*1 express opinion ap- First, or conclusion that we observe any that if error pellant was speeding proper presented without a failed to for ask predicate being being relief, laid and the answer e., further i. a for mis motion unresponsive question Further, actual asked. trial. it is noted that the case was being tried before the without as experience driver After Nasso’s presumed It is that if such evi established officer was police inadmissible, dence was disregarded it was express opinion he was able stated by the court. Cf. Noble v. Tex.Cr. speeding based to whether App., 402 758. Even without such time, re- the record observations testimony the evidence is sufficient sus following: flects the tain the conviction. experience and what “Q. Based on that Grounds of error are over- #7 #6 opinion you have an day, do saw this ruled. this defendant as whether or exceeding speed judgment limit? is affirmed. Objection, “MR. O’DOWD:
calls a conclusion.
“THE Overruled. COURT: And no also
“MR. O’DOWD: been laid.
proper predicate has “THE Overruled. COURT: Virgil WHAN, Appellant, Tracey my excep- Note “MR. O’DOWD: Texas, Appellee. case.
tion on each The STATE No. Miles) your opin- (By What Mr. going this ion fast how Appeals of Texas. Court of Criminal morning ? 26, 1969. Feb. Objection, call- “MR. O’DOWD: April 23, Rehearing Denied conclusion, proper ing for predicate laid. has been
“THE Overruled. COURT: my excep- Note
“MR. O’DOWD:
tion. ques- (By Miles) Answer Mr.
tion? speed- sir, gentleman
“A. Yes my opinion. Objection,
“MR. O’DOWD: re- and is not for a
calls conclusion
sponsive.
“THE Overruled. COURT: excep- my Note
“MR. O’DOWD:
tion. time, Your At “MR. MILES: *” *
Honor, stipulation. we *2 Baird, by Mabry and Forrest F.
Frank Houston, Mitchell, & Mabry, Frank Gilbert Mitchell, McLean, (on by Arthur Austin appellant. appeal only), Vance, Atty., C. Dist. Carol S. James Ernst, Dist. Brough and Erwin G. Asst. Houston, Vollers, Attys., D. Jim Austin, Atty., for the State. State’s spoon Illinois, OPINION 391 U.S. 88 S.Ct. 20 L.Ed. decided June The voir dire examination pro of certain WOODLEY, Judge. Presiding spective jurors alleges preserved murder; the punishment, offense is means, show the mode and conduct of the *3 death. court in jurors excusing for in cause an ticipation opinion of the by Supreme alleged The indictment Thomas Max in Witherspoon. Court Yeary appellant and with did malice afore- shooting thought by kill Edward Jordan The record includes the voir dire exam- fur- gun. with a second him The count ination prospective jurors, 20 10 of alleged ther that murder committed whom challenged were for cause appellant they the said and Yeary while state scruples because their conscientious perpetration engaged were in the against penalty. the death Only juror one robbery. crime of was peremptorily challenged by the state. alleged The have been offense to 29, December 1966. support on or about The does not
committed record 26, January jurors indictment was returned contention that were excluded expressed simply because conscientious scruples as against infliction of death 10, 1967, granted May On severance was contrary, punishment crime. To the for notice attorney Yeary; gave the district jurors challenged by were who penalty as that he death seek the would examined, state excused were further and Whan, appellant proper punishment for court, their some as to whether Baker Mabry and Hon. Frank John impose permit conscience them to would represent appellant. appointed were to neg penalty, death answered in the ative. 29, 1967, case was contin- May On application and set for
ued on September 11, 1967. In fact that state view of the peremptory exercised but one 15 its August granted On court two challenges, excusing one Expenditures appellant’s motion for prospective challenge jurors on the state’s investigation and ex- exceed for $250.00 for cause not constitute reversible pert condition testimony as mental State, error. Scott v. 434 S.W.2d appellant. appellant’s pretrial hearing on Following compliance reflects record for the selection of a discovery motion practice Texas the excus pleaded guilty jury, appellant ing jurors challenged the state count indictment guilty first of the scruples the ground conscientious count, changed plea to the second but against the infliction punish of death as after the witnesses the indictment ment for crime. sworn, was ac- proper cepted admonition Pittman after entered State, supra, its Scott v. sustain the court as to conse- our con practice clusion that sequences. the Texas followed by court in the selection of com Appellant’s first of error ground does not offend the rule Wither- ex plains that the selection spoon Illinois, supra. jurors prospective cusing cause scruples capital Appellant’s against ground second of error com- had conscientious plains reveals the refusal of the punishment was in allow violation perfect exception. him bill existed the same situation Wither follow- ELIZABETH of error refers to the “MRS. JEWEL JOR- DAN, re- proceedings reflected called as a on behalf of sworn, porter’s transcription notes. after first having duly of his testified as follows: Honor, again, “MR. MABRY: Your at- anticipation before State’s “DIRECT EXAMINATION widow, calling the torney deceased’s “Questions by Mr. Ernst: like for him call her outside presence elicit we can so Will state— ma- might any testimony from her terial cause and show her At “MR. MABRY: this time the De- noth- object she can testify going calling and show fense *4 to that be material relevant the be re- jury would widow ask it this case. In her moved that we can make a bill as to so do but inflame minds of nothing materiality any might the the of she evidence jury sympathy. the gain offer. “THE COURT: That’s overruled.
