sufficient information to enable the ac- promised compensation having was his been prepare cused to his defense. Moore v. on that to kill the victims and by Paula State, 532 (Tex.Cr.App.1976).” S.W.2d333 basis, indict- having killed them. Since the alleges facts to enable sufficiently ment In the instant the indictment defense, prepare his the indict- clearly alleges did cause the subject quash ment was to a motion to Cantrell, by choking death of Paul ground. on this strangling cutting him with a cord and him knife, with a and that this murder was Appellant’s reliance Hobbs prom committed for remuneration and mis- (Tex.Cr.App.1977) thereof, ise proceeds which was to be the Therein, placed. we held that the indict- from the life insurance and estate of the attempted capital murder was ment for Thus, clearly deceased. the indictment sets defective for the failure to fundamentally by appellant out the acts committed consti necessary charging an at- allege, as is tuting the offense. The indictment is not offense, that acts were done tempted susceptible interpretation, appel preparation mere “amounting to more than alleges, appellant employed lant anoth the commis- tends but fails to effect killing promised er to do the or that he intended.” V.T.C.A. sion of the offense it; person compensation doing another Thus, Code, 15.01(a). the ba- Penal Section alleges committed clearly failure of the holding sis of that was the promised the murder and that he was com the of- allege an element of indictment to pensation by another to do it. completely inapplica- holding fense. This Appellant’s -first the instant case. ble to Thus, presented the issue to this of error is overruled. Court is whether the indictment failed to error, appellant ground of In his second remu allege promised appellant who such failing court erred in contends that the trial murder, committing neration for venue grant change his motion for a appellant adequate no whether this denied his motion was as a matter of law since against We hold charge tice of the him. prior ap uncontroverted the State give that there was no such failure to pellant notice. selection. However, it is clear that a defend

Article Vernon’s Ann.C. per right change ant to a may waive se C.P., provides a defendant in a crimi no of venue. If the State has filed contro may nal case file in the trial court a motion affidavit, pro verting and the defendant venue, change supported for a by affida hearing objecting ceeds to a without Ann.C.C.P., vits. Article Vernon’s al there no issue of fact to be tried and that controverting lows the State to file affida change he is as a matter thus entitled the filing controverting vits. The of such affi law, right per se he waives davits raises an issue of fact to be tried and State, v. change Puryear of venue. court; thus, by resolved the the trial trial Lewis (Tex.Cr.App.1974); S.W.2d 356 v. must court then make a determination of State, (Tex.Cr.App.1974); 505 S.W.2d on this issue its merits. decision on Such State, Byrd see also v. 569 S.W.2d 883 Von the merits within the discretion of the #9). (footnote (Tex.Cr.App.1978) Where court, defendant, objection, only by will be reversed this the without al such merits lows trial court hear the upon showing a Court trial court to thus exercise its discretion issue and State, abused its Freeman discretion. v. fact, determining the he cannot issue of 556 S.W.2d 287 Adami of fact argue that no issue was thereafter (Tex.Cr.App.1975). 524 S.W.2d 693 and that he was entitled raised matter of law. change as a However, controverting if no affi by is filed davit defendant the record re In the instant motion for appellant filed his a flects change entitled to a of venue as a matter of 28, 1977, February on change of venue Stapleton law. 31.03, supra. compliance with Article The (Tex.Cr.App.1978); Burrough v. controverting file a affidavit State did not (Tex.Cr.App.1978). reason 7,1977, pre-tri at a at this On March time. change that the defendant is entitled hearing, appellant again requested al as a absence .matter law is because the motion. The trial court hearing on evidence, there controverting is no issue stated it would not rule on the motion no of fact to be resolved. When there is jury. prior to the selection of the On that issue of fact determined the trial to be date, same after the voir dire examination court, place and no for its exercise of discre appellant again requested a begun, tion, grant it must motion. defendant’s motion, hearing which the court on Durrough State, supra. This is the rea later, days the record reflects denied. Two situation, it is in this son stated that acquiesced appellant understood and change defendant is to such as a entitled venue issue until postponing the court’s completed.1 was matter of law. after the voir dire 1977, 9, make either one those determinations 1. The record that on March reflects examination, inquiry. during following the voir without dire Counsel, right exchange concerning THE COURT: we are now occurred the extent jury. trying select a was delve which defense counsel entitled to pre-trial publicity prospective jurors: MR. VELA: I understand. into Now, jury THE COURT: if we select Honor, pur- we “MR.VELA: Your are also change you venue, your on a not want to hear motion suing light of a motion matter precluding will hear it. I am we venue, change just it is not so for cause. combining you your am I motion nor urged We have this motion the Court. change for a and a motion selection inquire as We need of the be able to to the extent of venue. any prejudice, publicity, extent of My understanding was that MR. VELA: re- the extent of discussions. And to along carrying and was it Court us, again, deny two strict once would us going to wait— One, things. quali- of their the determination yes. Carrying along, THE COURT: two, and, jurors fications sit as number going to wait and VELA: And was MR. just important, importantly, more or see— change as to whether not a determination hearing. motion This is not a THE COURT: of venue is in in this Court. We cannot order jury. If at the selection of the This is for regarding their cov- and television stations after the voir dire April On Numerous of this case. completed, erage publicity examination requested appel- to the court the again judges mentioned testified and a few lawyers day, on the motion. The next hearing behalf, and stated lant’s controverting affidavit. On filed its State trial in impartial get a fair and could not pn date, appellant’s hearing was held also Testimony was County. Harris was received motion and evidence get a could not presented that court, was over- after which the motion pub- because of the impartial trial fair and reflects that ruled. The record nowhere confessions, and Paula’s surrounding licity hearing on the appellant objected to the case. On reports on the detailed additional that, ground since his motion had thereto- testimony rebuttal, presented the State uncontroverted, was no is- fore been there publicity pre-trial that the from witnesses tried, that he was thus sue of fact to appellant could and that was not excessive change of venue as a matter entitled to the in Harris impartial trial get a fair and Further, does not reflect of law. the record County. motion, ever appellant, filing after hearing. He never requested more than a question cognizant that We are as a urged grant the court to his motion should be change of venue of whether a law; instead, persisted in his matter of publicity is prejudicial because of granted request hearing for a on the motion. dimension and of constitutional one whether, Therefore, by the issue is whether by the court applied test to be matter of request change failure to as a affecting the communi outside influences object the trial law and his failure to are opinion to a defendant climate of as ty’s holding hearing, appellant court’s resulting inherently suspect so right change of venue as a waived his requires suitable of unfairness probability authority of matter of law. Under the v. Loui safeguards. Rideau procedural See State, State, supra, v. Puryear v. Lewis 1417, 723, 10 siana, 83 373 U.S. S.Ct. State, supra, Byrd supra, and Von v. we Dowd, (1963); Irvin v. 366 U.S. 663 L.Ed.2d right. appellant hold that did waive this 1639, (1961); 717, 751 6 L.Ed.2d 81 S.Ct. ground This of error is overruled. 333, Maxwell, 384 86 S.Ct. Sheppard v. U.S. Appellant next the trial contends also, (1966); Mur 1507, 600 see 16 L.Ed.2d denying court abused its discretion in 2031, 794, Florida, 421 95 S.Ct. phy v. U.S. change of venue after he motion for a Washington, v. (1975); 589 Beck 44 L.Ed.2d presented “overwhelming ap- evidence that 8 L.Ed.2d 82 S.Ct. 369 U.S. impartial pellant could not obtain a fair and (1962). ” County . . trial Harris exhibits in An examination 19,1977, April jury after a was select- On all of hearing indicates that at the troduced ed, hearing on his granted was appellant re in the news contained the' information Much evi- change motion for a of venue. apparently was accurate and newspapers ports local presented dence was know, relative to the the conclusion, the order of the Court way, you fleets motion. if are either we My understanding jury, you was that by selecting able to conclude want process heard, the selection would see how your Court it will be heard motion progressed. full. Under the arguing That is correct. THE COURT: with the VELA: I am not MR. selecting exactly and not under law of motion for to reflect I want the record Court. what our change of venue. agreement I have it was so will then, in understanding I understand. And straight my My MR. VELA: mind. (cid:127) sentence, my complete to allow me to agreement— order period all, time—I at the end of some know it THE First of I didn’t COURT: possibly instructed us that agreement. believe the Court a week—the Court whether or was an determine sorry, would then I I misused the MR. VELA: am motion, not, would on its own I want to The order of the Court. word. make sure grant change of venue.” re- I and the record understand placed previous hearing purpose informing there for the at the on the motion State, public Bell change testify current v. of venue would to the same évents. they S.W.2d 800 Adami now previous matters as had at that State, (Tex.Cr.App.1975); hearing. testimony This included the (Tex.Cr. Morris v. appellant receive trial could a fair in Harris App.1973); Thus, Taylor County. 420 S.W.2d 601 does the record not reflect Further, (Tex.Cr.App.1967). testimony that the trial court its abused discretion overruling change could not receive a fair and im motion ven- for a partial reurged trial County prior in Harris was contra ue to trial. See presented supra; testimony supra; dicted Bell v. Adami State. State, supra. Morris v. This of er- In the instant the trial court was ror is overruled. presented conflicting with testimony respect error, whether could obtain a grounds two community fair trial in local because of complains imposing trial limi court’s pre-trial publicity. This issue was decided tations his voir dire examination of two adversely to appellant’s Particularly, contentions when prospective jurors. he com facts, judgé, plains freely trier of over that he was not allowed to change Benny ruled the motion for Bell examine veniremen Ballard and Wil venue. concerning supra; Achgill preju “bias or Von 569 liam Byrd pre-trial resulting publicity.” dice from We S.W.2d Freeman v. preserve appellant hold that has failed 287 (Tex.Cr.App.1977); by failing propound error the trial (Tex. Ransonnette v. he specific questions which claims he court Cr.App.1975). holdWe that the trial court to ask two opportunity was denied the overruling did not abuse its discretion Further, even prospective jurors. if error appellant’s motion. preserved, the had been record reflects that overruling appellant’s After mo dire the trial court’s limitation of voir tion, April the court set the for did examination was unreasonable and date, appellant ap 1977. On this failed to not constitute an abuse of discretion. pear and his was bond forfeited. Evidence matter, out, point preliminary We as a appellant jurisdiction. showed that fled the voir transcription of the dire exam- Florida, captured After he was re consisted of ination alone in the instant case Houston, for appellant turned counsel more than three hundred le- five thousand change his for reurged motion venue. gal pages. size Discussions the trial 9,1977, May On the trial court held another voir ruling court’s on the limitation hearing. evi Appellant introduced into throughout pro- dire examination ran April newspaper reports from 25 to dence ceedings. Appellant only directs our atten- appellant’s flight concerning May discussions; portions tion to certain of these apprehension. parties stipulated The thus, necessary it has been for us to inde- coverage events there these carried pendently of the record examine much George Flynn, on radio and television. who of the order to ascertain exact nature previously get testified that could rulings appellant’s particular court’s a fair trial in County, Harris testified that objections thereto. appellant’s subsequent publicity since flight, thought during he that it would be The voir difficult record reflects that examination, adopted to receive fair trial there. dire the trial court broadcaster, George Pthick, procedure whereby question a radio testified first would prosecu prospective juror that he had of the his or her atti- interviewed one each about inquire in the who penalty tors had stated that tude toward the death thought judge publicity the trial have move with which pre-trial would parties upon the the trial out of Houston. The also each was familiar and its effect stipulated prospective juror, who in order to determine witnesses testified whether a against appellant panel. bias The record later existed. reflects that after After the jurors by examination of several Achgill, examining venireman William parties, objected both the State to the de- juror accepted defense him as a without informing fense venirepersons any objection. Paula pled Derese had guilty to mur- A discussion of the ruling court’s took ders parents. objec- of her The basis of this place again after exhausted tion was that to so prospective jur- inform peremptory challenges. again The defense ors, who held no opinion conclusion or as to objection stated its to the limitation with appellant’s guilt, might prejudice tend to regard juror. prospective to another against appellant, them which would then responded: State allow the defense challenge them for . . there has “[PROSECUTOR]: being biased. The defense contended that attempt by been no Mr. Vela [defense they were entitled under Article Ver- area, explore and that he counsel] non’s inquiry Ann.C.C.P. to continue the exploring was not denied that area. concerning pre-trial publicity. Towards the agree. “THE I COURT: discussion, end of the clearly State de- lineated defense examining them. The trial court did not rule at this time. guilt, then it tion persons, the defense asked for a clarifica- he or she had no conclusionas pre-trial publicity. Appellant objected to after its After examinations of a few more venire- on this issue. The court stated that pre-trial informing that its examination, would limit the publicity in the course of objection jurors juror inquiries of the content only stated that appellant’s as to if, juror. precluded you publicity except publicity. er or not we can “[DEFENSE COUNSEL] “THE COURT: inquire every went into it at the ^[******] news item and as to the Court’s the manner in which Counsel, inquire first, going bring ruling I would like to I have never into into it is, on wheth- up pre-trial pre-trial to take you the court’s ruling in that it denied him ^[******]

