Turner v. State , 1969 Tex. Crim. App. LEXIS 1094 ( 1969 )

OPINION

MORRISON, Judge.

The offense is murder; the punishment, death.

Two men were killed and two injured by appellant by the use of a pistol during the course of a filling station robbery.

Appellant’s 1st, 9th, and 29th grounds of error relate to the jury selection which he contends was effectuated in violation of the rule of Witherspoon v. State of Illinois et al., 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776.

In his brief appellant points to ten veniremen. At the hearing on the motion for new trial affidavits of six of the ten were presented to the trial court which show that each of the six were thoroughly qualified for excuse under the Witherspoon rule. These affidavits were admissible for consideration by the Court at the hearing on the motion for new trial under the terms of Article 40.06, Vernon’s Ann.C.C.P. We shall discuss the examination of the remaining four from the original voir dire.

Venireman Watkins stated, unequivocally, “I just don’t believe in putting anybody to death.”

Venireman Jackson said, “I don’t believe in the death penalty.” We quote further from his examination as follows,:

“Q. Mr. Jackson, if selected as a juror in the case, could you * * * in a case, could you, after hearing the facts, and if the facts were of a rather extreme nature. For example, a man put a bomb on an airplane where his mother was on board to blow it up, and he gets the Insurance, and the evidence shows that he is not insane, could you sit as a member of the jury in a case like that and vote for the death penalty ?

“A. I don’t believe in the death penalty. •

“Q. You have conscientious scruples against it P

“A. Yes, sir.

“COURT: I sustain the challenge; Mr. Jackson you are excused.”

Venireman Johnson answered as follows:

“A. Well, no, I’ll just put it like this. I don’t believe in capital punishment and I just couldn’t go along with it under no circumstances.”

Venireman Bradford is the most doubtful one and yet his statement that he could not, if elected foreman, sign a verdict of death in any case removes him from the scope of the Witherspoon rule. This statement would, we believe, disqualify him under the Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, which opinion explains further the holding of the Court in Witherspoon.

The second ground of error is that the State systematically excluded black veniremen from service as jurors in his case. At the hearing on motion for a new trial, the State exercised only peremptory challenges and was not required to give his reasons for using them, Ross v. State, 157 Tex.Cr.R. 571, 246 S.W.2d 884. However, out of an abundance of caution, the prosecutor was called as a witness and gave his reasons for having challenged each of the veniremen about which he was questioned. He stated that he struck venireman Eddie Henderson, a “colored man,” because the police records showed that he had been investigated for burglary. He stated that he struck venireman Hardeman, a “colored” school teacher, because “he was very evasive on whether or not he could ever give the death penalty and made other statements about minority races and court appointed attorneys.” He further stated that he struck “colored” venireman' Willie Hobbs, because of a complaint made by Hobbs to the District Attorney’s Office about having been stopped by the Highway Patrol when others were driving as fast as he was.

His further testimony is clear that there was no systematic exclusion of black persons from the jury. In Johnson v. State, Tex.Cr.App., 411 S.W.2d 363, we recently discussed the propriety of the State’s challenging black members of the panel.

Appellant’s third ground of error, if we properly understand it, is that since the indictment was returned prior to August 28, 1967 (the day the change in Article 37.07, V.A.C.C.P., became effective) and he was not tried until after such date that the jury was not authorized to set his punishment at death. Appellant’s case was first set for trial on October 23, 1967, and we find no merit in such contention.

His 4th, 5th, and 6th grounds of error are that he was not permitted to prove the results of a Belden poll which he says would show that more than half of the peo-pie interviewed did not favor the death penalty as punishment for crime. His reliance upon Witherspoon v. Illinois, supra, is misplaced. He cites no case which has recognized such a poll as valid evidence and we know of none. We further conclude that the Court did not err in limiting the cross examination as to the mental processes the veniremen would employ if selected to serve on the jury. Barry v. State, 165 Tex.Cr.R. 204, 305 S.W.2d 580.

