Russell v. State

implied findings of support dence to RUSSELL, Appellant,

trial court. James test2 there Under no evidence Texas, Appellee. The STATE support more than a scintilla of evidence implied the trial court finding No. 60412. de improperly the butane tank-trailer was Texas, Appeals Court of Criminal controverted, expert Although two signed. En Banc. gravi the center of witnesses testified that March 1980. high, making the tank-trailer ty was too unreasonably dangerous. Rehearing April 1980. Denied Rehearing

The Motion for filed on behalf Sames, III, Administrator, al., et

of William deliv- granted. opinion The of the Court judgment

ered 1979 and the October and set aside.

based thereon are withdrawn af- judgments of the courts below are

firmed. BARROW,

Concurring opinion by J.

GARWOOD,J., sitting. Justice,

BARROW, concurring on motion rehearing. agree opinion rehearing.

I damages under to recover brought

a suit (Second) 402A, Restatement

Section

Torts, part place physical harm is meaning of action within

of the cause Subdivision 28 Subdivi-

of Article Anno- Revised Civil Statutes

sion Texas Therefore, properly sus- venue was

tated. Manufacturing against Lubbock

tained County where

Company in Maverick designed over-

defectively tank-trailer driv- exploded and the deceased

turned and physical harm.

er sustained Association, (Tex. 1979). Stodghill Employers v. Texas Insurance Divine, Houston, appellant.

C. C. Meitzen, M. Atty., Fred William A. Dist. Culver, III, Asst. R. Felcman and Thomas Huttash, Richmond, Attys., Robert Dist. Austin, Atty., for the State’s State. OPINION DAVIS, Judge. W. C. appeal from a conviction

This is an affirm- capital The answered murder. special issues submitted atively the Ac- Ann.C.C.P. Article Vernon’s cordingly, punishment was assessed death. grounds of error