opportunity pro- determine whether the ... we “[DEFENSE COUNSEL] spective juror impartial. would be prevented always going have been arose, next time the issue the court restated publicity into after the venireman has any prospective juror where indicated been turned over to us the State. that he or she had formed any conclusion as “THE COURT: That is not true. to appellant’s guilt, then the defense could . . . “[DEFENSE COUNSEL] delve into the pre-trial publicity depth. to, necessary we have felt it so [W]hen However, where the venireperson indicated we have we felt that have done it at our conclusion, he or she had formed no peril possibly and could be held in con- then permitted the defense would be not tempt of and ruling. Court this Court’s do so. position along. That has been our all The trial court first examined venireman Counsel, you “THE COURT: did fact Benny Ballard and determined that he had go juror my into it on at least one after opinion no or pre-trial conclusion from the objected. ruling. No one The Court did publicity appellant’s guilt. as to After the object. not You were held in con- not Ballard, State had examined the defense fact, tempt. In no ever comment was again objected ruling to the trial court’s made about it .” from, “prohibiting again, going [them] pre We hold that has failed to into the publicity any extent bias grounds. serve error as to these two In prejudice may have had on this venire- cases, propound to man.” both failed to This was overruled. After exam- Ballard, ining to let the record reflect per- the defense exercised a trial court or emptory challenge to strike him from the questions concerning pre-trial publici what

520 discretion, court, complains he within its sound ty he was not allowed to ask. can State, (Tex. In Graham v. 566 S.W.2d 941 voir dire examination of should control the stated, Cr.App.1978), “[although we it is the venire. necessary

not to show the answer We that the trial court given reiterate preserve would be in order to error if may impose restrictions on the question exercising peremptory chal reasonable disallowed, State, lenges Burkett v. 516 voir v. exercise of dire examination. Bodde question S.W.2d 147 (Tex.Cr.App.1974), State, (Tex.Cr.App.1978); S.W.2d appear certainly should in the record.” See State, (Tex. v. see Emanus S.W.2d 806 State, (Tex.Cr. also Rose v. 470 S.W.2d 198 Cr.App.1975); Smith State, 429 App.1971); Longs v. (Tex.Cr.App.1974); Lewis (Tex.Cr.App.1968). S.W.2d 740 McCarter (Tex.Cr.App.1972). 478 S.W.2d 524 readily The reason for such a rule is Duplicitous questions may, within the apparent in the instant case. In such a discretion, court’s be limited examination, here, curb lengthy voir dire lengthiest can become the prolixity of what where trial court has discretion im- proceeding. Bodde v. part of a criminal pose reasonable limits on the conduct there- case, the tran of, supra. In the instant questions parties proposed some scription of the voir dire examination might regarding pre-trial publicity especially lengthy. present The issue thus proper and not be. In order for some would par- whether the ed in whether the Court to determine such situation questions questions, they were proper ties’ court its discretion in the limitations abused appear must record. In the instant dire examina imposed which were voir case, err certainly the trial court did not tion. pro- refusing to defense to tell allow the record reflects the instant juror all facts were

