Tezeno v. State

TEZENO, Appellant, Ronnie Earl Texas, Appellee.

Thе STATE of No. 44331. Appeals Court of Criminal of Texas. March 1972. Rehearing May Denied 1972. Opinion Following Commutation

Nov.

Bobby Caldwell, Houston, H. appel- for lant. Vance, Carol Atty., S. Dist. C. James

Brough Bennett, Attys., Bob Dist. Asst. Houston, and Vollers, Atty., D. State’s Jim Huttash, Atty., Robert A. Asst. State’s Austin, for the State.

OPINION

ROBERTS, Judge. appeal

This is an from a conviction Trial before murder with malice. jury, penalty. assessed the death which appellant addition, lant’s mere entered automobile In contention. supply city house in the An of Houston. fact that blacks were from excluded employee particular jury, firm noticed if supported even store, evidence, standing near the front would not a violation constitute approached help equal protection him and asked if he the Four could clause of The appellant replied him. that he was teenth States Amendment the United looking.” reg “just employee Constitution, systematic The re- and then unless a place began pattern turned to his at the counter ular exclusion and of is shown. Swain examining Alabama, 13 catalog. a The an- v. deceased and 380 U.S. 85 S.Ct. employee other a Tex. standing (1965); Ridley were behind L.Ed.2d 759 v. State counter, talking telephones. Cr.App., (delivered At this 769 on 475 S.W.2d Jan State, appellant uary 18, time to the of the Hardin S.W. 1972); went center 475 v. store, stated, 2d v. pulled pistol out a and “This 254 (Tex.Cr.App.1971); Walker State, your a Put stickup. money. (Tex.Cr.App.1970); is me 415 Give 454 S.W.2d State, phones put them I said them tele- Turner (Tex.Cr.App. down. 1969) phones pistol, grounds, down.” He then fired on other the rev’d. (1971); the bullet deceased chest. striking the the 29 858 L.Ed.2d (Tex.Cr. 411 deceased died from this wound. S.W.2d Johnson App.1967). money Appellant at gunpoint then took it for ninth error employee Appellant’s ground from an who had removed of mo register. ap- him from the He is The thrust cash also overruled. of panel a tion that he was proached quash salesman who was the store to the was billfold, his neither nor and at the time and for al- a freeholder a asked householder prospective jurors be require he did take it. At time that that though not that to by a salesman, through tried person, right entered such denied him the to be another a is impartial jury. fair appellant the door and fled. This contention front and on case to trial without merit. The came Appellant grounds of error. raises eleven a March That a be either juror 1970. householder eliminated freeholder or was Appellant by his first and asserts qualification, September of as a effective as grounds ninth the trial erred that court 35.12, Ann. Article Vernon’s quash jury denying his motions to the C.C.P., amended, Leg., Acts 61st composition panel challenge of the 412, 2; p. also Article 35.16 see ch. § jury. jury that the was the He contends (as 1969). Fur (a), V.A.C.C.P. amended only composed of blacks whites ther, pro record does not reflect the jury the were excluded from the State’s failure spective challenged for jurors were challenges. his In peremptory use of its to be freeholder. a househоlder quash panel, he motion the contended jury panel not “that the of the do members fourth alleges in his Appellant defendant,” and peers constitute the erred that the court error trial require tried that “to the defendant to be peremptory allowing in not him additional jury those individuals by a other than is challenges. This contention without equal protection is a class violation merit. The record reflects ”. also process anc due . . He . requested chal peremptory ten additional out jury qualifications claims that set lenges, request denied. and that was are unconstitutional. <he Texas statutes prospective juror, a Mr. Thereafter Reeves, conclusion examined. At the Appellant’s ground of error over first examination, following tran ruled. The does disclose record spired : jury, nor the race of the members accept “MR. BENNETT: We’ll panel. members of the race of the various Therefore, juror, Your Honor. appel this cannot review Court Mo (Tex.Cr.App.1971); defend- says the 468 S.W.2d “THE What COURT: (Tex.Cr. rales v. ant? David v. S.W.2d App.1970); Honor, at “MR. CALDWELL: Your State, 449 (Tex.Cr.App.1970); Grant v. time, renew our we would like to Further, 1969). (Tex.Cr.App. previous request. of the Constitution an examination the amend through reveals United States That will be right. All “THE COURT: same, that the ments to the overruled. Amend The Fifth recognized. for crime accept right. I All “MR. CALDWELL: person says “No ment to this Constitution juror.” capital, or held to answer for shall . . ..” infamous crime otherwise challenge аttempt There was no capital Dictionary defines Black’s Law prospective juror cause. head relating “affecting or crime chal- next venireman called was The person; the ultimate entailing life of a or chal- by appellant, and the lenged for cause Thus, pun capital crime is one penalty. juror was The next lenge was sustained. The Fourteenth death.” ishable with next accepted by appellant. The expressly of the the Constitution Amendment to peremptorily by the juror challenged was says as follows: Section United States day appellant again following The “ State. deprive any . nor shall state . . . peremptory challenges, requested additional life, liberty property or with any person of The first request and the was denied. Thus, . process of law . ..” out due day that was chal- venireman called on the foresees is evident that Constitution by next lenged peremptorily The State. punishment both penalty as for crime death objection juror accepted any was with adopted at the that was an amendment appellant “MR. waived follows: Eighth as the Amendment and same time objections, Your No CALDWELL: on which Fourteenth Amendment juror Objection to the next was Honor.” Further, appellant herein relies. Con juror final likewise waived. The next and Texas, of Vernon’s stitution State accepted by appellant. was I, 19, provides: in Article Ann.St. Section deprived shall be “No of State citizеn Appellant court does not claim life, liberty except by . . . due of erroneously challenges overruled one of his of the law of the land.” This Court course Also, he does show that for cause. opinion that it has enunciated holds to the on the “objectionable” juror placed many before that under the times Constitu chal- jury, way that he tried in or tion or the of United States State request lenge any juror after he made his Texas, penalty that the death is not cruel challenges. for No error additional punishment. and unusual State, Rodriguez v. 399 shown. S.W.2d State, v. (Tex.Cr.App.1966); 818 Teter 489, (1958); Tex.Cr.R. 316 S.W.2d 756 166 Appellant’s ground third of error 479, State,