In view of various recitation by appellant, a detailed raised record re- necessary. evidence sexually kidnapped, appellant flects that wit- complaining abused and murdered robbery case. pending him a ness in deceased, Stearns, wife of the Diana Stearns, that on March testified Thomas at around left for work her husband at a employed was m. The deceased 8:45 a. at work never arrived Radio Shack. He see him day, his wife ever nor did later, was his car found again. days Two missing. abandoned, tape with the deck Lloyd joint- Harris1 testified that he was went around and said to the deceased “shut ly appellant indicted with for the up that damned noise before I come back agreed murder of Thomas Stearns. He something your there and do ass.” testify against appellant exchange for a Appellant a rural then drove out to area charge. of the reduction Harris testified County stopped in Fort Bend the car. “Sugar Man,” appellant that he and was out, him, got taking pistol He with known, and Delores Ann Smallwood all unlocked the trunk. Harris testified that spent night together a motel on the appellant talking was to the deceased about night of March They got up having in the cigarettes smoked some m., dressed, 7:30 around a. and left appel- trunk. he Harris testified that asked car, motel in brother’s on, going appellant lant what was to which beige was a and brown 1972 Monte Carlo. replied, “This is the son of a bitch that Appellant driving. The three headed going testify against robbery me on that south apartment and turned into an com- previ- case.” Harris testified that had plex, appellant parked where the car and ously thought appellant that he and had got stayed out. Harris and Smallwood going been to “score some heroin.” He time, appellant the car. At this had on him appellant stated that he called to several pistol, pur- a small black which had been concerning appellant going times what by appellant chased and Harris. do, persuade appel- and that he tried to time, period appellant reap- After a lant to leave the deceased alone. Harris peared apartment complex, from the walk- stated that told him that he had ing “dude,” with a whom Harris identified here;” appel- to “take care of this business as the deceased. Harris observed kept telling lant Harris to mind his own get into the deceased’s car the driver’s business. appellant say side. He then observed some- Appellant, pistol, with the then took the deceased, thing to the at which time the deceased off into the woods. Harris testi- got deceased down on the floor of the car. say fied that he heard the one deceased off, The two cars then drove time, Later, “Don’t. Don’t kill me.” he driving the deceased’s car and Harris fol- minutes, heard two shots. After a few Carlo, lowing pursuant in the Monte to appellant ap- came out of the and woods appellant’s instructions. car, proached the where Harris and Small- Appellant stopped one time and told Har- sitting. appellant ap- wood were As pistol ris jammed. that the had After it car, arms, proached up he the threw both fixed, they was reaching continued. After pistol with one fist clenched and the in the area, a somewhat rural the two cars other, said, it, “Goddamn I am free at stopped. Appellant got out of the de- my last. All of troubles are over.” ceased’s car and forced the deceased to do Harris, According appellant got to into the same. He then forced the deceased into began laughing. the car and Harris stated the trunk of the Monte Carlo. testi- Harris spoke, appellant kept that no one but that appellant something fied that then took loud, up on laughing and turned the music which looked like a out radio of the de- said, “Man, really and then I misused that car, got rag, ceased’s and then and started I out him motherfucker. made a bitch wheel, handle, wiping steering off the door Appellant before I killed his ass.” then and wherever he had touched the deceased’s respec- took Harris and to their Smallwood car. later, tive homes. Harris stated that the Carlo, Appellant then drove the Monte pistol Oyster into Creek. thrown They with the deceased in trunk. the Smallwood, years Delores Ann old at stopped once at a service station. Harris trial, making testified that the time of testified that she had been the deceased was trunk, appellant. some appellant noise in the and that in the car with Harris and She frequently “Sonny,” Harris was referred to as which was his “street name.” pellant’s-objection, (Goynes) that he did not essentially the same facts testified Harris, had to the sworn docu- forge appellant’s and stated when name woods, off she plea taken the deceased into the reset for a ments. The case was then car, very frightened. in remained the had on March 20th. guilty After she heard shots and 20th, day disap- March after On car, testified returned Smallwood witness, complaining pearance of the but exclaimed, “Man, I made found, appellant ap- body was before his I my motherfucker dick and suck changed peared in court counsel pissed in his mouth.” robbery guilty” and plea to “not his on police Various testified that officers trial. demanded April 10,1974, decomposing body of the Taylor testified Police Officer Ernest found, per- his deceased was with some of January the Monte Carlo body. sonal effects around the strewn belonged appellant’s brother which had his down around deceased’s trousers were inside San Antonio. On the was located in knees and underwear was down below his trunk, locking next to the inside lid of the buttocks, slug one his bullet hulls and Two mark, mechanism, smudge a black he found body. were at the site of the found Taylor to be soot. was later found Ex Joseph Jachimczyk, Dr. Chief Medical duplicated he the mark testified that that an County, aminer of Harris testified striking holding it a match and body of the autopsy performed took Taylor inside lid of the trunk. also holes were found in deceased. Four bullet of the black weather- samples from car skull,-an and exit the deceased’s entrance trunk, which looked like stripping inside the wound on each side of the head. Jachim- fingernail have had scratch marks could czyk testified that the cause of death was in it. gunshot head. these two wounds a small testimony There was also objection appellant and after Over the Oyster pistol was recovered from black the trial court to admonishments from Martinez, a firearms Creek. Officer G. E. following was admit- jury that the evidence examiner, tests performed testified that he motive, As- only Sparks, Ken ted show tests, gun. on this As a result of Attorney County, of Harris sistant District the two bullet hulls found concluded that he handled testified that late the murder had been fired the scene of involving appellant. robbery by assault case creek. gun recovered from the Stearns, the Sparks testified that Thomas presented a defense alibi. Appellant deceased, ap- allegedly been robbed had members testified that family Several of his pellant. offense, he was home. on the date of the 20, 1974, ap- appellant had February On in his own behalf Appellant also testified attorney, peared in with his Gerald court of the offense. and denied the commission time, At the and the Goynes. this State rebuttal, the testi In the State offered plea negotiations con- defense entered into Hewitt, acquaintance of mony of Fred an cerning Papers were executed robbery. the in late Hewitt testified that appellant. reached, and a pursuant agreement to an 1974, he riding March of was. jury of a stipulation of evidence and waiver Carlo, to going get in some the- Monte Sparks Goynes. testi- signed by trial were appellant had Hewitt testified that “coke.” appellant going fied that he observed (ap recognize “a him said that dude could signing these docu- through the motions of pellant) penitentiary,” and send him ments, see actually but that he did not the man (appellant) he had killed and that However, State’s appellant sign his name. shop. According in a radio waiver, who had worked 10, and stipulation Exhibit # Hewitt, that he also stated appellant had were in- appellant’s signature, which bore evidence, son bitch and “killed the white of Goynes, ap- had Gerald troduced into dick.” Hewitt also stat ap- made him suck his over pellant’s attorney, former testified date, error, ground appel ed that at a later had been incar In his first penalty the Harris lant contends that the Texas death County cerated in Jail with Har Specifically, statute is unconstitutional. appellant, and ex ris and 37.071(b)(2), Ver appellant attacks Article pressed “give concerns that Harris had him Ann.C.C.P., being arbitrary, vague, as non’s up” implicated or him to the authorities. jurors permitting and as to exercise unbri error, ground his ap fifteenth answering special is dled discretion in In pellant contends that the trial court previously erred This has been sue. contention refusing grant in adversely appellant. his motion for an in answered State, verdict, evi Brown v. structed as the 554 S.W.2d 677 circumstantial State, v. Collins App.1977); support dence was insufficient a convic State, (Tex.Cr.App.1977); Livingston v. Specifically, tion. he contends that (Tex.Cr.App.1976); Gholson v. S.W.2d 655 prove corpus State failed to delicti of State, (Tex.Cr.App.1976); 542 S.W.2d 395 crime, in that the evidence is insuffi Jurek v. (Tex.Cr.App. cient to show that the death of the deceased Texas, 1975), affirmed sub nom. Jurek v. was caused the criminal of another. act 49 L.Ed.2d 929 U.S. S.Ct. See Shannon (Tex. (1976). ground This of error is overruled. Cr.App.1978); Easley v. Self ground appel In his second He bases “deprived lant contends that he was [of] this contention on the fact that Dr. Ja- impartial Jury by persons fair trial an chimczyk, testifying in on cross-examina penalty punish who favored the death tion as to the cause of death of the de ment for the conviction of crime.” In one ceased, stated that he could not tell whether ground appellant complains of error gunshot accidentally wounds were jurors. prospective exclusion of six This caused or otherwise. We find no merit in of error is multifarious and not this contention. compliance with Article Ver Sec. Therefore, nothing is non’s Ann.C.C.P. Shannon In supra, we reiterated review, However, presented the in corpus that one element delicti justice, terest of we shall review murder case is that the death of the de- complaint. ceased must be shown to have been caused Illinois, Witherspoon 391 U.S. also, by the criminal act of another. See (1968), 88 S.Ct. 20 L.Ed.2d 776 Easley Self Supreme Court of the United stated: States case, In the body instant of the de- “Specifically, we that a hold sentence area, ceased was found in a secluded rural if the death cannot be carried out some disap- weeks after the deceased had imposed or recommended was cho- peared. gun- The cause of death two for cause by excluding sen veniremen through head, shot wounds one on each objec- simply they general because voiced side. The deceased’s trousers and under- penalty expressed tions death pulled wear were found below his down religious scruples against conscientious or buttocks, personal were effects its infliction. No defendant can constitu- body. found around the the de- Some of tionally of a put be to death at the hands personal missing ceased’s effects were tribunal so selected.” were never recovered. We hold that The Court further stated: evidence is sufficient to show act; unambiguous- a venireman Stearns death was caused a criminal “Unless states thus, automatically ly the evidence is sufficient to establish that he would vote corpus against imposition capital punish- this element of the delicti in this State, supra; Easley See Shannon v. might case. no matter what ment trial State, State, reveal, Self simply This it cannot be assumed that position.” of error is overruled. that is his 246 Georgia, 122,