spective which limiting did err in trial court subject publicity, then to -of pro- appellant’s dire examination of voir she object that he or had formed conclu- Appendix A. spective juror Ballard. See guilt. The record appellant’s sion as Herein, Ballard questioned the trial court questions other simply does not reflect what pretrial publicity concerning the extent Without such a the defense wanted to ask. in- he was familiar. Further showing, cannot hold that the trial court we concerning whether quiry was made disallowing inquiries into erred in certain opinion or juror conclusion had formed pre-trial publicity of this case. Thus, court the trial appellant’s guilt. of Further, pre- if had been even error prohibiting did abuse its discretion served, the court apparent it is did ve- again questioning the the defense from some imposing not abuse its discretion publicity. Freeman pre-trial nireman about voir dire limitation on the conduct State, (Tex.Cr.App.1977). 287 556 v. S.W.2d examination. its dis the court abuse Neither did right to be recognize that We appellant’s examination limiting cretion counsel, by the guaranteed represented by Achgill. juror Appendix See prospective Article Section 10 Sixth Amendment and this court examined Again, B. the trial Constitution, encompasses the of the Texas length concerning juror at prospective question the members of right of counsel famil with which was pre-trial publicity intelligently exer jury panel in order to carefully inquired whether iar. The court challenges. Mathis v. peremptory cise his any conclusion as Achgill had formed No abuse appellant’s guilt or innocence. (Tex.Cr.App. Florio v. limitation (Tex. in the court’s discretion shown 1978); 523 S.W.2d Abron Freeman duplicitous questioning. 513 S.W.2d Cr.App.1975); Smith However, State, supra. the trial (Tex.Cr.App.1974). Appellant disqualifica- also contends This statute deals with the prospective jurors challenges tion of for trial court’s limitation of his voir dire exam procedure cause. The used to determine ination was in violation of Article juror disqualified applies only whether a Vernon’s provides, Ann.C.C.P. This statute prospective juror when states that he or a part: guilt she has formed conclusionas juror If or innocence of defendant. Challenge “Reasons for for Cause states that he or she has formed no such conclusion, then, course, “(a) rea- challenge A there no objection for cause is an son to ask so estab- whether “conclusion particular juror, made to a alleging some Thus, lished” will influence the verdict. fact which incapable renders him or unfit not, contends, statute does to serve on the jury. challenge A for give statutory the defense absolute authori- may cause be made by either the state or ty jurors each examine the bit the defense for any following one of the information in the media. recounted reasons: 9. ^[*] That from hearsay, or ^{[*] [*] [*] [*]} otherwise, ^[*] veniremen was under this statute. No error is shown. The record reflects that each qualified by the trial court the two there is established in the mind of the of error four and five are over- Grounds juror such a conclusion ruled. guilt as to the

or innocence of the defendant as would grounds In his sixth and seventh influence him in finding his action in error, appellant contends that the trial verdict. To ascertain whether granting challenge court erred for exists, challenge cause of juror juror cause after a had been sworn and whether, shall first be asked in his impaneled. opinion, the conclusion so established 11, 1977, Friday, venireperson On March will influence his verdict. If he an- Richard Blanchard examined affirmative, swers in the he shall be court, defense, and was the State and discharged interroga- without further juror selected as the second in this case. tion party either or the If he court. impaneled. He was sworn and On the fol- negative, answers in the he shall be lowing Monday morning, the court notified further examined as to how his conclu- parties that Blanchard had contacted formed, sion was and the extent indicating judge morning, the trial action; and, which it will affect his if it concerning that he had some reservations (cid:127) appears to have been formed from jury. his service on the reading accounts, newspaper communi- examining juror concerning After his cations, reports statements or or mere penalty reservations about the death hearsay, juror rumor or and if the ability capital jury, serve on able, states that he feels notwithstand- granted challenge court State’s ing such opinion, impartial to render an Code, cause under Penal V.T.C.A. Section evidence, verdict the law and the 12.31(b), juror and excused the from service. court, impar- the if satisfied that he is Appellant contends that the court now verdict, tial and will render may, such excusing juror erred in after he was discretion, compe- sworn, in its admit him as refusing to impaneled and and in grant tent to serve in such . his for a mistrial.2 .” motion case trial, appellant 2. We nor any note that did not at showing juror in the record that the was now, object excusing does qualified he to the court’s Witherspoon. objec- under His sole authority Blanchard under the of Section 12.- appeal tion at trial and on is the fact that a 31(b), Further, supra. complain juror he does not having was impaneled excused after been juror sworn, was excused in violation of With- juror and and that a has an “absolute Illinois, erspoon request any op- right” nor did he change opinions to being his after select- juror portunity to determine whether the was ed. qualified Witherspoon, still under nor is there penal- reservations death with his about the We trial did not abuse hold the court gist testimony his is that after granting ty. its in the State’s chal of discretion case, lenge for testified that to sit in a having cause. Blanchard been selected give thought posi- gave previous he was sure whether he could the he to his not much longer fair and no impartial capital punishment, case and consideration tion and on mandatory penalty capital punish- would affect in felt he believed sure that The trial court Second, his factual deliberations. appellant to allow ment. to refuse disqualified was determined that Blanchard processes of the into the mental delve request serving, and did not changed his mind juror why he had about to show otherwise. See Pittman by an abuse of discretion did not constitute (on (Tex.Cr.App.1968) Mo 434 S.W.2d court, apparent once it became the trial Rehearing). We are unable de tion disqualified under the juror was by the termine how was harmed object not on appellant did statute and that was the second court’s action. Blanchard request opportunity an basis or selected, before juror he was excused juror. qualified he was still show that venirepersons other were examined. of error is overruled. gr.ound This in and he He heard no evidence error, of ground In his ninth when he was was instructed the court the trial court erred appellant contends that case. We are selected not to discuss the into fully adequately inquiring in not how was also unable discern appellant’s jurors the effects on discharge failure to harmed the court’s jurisdiction. The record already flight from the had been se juror the other who selected, but jury was 568 S.W.2d 344 reflects that after lected. See Bodde v. therein; began, appellant trial the merits cited before (Tex.Cr.App.1978) and cases (Tex. jurisdiction. left his bond and cf. Henriksen forfeited thereafter, grounds apprehended are Cr.App.1973). error he Shortly These overruled. Florida and was returned. trial, proceeding Before with the error, appel In a related court, request, polled appellant’s refusal complains

lant the trial court’s effect, individually any, if to determine the perfect exception a bill as to allow him to juror individually publicity. Each of this why juror had a the reasons Blanchard no she had formed conclu- stated that he or “change regard heart” with the death innocence, guilt or appellant’s sion as to granted penalty. After trial court his her would base or stated that he or she Blanchard, challenge for cause State’s entirely the evidence and verdict appellant requested to examine him about given law courtroom. in the position, court change his bill Appellant perfected then denied. finished, questioning entire After the he wanted to exception questions as to the grounds that the “on the appellant objected appel bill reflects that ask Blanchard. The compliancewith has not been questioning (1) whether lant wanted to ask Blanchard determination and the true Article 35.16 Friday given had answers on be he false has been made.” publicity any pre-trial he had fore was selected whether objection was overruled. This changed position on the his mind about his been shown. no error has We hold that weekend; (2) penalty death over poll requested the court to Appellant change position brought what Appellant did. jury; this the court penalty. on the death requested; he exactly what he had received requested opportunity question err never did not We hold that the trial court himself, spe- First, propose did he jurors nor testimo- disallowing inquiry. asked trial court be questions to the ny of contain information cific Blanchard does objection, which came jurors. His he the trial court of the why approached