Bayless 316 v. 166 Tex.Cr.R. trial denying states that the court erred in (1958). 743 S.W.2d his motion for continuance which was filed day prior alleged on the trial. He in his ground second Appellant contends attorney motion that his of choice had not con- error trial, prepare had sufficient time to punishment, unusual stitutes cruel and psychiatric that he desired to have a exami imposition in this case is therefore that its prior Appellant to trial. offered no nation Eighth and Fourteenth violative support evidence of his motion. Amendments to the United Consti- States rep been reflects that had record contrary This has held to the tution. Court State, occasions, appointed Decem- Curry resented counsel since g., on numerous e. v. 378 31, 1074, This (1965). 30, 85 13 L.Ed.2d 934 (trial on March S.Ct. commenced

ber 1969 however, mean, the Sixth does not 1970). admission of prohibits Amendment on the for continuance- A motion recognized under extrajudicial statеments time to had insufficient that counsel has exceptions hearsay rule. United the dis is addressed to prepare for trial 720, (2nd Kelly, Cir. v. 349 F.2d 770 States the failure court and cretion the trial States, Kay 255 F.2d 476 1965); United v. error absent a motion is not grant such (4th State, Schepps v. 432 1958); Cir. Gordy v. of discretion. showing of abuse J., (Tex.Cr.App.1968) Onion, S.W.2d 926 — 201, State, 126 268 Tex.Cr.R. 160 see, v. rehearing. on Also California (1953); Wiley 159 Tex.Cr.R. v. L.Ed. Green, 90 S.Ct. Abrego (1954); v. 263 S.W.2d Texas, 2d Pointer v. (1970); (1952); Tex.Cr.R. (1965). 13 L.Ed.2d 923 240 S.W. v. 156 Tex.Cr.R. Jones prohibit Amendment Nor does Sixth State, 148 Tex. (1951); 2d Williams modifying, en changing, state from (1945). Cr.R. rule, hearsay general California larging the Green, supra, a rea long as there is so bar, no abuse we find In the case necessity change, and so for such sonable no evidence Appellant offered discretion. supported by an аde change “is long as the need particulars of his counsel’s as to the that the evidence quate basis for assurance Further, by the preparation. for further qualities reliability and trust has those that his states he allegations the motion other evidence admissible worthiness to for two retained employed had been counsel the exceptions long under established to He of the motion. prior the date weeks to States, supra, hearsay Kay v. rule.” United appointed represented by been also had State, supra. Schepps v. 255 F.2d the mo- prior to months for three counsel is shown. discretion No abuse of tion. hearsay exception to the important An spontaneous utter exceptiоn for rule is the fifth in his Appellant contends al exception exclamations. This ances or in ad court erred ground of error that the extrajudicial state lows the admission of an hearsay testimony. mitting present if: in court ment a witness not product in a cafe in Hous- of an occur Appellant (1) was arrested the statement is the Beverly Lindsey. state of presence startling enough produce one a ton in the of rence Lindsey, render Upon searching appellant and excitement which would nervous pistol unreflecting, spontaneous found a arresting the officer the utterance she told there is Lindsey’s purse. At that time the utterance is made before (2) is, passed misrepresent, the that that had time to contrive and the officer by the produced entered the pistol her the officer the state of excitement when testify the re permitted to still dominate startling cafe. The was event must officer Lindsey’s mind, the utter appellant’s objection, powers (3) as to of the over flective not of Lindsey was called must relate to the circumstances statement. ance Wig it. See V preceding witness. the occurrence 1940). Evidence, p. (3rd more on Ed. Appellant admission of contends that the Lindsey’s