*1 56 1735, provisions
trolled Art. By
Vernon’s Texas Civil Statutes. statute,
provisions interpreted series cases, may writ
be issued boards and commis 360, Johnson,
sions. See Betts v. 96 Tex. (1903); 4 McFall v. Board
73 S.W. Education, 101 Tex. S.W.
(1908); Rainey, 133 Malone v. Tex. (1939); Bol S.W.2d 951 McLarty
ton,
(Tex.
Sup. Woodward, 1946) Givens v. 145 Tex.
150, 196 (1946); Herring S.W.2d 456 Bank,
Houston Nat. Exch. S.W. (Tex.Civ.App. Galveston, —
writ); Liquor Texas Control Board Co., Distilling
Continental Sales 199 S.W. (Tex.Civ.App. Dallas,
2d — no writ). MORALES, Jr., Appellant,
Leopoldo Texas, Appellee.
The STATE of
No. 42743. Appeals Criminal Texas.
April 29, 1970. Rehearing Denied Oct. Rehearing
Second Nov. Denied *2 refusing Did err in a
3. the Court new trial where the evidence at the New hearing Trial Motion was uncontroverted Appellant and established that genuinely could not at the time remember of his of the of the incidents crime or crimes for which he was particular charged, and in of crime death, for which he is condemned to conclusive evidence was not pres- available the time of his trial for entation and consideration by in determining guilt of the especially assessing his punishment ? imposition
4. Is death penalty in this case violative and Eighth Fourteenth Amendments Marshall, Paso, Lay, Richard T. El G. in that United States Constitution J. Lucy Edwards, brief), R. El Paso cruel (on same constitutes and unusual for appellant. punishment in a situation where the evi- Appel- dence uncontroverted that the Boyd, Atty., C. Dist. and Thomas Jamie memory lant has no of the commission of Paso, Keever, Atty., F. Asst. Dist. El the offense for which Vollers, Austin, Atty., D. State’s Jim imposed? the State. answers, study a record re- as veals, as are follows: to triаl authorization I. Prior with the MORRISON, counsel, ap- Judge. of trial defense approval given psychiatric pellant was examina- murder; punishment, The offense is reported, “no Dr. Hornisher who death. found, neurological, psychiatric or disease conclusion of organic” functional or people The fact that killed fоur given report which was page his three questioned. fifth is not and tried to kill a such re- attorney. In appellant’s retained following questions brief appellant’s In appears a rather full account port there propounded: are he injury an which appellant of given by hip, but there by being shot received err in refusing Did the At any injury his head. is no mention of upon a on new new trial Motion based insanity was trial, defense general de- evidence was that raised, interposed the defense fense ? hearing, Ziporyn testi- Dr. At the alibi. err in Did refusing the Court is not fied, Mr. Morales when “However, Appellant presented suf- drugs, trial where new he does influence under the newly at thе problem discovered evidence ficient stability handle this enough that such establish acceptable.” of his Motion to socially time ways are which than sufficient evidence would be amended mo first and Appellant’s a rea- of the the minds create neither mentioned for new trial propriety tions doubt as sonable They sanity. appellant’s question of penalty?
