*1 cases, cities not allowed to claim im
munity by governmental virtue func Billy Appellant, Wayne WHITE, Antonio, City Crow v. tion. See San v. Tex. Texas, Appellee. STATE of does present case not involve No. 62780. or of a improvement the maintenance Court of Criminal Appeals Texas, street, proprietary nor the mixture of a En Banc. function, governmental with function a Sept. 23, 1981. sign the maintenance of a control traffic governmental which we hold is a function. Rehearing Denied Nov. 14(12) Artiсle 6252-19 Texas Torts § 19, 1982. April Denied Certiorari permits against city Act Claims claim S.Ct. 1995. arising absence, from the condition or mal sign. stop function of a traffic or A road
sign’s obstruction from view trees that sign
branches a “condition” of within 6252-19, meaning of article section
14(12). Accordingly, city prior if a has no
tice of such a condition remedy fails time,
such condition within a reasonable
may be liable under the Texas Torts Claims provided city
Act notice injury.
the claimant’s Tex.Rev.Civ.Stat. 6252-19, art.
Ann. § the city
Whether of Mission had ac pro
tual notice of the injury claimant’s 6252-19,
vided article section is a fact
question. Pratt, See Hexter v. (Tex.Comm’n App.1928, judgment
adopted). We hold trial court granting city’s
erred motion for sum
mary judgment, because there ma existed including
terial issues of fact whether the
city plaintiff’s received actual notice of the
injury. appeals opinion
The court of conflicts opinion this City
with Court’s of Austin Daniels, supra, 6252-19, sec- article 14(12)
tions and 16. Pursuant Rule
Tex.R.Civ.P., grant Lorig’s application we and,
for writ of error oral hearing without
argument, we reverse the appeals
court and remand this cause trial court for trial on its merits.
703 *2 required
not been
under the present Code
of Criminal Procedure since Dеcember
Onion,
Commentary,” 2
“Special
1965. See
Vernon’s Annotated Code of Criminal Pro-
cedure of the
of Texas 624
State
to administer
this case the trial court failed
an individual oath
the third
who
*3
No
was
at
accepted.
was
made
time,
apparently
that
and the matter
es-
caped
everyone.
the
of
attention
taking
evidence
with
of
commenced
testimony
eyewitness.
the
of an
He testi-
working
fied that he was
aсross the street
murder,
from the scene of the
that he heard
a noise like a firecracker come from across
street,
the
and that he saw a man with a
gun running away from the scene. At this
jury
was retired so that the court
sup-
could rule on the
motion to
press
testimony
this witness’s
of identifica-
(a ruling
tion
which we shall consider be-
low).
motion,
The court overruled the
then said:
“May
jury
we have the
—wait
Houston,
LeRoy Peavy,
M.
appellant.
for
minute.
It has been mentioned to me
Yance,
Atty.
Carol
Dist.
and Michael
S.
jurors.
that I did not swear the
But we
Kuhn, Larry Urquhart
P.
and Gerald Flat-
individually
swore them
I recall.
I
as
ten,
Attys., Houston,
Asst. Dist.
Robert
thought I swore all of them as each of
Huttash,
Austin,
Atty.,
for the
State’s
selected,
probably
them were
but
in an
State.
precaution might
abundance of
it
be a
good
to swear
idea
them at this time
OPINION
again. But I know I had it written
out
the time in front of me and tried to do it.
ROBERTS, Judge.
any independent
“Dо
have
you
recollec-
appellant
was
guilty
capital
found
of
tion,
Peavy,
jurors
Mr.
of
any
not
placed
judgment
murder and
under a
of
being sworn?
grounds
death. He sets out fourteen
of
Attorney]:
“MR. PEAVY
As I
[Defense
error.
recall, every single
them was
one of
argues
first
he
in,
sworn
the best I recall.
and verdict are void because
URQUHART
“MR.
That’s
[Prosecutor]:
evidence,
jury
heard
as well as the
recollection,
my
Judge, that each were
statement,
opening
all the
State’s
before
individually sworn.
jurors
prescribed by
had taken the oath
right, bring
“THE COURT: All
them
V.A.C.C.P.Article 35.22. The venire mem
out,
and will.
individually
bers were examined
on voir
dire,
35.17,
as V.A.C.C.P. Article
box.)