In Davis 97 When the trial court 429 S.Ct. sustained the State’s U.S. Ober, for to 399, challenge cause (1976), the Court reaf- 50 L.Ed.2d 339 objection. object also, voiced no failure to Witherspoon doctrine. See firmed the Burks v. 2954, any waives error. See 583 Ohio, Lockett v. 438 U.S. S.Ct. asked: rected at the trial court’s action in sustain against and that he had been had ishment most nireman James Ober. Ober stated that he 57 L.Ed.2d 973 ing Boulden (1970); S.Ct. “Q. A. the State’s U.S. religious ^[******] You can’t would sonally [Ober]: alty Appellant’s first 22 L.Ed.2d under infliction 90 S.Ct. be so horrible that of his life. The could No. (1978); Maxwell v. Bishop, or conscientious challenge conceive any Holman, vote I don’t believe I could. against circumstances? the death for cause (1969). complaint 26 L.Ed.2d 221 any U.S. death prosecutor case that you per- penalty, scruples is di pun pen- ve Craven and strike tion exercised three overruled. doctrine of are without Ridley non’s al flects App.1976). preserved error for Boulware v. court’s Rehearing); these Ann.C.C.P.; Appellant excusing Ober record, Witherspoon. jurors. Appellant’s However, merit. (Tex.Cr.App.1979) Jerry (Tex.Cr.App.1978); Shippy v. here, peremptory next it Hughes v. Wade. 542 S.W.2d Jerry Duncantell compare appears disqualified the record even if complains Article (Tex.Cr.App.1977); This contention Matthews, Upon that the State challenges (On contentions clearly re of the tri under the examina (Tex.Cr. Motion James Ver had App.1972). just A.It’s the fact of taking I another man’s life. don’t Appellant complains of the next right believe it’s decide to take a sustaining the State’s trial court’s action man’s life. juror prospective challenge cause to ^[******] Tommy Kostelnik. Upon examination first stated that had Kostelnik weigh the evi- A.I would scruples conscientious infliction verdict, but, I dence and reach a He then continued: penalty. death mean, have to many how times do I I “A. ... I don’t know whether sending I say that don’t believe in that, know, you could live with man to his death? being to his sending another human Q. Well, got you say have little just I don’t know. death. that, stronger you than ****** any cir- couldn’t consider it give said, you you couldn’t Q. I could [Prosecutor]: cumstances — penalty. imagine death one case] [murder A. A. Q. ^[******] [Defense Counsel]: couldn’t do think it’s my senses. stances? No. Because and fair No. I couldn’t consider it play wrong. I do not believe that it under has my nothing sense of any You to do with because decency circum- just we I A. No. Q. A. Just ^[******] your death murder case that didn’t upon to do so. Uh huh myself? family, I penalty involve couldn’t do that. . so you if bad, you you could vote the you. such any member (sic) horrible called said, Q. I Could right judge got whether an- You have to vote. have a you other man vote it? lives or dies.” got by my really, really I have “A. I I A. No. stick don’t feel that —No. —I myself if I could live with would I couldn’t. come to this conclusion or decision. Q. See, [Defense Counsel] I really don’t feel like I could handle you would have to bear in mind that it. the fate of this man would be what Q. long-held Is this a [Prosecutor] you want it to be a member of feeling? you . . . have felt jury. join You would with the quite way years? this a number of deciding other 11 members in really A. I have. fate, whether he You lives or dies. could do that, couldn’t you? . ^[******]

or you? could Q. really You wouldn’t want to send man to his death? A. Whether he dies? No. Right. A.

Q. you . Would follow law Q. . participate . .or in it? yes you beyond and vote if believed a reasonable doubt that these two really A. I wouldn’t. questions you issues —these two —if Q. you personally Can conceive of a believed fully beyond them a rea- case, case so horrible —not this but they applied sonable doubt as just up in- dream one that doesn’t you right your him? And have a you any your volve members of Nobody own beliefs. can criticize family your family close mem- — you right for it. But we have a bers —that be would so horrible know about it. penalty you could vote the death directly (sic) upon if you called Well, guess just A. I I don’t believe to do it? capital punishment.” could, really A. I don’t think I due to Kostelnik, ap When the trial court excused maybe I don’t need to ex- fact — pellant objection voiced no thereto. See it, plain just I don’t know —I but —I Hughes Burks v. supra; just don’t think I could.” Shippy supra; Boulware The record reflects that did not State, supra. Thus, preserved no error is object juror nor did when this was excused Nevertheless, for review. we note that as such, request he even to examine her. As Witherspoon stated, previously we have object any error. this failure to waives See Vil require does not formal answers. State, supra; Hughes Burks v. larreal v. (Tex.Cr.App. State, supra; Boulware supra; Shippy v. 1979); White v. (Tex. though Even error Cr.App.1976). Upon review of this “cold review, preserved for we note that the rec- record,” appears to this Court that this supports pro- ord the conclusion that Wither- disqualified venireman was spective juror disqualified under the spoon. equivocated Kostelnik in his never Witherspoon. Appellant’s doctrine opposition imposition of the death ground second of error is overruled. penalty, testimony import and the of his In his third always that he would be unable to vote for unlawfully denied his contends that he was Ap penalty. the infliction of such a severe right speedy to a trial. The record in this pellant’s contention is overruled. charging cause reflects that the indictment Appellant next contends that the tri filed murder was juror excusing prospective al court erred in al- February 1977. The murder was challenge Peggy Ryan, after the State’s leged committed on March to have been Upon being she had cause. asked whether to dismiss Appellant’s pro 1974. se motion religious scruples or conscientious was over- speedy for the denial of a trial penalty, Ryan the infliction of the death Trial commenced ruled October 1977. on November stated: 248 However,