testimony He con- was error. exception requirement third of the The hearsay, testimony tends that such was in that the has somewhat modified been right deprived that its admission him of may prior which exclamation relatе act him. against to confront the witness the act. provocation the or of was cause Evidence, Practice, & McCormick Texas right of federal The of confrontation is Ray, 919. § Texas, ‍‌​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌​​‌​​​‌​‌‌‌​​​‌​​​‌​‌​​​‌‌‌‌‍constitutional dimension. Pointer v. commentators, however, pointed The have 13 L.Ed.2d 923 S.Ct. Alabama, ; requirement that the exclama- out that the (1965) Douglas v. spontaneous “pure” less reliable than or its cause the relate to occurrence tion the illogical. that We hold theory utterance seems general the is not necessitated evi- admissible as substantive e., statement was this i. that exception, the underlying error ground fifth Appellant’s re- dence. hearsay especially type particular is overruled. it аdmissible because therefore liable and state product of an excited spontaneous the ground error Appellant’s sixth primary factor which the mind. Since pistol was states that the admission of the is their statements reliable makes such error. they character, the fact that spontaneous the other than relate to some occurrence pistol Any error in the admission of itself, cause, should its startling event The expressly by appellant. was waived Wig- VI them less reliable. See not make concerning record the admission Practice, 1750c, more, 1754 and Texias pistol is forth § § set below: Evidence, Ray, McCormick & § Ex- “MR. offer State’s BENNETT: We case, this view. In instant We share counsel, showing it to hibit after excеption utterance spontaneous Your Honor. hearsay applicable but for would be rule objec- no “MR. haveWe CALDWELL: relate to utterance does not fact tion, Your Honor. startling occur- startling event. (or perhaps rence in this case was the arrest right. All Ex- “THE State’s COURT: Lindsey’s state- finding pistol). of the hibit 6 is admitted into evidence.” pistol ap- ment she received the from Appellant’s sixth of error is over pellant cause did not describe or state the (Tex. ruled. Land v. (her event statement startling Frey v. Cr.App.1971); by appellant did pistol given to her (Tex.Cr.App.1971); Pointer v. explain finding the arrest or the (Tex.Cr.App.1971). pistol; explained only possession). her perceive why We fail statement Appellant also in his sеv contends describing would less reliable than one enth ground of error that “the verdict and the event. jury contrary sentence of the law and Also, the fact that the exclamation was presented facts in this case.” Three wit response question made in to a would not they appellant nesses testified that saw automatically make it less reliable and in- shoot the testi deceased. Another witness admissible. That an in exclamation is made fied that she heard a shot fired and then response question to a is a factor to be place looked out from her in the office along considered surrounding with all the standing business and saw with circumstances, in determining whether the gun a in testi light his hands. In of this spontaneous. Thus, exclamation was a clearly mony, the evidence was sufficient leading question if suspect. would be But support the conviction. requisite present, the state of mind is then question the fact is asked will not Appellant eighth in contends his preclude the admission exclamation ground in of error that the court not erred as substantive evidence. Moore v. concerning allowing him to offer evidence (Tex.Cr.App.1969). economic, S.W.2d See political, the sociological, Practice, Evidence, Texas McCormick & neighborhood at overall conditions of his Ray, 914 and cases therein cited. punishment phase the of the trial. § bar,