523 Thus, too late general, pre-trial and was too was insuffi- his identification. the refusing cient to he to allow preserve complaint might trial err in court did not composite Further, the the into have had. defense to introduce the trial court’s actions See, Hughes. Sherbert impeach evidence to were sufficient to adequately protect appel- State, (Tex.Cr.App.1976); v. 636 531 S.W.2d rights. State, lant’s See Brown v. 516 State, (Tex.Cr. 514 Hoffman v. S.W.2d 248 S.W.2d 145 (Tex.Cr.App.1974); Klinedinst State, App.1974); v. Harrison State, 159 Tex.Cr.R. 265 S.W.2d ground This of er (Tex.Cr.App.1973). (1953). ground This error overruled. ror is overruled. Appellant néxt contends that error, appellant In his eleventh trial court erred when it his request denied contends trial court erred over- impeach Hughes, Reid an identification ruling request grand jury for the testi- his witness, composite picture which he mony of witness Ben Tabor. Dur- State’s helped trial, prepare previously. At Tabor, ing the cross-examination of wit- Reid Hughes testified that he lived down ness grand stated he had his reviewed the street day On the Cantrells. jury testimony testifying before at trial. murders, he observed two men in a grand The trial court reviewed the witness’ white Monte Carlo driving around his jury appellant ruled that was testimony and neighborhood. He had the driver observed not use it entitled to to cross-examine Ta- of the car. grand jury bor. The judge trial sealed the murders, On the night after the testimony part appel- and made it a discovered, bodies of the deceased were inspection. late record for this Court’s Hughes what police related he had seen production grand jury descriptions, officers. Based testimony lies within the sound discretion of composite picture prepared in the early may the trial court and the accused morning later, days hours. Some ten he permitted inspect testimony such where picture identified from another special “some reason” exists where a the driver of the car. “particularized is shown as to out need” so trial, At appellant sought to introduce weigh grand policy the traditional into the composite drawing pre- evidence State, secrecy. Martin v. 577 S.W.2d 490 pared shortly .after the murders were dis- State, (Tex.Cr.App.1979); Mott v. covered, in impeach Hughes’ order to identi- (Tex.Cr.App.1976). S.W.2d 623 Nelson v. fication of appellant. The trial court refus- State, ed to composite drawing allow this to be State, (Tex.Cr. Brown v. 475 S.W.2d 938 introduced, ruling that it was “immaterial.” App.1971). We agree. In the we cannot conclude instant Hughes consistently testified that “particularized has shown a composite picture helped prepare which he jury testimony need” for so as to grand night fairly of the murders did its discre reflect that the court abused accurately he represent person had seen production. tion in refusing order its driving He the car. further testified that it State, supra; Mott Brown v. See composite “wasn’t close all.” The “was supra; Martinez 507 S.W.2d not close saw.” man He (Tex.Cr .App.1974). [he] together all put composite “couldn’t for Further, the sealed we have examined Thus, drawing.” did not composite testimony, and conclude that such testimo prior show inconsistent identification ny consistent witness’ entirely with the the witness. Thus, to see testimony at trial. we fail how Since the witness testified that com court’s was harmed the trial posite picture testimony was not even close to resem refusing to such available make bling person driving had observed Mott v. su cross-examination. car, probative supra; it was immaterial and not also Hoff pra; Brown v. see pad second letter in the steno The State, (Tex.Cr.App. man v. boy by previous to a State, (Tex. was written Paula 1974); v. 454 S.W.2d Garcia letter, friend, In Paula made Clay. that ground This of error is over Cr.App.1970). references, explained, to the fact which she ruled. been relatives had that two Herbie’s ap In of error his twelfth in in Port Arthur involved in murder pellant the trial court denied contends that reference, also a Paula 1973. There was right to confron him his Sixth Amendment perpe that one of the explained, to the fact to refusing to allow him cross-ex tation in, impli turned them and an trator’s wives concerning two letters amine Paula Derese might the wife be involved cation that she had written. Appellant accident thereafter. some Paula, the defense cross-examining In as her this letter sought impeach with to Paula’s, produced pad, a steno identified as at testimony being with her inconsistent which contained letters which she had two knowledge any had trial that she never hearing pres- out of the written. After to like an acci was made look murder that jury, ence of the trial court refused dental death. testimony impeach her allow defense to did not err trial court We hold that the letters, sustaining the with these State’s Paula testified excluding this evidence. objection that the letters were immaterial. she did not matter that hearing on this agree immaterial. We that letters were tes- letter. The she wrote that know when times, testified that she Paula Several sometime timony was written indicates it husband, estranged was in love with her Further, testi- Paula 1973 1975. between Herbie, desired to reconcile and that she recounting just matters she was fied that him, with which was a source conflict Again, we do not her. that Herbie told parents. and her She also between her proba- was material or find this letter participated in a denied that she had ever case; in the since as issue tive about a murder anyone conversation impeached not immateri- may witness be death. made look like an accidental matters, error is shown. no al collateral v. supra; v. Ellard See Williams letter, appel first with which State, supra. supra; Fisbeck sought impeach.Paula, was written lant Herbie, never mailed. Paula to but was error, appel ground of a related letter, expressed she intention to In this her erred in the trial court lant contends that anger him. towards leave Herbie her question opportunity allowing him an not it hearing jury’s presence, out In the pad in the steno the letters Paula about was developed that this letter written excep bill perfecting his purposes of and Herbie years ago, several when Paula this conten The record reflects tion. separated day. for one We hold is without merit. tion correct; old ruling was trial court’s First, hearing of the out appellant, in her impeach testimony did not letter op- given ample jury, was parents presence her were during the months before let- question Paula about murdered, portunity to reconcile with she desired Further, record reflects Thus, her probative not ters. Herbie. each. contents of her appellant con examine credibility did further, tends, questions properly excluded Still court an- exception were may proposed a witness bill It is well settled that it. out of during hearing collateral swered Paula impeached on immaterial and no- Also, record jury’s presence. matters. Williams See requested Ellard v. 507 where reflects his examina- her further (Tex.Cr.App.1974); Fisbeck examine S.W.2d 198 by the limited any way was in State, 166 311 S.W.2d tion her Tex.Cr.R. trial court. (1958).

525 were, indeed, error, charges pending against ground In his fourteenth of other appellant contends that the trial court erred showing, Paula. such a no error is Absent permit in refusing impeach to him to Paula State, shown. Toler v. 546 290 S.W.2d for bias motive for testifying favorably and State, (Tex.Cr.App.1977); Garza v. 532 to the Upon State. cross-examination (Tex.Cr.App.1976). S.W.2d 624 defense, the Paula that she en testified State, v. 386 In 548 Simmons S.W.2d tered pleas guilty of to of the murders her upon which re- (Tex.Cr.App.1977), appellant parents agreed against testify appel and lies, permitted the was not defendant lant, exchange for the dismissal of the develop exception concerning a a bill of charges against murder her. The charges attempt prior witness’ his inquired: defense then the case is show bias towards State. This you “Isn’t it that presently true have held here, inapplicable to the instant since up of forged hundreds dollars of checks such attempt perfect made no or hot Attorney’s checks with the District Alaska, Further, supra, bill. Davis v. Beaumont, office in County, Jefferson be- State, supra, and Castro v. both defendants ing up and charges held no filed on the preserved by letting the record reflect error insistence influence gen- of these two matters which were excluded right tlemen here of the District Attor- Thus, they trial do courts. not control ney’s County, Office Harris isn’t that disposition ground Appel- of error. true?” is lant’s contention overruled. Paula that denied this was true. The de- fense then asked: error, ground In sixteenth his “You have never forged Herbie Derese’s erred contends trial court any instrument, name to is that correct” in failing jury to instruct objection The question State’s to this was State’s accom witness Ben Tabor was an sustained. plice Appellant witness as a matter of law.