Appellant right February and it is 1977. is correct that the dated correct, by speedy guaranteed to a trial is the Sixth if is he even assertion Amendment to the United Constitu States has still failed to show how he denied a applied through as the Fourteenth tion in The record does speedy trial this cause. Carolina, Klopfer Amendment. North any reflect reasons or lack thereof for 213, 988, trial, 386 87 18 L.Ed.2d 1 U.S. S.Ct. to any delay bringing in him nor does 374, (1967); Hooey, Smith 393 89 appellant U.S. any way in it indicate 575, (1969); 21 L.Ed.2d 607 Barker v. S.Ct. indi- prejudiced thereby. The record does Wingo, 407 U.S. 92 S.Ct. elapsed time which during cate that the (1972). is right The same as L.Ed.2d capital mur- between the instant offense of I, by 10 of sured Article Section the Texas held, therefor, he was der and his trial 1.05, Constitution and Article Vernon’s tried, robbery charge on a in and convicted Ann.C.C.P. county. some indica- another There is also during in this tion the record that sometime The determination of whether an apparently been period, appellant, who had right the accused has been denied to a murder, had his parole at time of the on the by is to of speedy trial be made use a parole revoked and was returned “balancing test” which was set out in Bark Thus, as- we are not able to penitentiary. case, Wingo, er In each individual any delay was caused certain whether requires the Court consideration of fol pending charges and a trial on anoth- other (1) lowing length delay; factors: offense, parole proceed- or by er revocation (3) (2) delay; the reason for the the defend ings or for some other reason. (4) right; ant’s assertion of the prejudice resulting to the defendant from Appellant prej- he was also contends that Arizona, also, delay. Moore v. See trial, delay bringing him to udiced in (1973); U.S. S.Ct. L.Ed.2d gather prosecution in that the was able to Grayless v. incriminating additional evidence App.1978); Carney v. appellant was previously, him. As stated (Tex.Cr.App.1978); Turner v. charges being County on held in Harris We do not find that which arose in 1972. right to be tried in Fort appellant any had re The record before this Court charge County which arose in Bend on delay only flects a nine months between in prior being county to tried another prosecution In a for a indictment and trial. Finally, charge on a which arose capital seeking offense where the State is trial, speedy over- appellant’s motion for a questionable penalty, it is wheth death 21, 1977, not show ruled on October does length delay enough is er this substantial ever, when, prior was filed to this date. if trigger inquiry to into the other factors an Taking into both the failure consideration speedy involved in review of a trial claim. appellant’s claims, support record to However, Wingo, supra. Barker v. few facts which the record does and the length delay this to even if sufficient reflect, we has conclude appel hold that trigger inquiry, further we right that he was denied his failed to show lant that he was denied has failed show ground of error is speedy to a trial. This right speedy his trial. overruled. proof allega- Appellant offered no fourth pro his se motion dis- tions contained his motion, right contends that he was “denied miss In this the indictment. rec- Jury Array.” The indicating challenge it was bears no file marks when Grand ap- court, court denied ord reflects that the trial filed in the trial contends array, grand jury challenge pellant’s that was offense indicted this unconstitutionally is not which he contended was May of 1974. This contention 19.27, 19.28, 19.30, Court, impaneled. See Articles supported by the record before therein, The docket Ann.C.C.P. Vernon’s only one indictment contained sheet reflects challenge that this was filed commit the kidnapping” offense of of the 8, 1977, July on subsequent appellant’s deceased, and that he committed murder indictment.2 while “in committing the course of and attempting to commit the offense of rob appel We need not decide whether bery “of the These are deceased.”3 two challenge array lant filed his at the theories of the offense of murder See Muniz v. opportunity required. first V.T.C.A., Code, 19.03(a)(2) Penal Sec. State, (Tex.Cr.App.1978). S.W.2d Ann.P.C.). (formerly Article Vernon’s We hold that the trial court did err in Appellant’s contention that this is in viola motion, overruling this because appellant tion of Article Vernon’s Ann.C.C.P.4 present any proof failed to offer or thereon. Jurek v. adversely was to him in answered pre-trial The record reflects that at a hear State, also, Easley, Ex Parte supra. ing See giv October Vanner opportunity en an present (Tex.Cr.App.1972); evidence in S.W.2d 570 motion, State, support of his son v. and (Tex.Cr.App. declined to do so. 408 S.W.2d 228 Thus, he failed to any showing 1966). make that ground This of error is overruled. grand jury which indicted him was un ground error, In his seventh Burks constitutionally composed. v. contends that the trial court erred in re- State, (Tex.Cr.App.1978); S.W.2d 389 fusing jury to instruct the that Delores Ann State, Hilliard v. also, see 513 S.W.2d 28 accomplice Smallwood was an witness. We State, (Tex.Cr.App.1974); King agree. do not 32 (Tex.Cr.App.1974). ground This of error is overruled. An accomplice witness is some ground In his fifth one who has participated with another be contends that the trial court erred in deny- fore, during, or after the commission of a ing pro his se quash motion to the indict- State, crime. Villarreal v. ment. In this motion to dismiss the indict- (Tex.Cr.App.1979); Ferguson State, ment, he again grand contends that Jackson v. S.W.2d 516 jury which indicted him was unconstitution- State, S.W.2d 798 ally composed impaneled. and As we have One is not an accomplice witness who can above, appellant, stated given op- when prosecuted not be for the offense with portunity present proof of allega- his Villarreal v. charged.5 which the accused is tions, such, failed to do so. As the trial supra; Ferguson supra; court did not err overruling this motion. Easter v. State, supra. See Burks v. This of App.1976). A witness is not deemed an error is overruled. accomplice witness because he knew of the