Appellant’s 7th ground of error concerns the line-up identification. We quote from the trial court’s findings:

On the 18th day of January, A.D. 1968, during the trial of the above styled and numbered cause, the defendant, his attorneys, and the State’s attorneys, all being present in person in open Court, the State, separately, offered into evidence the in-court identification of the defendant, Oscar Turner, by the witnesses Harry Volcik and Patrick Wolf; and, at each offer, the defendant objected to said evidence and requested, and was granted, a hearing outside the presence and hearing of the jury to develop evidence in support of its objection and motions to suppress said evidence on the ground that said in-court identifications were the result of illegal line-up identifications by the defendant by said witnesses, and that said in-court identifications were in violation of various state and federal constitutional rights of the defendant. After the conclusion of each of said hearings, the Court admitted into evidence the in-court identification of the defendant by said witnesses as a matter of law, and further, as trier of the facts relating to the issue of their admissibility, the Court found from the evidence by clear and convincing proof and beyond any reasonable doubt that said in-court identifications were of source and origin independent of the line-up identification.

The Court therefore finds and concludes from the above facts, and all the evidence admitted on the questions, and the demeanor of the witnesses, that the in-court identifications of the defendant by the witnesses Harry Volcik and Patrick Wolf are completely independent of any viewing of pictures of the defendant by said witnesses before the trial, and are completely independent of viewing and identifying said defendant in said line-up, and are completely independent of a combination of viewing said pictures and said line-up identification; and that said in-court identifications are based solely upon the observance by said witnesses of said defendant on June 8, 1967; that the viewing of said pictures and said line-up identification does not in any fashion affect the right of the defendant to a meaningful cross-examination of the witnesses Harry Volcik and Patrick Wolf, nor deny said defendant effective assistance of counsel at the trial itself; and that said in-court identifications of said defendant by said witnesses were not obtained by, and did not result from, any denial of due process in violation of the defendant’s legal rights.

This seems to be in accordance with United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149. See also Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, an opinion by the then Judge Burger, and Giddings v. State, Tex.Cr.App., 438 S.W.2d 805. Our examination of the record of the pretrial hearing clearly supports the trial court’s findings.

The ground of error numbered 8 relates the State’s challenge of venirewoman Henderson who stated that she would infer guilt if the appellant did not testify. Clearly her answer would disqualify her under Article 38.08, V.A.C.C.P., and she was disqualified.

His 10th and 12th grounds relate to the State’s challenge to veniremen Garrett and Harris. They both stated that they had formed an opinion that appellant was guilty. Article 35.16(a), Sec. 9, V.A.C.C.P., provides that either party may challenge a venireman who expresses such an opinion.

The appellant’s 11th, 13th, and 59th grounds relate to the granting .of the State’s challenge to venireman Henry and overruling appellant’s challenge to veniremen Lacy and Bridges. Each stated that they could not agree to a verdict assessing the punishment at as low as two years in which the State had proven that the murder was committed with malice. His argument that this was a challenge that could be made only by the appellant relates then only to Henry and Bridges. While it may be that Henry and Bridges had a bias against the murder statute (Article 1257, Vernon’s Ann. P.C.) so as to disqualify them under Article 35.16(b) (3), V.A.C.C.P., we need not pass upon such question because appellant did not exhaust his peremptory challenges and no objectionable juror was forced upon him, Pittman v. State, Tex.Cr.App., 434 S.W.2d 352.

Appellant’s 14th and 15th grounds of error relate to the insufficiency of the evidence and the failure of the court to charge on the law of circumstantial evidence. We have pointed out the two wounded witnesses positively identified appellant as the person who robbed the filling station using a pistol to effect his purpose. Though they did not see him shoot the Kaskas, he was the only person armed at the scene, and the spent shells found at such place were shown to have been fired from the pistol found in appellant’s possession at the time of his arrest. This Court has consistently held that where the facts are in such close juxtaposition to each other that a charge on circumstantial evidence need not be given, De La O v. State, Tex.Cr.App., 373 S.W.2d 501.