Appellant now ground. contends that under the has preserve failed to error on this Alaska, authority 308, of Davis v. 415 charge, appel U.S. his to the objections oral 1105, 94 (1974) S.Ct. 39 L.Ed.2d 347 lant failed to raise this before the Castro (Tex.Cr. 562 252 Further, requested Charge court. App.1978), was right he denied effec 1, relies, upon No. deal did n.ot tive cross-examination and confrontation of with the of whether Tabor was an issue this witness. We hold that no error is accomplice witness as a matter of law. shown. Rather, charge with the requested dealt accomplice rule regarding corroboration of record reflects that failed 38.14, testimony.3 witness See Article Ver perfect exception a bill of concerning any appellant’s ground non’s Ann.C.C.P. Since charges pending against Paula in Beau- objec appeal error on differs from his mont. The defense asked Paula about the court, charges; nothing tions the trial Appellant she denied them. raised in made no preserved attempt to show that her answers were for review. Sloan v. 515 perfect exception Campbell false. He did not a bill of S.W.2d 913 order to let the (Tex.Cr.App.1973). record reflect there Charge Requested guilty charged 3. “Defendant’s No. Defendant ment, as in the indict- 1: Now you beyond you if believe the evidence a rea- and unless further find and believe sonable that an doubt offense committed that there is evidence in the case outside other charged, you testimony as evidence, further believe from the of the said of the said BEN MILTON thereof, TABOR, or have a doubt tending reasonable connect the Defendant charged against the witness BEN TABOR is an MILTON the him, commission the offense you accomplice; you you are cannot instructed must of the evidence from all testimony convict the Defendant beyond believe a reasonable doubt TABOR, you the said BEN MILTON unless first charged guilty Defendant in the indict- testimony believe said BEN ment.” TABOR, is shows that MILTON true and it would be a contin We did hood that the defendant note that the trial court submit a Texas, charge jury society. In Jurek uing as whether Tabor threat witness, accomplice charged jury L.Ed.2d 428 U.S. S.Ct. accomplice on the (1976), Supreme witness corroboration of the United Court rule. supra. See Article We direct “[wjhat is essential emphasized that States appellant’s to Lafoon v. possible attention before it all is that have (Tex.Cr.App.1976); 617 S.W.2d Jackson v. the individual relevant information State, (Tex.Cr.App.1974) 516 S.W.2d 167 whose fate it must determine.” defendant State, (Tex. and Mutscher v. 514 905 S.W.2d State, (Tex. 581 168 In Garcia v. S.W.2d Cr.App.1974). ground This of error is over State, 578 Cr.App.1979), and Hammett v. ruled. (Tex.Cr.App.1979), held that we S.W.2d 699 In eighteenth his seventeenth and 37.071, supra, nothing requires in Article error, grounds of appellant contends that for an ex that there be a final conviction overruling objec- the trial court erred in his be at this admissible traneous offense testimony punish- tions the offered at We stated Gar stage capital of a trial. phase ment of the trial. The record reflects cia : phase, punishment Joyce at Sin- “Clearly, prior of offenses falls evidence clair, of girlfriend appellant’s, a former tes- ‘prior of criminal con- range within the 1976, February tified criminal conduct’ ‘prior duct.’ Such attempted money had to extort from her clearly jury’s deliberations relevant to also and had threatened her. She testified .” . . number two special issue told her his intent and State, supra. v. See also Hammett Sinclair, plans Don her husband. to murder court has wide the trial Since Don that he an en- testified had Sinclair admitting pun evidence discretion recognized with he appellant, counter whom trial, murder see phase capital ishment of a though appellant disguised. Ap- even State, 542 395 v. S.W.2d Gholson and Ross pellant later he Joyce told had intend- State, 542 Livingston v. (Tex.Cr.App.1976); encounter, during ed to kill Don this but Moore v. (Tex.Cr.App.1976); S.W.2d 655 doing prevented that he was so State, 664 proximity police officer. a (Tex.Cr. State, Robinson v. Appellant objected admissibility 554 S.W.2d App.1977); Brown v. hearing A out testimony. was held this rele we hold that (Tex.Cr.App.1977), presence jury, which the after prior appellant’s criminal vant evidence of objections. appellant’s trial court overruled jury’s for the con was admissible conduct capital punishment phase At of a State, supra; Ham v. sideration. Garcia trial, one of the issues which the murder also, Brooks supra; see mett jury is “whether there a must determine 21, 1979); March (60,521, State delivered probability that the defendant would com- (Tex.Cr. 582 S.W.2d Earvin mit criminal acts of violence that would App.1979). continuing society.” threat constitute grounds error are overruled. These two 37.071(b)(2), Ann.C.C.P. Article Vernon’s Further, at the provides this statute error, appel his final In trial, capital punishment of a murder phase court erred lant contends that as to mat- may presented “evidence Sinclair’s objection Joyce his overruling ter relevant to sen- court deems concerning telephone conversa testimony added) (Emphasis tence.” Joyce tes unidentified caller. tion an January that on tified (Tex.Cr. Jurek v. 522 S.W.2d plans to kill her told her of thwarted range and App.1975), we stated that husband, her that Don. He also advised prior of a crimi severity defendant’s Dallas, coming from for man” evidence “hit nal conduct was relevant hour and a determining threatened her. About the likeli then to consider half after telephone per. newspaper. It all over the conversation with appellant, Joyce received another call. help She Couldn’t read it about this but voice, recognize did not girl nor did the to have hired supposed who was identify caller appellant’s parents himself. Over her for somebody to murder objection, Joyce money testified that the caller I insurance ... appreciate stated that he did way if don’t know this the case. I am she was treating appellant, and said that I if bad on names. But do remember anything happened appellant, he would that about Baytown.

return from Dallas family. The ogized thereafter, appellant erred in allowing Joyce conversation with the unidentified caller. this testimony Error, if there was to do harm pellant’s repeated of the Joyce and Don Sinclair. See Johnson v. Myre State, 548 1977); Appellant now contends that substantial Dalton v. harassing S.W.2d 700 to, caller then and criminal acts testimony concerning threats, clearly any, called her and her husband. in kill hung up. harmless in testify 516 S.W.2d 937 expressed intent the admission Joyce Joyce (Tex.Cr.App. the court about the and her toward, Shortly apol- light ap ‘Q. ‘Q. So, you ‘A. ‘Q. ‘A. That would be fair. ^[*] just you ly ment? What sion with fellow it and No, would I and so. would or friends. I follow it with follow it with ^[*] just you is the last say: have read go did read about have discussed ^[*] Did you work, Is employees or fami- you hear about so ^[*] read about that a fair state- thing you something passing avid it in ^[*] interest it on somebody interest? paper. it, about recall occa- ^[*] did reading case? about the (Tex.Cr.App.1974). ground This of error is pro overruled. Appellant’s se girl ‘A. Just had the they up that error has already been overruled. charges hiring people. two That Iall remember. judgment is affirmed. ‘Q. you any any Do have recollection or A APPENDIX present knowledge of the status of the Derese case. In the examining course of Benny Bal- lard, the trial inquired: court No, hap- ‘A. I what has don’t know

“Q. In the am past you pened I sure girl. have

probably heard, read or seen some- ‘Q. read, seen or You have not heard thing about this case. that, anything about then? No, “A. not this one. [Ballard] ‘A. No.

“Q. recognize You do not this case? ‘Q. read, you As a of what have result media, “A. I wouldn’t know soul in here or seen or the news or heard in anything it? any you conversations the result of regard may to the case have had in “Q. All right. I believe evi- employees any- your fellow or dence will show additional fact one, you any have formed conclu- offense, any, if happened or guilt sion as to the innocence of And, Baytown, again, Texas. I will defendant, Eugene Vernon repeat the names involved in the McManus? Eugene indictment —Vernon McMa- nus, Derese, No, any Paula Paul ‘A. I haven’t conclusions at all. Cantrell Harvey Mary Bright Cantrell ‘Q. In the event None whatsoever. Cantrell. juror as a you are selected “A. you Baytown, if, during Now that mention the conduct write-up trial,

there newspa- something up was a in the comes Well, sitting I ‘A. at home last APPENDIX A—Continued ' son, night talking my the TV was memory my trigger your [sic] on, 2, and and it was on Channel read, you have seen something as to saying that this case— they started heard, will you I think admit they pick jury trying were possibility? is a jurors for this case and two you It I know when possibility. “A. point At that I turned been chosen. ago, Baytown it clicked said awhile the TV off. my mind.— ‘Q. juror are a you, Thank sir. You “Q. thing happen If such a should —if actually Court’s followed trial of something you hear at the it, and I appreciate I instructions. something your triggers the case read, right. All have does. anything you mind about know counsel discussed, that, you Then, what is the last or heard could seen before your read, you having set that out seen or thing you would recall let verdict rest en- your mind and heard? testimony of tirely the sworn I when heard I even recall ‘A. couldn’t courtroom witnesses about it. may be ad- physical evidence that Paula Cantrell ‘Q. name Does mitted? ring a bell? Derese disregard I right. “A. That's would No, I know how because ‘A. sir. everything sometimes.” wrong papers are any have ‘Q. you Then I don’t assume Ballard, and asked examined The defense in her case? happened idea what has to- any prejudice bias he had or whether No, ‘A. sir. respond- which Ballard appellant, wards seeing, reading ‘Q. you Do recall ever know the man.” Ballard ed “I don’t even case anything about this hearing or any why reason also denied that there inception? at juror. its impartial he not a fair and could No, sir. A. B APPENDIX ‘Q. year? Around middle of last juror Aehgill, During examination of inquired: No, the court ‘A. sir. Now, you have COURT] “[THE Well, you on what 'Q. right. All based seen, any- read, discussed heard or or dis- seen, or heard have read you or do thing this about you people, have other cussed the names? recognize the case from conclusion, however any formed you described [Aehgill] From what