“(Jury
jury
returns to
permits. The trial court administered the
jury
juror separately
gentlemen
oath to each
after he
“THE
Ladies and
COURT:
accepted
jury.
practice
jury,
proceed,
you,
for the
before I
let me ask
swearing jurors
capital
you
you
cаses
I swear each of
were
separately
law,
juror during
past
it
three
required
under former
but
selected as a
Were
any
you
ap-
weeks?
there
could not render the verdict void. The
you
pellant
sworn? Do
remember?
made no
to the procedure
fact,
(and, in
told the court
all the
you,
“After
after
questioned
the Court
jurors
been
He
individually).
had
sworn
and the
had an
both
State
Defendant
may
complaint
not raise this
first
for the
question you,
it was the
opportunity
time on appeal.
intention at
each of
Court’s
least to have
sworn
case.
you
as a
in this
In his second
of error
any
“Were there
were not
you
jurors
claims that
two
were dis
My independent
sworn?
recollection is
qualified
because
were not asked to
you
sworn,
I suppose
were all
mandatory
under oath that
“state[]
might
be
precaution
an abundance of
penalty
death оr
life
imprisonment
that I ask all
stand and
you
well
will not
affect
deliberations on
[their]
your right
again,
raise
hands
so there be
fact”;
Code,
V.T.C.A.,
issue of
Penal
Sec
having
concerning your
no
12.31(b).
As we
tion
held in
Smith
*4
sworn.
693,
(Tex.Cr.App.1976),
540 S.W.2d
698
cert.
“(The jury
the
was administered
oath
denied,
922,
1341,
430 U.S.
97 S.Ct.
51
Court.)”
the
(1977),
12.31(b)
L.Ed.2d 601
does not
separate
constitute
oath to be adminis
then
The State
resumed the examination
own
tered in its
terms to each
mem
venire
It did
re-introduce
the witness.
not seek to
ber,
is merely
but rather
one criterion of
repeat
testimony
given
the
that had
qualification. The fact
venire
the
earlier.1
not
members were
asked this
complete
It has been held that the
failure
disqualified.
not
them
render
the
oath is a
proper jury
to administer
error that
for the
may
reversible
be raised
appellant expands
The
on
theme
this
State,
appeal.
time on
v.
80
first
Howard
ground
error,
in his third
he
which
588,
(1917).
192
770
But the
Tex.Cr.
S.W.
arguеs
jurors,
the other
ten
who were
proper
rule is not
same if the
oath was
12.31(b)
asked
question,
the Section
given,
merely given untimely.
Id.
In
disqualified because the record does not
oath,
of an untimely
the case
as was held in
during
show that
were under
oath
State,
302,
v.
12 Tex.App.
Caldwell
316
argument
voir dire. This
was raised and
(1882),
State,
197,
rejected
Duffy
v.
567 S.W.2d
denied,
question presented
this: Will
(Tex.Cr.App.),
is
200-201
cert.
439
“[t]he
991,
593,
(1978),
court
this
reverse a
for these U.S.
99 S.Ct.
705
just
feel that
I could
don’t
opposed to
tends that Grace was not so
person.
death to this
Wither
penalty as to have satisfied
death
1770,
510,
Illinois,
understand,
course,
88
you
v.
391 U.S.
S.Ct.
spoon
“Q You
this
(1968).
776
The merits of
You would
saying
20 L.Ed.2d
death.
would not be
appellate
knоw
preserved
you
were not
for
the answers that
writing
be
judge
made at
would be
review,
no such
mean that
would
sentencing the
that would be
v.
the one
trial. Crawford
1980;
denied,
You understand that?
rehearing
April
person to death.
(Tex.Cr.App.,
denied,
1981), cert.
U.S.
“A Uh-huh.
(1981);
“A
motion,
I believe that the
Your Honor.
that,
know,
would be
you
know
death
lady
being
is
honest with
Court.
everything,
verdict and
just
like to ask her
I
“MR. PEAVY:
I’d
just
my
seems like in
heart wouldn’t
that,
questions, Your Honor.
just
I
couldn’t.
I
a few
be able to do
objected
procedure.
party
to this
Neither
URQUHART: Regardless
“MR.