In the case at the arresting (Supp. officer’s (a), Article 37.07(3) V.A.C.C.P. question Lindsey “got gun” may as tо 1970), provides, part, where in “[E]vidence leading was not or suggestive of the an- defendant by be offered the state and the question swers. That such a prior should be criminal record as to portion his relevant of his dire exami- defendant, general reputation and The voir his however, held, appears in record: has nation as follows character.” This Court is admissible at that evidence which you scru- any “Do have conscientious punishment type to the stage is not limited ples as a against the assessment of death in “Evidence of evidence stated the statute. murder, in punishment for crime of punishment legally mitigate admissible proper case ? applica or to the evidence that is revelant probation, any, tion for if is also admissi do, “A I’m Yes. I believe I uh-huh. 517, 519 ble.” Allaben penalty. not in favor of the death (Tex.Cr. App. 1967). no cir- “Q Does that mean that under case, present perceive In the we fail to cumstances, the facts no matter what how evidence defendant which the you were, participate with could never sought to offer would be relevant either jury bringing in a death verdict terms in terms the test of the statute or a murder case? Allaben, supra. set forth in See White No, “A I don’t believe could. I (Tex.Cr.App.1971). of error is overruled. op- Okay. your “Q And conscientious then, position penalty, to the death Appellant also .alleges prevent sitting as a you would from tenth ground of error that the court erred impartial any juror fair and case in excluding prospective jurors who stated involved, penalty which the death they scruples had against conscientious correct? the infliction of penalty. the death He does Yes, “A it would. point particular juror out jurors or to whom However, he refers. have we would chal- “MR. We BENNETT: carefully examined the record and we find basis, Your Honor. lenge, on that that his supported claim is not rec ord. Disregarding the veniremen who were Self, Are you “Q let me ask Mr. this: challenged peremptorily, challenged or were you circumstances saying that under no cause appellant, only jurors who any circumstances —you think of can’t cause, were excluded for on the State’s yоu in which any factual situation challenge, were those who indicated that return a death sit on a jury could they would not vote inflict the death verdict ? any case or under circum stances, no matter what might the evidence don’t believe “A That’s I just correct. reveal, instance, or in one who testified could. I that their scruples pre conscientious would vent them serving impar from as fair and You’re right, “THE All sir. COURT: jurors. tial add- excused, (Emphasis Mr. Juror.” The voir dire only examination of four of ed) the sixteen prospective jurors challenged by for cause raises any question State by First, challenge for cause State as propriety to the grant- the trial court’s juror’s conscientious on the that a ing of challenges upon the State’s and care- scruples against death would examination, ful questions such are re- and prevent serving as a fair him from solved in favor of the trial holding. court’s permissible. impartial juror Wither Illinois, spoon first venireman whose examination also, might Grider questionable (1968).1 be See was Dan E. L.Ed.2d 776 Self. prosecution Witherspoon opinion right stated, to 1. The “The is involve the ju challenge prospective sue before us is a for cause those narrow It does not one. 393 (Tex.Cr.App. penalty, inflict the death “No matter what 1971). Secondly, if even Self’s answer is the facts This conclusion is rein- were.” not considered indicating express that his beliefs appellant’s forced counsel’s prevent would making impar him from statement which is tanta- objection,” “No decision, answer, tial admitting challenge “That’s correct” mount to for cause to question good. would portions indicate As shown thd other he could not return a verdict of death. of the voir set dire examination forth opinion, this appellant’s counsel often ob- The next whose venireman examination jected Therefore, challenges. to other we feel should be examined is Mrs. O. G. inescapable (1) based conclusion on: Norwood. portion The relevant of her itself, express answer waiver (2) examination is as follows: objection, sustaining of the court’s (3) “* * * the challenge (especially light of the fact any have Do conscientious you scruples against the court often an examina- conducted assessment of tion prospective death of a sua punishment sponte), as a venireman for the crime is that the proper case, meaning murder in venireman’s was clear Ma’am? and unambiguous. express language While “A don’t I I can believe return a death. to contrary by the venireman would I don’t taking believe life. certainly outweigh the factors which lead conclusion, to this in the absence of such “Q Does you that mean are conscien- language appears and in the face what tiously opposed capital punishment, itself, language the fac- sufficient ma’am ? tors we have mentioned act as buttresses Well, “A yes, I believe it would be. to thе venireman’s find no answer. We error in the sustaining court’s of the chal- “Q cases, So that in all any there are lenge. facts or circumstances which would you, allow personally, participate Odom, venireman, Culberson another tes- with a jury bring in a death ver- part, tified in as follows: dict, in a murder case? “Q you And cannot conceive of set “A No. I believe— of facts you, per- which would allow sonally, participate jury with a “Q No matter what the facts were? bringing in a verdict? “A Uh-huh. “A No. “MR. We challenge. BENNETT: “Q just You couldn’t do that? Any “THE objection? COURT: “A No. “MR. objection. No CALDWELL: you, “MR. BENNETT: Thank Mr. “THE All right. You are COURT: challenge Odom. for cause. We’ll excused, ma’am.” Any questions “THE ? COURT: This answer shows venireman indicated that automatically she would vote against penalty. the death her While an- (BY COUNSEL) APPELLANT’S

swer, “No. I believe—” “Uh-huh” certainly is example English not an “Q saying: you But I am Do think that nevertheless, clarity, textbook is clear situations, there could be could be cir- that she meant that which, she would not vote cumstances, to hearing under after guilt.” rors state their who that reservations as the defendant’s capital punishment prevent about would 88 S.Ct. 1772. impartial making

them from decision facts, you render or “A all the that could Uh-huh.

return a verdict death? Okay. “Q yes. possible, “A Yes. It’s (BY COUNSEL) APPELLANT’S STATE)