“A. guilt or innocence slight, as to indictment, recognize I I in the defendant, Eugene Vernon of this TV. heard it on McManus? will show “Q. right. The facts All just a thing is No, whole sir. The ‘A. occurred that it also this case I have to me. vague recollection help. But any if is Baytown, that opinion. not formed recognized some you say have you any con- formed ‘Q. Then, you have it on seen or heard of the names and whatsoever, or guilt, his as to clusion TV? this moment? innocence recognize part I “A. The No, sir. ‘A. part of it. insurance past? you in the ‘Q. Nor have proceeds— for the “Q. That was done No, sir. ‘A. Yes, right. “A. this, answer you right. Would ‘Q. All thing you recall “Q. the last What were on you In the event then: seen, about having read or heard during course of jury and the case? APPENDIX B—Continued respect played by to the various roles something up came the trial parties various enumerated in the commis- memory of might trigger your alleged sion of capital murder hindered read, seen or have something you any preparation point- of a defense. It was heard, you set would you could ed out to the trial court that the indictment aside, realizing it is the rankest among identify failed to who the enumerat- en- your verdict hearsay, and base parties promisee ed promisor evidence and the tirely upon the promised. remuneration V.T.C.A. Pe- hear in. testimony you Code, 19.03(a)(3)provides nal Section courtroom? capital murder when an is committed indi- Yes, “A. sir.” vidual intentionally knowingly killed by person prom- or the PHILLIPS, Judge,. “for remuneration dissenting. indictment, ise of remuneration.” appeal This is an from conviction for drafted, alleges appellant, only offense murder. Y.T.C.A. while acting party as a with Paula Cantrell Code, Penal 19.03(a)(3). Section Punish- unknown, persons Derese and other caused ment was assessed pursuant at death Harvey the death of Paul Cantrell. It is Article V.A.C.C.P. alleged then murder was that that commit- Appellant’s first of error com- ted promise and the remuneration plains of grant the trial failure court’s remuneration. motion quash the indictment since it failed to adequately apprise This Court the En Banc decision held in of the capacity in which the State intended (Tex.Cr. S.W.2d944 Drumm v. prove participated alleged mur- App.), analysis engaged to be in on indictment, der for remuneration. The reviewing appeal allegation when con part, relevant reads as follows: cerning the trial court to the failure of . . . VERNON EUGENE MC grant quash a motion to differs from the , MANIÍS . heretofore on or determining analysis engaged in in whether : July did then and there pleadings were sufficient invoke the unlawfully' intentionally and knowingly, jurisdiction of court. In the latter the trial acting as a party with Paula Cantrell situation, which tracks the an indictment Derese and persons other to the Grand statutory proscribing terms the conduct in unknown, Jury cause the death of Paul jurisdic invoke the volved is sufficient to Harvey choking Cantrell by and stran of American Plant Food tion the court. gling cutting him with a and cord him Corp. (Tex.Cr. S.W.2d 598 knife; with a and said murder was com hand, App.). when a motion On the other promise mitted for and the remuneration quash subject analysis, is the of “funda to remuneration, namely, money of from the protections are in mental constitutional proceeds of life and insurance the estate voked. fundamental notions Because of the Paul Harvey Mary Bright of Cantrell and adequate require of fairness that notice of Cantrell. ... charges against nature of the the ac the Appellant filed a to motion dismiss the in- justice, timely system cused our dictment which the alleged that indictment requires inadequate claim of notice careful inadequate in of fairly apprising was terms Drumm, supra, at 946. consideration.” of the offenses he was Drumm, As further supra, stated in charged that, with and violation of 947: Constitution, allegations United States speculate for us to It is not vague, indefinite, contradictory, were and defenses; possible those are for the advising uncertain in of the nature him investigate, pre- accused and to counsel hearing cause of the A accusation. pare, they if can. In order establish held on the motion to dismiss the indict- however, perform duty, the ac- argued ment wherein particu- cused is notice of the lack of entitled to specificity in the indictment with As will be noted reference Ar suspension upon lar cause for which the 31.04, not re- rely. state will The accused is trial court is ticles 31.03 and quired to and all variant anticipate any deter responsibility of vested with the might seek hypothetically facts state mining sufficiency” “truth peti- to establish. When the defendant grounds for a alleging affidavits tions for sufficient notice of the state’s when an issue is change venue and charge quash adequately motion to by by filing grounds as those formed setting out the manner in which notice affidavits, controverting issue deficient, presumption of innocence judge, be and the by “shall tried requires coupled right with to notice his refused, granted or as the law and motion Appellant given he such notice. be demon already facts As shall warrant.” here was entitled to such notice and his strated, by raised the motion to issues point quash motion to was sufficient fully be change venue affidavits cannot quash out his need. The motion should through adequately tried the more granted. have been procedure. Ar voir dire See narrow right presumption One’s of innocence and 9, V.A.C.C.P. ticle 8 and Sections prosecution less when notice are no Further, of a de trial court’s denial murder, by capital punishable death. venue, change fendant’s motion for fact, required in a even more care oppor allowing the defendant without case. Chambers v. present support tunity to evidence J., (Roberts, dissenting); (Tex.Cr.App.1978) motion, condemned expressly Carolina, 280, 428 U.S. Woodson r. North Tex. in Burleson Court 305, 2978, (1976). 96 S.Ct. 49 L.Ed.2d The dissent 1019. Cr.R. 100 S.W.2d appellant, It should be clear all that com court failed to admits that the trial upon timely request, was denied the even but seeks port “accepted procedure,” right prior to trial from whom the to know analogy. The to excuse the omission contends he received remuneration State analogy to court’s discretion the trial promise The constitu- of remuneration. evi- regulating procedure vis-a-vis nature and cause right tional to know the of a dentiary rulings perfecting and the requires him against of the accusation ignores respect thereto bill error with surely as as it he be informed of such fact between the distinction fundamental requires informed of the name analogy questions The dissent’s involved. alleged being he is to have the human conducting propriety of presupposes the One is as essential the other. killed. procedure demanded the trial. The quashed. should have been indictment Chapter V.A.C. under trial court ground of error In his second of whether C.P., issue is for the threshold failing contends that the court erred county in the be a trial should conducted venue, change of grant his motion for Chapter 31 timing of the involved. The pri the which was uncontroVerted State is less mandato hearing is It no critical. Recently Henley v. jury selection. expressly for its failure ry a statute (Tex.Cr.App.1978),this a timing for hear precise designate the Court wrote: inquiry mandated ing. argue To change of Appellant was entitled a effica just be by Chapter 31 could show, though if even venue he could hearing a mo on in a ciously conducted jury a to select whose possible would be the venue ignore tion for new trial is challenge subject were a members not put isIt indeed nature. issue’s threshold cause,' influences in that there were for . ting behind the cart. the horse the community which could affect the Id. 72. dire, testimony of voir or the answers on change the motion In the instant any for other at trial or that witnesses jury the before venue was uncontroverted not impartial a trial could reason fair and was the trial court and voir dire commenced County. had in Bexar be well aware of the ue. policy popular motion. The same If there exists such an air of consideration underlying Henley opin- against as to prevent sentiment an accused e., ion, delayed timing i. of the factual trial, a impartial change fair a of venue and inquiry, applies here Only as well. after necessary. be That matter must impaneled jury was and sworn was placed prior in issue to voir dire stems from inquiry factual on change the motion to community the very nature of sentiment. venue conducted.1 voir The dire If community pervasive there exists in a a 5,337 days lasted 30 and consumes prejudice against defendant, an a individual pages of this record. Considerable energy may be of feel- venireman aware such already resources were committed to ing part. on his As was noted in Faulkner the trial of this case before the critical 311, 43 Tex.Cr.R. 65 S.W. 1093: threshold issue was ever heard. “Prejudice quality. may is a sinister It it; possess This Court has man examined on several a not be aware of occa- ” sions when a points up defendant . .. This required to statement present his motion for change problem determining of voir prejudice venue. of on dire. coverage may widespread News be so Devereaux v. 473 S.W.2d 525 extensive answers elicited (Tex.Cr.App.), the defendant filed his mo- may counsel voir dire not reflect tion change prior for of venue to voir dire. prejudice prevalent subconscious in the The urged motion was never to the trial community resulting coverage. from such court and the defendant’s counsel indicated prejudi- Because insidious nature to the court the pur- matter would not be cial community sentiment and the ineffec- sued. Subsequently, the defendant an- tiveness of voir dire as a means for deter- nounced ready began for trial and voir dire sentiment, mining this it is essential examination the jury panel. theAt con- 31.03, the component supra, issues of Article dire, clusion voir the defendant’s motion and, joined possible, re- extent change for of venue was mentioned prior solved to voir dire. court. The trial court then denied mo- tion as being presented. untimely This In the instant case the upheld Court the trial court’s quot- decision never present any allowed to evidence on ing Article V.A.G.C.P.2 prior motion to the voir dire panel, along”

In Mirick trial court “carried 388, 83 Tex.Cr.R. change uncontroverted motion to S.W. venue the defendant made a motion for presented evidentiary no for change of issues jurors venue after nine had been to rule on. court selected and sworn. The State controvert- ed the grounds motion and demurred on the hearing for evidence on motion motion presented too late. change venue factual trial of The trial court overruled the defendant’s constitutionally critical issue of whether the motion and this Court upheld ruling. such atmosphere defendant is to be tried in an These cases stand for proposition by public passion. undisturbed Irvin v. change Dowd, motion for 717, 81 of venue must be U.S. S.Ct. L.Ed.2d presented trial, e., prior (1961). before to jury i. concurring opinion In a Mr. selection. This determination is consonant up Justice Frankfurter summed it as fol with the very reasons change ven- lows: Jeopardy jury impaneled (7) change by 1. attaches when the is Motions for of venue the State Bretz, 28, however, defendant; and sworn. 437 provided, Crist v. U.S. 98 S.Ct. or the that such 2156, (1978). venue, 57 24 L.Ed.2d change motions for pre-trial hearing, may of if overruled at by be renewed the State 28.01, V.A.C.C.P., 1, provides,