imposition given. Hernandez, appeal and notice of appellant, overruled Dr. testi- withdrawing Belatedly without fied that examined in jail he after attorney appeal, conviction, notice of a new came into opin- also based his motion for the case аnd filed still another ion as “cerebral trauma” from late, clearly trial. This too came what told He admitted that him. x-ray the evidence adduced at the an skull revealed *3 judge held be dis- injury. careful will He stated that “none of those affirmatively any cussed. tests indicated brain dam- quote age.” testimony We further from his allegedly newly discovered II. The said, “Well, he we when do know brain * * * testimony that was “such new evidence damaged individuals react I think at not known to the defendant his was or memory can—can be lost because as rea torneys beforehand and was such injury, brain because effects at not secured diligence sonable you.” the—of the medicаtion and what have trial, that same con for the reason expert testimony avail exclusively sists by Hornisher Dr. the state as set sophisticat highly a handful of able he above testified that had examined forth psychiatrists throughout United ed appellant the trial and that after found “ States, in * psychiatrists specializing ad * * responsible fоr was sane he * * insanity study vanced of criminal act.” his by interroga- Ziporyn (who testified Dr. state, Bennett, Dr. also called had at stated that he hearing) tories appellant he testified that examined after at El appellant one hour examined for the trial and found him to be sane and conviction, in the jail his case Paso аfter expressed opinion that had never he “ ** * bar, diagnosis was that and his injury, brain and that he was sane syndrome, has a chronic brain Mr. Morales at the of the commission of of- time trauma, cerebral and that at associated with fense. ques- previous to in the the time referred drugs to tion, he was under the influence appellant, At neither achieved state point mother, nor wife was called as a his conclusion psychosis.” based his He though pres were shown be witness “cerebral appellant had sustained the that brain injury If had suffered ent. that he appellant’s statement trauma” from while in school their evidence would high in injury an head while had recеived great be value. It should have been of high school El Paso. injury that the existence brain noted Ziporyn’s predicate Dr. was both that Dr. It first noticed should After opinions. con Dr. Hernandez’s examina physical Ziporyn conducted viction, ap clearly upon is the burden if there determine tion of insanity. pellant to This he failed shоw having sustained an of his evidence do. “a Secondly, brain. injury to his law, under Texas psychosis” is Tex.Cr.R.
McGee we have We overrule as IV. S.W.2d that death past appellant’s contention Ann.P.C., punishment for pro- and unusual Vernon’s is cruel III. Article by long prescribed is part that “Neither intoxication So crime. vides uncon has been held prоduced temporary insanity of legislature nor mind Supreme Court by the voluntary use of ardent stitutional recent narcotics, will follow States, this or spirits, intoxicating liquor, United mandate, State, Tex. thereof, Sanchez v. legislative shall constitute combination Cr.App., commission crime.” excuse for the State, Tex.Cr.App., ex- Steward We hоld overruling Nevertheless, the mo- S.W.2d 733. ercised his discretion court on December heard fbr trial. evidence formally said motion and overruled the precluded from same on January 1968. The evidence provided by Article the remedies pursuing original heard was opin- described 5, V.A.C.C.P., “Insanity as bar Sec. ion. We remain that there convinced to execution death sentence.” overruling no error action court’s such “motion.”
The judgment is affirmed. supplemental now
By brief con- tends the first time on ON APPELLANT’S MO- improperly least five veniremen were FOR TION REHEARING *4 excused the court under the test of Illinois, Witherspoon 391 U.S. 88 ONION, Judge. S.Ct. L.Ed.2d 776. rehearing appellant contends this On pro- The reflects that at least record holding that the triаl court Court erred although spective jurors were examined the trial denied the motion for new properly only the of record contains examination upon newly based of discovered evidence prospective Twenty-four (24) 83.1 insanity. of appear to have been excused because oppоsition their of penalty, to the death five opinion, As pointed original out the not appellant whom the claims should appellant prior the was examined remaining The 19 were been excused. psychiatrist appointed by the the court at properly under the request defense A of the retained counsel. cоmpletion Upon