Appellant crime but failed to next contends disclose it or even con cealed it. Villarreal v. trial court erred Fergu overruling supra; motion to son quash indictment, Easter v. as it contained three Further, charged offenses in one count. The record it is well pres settled that mere reflects alleged the indictment ence at the scene of the offense does not appellant committed murder compel while “in the the conclusion that the witness is an committing course of attempting and Arney accomplice witness. Appellant’s necessary, assertion paragraph may charge that this motion was but no supported by filed in 1974 is not the record. more than one offense. (c) any A count is sufficient if one of its trial, prior 3. The record reflects that indictment, paragraphs is sufficient. An in- dealing State abandoned the count with rob- complaint any formation or is sufficient if bery, proceeded murder-kidnapping on the one of its counts is sufficient.” charge. charged Lloyd 5. We note that the 21.24, supra, provides part: 4. Article accomplice Harris was an as a matter of law. “(b) may many separate A count contain as paragraphs charging the same offense as error, appellant com- grounds four (Tex.Cr.App.1979); Easter State, supra. evidence of an plains of the admission into e., offense, robbery i. the 1972 extraneous Smallwood, seventeen approximately Stearns, deceased, Thomas offense, of the testi- years old the time prosecution for that subsequent during the present that she was abduc- fied evidence, shooting She had offense. We conclude tion and of the deceased. night appellant and spent previous included evidence of an extraneous had no idea Harris. She testified that she offense, the was admissible in instant case. going picked three what was on when the apartment complex. State, up the deceased at his v. 322 In Hines 571 S.W.2d when in the car stayed stated that she She is that it (Tex.Cr.App.1978), we reiterated the out into took the deceased be may that well established an accused woods, She very was scared. and that she being crime or for for some collateral tried time, she did not know that at that stated Accord, Holley v. generally. a criminal she knew it happening but that what was State, (Tex.Cr.App.1979); 582 S.W.2d 115 the something after she heard bad State, (Tex.Cr. 753 Etchieson v. 574 S.W.2d shooting, appellant and shots. After the State, v. 530 S.W.2d App.1978); Cameron her home. Harris took v. Halliburton (Tex.Cr.App.1975); 841 of the evidence adduced sum State, (Tex.Cr.App.1975). 528 S.W.2d 216 participation in the concerning Smallwood’s However, which ex are situations in there present at killing that she only shows committed criminal offenses traneous in The record the scene the offense. In Brooks v. are admissible. the accused any affirma case does not reflect instant State, (Tex.Cr.App.1979), 580 S.W.2d 825 part to assist or tive act on Smallwood’s stated that: we Caraway v. encourage the murder. See admitting general evi- rule “[t]he State, (Tex.Cr.App.1977); 699 550 S.W.2d is other crimes the accused dence of State, 519 453 Chappell v. S.W.2d logically evidence inapplicable if such showing no App.1975). Appellant made guilt the offense tends to show his planning participated that Smallwood words, evi- charged. In other relevant offense, promoting or that Smallwood prove the ac- tends to dence that any knowledge of what was about had charged is not crime cused committed the State, Compare v. 550 transpire. Cross may also simply because inadmissible As we have (Tex.Cr.App.1977). 61 S.W.2d other he has committed reveal stated, pres mere previously Smallwood’s crimes.” of the offense does not ence at the scene ac that she was an compel the conclusion also, State, 97 S.W.2d Albrecht v. 486 See State, Arney v. complice. Villarreal State, v. 418 (Tex.Cr.App.1972); Johnston State, evi there was no Since 522 S.W.2d to show other than dence adduced at trial exceptions gener One presence mere at the scene of Smallwood’s is entitled to be tried al rule that an accused offense, did we that the trial court hold plead in the State’s on the accusation made refusing not err in to instruct crime, is ing and not for some collateral accomplice witness. she was an a motive which would show that evidence disposition our of this In view of show though it would also even admissible appellant's need not address we or extraneous commission of collateral tes- additional contention Smallwood’s State, Rodriguez v. 486 S.W.2d offense. timony, was that which contends State, (Tex.Cr.App.1972). Summers witness, accomplice of an was insufficient Ste 464 S.W.2d accomplice witness’ testi- to corroborate the State, 147 Tex.Cr.R. phens 38.14, Ver- mony of Harris. Article See (1944); Stalcup v. Appellant’s seventh non’s Ann.C.C.P. (1936); Miller Tex.Cr.R. ground of error is overruled. the killing. Code, Tex.Cr.R. S.W.2d 459 See also V.T.C.A. Penal (1935). provides Sec. admission of “all relevant facts and circumstances” In Rodriguez v. we supra, stated offense, surrounding a murder including merely evidence to show motive one previous “the relationship existing between kind aiding establishing proof of evidence deceased, together accused alleged of an offense: all going relevant facts and circumstances prosecution may always “The offer evi- to show the condition of the mind of the dence, exist, if it is known to to show time of accused the offense.” See motive commission of an offense Shaw (Tex.Cr.App. because it is relevant as a circumstance Ruiz v. 1976); (Tex. tending prove the commission of an Cr.App.1975); Alford v. offense.” 813 (Tex.Cr.App.1974). Rodriguez supra, cases case, we the instant hold that cited therein. relating evidence to appellant’s being Hughes State, v. In (Tex. 563 S.W.2d 581 charged robbery of the de Cr.App.1978), the defendant was tried for ceased, plead his to guilty offer to that capital murder of police a officer who offense, subsequent and his withdrawal of Therein, had attempted approach him. plea day that after he murdered the we held appellant that evidence that had deceased, was relevant to show his motive previously been convicted of extortion and for the commission offense. probated sentence, had received a was ad Thus, the evidence was admissible even trial, missible bearing at his murder as on though it showed the commission of an ex being defendant’s motive to avoid ap State, v. traneous offense. See Brooks su prehended by the Chappell v. officer. In pra; Hughes State, supra; Chappell State, (Tex.Cr.App.1975), 519 S.W.2d 453 supra; Cherry Ro supra; we held concerning that evidence two rob driguez Washburn bery pending indictments the de ten, eight, Grounds of error sixteen fendant and an arrest warrant were admis eighteen and are overruled. sible in his for attempted trial murder and escape custody. from We that error, stated these his ground In ninth appellant extraneous matters were admissible Joseph contends that “Dr. Alex show the motive which prompted Jachimczyk, the com ander Pathologist, an M.D. and attempted mission of escape, and was qualified that as a witness.” Dr. Ja- prosecutions future which chimczyk the defendant testified as to the of death cause would directly face were related to appellant’s this the deceased. The basis of Cherry objection motive. In Jachimczyk’s testimony to Dr. at (Tex.Cr.App.1972), we proof belonging held admissible trial was “the that mere to a defendant, that the police who had killed a field profession does one not make an officer, recently had from escaped expert.” appeal, a Geor appellant On contends gia prison serving he practice where had been a life doctor’s since the license sentence. This evidence was held to be medicine county was not on file in the testified, admissible to show the defendant’s motive which he he disqualified was from killing attempted testifying Tex.Rev.Civ.Stat.Ann., the officer who had him. Washburn v. apprehend In ground 167 arts. appellant’s 4498-4498.1. Since (1958), objection Tex.Cr.R. of error on his appeal differs from murder, trial, nothing defendant’s trial for evidence presented was for review. mur Williams v. years admitted four to the prior der, However, attempted App.1975). appellant the defendant had to extort even if had error, money preserved same person from this whom he had this is without contention evidence, together later killed. This Jachimczyk with merit. Dr. that his testified facts, other was held to show his motive for was medical license on file in Harris and 4498-4498.1, document, Another State’s Exhibit Articles Galveston Counties. signature appel a supra, require physician’s license # which bore only his, in which was was introduced be file in those counties lant admitted into on medicine; practices signatures. comparison there no evidence for of the resides requirement that license be filed each this time and strenu Appellant his testified at may signature be called as a county ously in which he it was his con denied that ground testify. This of error is vigorously witness to # 10. He tained on Exhibit attorney, overruled. Goynes, maintained that He the document. now forged his name to ground his eleventh denied that Exhibit contends that since he appellant complains of the into admission signature, it should not # contained his signed # evidence of State’s Exhibit into evidence. We find have been admitted agreement plead guilty robbery no merit in this contention. deceased, appellant’s signa which bore signature purporting Exhibit # 10 bore a ground He contends of error ture. Sparks testified appellant. to be that of error nineteenth in his making motions observed that he admitting this document the court erred in document. An- signing if he were the law of charging without document, signa- which contained other handwriting. Articles 38.- evidence of his, ture which admitted No error is Vernon’s Ann.C.C.P. comparison. introduced into evidence shown. Further, Goynes stated that he testified and did not record reflects forged name to the doc- had not handwriting request charge jury a denied that he appellant ument. When charge read until after the court’s document, signed the this created ever were jury arguments and of counsel jury as the finders question of fact for the jury retired to deliberate. heard and the the trial court did of facts. We hold that such, charge came much requested As admitting the evidence to be not err in late, did not err in too and the trial court of by the trier facts. Salinas considered- 36.15, Vernon’s refusing it. Article See (Tex.Cr.App.1972); 479 S.W.2d 913 Ann.C.C.P.; Simmons also, State, 543 Herndon v. S.W.2d see Fair v. This contention over- (Tex.Cr.App.1971). Grounds of ruled. are overruled. error eleven and nineteen error, ap ground of In his twelfth places appellant in Additionally, contends pellant the trial court erred contends that brief, throughout that the trial scattered admitting testimony of Gerald in exhibit, admitting this as court erred in attorney. Goynes, appellant’s former signature appellant that had denied represented he had Goynes testified that that his. The record reflects thereon was robbery early in 1974 on the appellant appellant and his Sparks Ken testified that ap he Goynes had charge. stated in court Goynes appeared attorney Gerald and that he appellant plea peared in court entered into February of and # signed Exhibit charge (Goynes) had State’s robbery concerning the negotiations waiver stipulation of evidence and an the Sparks testified that against appellant. trial, attorney. Goynes appellant’s jury par- between agreement was reached signed forged ties, further denied that papers were executed. and that Appel appellant’s name to the document. Goynes signed State’s Sparks stated that testimony was a this of evidence lant contends stipulation Exhibit # trial, confidentiality the attor he ob- violation of the and that and waiver of desk, Article ney-client relationship under before the clerk’s served provides, This statute “signature Vernon’s Ann.C.C.P. pen, moving his hand in with a part, that: paper. motion” on the attorney offense, “an at law around the shall disclose time of the driving beige communication made to him his client was his brother’s 1972 and during relationship, Testimony the existence of brown Monte Carlo. of Harris and showed any nor disclose other which Smallwood this was fact came to driving car which when he knowledge of such attorney by reason abducted the deceased and in which trunk relationship.” of such prior he locked the deceased to the murder. case, In the instant we Goynes’ find that Taylor January Officer testified that in testimony signed appel that he had not years some two and ten months after lant’s name to the document did not disclose offense, the commission of the he located any communication between counsel and this automobile San Antonio. It had appellant, nor was this fact one which came appellant’s been sold twice since brother Goynes’ knowledge by reason of the con car, Taylor owned it. Officer examined the attorney-client fidential relationship. trunk, and inside the lid of the next to the Church v. mechanism, locking he found a black Cathey v. App.1977); 467 S.W.2d 472 smudge appeared put which to have been also, Ballard v. Bal (Tex.Cr.App.1971); see there from the inside of the trunk. The lard, 811 (Tex.Civ.App.1956). smudge was tested and was found to be Since there was no violation Article 38.- Taylor soot or smut. also testified that he 10, supra, attorney-client nor was the privi duplicated by striking the mark a match lege invaded, ground of error is over holding the lid of the trunk. ruled. Appellant objected testimony to this and to In his thirteenth appel photographs of the automobile trunk complains lant of the admission into evi were period introduced because of the photographs dence of body of the of the elapsed time which had between the offense deceased at the scene where it was discovere discovery of the automobile. The In Burks v. d.6 objection trial court ruled (Tex.Cr.App.1979), we reiterated that if a went weight of the evidence rather description verbal body of the and scene of than admissibility. its admissible, the crime pho would be then a The evidence in the instant case tograph depicting the same is admissible. clearly appel connected this automobile to State, State, Burks v. Welch v. supra; 576 lant and to the offense for which he was on Shannon v. (Tex.Cr.App.1979); S.W.2d 638 trial. Evidence also showed that de State, (Tex.Cr.App.1978); 567 S.W.2d 510 ceased had been locked in the automobile State, Denney v. (Tex.Cr. 558 467 prior trunk his murder. There was some State, Cerda v. App.1977); 557 S.W.2d 954 evidence which that adduced indicated State, Martin v. (Tex.Cr.App.1977); cigarettes deceased had smoked or burned (Tex.Cr.App.1972). something while locked the trunk. Offi case, In the instant descrip verbal Taylor smudge cer testified that the mark tions body of the of the deceased and of the was in such a location that it would not scene of the murder were admissible. have been touched or removed in the nor Therefore, the trial court did not err in cleaning mal use or of the trunk or car. admitting ground them. This of error is Thus, we conclude that the trial court was overruled. ruling objection correct in based any error,