(BY THE COUNSEL FOR Odom, “Q you stating you Mr. are that Now, you “Q Okay. as understood I just against penalty are so the death first, you you just that abso- said were case, regardless any that of the facts of capital lutely opposed punishment, you not, that members could with othеr any in no matter the facts were what give a death jury, verdict? it. But just give case. You couldn’t now, circum- you say that under certain “A No. it. stances, may give you able “Q saying that, you You’re not or are Now, your position, what is sir? saying that? Well, see, ques- you put “A didn’t saying. “A That’s I’m what exactly tion to like under- me I could it, know, he, you state stand like could “Q You couldn’t—

it. “A No. Well, that, “Q apologize sir. I “Q —give a death verdict? any you even Are facts —can there words, it. Now, against fully “A In other I’m your up think in mind? any case any talking I’m not about member All You’re right. “THE COURT: any your family being or own involved excused, sus- challenge The then. any- multiple talking I’m about murder. tained.” person. person time one other one kills justify had any Although apparently Are there facts that would this venirеman ques- you people understanding in sitting difficulty with eleven other in some in bring response ques- tion, answer, in in death verdict in voting to his final that indicates murder case? counsel tions pen- inflict death not vote to he would “A No. by the alty, be shown no matter what would evidence. “Q You could do that? never that challenge was questionable most added) “A No. (Emphasis part He testified of Walter Babbs. follows: none, Well, “Q you think there are * “* * any you have conscientious you D0 you think there are some scruples assessment against could ? crime for the punishment death as a forestated, be- “A do not No. As I I case, murder, proper sir? in a capital punishment. lieve Yes, sir, “A do. I “Q Okay. in the you bring couldn’t So case, no matter penalty dеath then, answer, it, by your “Q take I case how horrible facts or circumstances there no facts are death bring were? You couldn’t per- justify you, whatever, that would jury? you were on the if rendering a verdict sonally, a murder case? “A don’t think so. I “A don’t believe could. Is I “Q right ? I

383 “Q right. All You’re absolutely precise just ing message intended. As was

opposed to penalty, Norwood, on conscien- case with Mrs. grounds? tious expressly counsel objection,2 waived question court did not the venireman. Yes, “A sir. Court, only having We do ‍‌​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌​​‌​​​‌​‌‌‌​​​‌​​​‌​‌​​​‌‌‌‌‍not feel that this “Q you, us, unequivocally a “cold” sir. record before can Thank ignore present, actions of those “MR. challenge BENNETT: We’ll express face of no the venire language

cause. conclusion, man negate which would our which, and in language the face of “MR. objection, No CALDWELL: worst, only lacking is in force. Your Honor. Witherspoon v. We cannot believe that “THE right. All You’re ex- COURT: cused, Illinois, an- supra, requires certain formal Mr. Juror.” surely other. feel swers and none We For the reasons regard stated in to the ap- be Witherspoon the test of is “not to Norwood, examination of Mrs. we feel that plied hypertechnical and archaic with the the meaning of the answer was clear. book, approach century pleading of a 19th rationality.”3 but with realism and While the mere demeanor of the witness cannot express contradict his words so as large We are aware of a number of death to give meaning them a opposition to that penalty recently cases which have been they state, nevertheless, which in those opinions by reversed memorandum stances where the meaning apparent, but Supreme it is United States Court.4 While desired, not stated clearly as might as difficult, synthesize if impossible elements as such demeanor and tone of opinions, rule from those we have concluded voice, important etc. are convey factors that the voir dire in the instant case and objection apparently not, Waiver of penalty 946, 2278, will 403 U.S. 91 29 S.Ct. itself, improper challenge. (1971) ; vitiate an Pruett, L.Ed.2d 855 State v. 18 is, however, It 167, (1969) a factor to be considered N.E.2d Ohio St.2d 248 605 bar, in cases penalty 946, such as the one at where reversed death as to 403 U.S. meaning the exact 2284, (1971) ; of a venireman’s 91 S.Ct. 29 L.Ed.2d 857 answer cannot be 171, ascertained with total Wigglesworth, State v. 18 Ohio St.2d accuracy (1969) from the words of his answer 248 N.E.2d 607 reversed as to judge being present alone. The penalty 2284, trial 947, death 403 U.S. 91 S.Ct. having opportunity observe, (1971); the rul- 29 L.Ed.2d 857 Ladetto v. Com ing of the trial monwealth, 541, court should not be dis- N.E.2d 356 Mass. 254 showing turbed in (1969) the absence penalty of a of clear 415 reversed as to death abuse of discretion. 947, 2288, 403 91 L.Ed.2d U.S. S.Ct. 29 (1971) ; People Bernette, 858 v. 45 Ill. Swenson, 436, 444, 3. Ashe v. 397 U.S. 227, (1970) 2d 258 N.E.2d reversed 793 1189, 1194, 90 S.Ct. 25 L.Ed.2d 469. penalty 947, as to death 403 91 S.Ct. U.S. 2290, (1971) ; L.Ed.2d 29 858 State partial 4. A list includes: Whan v. Forcella, 263, 52 N.J. 245 A.2d 181 Tex.Cr.App., (1969) 438 S.W.2d 918 re (1968) penalty, reversed as to death Funi penalty 946, versed as death 403 U.S. Jersey, 948, cello v. New 403 U.S. 91 S.Ct. 2281, (1971) ; 91 S.Ct. 29 L.Ed.2d 856 (1971) 2278, ; 29 L.Ed.2d 859 State v. State, Tex.Cr.App., Harris v. Mathis, 238, (1968), N. J. 52 245 A.2d 20 (1970) penalty 903 revеrsed as to death penalty reversed death 403 U.S. 947, 2291, 403 U.S. 91 S.Ct. 29 L.Ed.2d 946, 2277, 91 S.Ct. 29 L.Ed.2d 855 (1971) ; 859 Turner v. Tex.Cr. (1971) ; 650, Adams, State Wash.2d 76 App., (1969) 462 S.W.2d 9 reversed as to (1969) P.2d death 458 558 reversed as to penalty 947, 2289, 403 U.S. 91 S.Ct. penalty 403 U.S. S.Ct. (1971) ; 29 L.Ed.2d 858 Quintana v. (1971) ; Aiken, L.Ed.2d 855 State v. State, Tex.Cr.App., (1969) Wash.2d re 452 P.2d 232 (1969) penalty reversed as to death versed as to death 29 L.Ed.2d 857 (1971). S.Ct. L.Ed.2d 856 (1971) ; Mathis v. Ala. (1968) 216 So.2d 286 reversed as to death 384 testimony the trial. ing more un adduced