standard. of the report findings was made available of appellant of ex- selection had and at the trial defense challenges peremptory hausted but of not After a was raised. only five their 15 exercised of April 19, on first amended peremptory challenges. motion for trial was overruled with insаnity being mention of made at such prose- It is clear record that the from the appeal given of hearing. Notice was then pre-Witherspoon cutor this case did imposed as no was of sentence to be view merely try to eliminate those who 42.04, penalty assessed. See Article scruples” against “conscientious appellate record V.A.C.C.P. While diligently pursued penalty death but preparation, process was in the if this meant matter to determine that the permitted the substitution June prospective against juror vote would further of counsel and ordered mental ex- penalty regardless of the case appellant. September of the aminations On The facts circumstances. 7, 1967, appellant’s new counsel filed urges does not contend otherwise claiming newly dis- motion for new prospective five did not un- insanity. evidence of Notice covered she would that he or auto- ambiguously appeal not withdrawn. motion was This penalty matically against vote not, late, clearly too and even if it did came regardless facts in case. by operation law still was overruled Prospective juror Ayala Victor days. when it was not acted within 20 V.A.C.C.P.; scruples” he had “conscientious Article Watkins State, 819; penalty the death if Tex.Cr.App., and when asked St. State, “feeling” impоssible Tex.Cr.App., render it would Jules reporter's transcription (luring of the court ent the voir dire examination The reporter pres- jurors. of the notes reflects such six * * * tention, “regardless him urges of the facts our re-con pun- assess the death as a form sideration of such cases. This we did ishment,” State, recently The length answered some “Un-huh.” Harris v. Tex.Cr.App., record then while apd reflects: S.W.2d 903 noting split authority in this coun “Q. Is correct? try proper as to application Witherspoon doctrine as well as the deci “A. Un-huh.” Supreme sions United States then excused juror was Holman, in Boulden v. 394 U.S. 89 S. appear and he would to have been 1138, 22 L.Ed.2d Ct. 433 and Maxwell Witherspoon. excused under Bishop, L. U.S. 90 S.Ct. that he Willie answered Jones position Ed.2d we we reaffirmed stated, “I scruples” had “conscientious Scott, had taken in Pittman and etc. buy penalty.” don’t The record bar, following then he was In the case .the was selected reflects before prospective juror: excused as a in a manner consistent with the Texas practice discussed in Pittman Scott words, not, “Q. you In other held not the With to contravene case, type regardless erspoon doctrine. also Branch See facts, impose penalty of death. Tex.Cr.App., 447 S.W.2d Whan *5 so, honestly, sir.” “A. I don’t State, believe Tex.Cr.App., 438 S.W.2d State, Tex.Cr.App., 453 Thames v. S.W.2d Jones, Lang and Elma Mrs. Mrs. James effort, was no as in 495. There Wither- they Morrissey Marguerite Mrs. all sweep panel all spoon, to jury from the against the scruples” had “conscientious objectors” rapid succes “conscientious in Upon penalty. interrogation further sion without effort to find out “wheth prosecution they by the as to whether invariably cоmpel scruples er their would penalty in case re- the assess against capital punishment.” them vote to answered, facts, gardless of the Mrs. Jones systematic for im There was no exclusion could,” replied, Lang “I think I don’t Mrs. that in proper The record reflects cause. so,” Morrissey re- don’t think “I Mrs. juror every prospectivе instance a sponded, “I don’t I believe could.” “conscientious indicated he she had Witherspoon, in the hindlight While penalty the against scruples” been dire examination could have the voir beyond such prosecutor pursued matter complete and and while it definitive if that meant expression to ascertain initial mаy prospective jurors appears four prospective juror vote such would showing a on have been excused without facts “in penalty regardless such disqualified that their voir dire case,” certainly appear It etc. would Witherspoon, upon that under it is noted to made select that a sincere effort was jurors discharge prospective five the 24 impartial only jurors. fair and Of for fur- question, request in there nowas excused, appel jurors so no interrogation by ther only discharge complains lant objection to court’s action. five discharge of these To five. requested State, objection, no appellant addressed recognizing that Pittman v. While to interrogation, nor indicated further Tex.Cr.App., Scott no 434 S.W.2d State, jurors. desire