In ground appellant his next lapse on the of time between the offense complains discovered, testimony of the Er- Officer and the date which the car was Taylor nest photographs weight and of of an auto- went to the of the evidence rather State, Pringle v. mobile admissibility. admitted into evidence. The record than its See v. Hicks undisputed reflects that it was that at (Tex.Cr.App.1974); Appellant complains ground subsequent also of the admission this will be discussed automobile; photographs into evidence of anof of error. of future acts of violence. State, (Tex.Cr.App.1974); probability 508 S.W.2d State, State, v. State, Duffy v. (Tex.Cr. supra; O’Bryan Alejandro v. 394 S.W.2d State, v. v. Burns Brock supra; ground supra; of error over App.1965). This State, (Tex.Cr.App.1977). 556 S.W.2d ruled. ground of er In his seventeenth case, appellant kid In the instant ror, appellant the trial court contends sexually and napped gunpoint, abused at admitting testimony of Fred erred head, person through of the shot each side incriminating concerning appellant’s Hewitt testify against pending in a who was to him con that witness. He statements made to had been un robbery The victim case. were admissible tends that these statements who murdered him be appellant, known to “only was aware of incrimina [appellant] if testimony in a could have resulted cause at the time ting by the declaration himself appel After against appellant. conviction authority no Appellant it.” cites he made deceased, laughed and lant murdered contention, we find of this and support companions; it to his bragged about This contention is with none in state law. weeks later he that several record reflects an admis merit. We further note that out The cold bragging was still about it. party to a third is not sion an accused lay in appellant in which calculated manner Hasley v. hearsay clearly admissible. victim, rural drove him to a wait for his State, (Tex.Cr.App.1969); 442 S.W.2d him for the reason area and executed State, v. Gibson 430 S.W.2d probative evidence of certainly he did is is over App.1968). ground This of error propensity to commit future ruled. State, v. O’Bryan acts of violence. See appellant State, v. In his final supra; Earvin supra; Brooks v. State, the evidence is insufficient State, Duffy v. contends that Felder supra; supra; is a finding that there support jury's Burns supra; would commit probability evi addition, was no there would consti- violence that criminal acts of the influ was under dence society. Article continuing threat tute else; have we anyone ence or domination We can- 37.071(b)(2), Vernon’s Ann.C.C.P. probative evi this is previously stated that agree. two. De special number dence on issue in assess It is well settled that State, supra; Earvin v. mouchette may all ing consider punishment, Hovila v. supra; Duffy guilt the evidence adduced trial 562 S.W.2d innocence. Demouchette is no There evidence (Tex.Cr.App.1979); O’Bryan pressure which mental or emotional actions; presence or might mitigate his State, v. (Tex.Cr.App. Duffy 567 197 S.W.2d pressure probative is also such absence of State, (Tex. v. 776 Felder 1978); 564 S.W.2d State, supra; evidence. Demouchette v. State, v. Cr.App.1978); Brock 556 S.W.2d State, State, v. supra; Duffy O’Bryan v. calculated na 309 The State, (Tex. v. Jurek supra; 522 .2d 934 S.W and the fore of defendant’s acts ture App.1975). Cr. his crime is which he executed thought with ap also The evidence reflects propensi of his certainly probative evidence record, which includ pellant had a criminal acts of violence. ty to commit future Testimony v. State, Brooks State prior ed assaultive offenses. v. supra; O’Bryan was convict appellant March showed that in 1967 60,521, Tex.Cr.App., delivered (No. State, prison the offenses of sent to for v. 582 S.W. ed and 1979); Earvin 21, State, intent to v. robbery assault with Felder burglary, (Tex.Cr.App.1979); 2d 794 State, Indeed, in December paroled He was Duffy v. supra. murder. after he was months may offense 1971. Some three the circumstances the released, robbery occurred alleged the of the extremely evidence probative furnish