2. Article Section during or the defendant the voir dire examina- ” part: jury; tion . of the . . pre-trial hearing Section 1. ... following any shall be to determine of the mat- . ters: yet may arbitrarily judge not decid- hereafter refuse a

. This Court has statutory ed that the fair administration of crimi- and his constitutional defendant justice to nal must subordinated an- change a of right to be heard on motion for safeguard other sys- of our constitutional has, all.practical venue after he for until press, properly tem —freedom of the con- by swearing the issue purposes, foreclosed yet ceived. The has Court decided try jury in a the case'is a denial a that, while convictions must be reversed proc- of due defendant of the fundamentals justice of miscarriages result because of ess law. jurors potential jurors of or the minds change The decision on the motion to poisoned, poisoner were is constitu- dire, prior venue must be made to voir tionally plying protected in his trade. motion can be keeping mind Id, 730, at 1647. 366 U.S. at S.Ct. reurged during voir dire. Article deciding great this vital issue discretion issue must be V.A.C.C.P. This threshold reposed judge. in a Ward v. jeopardy before attaches. decided (Tex.Cr.App.); James v. complains pun- at the Appellant also His (Tex.Cr.App.). 546 S.W.2d 306 phase permitted ishment the State finding by of fact thereon is not reviewable objection ap- testimony over introduce jury; any a and if there exists conflict in of- committed five other extraneous pellant issue, the evidence on said his decision has never tried or fenses for which binding generally been held to be this convicted. Chappell Court. 519 S.W.2d 37.07, V.A.C.C.P., pro- general- specifically (Tex.Cr.App.). a delicate and Article Such ly by be made irreversible decision should follows: vides as having judge the trial without the balance General; Article Verdict Must be 37.07 weighted against by the defendant ac- Hearing Proper Punish- Separate on swearing jury try tual in of a the defend- ment ant, jeop- of its attendant attachment prior 3. Evidence of a criminal Sec. permitting ardy, before the defendant finding a criminal cases after record all any before offer evidence said issue and guilty. of judge’s thereon. Our statutes decision (a) Regardless plea whether give of the de- and unbroken line decisions judge by be assessed punishment arbitrary of right. fendant An denial may or be offered jury, evidence notwithstanding right, such the defendant’s as to the the state and the defendant therefor, of demand is a denial to him the defendant, prior criminal record of land, thus, benefits of the law of the general reputation his chaiacter. process of a denial involves due law. Such record means a prior The term criminal prejudice a of to the defend- possibility such record, or conviction in court final right ant’s to a factual determination that has probated sentence suspended or issue, apart such critical other trial, any final con- prior occurred consideration, arbitrary procedure that such charged. to the offense viction material lacking due without inherently process [Emphasis added] prejudice. Shep- showing identifiable testimony about Maxwell, pard U.S. S.Ct. The admission of (1966). 16 L.Ed.2d 600 had not re- five extraneous offenses the clear in final convictions violated sulted arbitrary denial We hold that should 37.07(3)(a). This stat- prohibition of Article right asserted under a defendant’s applies criminal cases.” expressly ute “in all present evidence in law of this State to murder exception capital for It makes no a decision of said issue and secure support provisions the Code cases. Other change judge the trial on a motion when plainly show that Procedure Criminal swearing in prior judge’s to the trial venue different rule to Legislature wants a try prejudicial the defendant eases, expressly creates apply holding that a trial majority’s error. The 533 reasons, See, exception. an There are three besides ex example, for Article . 1.14, 1.07, 1.141, press 37.07(3)(a) in language Article Article Article Article 35.- ‘ cases,” why applies “in criminal Article 17, 42.04, all 42.12(15), Article Article Article Legislative a intent 37.071 fails to evidence 44.08, 44.09, Article and Article 44.35. 37.07(3)(a). exception Article to create an to Legislature exception Since made no First, 37.071 only purpose of the Article capital 37.07(3)(a), cases in Article the ines- may presented provision that “evidence be capable is provision ap- conclusion that this that the court rele any as to matter deems to plies capital as as noncapital well cases. prevent vant to sentence” to antici 37.07(3)(a) Legislative Article reflects a pated infirmity denying constitutional determination that prior evidence of crimi- right present mitigating defendant’s to cir resulting nal conduct not in a final convic- sentencing capital cumstances at the hear tion is insufficiently reliable be to con- Ohio, ing. See Lockett 438 U.S. sidered in sentencing. Unadjudicated ex- (1978). To S.Ct. 57 L.Ed.2d 973 infer traneous no offenses are less relevant to provision Legislative from this intent to sentencing noncapital in they cases than are 37.07(3)(a) exception create an to Article is sentencing capital in cases. It is incon- Legislature impute an intent ceivable the Legislature would deem clearly nonexistent. such too evidence unreliable be con- 37.07(3)(a) Second, specific is a Article decision, noncapital sentencing sidered in a admissibility dealing statute with the of a but at the same time allow such evidence to at prior defendant’s criminal record a sen- in considered a sentencing decision tencing “in Ar- hearing all criminal cases.” a person’s where life at is stake. hand, general the other ticle Arguably, unadjudicated an extraneous respect admissibility statute with proven beyond offense that is a reasonable It is well established type of evidence. sufficiently conflict, doubt reliable to be con- appear when statutes two sentencing sidered decision. Al- gener- over the specific statute controls though may disagree we Legisla- with the al one.

ture’s determination that such evidence is Third, scope Article 37.071 deals with inadmissible, it is not the role of the Judici- punishment phase of relevance at pass ary judgment on the wisdom of the capital ques murder trial. No one would Legislature’s is certainly actions. It within unadjudicated tion that extraneous offenses the power of the Legislature to exclude punishment are relevant issue prior evidence of criminal conduct re- all criminal cases. This Court held Por sulting in a final conviction from considera- (Tex.Cr.App. ter v. S.W.2d sentencing tion in the all decision in crimi- 1979),however, that relevant evidence must nal cases. Article 37.07 clear makes it punishment phase be excluded of a Legislature has chosen to do so. trial its admission vio capital murder when a rule of evidence. lates

This Court has held in Hammett v. at the It true that court (Tex.Cr.App.1979), Gar phase capital punishment of a murder (Tex.Cr.App. cia v. admitting trial has wide discretion 1979), excep that Article 37.071 creates However, excluding . . evidence. seemingly prohibition tion to the total only ques- extends this discretion therefore, 37.07(3)(a); Article Article 37.071 sought the facts tion relevance permits unadjudicated the admission of ex proved. 37.071(a), supra, to be Article punishment phase traneous offenses at the inso- does not alter the rules evidence of a I murder trial. both cases proof is concerned. far as the manner of concurred the judgment upholding sentence, death but upon further considera 748. The Porter v. 578 S.W.2d at - holding am hearsay tion I convinced that the Court’s in Porter was evidence admitted relevant, clearly wrong. in both cases was but this Court reversed the highly 534 1197, Florida, 349, 97 51 480 U.S. S.Ct. of this

conviction because the admission (1977). 393 L.Ed.2d hearsay violated a rule of evidence. Analo- five gously, present in the case these unad- in the infirmity is There no constitutional offenses, they oc- judicated extraneous if 37.- Legislature’s apply decision to Article to, curred as testified were relevant to the cases. Consonant 07(3)(a) capital murder 37.07(3)(a) sentencing decision. But Article decisions, Supreme Court’s with the legislatively-created rule of constitutes prerogative Legislature has the Texas unadjudicated barring evidence evidence excluding a law from consideration enact sentencing hear- extraneous offenses at capital sentencing decisions relevant evi- ing in When Article all criminal cases. In„enacting unreliable. dence that it deems 37.07(3)(a) together, it and Porter are read 37.07(3)(a), Legislature exercised Article testimony should clear that be prerogative. this five offenses was inadmissible. extraneous that and Garcia state Both Hammett testimony, Arti- though This relevant under re- “[njothing 37.071 ... in Article evidence, cle a rule of violated conviction for that be final quires there therefore, namely 37.07(3)(a); Article under offense to admissible an extraneous Porter, the rule this Court announced true, but phase.” This is it punishment testimony was inadmissible. this is ignores there such a conveniently that argu- In and Garcia the both Hammett 37.07(3)(a). Fur- requirement in Article unadjudicat- allowing evidence of ments for 37.071 thermore, nothing in Article there is superficially ed extraneous offenses seem punishment at the requiring that evidence examination, persuasive. how- Upon closer nevertheless, hearsay; we held phase not be ever, persuasiveness evapo- this apparent hearsay inadmissible. in Porter that rates. rely Garcia Finally, Hammett