the answers of the are veniremen State, Tex.Cr.App., 460 S.W.2d set forth v. equivocal than those which were Smith State, Tex.Cr.App., 453 143; David v. S.W. have been reversed.5 the cases which Tex.Cr.App., State, 462 172; 2d Turner v. Nor is this a case the veniremen’s where State, Tex.Cr.App., 9; v. only feelings and S.W.2d Rivera reflected their answers ** * impar ability fair and S.W.2d 855.” not their to serve as 437 State, 468 S.W. jurors. tial See v. Grider compe photograph hold if a is “We ‍‌​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌​​‌​​​‌​‌‌‌​​​‌​​​‌​‌​​​‌‌‌‌‍(Tex. Cr.App. 1971). 2d 393 tent, issue on material and relevant to the trial, merely it is not rendered inadmissible eleventh Appellant contends 1 might it tend gruesome because is and final the trial of error Crow, Employers’ 1. Ins. Ass’n Texas v. admitting court erred in into evidence (Tex.Civ.App. Eastland, 218 S.W .2d 230 — photograph body of the of deceased which 1949), 113, Tex. affirmed 148 was taken at the scene of the crime after ; State, (1949) Ala. Nichols v. 207 235 (1958) ; 217, McKee v. 100 So.2d 750 shooting photograph occurred. The (1949) ; State, 235, Ala. 44 781 253 So.2d depicts (the a man white. black It Ernst, 449, A.2d 114 State v. 150 Me. lying on his side on the floor of deceased) (1955) DeZeler, ; Minn. 369 State v. 230 place of business where the crime oc ; (1950) 39, v. State 41 N.W.2d 313 390, Rogers, 233 N.C. 64 S.E.2d 572 curred. Long, 81, (1951) ; 244 v. 195 Or. State (1952) Garver, ; v. 190 P.2d 1033 State identified, photograph but was first gen (1950). 291, See Or. 225 P.2d 771 jury, not offered or exhibited to the erally (1960). Ann. A.L.R.2d 769 73 County Harris medical examiner who testi- it jury,2 unless passions of the arouse the in, depicted photo- fied that man graph was the same man C. as one Odie 809, State, S.W. v. 225 286 Oliver Ark. Dunn, People (1956) ; Wright (the upon 29 Cal.2d he had v. whom deceased) 2d 17 People (1947) ; 654, v. P.2d 553 177 performed autopsy. 478, Jenko, N.E.2d 783 Ill. 102 410 841, Beckwith, (1951) ; 243 Iowa v. State trial, in the course Later the State DeZeler, (1952) ; v. State 53 N.W.2d 867 by the photograph then had the identified supra. generally A.L.R.2d Ann. 73 See McDonald, salesman who witness James (1960). 769 calling on the store at the of the time solely of the to inflame the minds offered killing. photograph He testified that body description of the jury.3 If a verbal fairly accurately depicted that which 8, People, 307 P.2d 3. Archina 135 Colo. purported v. then of- to show. The State supra; Jenko, (1957) ; People v. 1083 evidence, photograph fered the and it ; (Miss.1951) State, Price v. 54 So.2d 667 objection. was admitted over 239, Jensen, P.2d 296 State v. 209 Or. Novak, (1955) ; v. 618 Commonwealth State, 265, In Martin v. 475 267 S.W.2d (1959); Comm 395 Pa. 150 A.2d 102 this Court held: (Tex.Cr.App.1972) Gibbs, A.2d 366 Pa. 76 onwealth v. Simmons, ; (1950) v. 608 Commonwealth admissibility “A determination as to the (1949). See A.2d Pa. 65 353 361 (1960). generally Ann. photographic upon A.L.R.2d 769 is made 73 evidence same basis as is a on the admis- decision admissible, photo and the would be scene sibility types of other of evidence and must graph depicting the same is admissible.4 largely rest in the discretion of the trial People, judge. Tex.Cr.App., Lanham v. 474 4. Hinton v. 169 Colo. DeZeler, (1969) ; P.2d State (1971). S.W.2d 197 Pribyl (1950) ; Minn. N.W.2d 313 165 Neb. 87 N.W.2d photographs and white “Black (1957) ; 150 Neb. Vaca v. scene of a crime aid are admissible as an (1948). generally 34 N.W.2d 873 See jury to the in interpreting and understand- (1960). Ann. 73 A.L.R.2d 769 particular Statе, Tex.Cr.App., penalty. 5. In see Harris v. reversed as description “In this case a verbal every other participated has writer admissible, there- body and scene are since the decision of this court decision fore, photo- it was not the error admit have cases Witherspoon. Some of the graphs. reversed. There been affirmed and some personal as to the should little doubt there will be cases where recognize “We opinion of this writer. photographs is probative the value inflammatory aspects very slight however, and the Only recently, States United an abuse reversed, in such cases would be great; Supreme Court as to the death of discretion to admit the same.” penalty, large many number of cases from states, majority see Footnote No. 4 being error, There no reversible judg- opinion, including from five Texas which ment is affirmed. previously by had been affirmed this court. OPINION FOLLOWING State, (Tex.Cr. Whan v. 438 S.W.2d 918 COMMUTATION rev’d, 946, App.1969), 403 U.S. 91 S.Ct. 2281, 29 L.Ed.2d Turner v. 856 (1971); ROBERTS, Judge. State, (Tex.Cr.App.1970), 9 462 S.W.2d having in The mandate not issued rev’d, 2289, 947, 403 29 L.Ed. U.S. 91 S.Ct. cause, preceding this amend opinion is 2d Quintana State, 858 ; v. (1971) 441 S.W. ed to the following