Vaughn v. State , 134 Tex. Crim. 97 ( 1938 )

Appellant's attorney has filed a full and exhaustive motion for a rehearing herein, and on account of the severity of the penalty we will endeavor to consider each point raised therein, although they may have been already noticed in the original opinion.

He first complains of the misconduct of the jury, and insists that there was a discussion of appellant's failure to testify on the trial hereof. All twelve of the jurors were called and examined on this proposition, and while it might be inferred from the mass of testimony adduced thereon that Mr. Abadie mentioned the fact that the defendant did not take the stand, a part of his testimony being "It was mentioned that he [appellant] didn't take the stand."

The only reference that we can find in the record to appellant's failure to take the stand seems to be from the above witness and jurors J. Ed Brown and Mr. Fitch. The last two jurors say that the only allusion made thereto was after the verdict had been decided upon and written down, and signed by the foreman; that upon its being alluded to one of the jurors said that they had been instructed by the judge not to use that or refer to it in any way.

All the remaining jurors testified that if any discussion relative to the defendant's failure to testify was had they did not hear it. The general impression to be gathered from reading the testimony of all twelve jurors brings us to the conclusion that immediately upon their retirement into their room they elected or appointed their foreman, who suggested that they deliberate a few minutes before beginning to ballot on the case; that they did so in silence; then they took a ballot on appellant's guilt, and all voted him guilty; that they then voted on the penalty, and eleven ballots were cast for death and one for life, and the juror voting for a life penalty immediately spoke up and agreed to change his vote to the death penalty, and thus make it unanimous. They then notified the sheriff that they were ready to return their verdict, but the court not being accessible at such time, they had to wait some thirty minutes or more until the court appeared, when their verdict was received and they were discharged. That either before or after their verdict was arrived at, and written by Mr. Hueston, their foreman, Mr. Abadie, a juror, made some statement relative to why Mr. Blanton, appellant's attorney, did not place him on the stand, and that there was no further discussion relative thereto. Two of the jurors had some recollection of such statement by Mr. Abadie, but place the same at a time after the jury had arrived at their verdict and were awaiting the presence of the judge in order to return such verdict into court.

Mr. BRANCH in his Annotated P. C., page 293, says: "A bare allusion in the jury room to defendant's failure to testify when immediately suppressed will not of itself cause the judgment of conviction to be set aside," citing many authorities.

Again he says on same page: "A discussion by the jury of defendant's failure to testify will not cause a reversal if it is not shown that such discussion was had before they agreed on the verdict including the penalty. Stepp v. State,53 Tex. Crim. 160, 109 S.W. 1093; Smith v. State, 62 Tex. Crim. 281,136 S.W. 1063; Rhodes v. State, 153 S.W. 128."

"The mere mention in the jury room of defendant's failure to testify when immediately rebuked and the jurors informed that it is not to be considered is not ground for reversal. Jenkins v. State, 49 Tex.Crim. Rep., 93 S.W. 726."

The district judge heard all the testimony, and doubtless received the same impression therefrom that we have reached, that is that there was no more than a bare allusion to the defendant's failure to testify, if the same was mentioned at all, and that if such was made, it was after the ballots were had and the punishment fixed and the verdict written. We are therefore constrained to overrule appellant's contention relative to such misconduct.

Appellant next complains of the fact that the juror T. L. Cude was not a resident of Bexar County, and was therefore not a qualified juror in this case. This matter was gone over rather fully in the original opinion herein, and no useful purpose would be served by again writing thereon. We think the matter was properly disposed of therein, and this contention is overruled.

Appellant next complains of the fact that the attorney who represented him at his trial was neither hired by him nor appointed by the court to defend him, and that he was physically unable to prepare and file a formal motion for a new trial herein, and that he died a few days later after the trial. As to the attorney's employment or appointment, we confess our inability to understand the statement, its purpose or effect. We do know that the record shows such attorney to have appeared for the appellant, and appellant seemed to have accepted his services, and such attorney continued to serve throughout the trial. No motion of any kind was made relative to a continuance or a postponement, and the mere fact of the court reporter preparing and filing a motion for a new trial would not of itself be a matter of great moment. We can not say that appellant was denied representation at his trial, nor that he was not represented by counsel, and the statement in the motion that such attorney was not employed by the appellant nor appointed by the court is outside the record and can not be considered by this Court. Suffice it to say that appellant was represented by counsel, whose regrettable death took place soon after the conclusion of this trial, and we can see no reasonable ground upon which this Court can go further in such matter.

We have written rather fully in this motion, and can only commend appellant's attorney, who seems to have been called into the case after the attorney who represented appellant in his trial had died, for such attorney's diligence and energy in presenting to us the matters complained of as erroneous at such trial. However we are not able to agree that such matters present errors which should result in a reversal of this cause. That appellant was a violator of the law on the night in question, there can be no doubt; that any person had the right to apprehend him is also without question; that the deceased knew of these violations is also shown, and that in attempting to apprehend appellant, as it was deceased's duty to do, and as he had a right to do, the deceased lost his life at the hands of appellant and appellant's confederate in crime while they were acting together. The jury saw fit to exact the extreme penalty of appellant, and this Court, believing that he has had a fair, impartial and legal trial, has no alternative other than to overrule this motion for rehearing, and it is therefore overruled.