I that neither Ham- note at the outset made in Jurek v. this statements Court express (Tex.Cr.App.1975), lan- mett nor Garcia addressed 522 934 37.07(3)(a) it 37.071.. guage applies discussing Article of Article the course so, Understandably “in all criminal cases.” determining In the likelihood would reveal this any response because continuing threat be a defendant would disregard Legisla- for the Court’s blatant wheth- could consider society, jury authority. ture’s significant crimi- er defendant had range consider the record. It could nal emphasize the Both Hammett and Garcia prior criminal conduct. severity of his in Jurek Tex- Supreme Court’s statement long-established rule 2950, In 262, light as, 49 L.Ed.2d 96 U.S. S.Ct. in- offenses are extraneous unadjudicated (1976), essential “[w]hat hearings, the most sentencing admissible at possible have before it all relevant language of this interpretation reasonable defendant information about the individual prior of his severity range and is that “the it Both cases whose fate must determine.” to criminal merely refers criminal conduct” infir- intimate that there is constitutional If a final conviction. resulting in conduct excluding relevant information mity to overrule in Jurek intended Court hearing. This state- sentencing at a capital applies 37.07(3)(a) insofar as Article however, Jurek, not deter this ment in did cases, have used capital it would murder holding relevant Court from in Porter that is unreason- so. It express language to do its admis- evidence must be excluded when cursory treatment such able infer from hold- rule of evidence. Our sion violates a something as to do Court intended with another ing in Porter was consistent Legisla- overruling an act of drastic Court Supreme concern of the ture. cases, sentencing decision namely that the Rumbaugh information. See be based on reliable indulges in Carolina, the Court (Tex.Cr.App.1979), U.S. Woodsonv. North concerning the re- (1976); Gardner some ill-considered 49 L.Ed.2d 944 S.Ct. dicta lationship 37.07(3)(a) between inferring Article and There is no basis for a different Article 37.071. The capital Court concludes that intent in cases. The choice of a Legislature cases, intended allow procedure capital to admission in bifurcated to- unadjudicated of gether 37.07(3)(a), extraneous offenses at the with Article evidences a punishment phase of a capital Legislative murder trial. proof intent to limit of extrane- fallacy The basic reasoning in the capital sentencing hearings Court’s is ous offenses at its assumption 37.07(3)(a) ap- resulting that Article to in those a final conviction. plies only noncapital ignores to cases. This 37.07(3)(a) I would construe Article to express language 37.07(3)(a) of Article apply scope exactly in the Legislature as it applies “in all criminal cases.” to in specifically apply, stated it all criminal Rumbaugh

The Court in following wrote as cases. To the extent follows: permit capital cases evidence at a sentenc Legislature] Had wanted to limit the [the ing hearing prior of criminal not conduct proof capital adjudicated in trials to of- conviction, resulting they in a final should fenses, provided it could have so in Arti- State, be overruled: Hammett 37.071, cle as it has in Article 37.07. (Tex.Cr.App.1979); S.W.2d 699 Garcia v. being There nothing in Article 37.071 to State, 581 168 (Tex.Cr.App.1979); require limitation, such a this Court can- (Tex.Cr. Wilder v. 583 S.W.2d 349 impose it. Rumbaugh App.1979); 589 S.W.2d Legislature Since the made Article 37.- Green v. applicable cases,” “in all criminal it 07(3)(a) (Tex.Cr.App.1979). S.W.2d 167 is expect Legislature unreasonable to gratuitously reasons, to judgment restate this rule of For the above evidence in Article 37.071. Rumbaugh What should be should sentence reversed.

have said was: being nothing There in Arti- CLINTON, dissenting. Judge, cle 37.071 exception to create to Article 37.07(3)(a), this impose Court cannot it. expressed I Elsewhere have the view that

The thrust of Rumbaugh’s argument an indictment is sufficient to withstand an Legislature’s of choice a bifurcated exception contemplated to form by Article procedure capital in is, cases evidences its in- as required by V.A.C.C.P.—that permit proof unadjudicated tent 21.02, id., of alia, ex- Article inter the offense is traneous punishment phase. offenses at the alleged plain intelligible “in words” —if nothing support argument. There is of requisite includes “element of- Legislature proce- chose a requirements bifurcated of fense” V.T.C.A. Penal capital just Code, dure in 1.07(a) cases itas chose such a and tracks the broad statu- § procedure offense, noncapital in cases. No one seri- of the tory incorporating statement ously Legislature’s prescribed contend that description would a method or procedure choice a bifurcated noncapi- underlying sug- in manner which the facts tal cases permit demonstrates its gest intent the offense committed.1 Accord- proof unadjudicated extraneous offenses indictment in this case been ingly, the punishment phase of noncapital statutorily a in drawn terms of stated acknowledge trial. All in killing capi- such situa- element that enhances 37.07(3)(a) tion Legis- Article manifests the hire hire tal offense murder for murder, proof writing lature’s intent to limit extraneous I not be at all would offenses those resulting participating in a convic- it was final case—nor even —for But, tion. the drafter of the submitted in 1978.2 generally Generally participate 1. See 2. I Minix v. have been reluctant to (Tex.Cr.App.1979) (Dissenting opinion presented on in En Banc decisions causes Here, (All emphasis rehearing). State’s motion for I Court before became member. ever, how- supplied throughout by purely opin- I one the writer of this issue which write ' indicated.) indictment, ion unless otherwise of the written construction really argument I on it is did not hear oral Inserting “party” allegation. further statu- indictment did not follow critical and-, so, failing do tory language my already indefinite compounds the otherwise intelligible words judgment, plain it is said that language set forth. Thus converted into an am- the statute were “acting party with Paula biguous phrase that consti- and uncertain persons to the Cantrell Derese and other allegation. very tutes the heart of causing the death Jury unknown” Grand permitted scrivener converted the

Concisely, the we are the victim. Unless statutory verb “commits” in the transitive assuredly in a murder assume—and an intran- phrase “commits the murder” to lightly assume—the we should not so case sitive verb “committed” the indictment may reporting now read as indictment be phrase “murder was committed." person, by choking and unknown that some Elaborating proposition, cutting on the a stan- him with strangling the victim and meaning dard of the verb commit transitive knife, death, and did so thereby caused perpetrate, do or as an offense or “to promise of remu- and for remuneration crime.” Thus the statute denounces charged light, appellant neration. In this person intentionally knowingly who caus- being party directly hiring, or and “commits the es the death of another murdering hiring, rather than for murder Here, then, the in- murder” for hire. for hire. alleged clearly did dictment Furthermore, as an using “committed” by Harvey “. . of Paul . cause the death past tense verb intransitive choking strangling him by Cantrell recipient of the identify draftsman fails to knife; cutting him with a with a cord and of it. promisee or the remuneration for remunera- and committed the murder ”. promise of remuneration . tion and the faults, enough but has can find other One truly it have tracked the statute and would to conclude me explicated seen been However, what clearly been sufficient.3 set is not forth alleged offense alleged actually is that Therefore, I intelligible words. plain and “. i did then there . should be re- judgment believe that Harvey Cantrell cause the death of Paul for a new remanded versed and cause a cord and choking strangling him with respectfully dissent. Accordingly, I trial.4 knife; cutting and said murder him with ” . . for remuneration was committed departure statutory ROBERTS, J., joins. from the track This degree of immediately introduces some with common coupled but

vagueness, when in “cause the

usage of the word “cause” as about; “bring ef- of the victim—to

death” hand— necessarily by one’s own

fect” not clearly alleges longer no indictment himself, murder appellant, committed or the for remuneration

and committed it Rather, may

promise remuneration. culpa- mean that in some

easily be read to hand by his own

ble manner other than the death brought about by hiring the murderer.

victim Edition) para, (Branch’s cause, though, 3rd My part Forms With in this little moment. (c). of error. is limited form, pursuant Being to Article Black- 4. a matter 3. Morrison & See 7 Texas Practice may 28.10, V.A.C.C.P., 4.06; well, McClung, Jury the indictment §. Criminal Forms for Charges time before announcement Practice 293-294. amended at Criminal Texas be ordered. Compare trial that should Penal Statutes the new Annotated Texas

Case Details

Case Name: McManus v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 5, 1979

Citation: 591 S.W.2d 505

Docket Number: 58886

Court Abbreviation: Tex. Crim. App.