The court
granting
erred in not
ap
now,
what she says
I mean the record
pellant’s request tо examine Grace further.
point.
clear at this
Such errors
when,
are not reversible
“MR. PEAVY:
maybe
Just
the Court
here, the record shows that the venire mem
could ask her if
any
there’s
conceivable
questioned
ber was
length
and that she
situation, such as a far-out situation
unequivocally stated that she could not vote
like a terrorist or mafia member who
for the
penalty
death
under
circum
threatening
everybody in the
Burns v.
stances.
270,
556 S.W.2d
question
сourtroom —the
is whether
denied,
276-278 (Tex.Cr.App.), cert.
there is some situation that she would
935,
98 S.Ct.
make a Is the Court limited proved if it were the defendant went after she has— store, into a “attempted to rob it or robbed URQUHART: “MR. That’s what I’m it,” pistol aimed a at a woman’s head at trying say. to gеt Whatever he can her, range short and killing shot her in now, her to the record is clear at stantly, if and the woman’s husband testi this how she feels. (This fied to that. was an accurate state Honor, “MR. PEAVY: Your I feel that ment of be.) what the State’s ease would right question I have a my- to a The State’s was sustained. The on behalf of the defendant. self appellant eventually permitted to ask “THE COURT: Get me the statute. if the venire member could return a verdiсt provides think the statute that after of life in if prison proved it were that a she has committed herself defendant shot someone in the head in the right Court has no question further committing robbery. course of a There was her or that either side does. Do you refusing no error in to let the appellant have the statute there? ask hypothetical a question that was based on URQUHART: “MR. Judge, now there peculiar the facts to the casе on trial. 35 may something be in the Code Crim- “Jury,” (1962). inal Procedure. I have 1231 Tex.Jur.2d 116 B: ‘The juror.’ must excuse the permitted fact that was had appellant more details than the was entitled right. you, “THE COURT: All Thank ” * * * ma’am. You will be excused. to ask. This has no merit.
707 gun, Spinks seven, they fought com for control of eight, and nine Grounds managed get up, chal Then he overruling seven fired it twice. plain of the court’s store, perempto call to Alford who appellant for cause. The run out of the lenges members, so seven venire the man rily challenged Spinks all the street. saw was across appellant jurors. become The they did not the corner. He had been running around peremptory chal request not additional the store four or five minutes. not state that he was forced lenges. He did saw a man run from the store Alford unacceptable accept any juror who was good a look at building. got a He around See, appears. to him. No reversible error man, black, cap, a wearing who was red State, v. (Tex. e.g., Payton 572 677 S.W.2d and “kind of carrying nickel-plated gun, a State, v. Cr.App.1978); Hernandez 563 leg.” Alford heard hopping with one Adami (Tex.Cr.App.1978); 948 S.W.2d a Spinks help. flagged call for He down v. (Tex.Cr.App. 700 S.W.2d car, broadcast a de- police and the officers 1975). the man. scription of complains of the The tenth He respоnded Nieto to the call. Officer which photographs three admission of man, wearing cap, a red walk- saw a black by made entry and exit wounds showed a half pace fast about two and ing at a illus photographs These the fatal bullet. Nieto told the man blocks from the store. testimony. examiner’s trated the medical The man did stop and raise his hands. Terry Cf. autopsy pictures. were not These so, Nie- revealing pistol a in his waistband. (Tex.Cr.App.1973). S.W.2d man, appellant. who was the to arrested Martin v. They were admissible. groin shot in the appellant had been pocket. in his pants area. He had $269.62 ground argues The eleventh at the scene was One of the bullets found appellant in-court identifications of the having been fired from identified have Alge Spinks and Mack Alford should gun. they were tainted suppressed because appellant was taken to the furniturе generally suggestive show-up. twenty minutes af- store within fifteen or Illinois, Kirby v. Spinks and Alford were ter the offense. 