“THE
will be
COURT: That motion
at
overruled
this time.
exception.”
Note
“MR. MABRY:
our
exception.
“MR. MABRY: Note our
Appellant’s brief
that
the
sets out
from
very
anticipated that the dis-
beginning he
“MR.
call Mrs.
ERNEST: We will
the
trict
call
attorney would
the widow of
Jordan.
a witness.
verified
deceased
the
to
record referred
which reflects
MABRY:
has
“MR.
Since Mr. Ernest
counsel,
the
day
on the first
of
her,
we
like to
her out-
trial, vainly sought
“suppress
testi-
any
to
presence
perfect
the
the jury
side
it’s
mony
offered
the widow unless
my bill.
material
the
something that’s
offense
charged
with
the defendant
purpose?
“THE COURT: For what
something
controversy.
not in
We
that’s
any testi-
“MR. MABRY: To show that
suppress any
tes-
asking
the Court
mony
might
she
immaterial
offer would be
her
timony
testify
from
unless she can
except
and irrelevant
bol-
nothing
and do
something
killing.”
actual
of the
witnesses,
the
can
testimony
ster
other
Appellant’s brief
in
further
con-
recites
do
the
make
nothing to enable
State to
nection
“Mrs.
ground
error:
way.
their case in
any
knows
She
Jordan,
Elizabeth
the
the
wife of
Jewel
surrounding
alleged
facts
the
murder
deceased,
pitiful sight
awas
to behold. She
in-
there
items
controversy
is no
as to
handicapped
leg
result
aof
They
troduced into
all have
evidence.
in
jury
19S6
there
muscles
were no
admitted.
properly identified and
left in
leg
injury
her
result
aas
“THE
That motion
be
COURT:
will
she
get
have a walker
order to
had
denied.
helped
about. She had
be
she
wherever
**
went.
exception.
“MR. MABRY: Note our
Jordan,
“When
Mrs.
widow of
in,
“THE
Bring
COURT:
Mr.
deceased,
stand,
did
took
she
Payne.
through
not come in
regular
door used
(At
this time the
returned
the by
the witnesses but came
the front
from
custody
in the
the bailiff
courtroom
Courtroom
walked the entire
presence
length
and in the
fol-
presence
in the
Courtroom
proceedings
lowing
had:)
jury,
bailiff,
were
with the aid using
County,
the widow Harris
him to
made
forced
The entrance
walker.
disrobe, robbed and murdered
extremely
him.
harmful
the deceased was
trial.
Defendant
rights of the
driver,
body
completely
nude
requesting
Defendant
purpose
socks,
except for his
found about mid-
his bill
perfect
him to
Court to allow
night.
cigarette
A
still
his mouth was
and harmful
the matters
was so that all of
burning.
lit and
Mrs.
testimony
surrounding
effects
super
a later date.”
shown
hulls
auto-
Six
fired from .38
could
Jordan
pistol
up
high-
scattered
matic
way
pair
lying
and there
awas
shorts
ap
agree that
are unable
We
body.
the -road.about three feet from the
perfect
right
pellant was
denied
bullets
Three
were removed from
exception, in
Art. 40.09
bill
violation
body
beside the
at the scene.
Ann.C.C.P.,
the ac
Vernon’s
suppress
refusing
of the court in
tion
Cause of
established
death was
be offered
widow
testimony to
Jachimczyk, Chief Medi-
of Dr.
robbed
murdered
the taxi driver
cal
did
County
Examiner for Harris
co-indictee, and see no
appellant and his
examination,
post
gun-
mortem
as a
of her
merit
the contention
because
gunshot
A
wound
chest.
shot
second
physical appearance
handicap and
wound and
in a band over
bruises and cuts
*5
ap
not
widow should
have
allowed
the left side of his head
found
were also
the
pear
before the
a witness
body.
on the
state.
the
The
found about
taxicab was
10:30
the
some ten miles
morning
from
next
right
introduce evi
state’s
place
body had
where the
been found.
a
by
entry
not
the
of
dence is
restricted
defendant,
by
his
by the
plea
of
limit,
by
There is
either
statu
proved.
sought
facts
admission of
tory
judicial
interpretation,
direction or
130;
478, Trial,
Beard
Sec.