255 (1979); State, April of 1972. He was arrested for the v. 51 Villarreal 576 S.W.2d 1972, August stayed robbery State, v. 573 (Tex.Cr.App.1979); Muniz January of jail until 1974. Within three (Tex.Cr.App.1978); Adams v. S.W.2d 792 jail, of his release on months bond from State, (Tex.Cr.App.1979); 717 577 S.W.2d the capital The committed offense. record State, 568 Bodde v. S.W.2d 344 pa- reflects that was on further State, App.1978); Byrd Von v. 569 S.W.2d the time of capital role at the offense. Ac- State, (Tex.Cr.App.1978); Duffy su 883 v. appellant’s to cording testimony, dur- own State, State, pra; supra; v. Brock v. Felder ing years ten prior capital the murder to his (Tex.Cr.App.1977); Shippy trial, only he had penal been out of institu- State, State, supra; v. Granviel v. Thus, year. jury tions for total of one the (Tex.Cr.App.1976); Moore heard evidence that was convicted State, 664 (Tex.Cr.App.1976). felony offenses, of three was sentenced This of error is overruled. prison, was parole, charged released on robbery, with the commission of a was re- judgment is affirmed. jail,

turned was released on bond and offense, the capital hoping then committed ROBERTS, J., concurs in results. the escape robbery the find charge. We extremely probative ap- this evidence is CLINTON, Judge, dissenting. pellant’s propensity to acts commit future 510, Illinois, Witherspoon U.S. of violence. 1770, (1968) L.Ed.2d S.Ct. is founded only jury Not was the confronted pre- guarantee impartial jury on the of an calculated, appellant’s evidence of deliber- applied by scribed the Sixth Amendment as deceased, ate and brutal murder of but the by the states Fourteenth Amend- they were confronted with disre- itsBy very ment.1 terms the rule enunciat- gard and assault on the entire founda- Witherspoon in the applies ed in to what justice tions of criminal We system. system justice federal of criminal is called conclude evidence is sufficient verity If sentencing.2 confirmation of this jury to have there is a found that needed, Ohio, is Lockett v. U.S. probability would commit fu- (1978) provides S.Ct. L.Ed.2d 973 ture criminal acts of violence that would it.3 sentencing That which called a continuing society. constitute threat Supreme we Court know as assessment compare See and su- Demouchette punishment. in a case Since murder pra; O’Bryan v. supra; McMahon v. jury longer punishment, assesses no holding come Witherspoon Brooks does not now Earvin supra; Starvaggi v. play. 593 S.W.2d 323 into Hovila I, Rights supra, 1. § Article of the Bill of in the 391 U.S. at 88 S.Ct. 1776-1777. independent (All emphasis supplied throughout Constitution of Texas is an source Indeed, right. of can right same of the opinion refusal Mexi- writer of this cated.) unless indi- otherwise basis, secure, Government to on a firm by jury primal of trial was one of grievances expressed in our of In- Declaration Witherspoon, opposed persons generally 3. “In dependence, 3 Vernon’s Constitution Texas capital punishment had been excluded sen cause from that convicted and petitioner to did not tenced the death. We Specifically, . . that a sen- we hold ‘a disturb the conviction but we held that sen jury of death cannot if the tence that excluding be carried out . tence of cannot be carried out . death imposed by or chosen recommended it was 596, Lockett, supra, at 438 at 98 S.Ct. U.S. simply veniremen for because cause 2960; jurors Supreme held four Court that they general objections voiced the death to arguendo “assuming properly were excluded penalty expressed religious or or conscientious Witherspoon provides attacking that a basis for scruples against its defendant infliction. No in a the conviction as well as the sentence constitutionally put at the can be to death case,” (italics capital original). id. in selected,” Witherspoon, a hands of tribunal so J., than stated rationale of Hovila is less (Odom, The (Tex.Cr.App.1976) dissent- short, venireperson satisfactory premise a is for me. Its core is ing). In whether scrupled imposition that, of is knowing punishment the death either juror life, germane jurors is to service as a penalty not for obvi- death or confinement being disqualified of cause.5 in sense ously will allow their attitude about finding. The punishment to their fact color well aware I have come to that conclusion premise is veni- from that conclusiondrawn Witherspoon diagnosed has that this Court by the Wither- repersons must be measured in, g., well” e. Brock v. “alive and off, say, first spoon standard. must I and, 309, in (Tex.Cr.App.1977) juror as some every prospective perceiving deed, prospec disqualification of a permits to me.6 rogue is all that obvious sort of not 12.31(b) j’uror said or § tive “under either But, truly operative may, be as it 313, both,” Witherspoon id. at Bodde or individually or collec- juror, a notion is that (Tex.Cr.App. 568 S.W.2d others, likely corrupt is so to tively with 1978), Moore v. 542 S.W.2d that close exam- through personal bias duty The examination that scruples necessarily is deeply held diagnosis always is said to have ination of bases the prospective fraud. appropriate expose in Hovila v. been made produced has an occa- experience see Brock and Even if Moore, juror eager serve as to resort to sional so misrepresentation, to me that all it occurs is re- that examination The whole of questioning will not discover conceivable Hovila, supra to have been by vealed event, jur- certainty that ploy. any as follows: by to issues will be affected ors’ answers provide that the “While the new statutes penalty is toward the death their attitude they will not jury an oath that shall take Hovila formula- element of the an essential their delib- penalty let the involved affect special equate the issue tion in order to only them to an- requires erations and juror. Therein juror death verdict with the judge actually questions swer while the Hovila, my judgment. fallacy is the punishment based on such assesses answers, jury remains that the the fact jurors who must The mental exercises of answers will deter- will know that their penetrating ques- give factual answers pun- to be mine the defendant is whether from the significantly different tions are by imprisonment. or life ished death on to thoughts jurors who are called not say jury’s To answers would imprison- that the or life write a verdict death toward the be affected their attitude jurors with fellow The former work ment. punishment a for crime penalty reasoning death process of under of a constraints bring forth simply they evidence, will not because whereas and deduction from would be to disre- the ultimate verdict is much more matter life verdict death or engage Indeed, gard We will not the obvious. it was the of unfettered discretion. reasoning. recognized such tenuous which was latter characteristic ren- hold, fatal flaw that therefore, and identified as the the Wither- We capital punishment stat- former dered the spoon remains the same.” test accurately remarked procedure Mr. White so su- 6. As Justice out Article 4. “The set mechanical, sentencing procedure in Ju pra, provides for mandato- about our revised Texas, upon ry penalty an answer U.S. 262 at S.Ct. death affirmative rek (1976) (Opinion special fact issues submitted concur each of the Section L.Ed.2d929 at ring imposes (b). rec- judgment): nor neither “The statute does in the imposition penalty juries discretionary power the death un- ommends to dis extend mercy, der this statute.” pense not be assumed and should juries disobey nullify their instructions.” will course, concerning scruples 5. Of the matter inquiry capital punishment pertinent still exercising preemptory purposes chal- lenges.