extent: United rev’d, 2d (Tex.Cr.App.1969), 191 403 U.S. Supreme States the death Court has held 947, 2284, S.Ct. 29 (1971); 91 L.Ed.2d 857 penalty, presently imposed, unconstitu State, Harris v. (Tex.Cr. 457 S.W.2d 903 238, Georgia, Furman v. 408 tional. U.S. rev’d, 947, App.1970), 403 U.S. 91 S.Ct. 2726, (1972); 92 33 S.Ct. L.Ed.2d 346 2291, v. (1971); 29 L.Ed.2d 859 Crain Texas, 238, Branch v. S.Ct. 408 U.S. 92 State, 394 (Tex.Cr.App.1965), 165 S.W.2d 2726, 33 L.Ed.2d 346 The Honor (1972). den., 853, 101, cert. 382 86 15 U.S. S.Ct. Smith, able Preston Governor of State L.Ed.2d (1965), petition 91 cert. from Texas, of since commuted has per corpus curiam granted denial ‍‌​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌​​‌​​​‌​‌‌‌​​​‌​​​‌​‌​​​‌‌‌‌‍of habeas imprisоnment, from sentence death to life nom., judgment and rev’d sub v. Crain procedure upheld Court in this Whan Beto, 947, 2286, 403 U.S. 91 S.Ct. 29 L.Ed. State, v. (Tex.Cr.App.1972). 485 S.W.2d 275 2d (1971). 857 Therefore, constitutionality the issue of the cases, the death In each of these Texas penalty of the death in been this case has cases set aside and the were was Otherwise, rendered judgment moot. for fur- to this court “. . . remanded is affirmed. Illinois, Witherspoon v. proceedings. ther 1770, 20 L.Ed.2d 776 88 S.Ct. ONION, Presiding Judge (dissenting). Holman, 394 Boulden v. U.S. (1968); and 89 L.Ed.2d 433 (1969) S.Ct. 22 This writer has had a number of occa Bishop, U.S. 90 S.Ct. Maxwell v. 398 sions to write on court, whether a trial in Crain was (1970).” 26 L.Ed.2d 221 light Witherspoon Illinois, v. 391 decision, Witherspoon prior to the decided 20 L.Ed.2d (1968), decided but other four cases were excluding erred in prospective jurors who note took light Witherspoon and Turner expressed scruples conscientious against the recently decid- Holman then of Boulden v. infliction of the death penalty capital Harris, cases cited three of the ed. all In cases where seeking the State was the death considered. Supreme Court were penalty, e., State, i. Pittman v. 434 S.W.2d opinions court (Tex.Cr.App.1968); parte Bryan, Ex In these memorandum only guidelines. are furnished no We Har (Tex.Cr.App.1968); ris v. speculate just misinterpreted left to how we (Tex.Cr.App. 457 S.W.2d 903 1970); misapplied Morales if in these decisions fact we questions did. (Tex.Cr.App.1970); Many are left unanswered Grider v. Further, in this (Tex.Cr.App.1971). area and others are raised. than basis on broader were excluded Nevertheless, these reversals view this, car- cannot be the death sentence many fact that the out of state ’ Id., at 522 n. ried out . previously cited cases this court has which 1777, 21, at 20 L.Ed.2d 785.” n. S.Ct. reversed, I upon relied also been have look, compelled feel are to take another we foregoing When the is considered with case, disposing of the instant at Boulden examples interrogation of voir dire Bishop, v. Holman and Maxwell v. even both Boulden v. Holman and Maxwell though question a Bishop cases those which was held not meet the Witherspoon finally violation was not de- Witherspoon compared test and the same is cided. the voir dire in in- interrogation with case, stant it is clear to me that the Wither- Bishop, in Maxwell It is noted that spoon interpreted by mandate as now 1578, 1580, 262, 265-266, 90 S.Ct. 398 U.S. Supreme United States Court has not been 221, (1970), the court wrote: L.Ed.2d met. For this reason I would reverse this Witherspoon, in “As was made clear cause. out be carried ‘a sentence of cannot Further, must, express grave passing, I jury imposed if the that or recommended proper disposition of doubts as excluding veniremen chosen it was concerning of the ad- error 5No. general simply they voiced because cause testimony. As under- hearsay I mission of penalty or ex to the death objections the state- holding that it, stand the court is pressed religious conscientious or scru made after companion, ment ples against U.S., its infliction.’ 391 at aat and searched they wеre arrested both 522, 88 S.Ct. at 1777. reaffirmed We than the offense place and time different Holman, doctrine Boulden v. res part of the admissible as alleged, was 478, 1138, U.S. 89 S.Ct. 22 L.Ed.2d to a cus- response gestae though even observed, sup As we there it cannot be Presum- interrogation. question or todial posed people that once such take their arrest, was though under ably appellant, jurors ‘to they oaths as will be unable time the at the present and earshot within conscientiously follow the instructions question was response to the statement judge fairly a trial and to consider made. imposition of the death sentence gestae res it was gestae, was res If this particular U.S., case.’ 394 at 89 S. Article even only and not аrrest of the Ct. at L.Ed.2d at 439. ‘Unless relating Ann.C.C.P., 38.22, 1(b), Vernon’s unambiguously § a venireman states appear would accused to statements automatically against he would vote admission. such to authorize