56 Tex.Jur.2d
upon
kind,
rele
the
amount
character or
of
96,
than the unsworn statement record, part support before us as a stipulations Dr. Sher and the contained findings court’s the statement of facts. mental competency. A jury finding on required. such issue was not Appellant was the first witness Appellant’s murder, shown version defense. own questioning Under of-his testimony, his confession was counsel, it testified that money that all Yeary he and wanted intention to state that he was insane car; get-away for a cab that he I meant time offense—“What cab, get made the out un- deceased I quite was I had been bit drinking ** * fully figured dress “I he was if actually at him. shooting didn’t I know was country spot, out in a all desolate him, around I shooting * * you had was farm houses there around thought. if he walked one houses naked you contending And get a lot of trouble. At sanity plea in case ? rape time having a bunch of area, cases people be- going around No, “A. sir. molested, people around running apprise And me have asked on, plenty no clothes it give us this, Judge not? get-away. Upon of time make a leaving car, when him Thomas got we out “A. I did. *6 car, cab, driving started and I was “Q. your is to maintain It still intention passenger’s on the side seat the front your plea in this matter? guilty then and when stuck moving we started I gun out fired several the window and Yes, “A. sir. feet, in the ground shots at his and he please said just shoot don’t me I said you The reason did not what know minutes, stay you where are for five don’t you doing you was was under is move, I gun went ahead fired telling influence of alcohol thinking more I had missed and shot some the court? head evidently over his some of him, hit slugs didn’t about the I know Yes, “A. sir.” hitting bullets morning him until the next newspaper. when I read it in the Following testimony copy said of Dr. report of psychiatric report and the Sher’s At that time in- under the Proler, by doctor whom medical fluence alcohol? test, fur- given electrogram an consideration, “A. Yes sir.” nished for his incompetent that found was not grounds The remaining of error are make a rational defense and to assist without merit. counsel. judgment is affirmed. judgment that the defendant recites consequences admonished as to the DOUGLAS, J., participating. plea persisted enter- guilty plea, “and it plainly appearing said ONION, sane Judge defendant was (concurring). 924 Appellant my up entered dered? A. concur. I sister’s reluctantly
I
moved
Texas,”
is
Ingram,
sought
“It
and then
plea
to show
guilty
before
in-
the deceased’s
plea
guilty
that a
brother was
well established
Mississippi.
ex-
structor at the
charge
University
before a
admits
felony
establish
necessary
all facts
istence
certainly
While the
is
State
and,
cases,
guilt
the introduction
such
action,
unable
commended
such
am
enable
testimony by the
is to
State
myself
instance
convince
discretion
exercise the
intelligently
irrelevant,
possibly
immaterial and
touching
in them
law vests
alone is
flammatory
standing
State,
be assessed.” Darden v.
penalty to
require
magnitude
sufficient
reversal
Tex.Cr.App.,
and cases
430
494
S.W.2d
State,
of this cause.
Tex.Cr.
Ramos v.
there cited.
359;
State,
App., 419 S.W.2d
Salazar v.
220;
Tex.Cr.App.,
S.W.2d
Cavarrubio
397
not,
course,
is
the rule
State,
v.
267
160 Tex.Cr.R.
plea
guilty
trial
and a
jury waived
417;
State,
Chapman v.
136 Tex.Cr.R.
trial
felony
entered before
W.2d in a felony
The rule before not, however, prevent jury does all relevant evi-
State from introducing
dence to enable decide what
punishment should be assessed. Beard Tex.Cr.R. 171 S.W.2d BALLARD, Appellant, Lee Eddie bar, In the case at addition to plea, introduced evidence State Texas, Appellee. The STATE of consisting element the case every toas It pages of some three record. hundred No. 42009. stipulated clothing was further *7 Appeals Court Criminal of Texas. personal effects that the deceased had on April 9, 1969. person fact prior were in his death Nevertheless, the State deceased’s. the deceased’s as a witness wife repeated objections over the strenuous and fact Certainly counsel. wife,
that the the deceased’s cripple pre- she was or had before, injured years her
viously not render
testimony cumulative would Still, incompetent it is
her an witness.
difficult to believe State was more presenting her cumulative
concerned exhibiting than in particularly This is it is
true when considered that the State from her:
elicited had Who help you your since husband mur-