257 Georgia, For, utes require.9 unconstitutional in Furman law Supreme as the Court 238, 2726, Holman, 408 92 33 L.Ed.2d U.S. S.Ct. 346 observed in Boulden v. 394 U.S. (1972); Supreme as the later 478, -484, 1138, -1142, Court describ- 483 1141 22 S.Ct. 153, Gregg Georgia, 188, ed it in U.S. (1969): L.Ed.2d 433 189, 2909, 2932, 49 96 S.Ct. L.Ed.2d 859 is entirely possible person that a who “[I]t (1976), (the “Furman held that penal- death opinion against’ has ‘a fixed or who does ty) imposed sentencing could not be capital punishment might not ‘believe in’ procedures that created a substantial risk perfectly juror nevertheless be able as a it would be inflicted in arbitrary an by existing abide law—to follow con- manner,” capricious and “mandates scientiously the instructions of the trial that where discretion is afforded a sentenc- judge fairly imposi- and to consider ing body ., on a grave matter so . . particular tion of the death sentence in a suitably that discretion must be directed case.” and limited so as to minimize the risk of is, believe, The principle applicable same I wholly arbitrary capricious action.” On juror to a Texas who is called on to answer hand, post other capital pun- Furman from special the evidence the two three ishment statute meets its concerns when a 37.071, issues submitted under Article V.A. system is “provides created that for a bifur- C.C.P. cated proceeding at which the sentencing jury Where the is not the assessor of authority apprised is of the information rel- punishment in a charged case but is imposition evant of sentence and finding upon facts which that assess provided with guide standards to use its made, ment Witherspoon is holding information,” 195, Gregg, supra, at gives way to testing another doctrine for Thus, at S.Ct. 2935.7 Hovila errs finding qualification of veniremen that Wither alike that which is designedly distinct —its spoon, 523, 21, supra, 1777, n. 88 S.Ct. at major premise falls. is, express pains took preclude. not to That However, correctly Hovila did relate the as subsequently developed in Lockett v. problem 12.31(b). The error was solv- § Ohio, 586, 596, 438 U.S. 98 S.Ct. Witherspoon,8 ing objective it with (1978): Witherspoon provide is to to the accused a “Each of the excluded veniremen in larger pool prospective jurors is ‘unmistakenly case made it clear’ representative more of the community atti- they could not be trusted to ‘abide tude toward infliction of the penal- death by existing law’ and ‘to follow conscien- ty using the converse of phrases, its own — tiously judge. instructions’ the trial unstack the deck him and to Holman, 478, 484, Boulden v. U.S. preempt hanging jury. Conceding 1138, 1142, (1969).” S.Ct. L.Ed.2d 433 the results reached in Hovila are consistent objective, with that still it That this seems to me that doctrine arose from a context of Witherspoon guilt-innocence ritual is not suitable to does not an adaption render evoke from a meaningful venireman a of it inappropriate punishment stage, ad- at the likely mission that he will corrupt shirk or for in serving both the is as a factfind- duty juror as a that his oath and the er rather than exercising discretion in as- Moreover, sentencing authority statutory 7. providing “[w]here of the new scheme for the required specify upon imposition penalty;” the factors it relied of the death and in Boul decision, reaching safeguard its the further ware v. 542 S.W.2d meaningful appellate Hovila, review available to App.1976), citing the third the Court imposed ensure that death sentences are not put directly, Witherspoon saying it more manner,” capriciously Gregg, or in a freakish equally applicable procedure “is under the set supra, at 96 S.Ct. at 2935. forth in Article V.A.C.C.P.” Livingston Moore, 9. Essentially, that lesson was learned in 1976), (Tex.Cr.App. and in Moore supra arguably qualified at 672: veniremen un 1976), (Tex.Cr.App. the first nevertheless, Witherspoon may, disqualify der Hovila, and second cases to cite stat Court 12.31(b). under Section Witherspoon light ed that “in remained viable Indeed, pre oath sessing punishment. 12.31(b) ROGERS, is in by constitutional Appellant, §

scribed John A. not precisely because the Court has trouble . insisted that “at the least Texas, Appellee. of The STATE perhaps an insur profound, effect be mountable, the venireman can one before No. 58461. Estelle, 592 F.2d disqualified,” be Burns Texas, Appeals Court Criminal 1297, (5 1979),overturning Burns 1301 Cir. Panel No. 3. 270, (Tex.Cr.App. 556 S.W.2d 8, 1977), rehearing January en banc heard 16, April 1980. 1980; Texas, granted, 444 Adams v. cert. 21, May 1980. Rehearing Denied 519, 419, 100 S.Ct. L.Ed.2d U.S. 10, 1979,11 to review Adams December (Tex.Cr.App.

1979), merely affirm that his rather than be punishment would

deliberations on the mandatory penalty death by

affected in, imprisonment,12 g., e. Whit

or life

more v. 570 S.W.2d

App.1976-1978), Freeman (Tex.Cr.App.1977), 297-298 (Tex.

Shippy v.

Cr.App.1977). persuaded I

Accordingly, because am se, holding, long- no Witherspoon per jurors in qualifying

er a viable measure ease, capital proceedings in

the bifurcated punish- they directly assess

in that do not

ment, good more manifesta- deal and that acknowledging magic “the merely

tion than for 12.31(b) required should be

phrase” of § respectfully I dissent.

disqualification, so, Doss, mandatory respect venireperson from service in 2. If present did exclusion after 10. With jurors pursuant simply prospective acknowledged case of she penalties that the 12.31(b) of Wither- “affect” her deliberations violate the doctrine § would cause; issues, challenged spoon the State ? court, lawyer “1 to the trial for accused stated by being questions reviewed 12. From the records some further think we should ask appears matter;” opined, that scant attention “I Court also the trial court about this ask;” prosecu- being given you bar to the the bench and the could don’t know what 12.31(b) “mandatory remarked, magic phrase disjunctive § imprisonment term feature of tor “That’s — you supposed way penalty life.” it the are and she answered death or Burns, approved, explic- disqualification Supreme recognized, but to.” Her supra, has Court on, ‘penitentiary’ analogue itly passed at 278. “the death-qualification jurors,” Boulden to Holman, Supreme questions 484, 7, 11. The two framed supra, n. S.Ct. 394 U.S. at granting itself in certiorari are: Court 1141. Witherspoon applicable the doctrine of Is employed procedure in Tex- to the bifurcated as in cases?

Case Details

Case Name: Russell v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 12, 1980

Citation: 598 S.W.2d 238

Docket Number: 60412

Court Abbreviation: Tex. Crim. App.