imposition capital punishment no mat simply might reveal, ter what the trial stated, dissent. I For the reasons posi cannot be assumed that that is Rehearing denied. Illinois, Witherspoon supra, 391 tion.’ at 516 n. 1774 n. U.S. OVER- CONCURRING OPINION 20 L.Ed.2d at 782. MO- APPELLANT’S RULING most that can be demanded of a ‘The FOR REHEARING TION regard venireman is that he be MORRISON, Judge. willing penalties to consider all of the law, provided by state and that he not majority appellant’s mo- overruled irrevocably committed, before the trial opinion. rehearing tion for without written begun, has 90 S.Ct. 1581] [398 find Upon of the record I against to vote of deаth examination on my with brother Roberts circumstances that I concur regardless of facts and also save the fifth. I would might emerge grounds in the all course appellant’s contention but would proceedings. testimony If voir overrule dire appellant’s objection “to given in a case indicates that veniremen do so because any that was made after the conversation sufficiently specific to call

arrest” was not he attention to the error now the court’s appellant claims. After made the above objection, inquired the court of counsel objection

as to the basis for his objection go replied counsel will “[o]ur conversation, any made statement by Beverly The trial aftеr the arrest.” coun-

court received no indication from relying upon right sel that he was contends confrontation as he now therefore, was, put on notice testimony may that the have been inadmis- hearsay party a third and in viola- sible Texas, tion of Pointer v. 13 L.Ed.2d S.Ct. specific in his brief. Since maintains in the objection set forth for the court presented to the trial brief was not presented ruling, no error for ‍‌​​​‌​‌​‌​‌‌‌​‌‌‌‌​‌​​‌​​​‌​‌‌‌​​​‌​​​‌​‌​​​‌‌‌‌‍a State, Tex.Cr.App., 442 Bell v. Court. collated also the cases 716. See requiring 695(2), Tex.Dig., Crim.Law specificity objections. stated,

For the reasons I concur overruling motion for re- hearing. Appellant, POLLARD,

Tom T. .v al., Appellees. et STATE Texas No. 5149. Appeals Texas, Court Civil Waco. Aug. 10, 1972. Rehearing Sept. 14, Denied Norris, Norris,

Phillips Robert & W. Austin, appellant. for Gen., Martin, Atty. Crawford C. David Thomas, Atty. Gen., Dallas, R. Asst. appellees.

Case Details

Case Name: Tezeno v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 16, 1972

Citation: 484 S.W.2d 374

Docket Number: 44331

Court Abbreviation: Tex. Crim. App.