32 L.Ed.2d had been arrested and told that someone was the deceased’s husband. He Spinks were asked to look at him to see if he store which he and the owned furniture They appel- at the the man. each looked 23, 1976, a operated. August deceased On lant, in the back of the who was seated Spinkses were man came to the store as the car, Each said police wearing a hat. about to close it. He was admitted and They was the man. de- that the store,” ask- halfway about over the “walked any suggestive police nied that made ing about merchandise. He se- questions positive in their comments and went lamps. As the deceased lected some *7 We conclude from in-court identifications. book,” get the “ticket into the office to thаt their totality of the circumstances money. pulled gun man a and demanded were not tainted and that identifications gave to Spinks $260 him about $250 testimony was admissible. their deceased, as the office with the went into appel- ground of error the In the twelfth The man demanded the man ordered. 12.31(a) of the argues lant billfold, was surrendered. Spinks’ which failing to process by Penal Code denies due next or- the deceased. He The man shot tо the alternative down, provide reasonable open then to Spinks dered to lie jurors’ knowl- penalty. says He obey- death safe, again; Spinks lie down then to being parole possibility edge deceased then asked if the ed. The man it given life makes if a defendant granted he lifted the rings; had watches will vote for certainty Spinks almost a arm, dropped gun. he his deceased’s (There is no contention it, As death. men “scuffled.” grabbed and the 708
jurors case.) parole discussed in this states, He ground The fourteenth “The appellant expects develop new says punishment that a of confinement evidence for present that he incompetant parole life [sic] without would be a more reason- ” stand trial at the time of his trial .... able alternative. ground presents nothing for us to re view. trial, capital In a as in other
trial, parole the matter оf is not a is affirmed. jury’s consideration for the deliberations on CLINTON, Judge, concurring. State,
punishment. O’Bryan v.
591 S.W.2d
464,
(Tex.Cr.App.1979),
denied,
478
cert.
446 My views
application
about continued
988,
2975,
contemporaneous objection
judi
U.S.
100
64
S.Ct.
L.Ed.2d 846
rule
cially crafted by the Court in Boulware v.
(1980).
State,
Freeman v.
556
See
S.W.2d
State, 542
(Tex.Cr.App.1976),
S.W.2d 677
287,
(Tex.Cr.App.1977),
denied,
304
cert.
434
denied,
(1977)
cert.
punishment
is cruel
punish
and unusual
quoted
majority
in the
opinion to address
ment, per se.” This
always
contention
error,
the fifth
it seems to me
rejected
by the United States Su
that the
that was made after the
preme Court and this
prosecutor
Court.
renewed his motion3
came
Illinois,
Witherspoоn
391 U.S.
the voir dire and held that several veniremem-
improperly
and there throes of STATE purposes Witherspoon veniremember of No. 66710. point when matters reached the a mo- prosecution to “make prompted Court of Criminal Appeals of Texas. grounds motion whose and desired tion” —a were not stated but whose thrust Sept. relief 1981.
patently directed toward excusal Grace Rehearing Denied Nov. of her prospective as a on account 29, 1982. Certiorari Denied March regarding the death scruples imposition of S.Ct. 1760. Resisting under- penalty. the motion thus stood, lawyer sought to little and that thorоughly,”
Grace “a more colloquy the trial
brought in which
judge opined that “the provides statute further
after she committed herself”
questions meaning most as- barred — questions suredly about she would whether
automatically vote against imposition then,
capital punishment. only And after concerning 12.31(b)
the statement Code,
of the Penal did the excuse trial court
the veniremember.
Accordingly, satisfied that all understood
exactly import impact the stated appellant, refuse I would not
review the merits of of error four.
Nevertheless, agree I with the assessment
of the Court record shows “unmistakably
Grace made a deter- clear” that “there
mination are no circumstances .. . would ever consider [she] penalty.”
death
Therefore, except noted, in the join I
opinion and concur in the
Court.
TEAGUE, J., joins. “unequivocally Up appears equivocat- reversible because Grace stated she to that to have somewhat, penalty particularly actually that she would not vote for the death ed if what she response under circumstances.” said in would one whether she penalty “Right never now, a death verdict write “Thus, where the correct of exclusion say no,” than, rather as the have counsel, opposing was obvious no waiver results from a it, Now, reporter “Right. I have to transcribed imprecise general exchange no.” This demonstrates the ut- S.W.2d, objection,” 557 at 517. which, importance reporting most accurate course, one must here. assume was done emphasize her 5. I that “the record shows” de- judge. finally termination as stated to the trial