to have such Tex.Cr.App., the court was made State, discharges complaint of such Tex.Cr.App., Huffman No S.W.2d The claimed trial.2 contrary have been decided to con- in the motions discharge State, whose noted It is here in Turner v. that complained (No. prose- Tex.Cr.App. 42,194) the motion about reflecting that affidavits from each of new trial. Such cution obtained affidavits observed, time on re As error was raised for the first earlier utilized statutory peremptory this Court. five of its 15 challenges. if Even de- position that takes the under sired prospeсtive jurors five objec- import Witherspoon the true discharge whose of which he now com- tion at the trial exclusion plains, a claim does not now even ad- necessary urges “scrupled jurors” was vance, legal way there would have been no a passing upon Wither- for him to have obtained them as may spoon question take into if the State’s desires were otherwise. peremptory consideration number of challenges party upon either left to convinced that We are when the jury. completion and selection voir dire examination is a considered as whole,3 did the State not “stack the deck” pre- a While the case bar involved neutrality” or cross the “line with re appellant’s spect in the selection of the object failing counsel can excused for jury jury or that was a “tribunal or decision, appel- of that the basis ganized to return verdict death.” lant under state right nevertheless Lastly, he now practice oppose the еxclusions appears ap- to be complains pellant’s similar to right of which claim that the selection meth- right as a articulated constitutional ods prosecution prone utilized resulted State, supra. Witherspoon. pass upon guilt. See Pittman v. the issue of We do not consider that he is now State, In Bradley Tex.Cr.App., position complain. See Harris passing upon similar con- supra. Wigglesworth, As noted State v. tention, this said: the ac- Ohio St.2d cused “If, under such circumstances however, it be conten *6 object discharge right waives jury tion that selection methods uti complained of, to have be said could prosecution prone jury lized resulted complained induced of on the error first question guilt, decide then at appeal. Duling, 21 also State Ohio See v. tention is Parks Tex. v. 13, St.2d 670. N.E.2d which, Cr.App., relying 437 S.W.2d disquali sueli People Bernette, individuals were fact not In v. 45 Ill.2d Witherspoon despite Supreme fied under defect 258 N.E.2d Illinois prosecution in their dire intro voir examination were Court held where the peremptory challenges duced at on the motion 33 of their 40 re completion maining trial. Article V.A.C.C.P. See selec Such called as individuals could also be effort had been sincere made hearing. impartial such a In jurors, witnesses Jack to select ex fair son v. State, Ala. 234 So.2d clusion from individuals who prospective jurors scruples where four were they had conscientious apparently improperly punishment excused under capital deny did not Witherspoon, prose the case was remanded fair in murder defendants Supreme jurors Alabama Court for an examina cution. of all Twelve 21% jurors tion of if in improperly excused tо determine excused were pen Witherspoon fact never return under standards alty regardless of the facts. court determined the error re noting versible, the sincere desire of the certainly prosecutor 3. It would the “at seem that to determine the mosphere jurors’ proceedings” qualifications according must ex to With question resolving erspoon. People Speck, amined court cited The People supra, Moore, whether selected 42 Ill.2d Jag support holding. its within the rationale. N.E.2d gers Commonwealth, (The dissented. same Justice Schaefer (Ky.) ; Speck, Illinois 41 Ill.2d court a conviction where later reversed design 242 the record revealed a conscious Bumper4 Witherspoon, was contrary conten- decided certainly has offered
tion. data than in those cases available opposed
to demonstrate to favor the tend
prosecution in the determination
guilt.”
Appellant’s over- motion
ruled. JONES, Appellant,
Johnnie Texas, Appellee. STATE
No. 42988. Appeals of
Court of Criminal Texas.
July 8, 1970.
Rehearing Denied Oct. *7 (on ap- Teague, Houston O.
Marvin peal only), appellant. Vance, Phyllis Bell Atty., Dist. S.
Carol Scott, Attys., Dist. Asst. and Robert R. Atty., Houston, Vollers, State’s D. Jim Austin, for the State. ONION, Judge. in With- later enunciated empanel standards tier part erspoon” impose with would not thereunder.) discharged being properly do so without hesita but would Mallett, People Ill.2d tion. Bumper Carolina, 391 U.S. (Ill.). v. North Here L.Ed.2d 797. S.Ct. of all 36% erroneously probably dismissed un- “were