The 16th ground of error contends that there is a fatal variance between the indictment and the proof in that the proof shows that the Kaskas were killed by more than one bullet while- the indictment would imply that only one bullet killed both of them. So, we stated in the beginning one fusillade of. bullets from the same weapon fired by appellant, one right after the other, caused the death of both Kaskas. We find no merit in this contention: see Spanned v. State, 83 Tex.Cr.R. 418, 203 S.W. 357, 2 A.L.R. 593.

Appellant’s next most strenuously urged ground of error grows out of the Court’s charge, and these are raised by his grounds of error in numbers 17, 18, 19, 20, 21, and 22. The indictment charged that appellant killed both Anton and David Kaska. In his charge to the jury the Court, over appellant’s objection, charged the jury that they might find appellant guilty if they found that he killed Anton Kaskas or David Kaska.

The most difficult case to distinguish or overrule is the last paragraph of this Court’s opinion in Pate v. State, 91 Tex.Cr.R. 471, 239 S.W. 967. It must be acknowledged that such paragraph was not determinative of that appeal and, therefore, must be considered as dicta. Insofar as the statement of law contained in such paragraph is contrary to the results we reach in this case it is overruled.

The same is true as to the dicta contained in Barton v. State, 88 Tex.Cr.R. 368, 227 S.W. 317, 13 A.L.R. 147. Brown v. State, 102 Tex.Cr.R. 54, 276 S.W. 908, dealt with the sufficiency of the evidence and is not controlling here.

While it is true that Layman v. State, 126 Tex.Cr.R. 533, 73 S.W.2d 97, the last expression of this Court on the question presented, holds this procedure outlined above to be erroneous; it further holds it to be a harmless error. If the Court in Layman had not considered it so they would not have written beyond the point where they noted that no objection had been interposed.

The majority of this Court as presently constituted, fully agree with the holding in Layman that this procedure is erroneous but does not constitute reversible error. This conclusion is bottomed upon the conviction that appellant could not conceivably be injured by this manner of submission. The evidence is clear that both parties named in the indictment were shot by this appellant in one fusillade from one weapon. The charge was murder, and when the jury found that he killed one of the parties named, the State had made its case. The punishment would not have been enhanced' had the jury found that appellant killed both injured parties named in the indictment.

We fully agree with Judge Henderson’s opinion in Scott v. State, 46 Tex.Cr.R. 305, 81 S.W. 950,¹ wherein he quotes from Bishop, Cr.Pro. vol. 2, 60; Id. vol. 1, 437, as follows:

“In reason, an assault on A. and B. is an assault both on A. and likewise on B.; and, when it is proved as to one, a complete offense appears equally in the evidence and in the allegation.”

This type of case is readily distinguishable from theft and other cases because here the offense is complete when one of the two alleged assaulted parties dies at the hands of this assailant, whereas, in other cases a jury’s finding may determine whether the case be a felony or a misdemeanor or a number of other factors which determine the nature of the offense or the jurisdiction of the court.

It has long been the rule in this State that by the terms of Article 1408, V.A.P.C., (robbery) the words “any property” require only that the state prove that the accused took “any property” and that which is alleged in the indictment need not be proven in its entirety, 5 Branch 2d 23, Sec. 2589. It therefore follows that proof of the killing of “any person” denounced in Article 1256, V.A.P.C., is sufficient to support a conviction for murder.

It is far too academic for this Court to accept under the facts before us that, as appellant contends, some of the jurors may have found that appellant killed David Kaska while others might have believed that he killed Anton Kaska. The shots were fired in a one, two, three fashion and if the jury believed that appellant killed one, then they necessarily believed that he killed the other.

Appellant’s ground of error number 23 relates to the action' of the Court in refusing to change the venue. Appellant called four witnesses who testified that it was their opinion that appellant could not receive a fair trial in McLennan County. He further offered clippings from the local press giving an account of the robbery. The State offered fifteen residents of the community who stated that in their opinion appellant might receive a fair trial in said county. The Court did not err in overruling the motion for change of venue when originally made.

During their examination of the venire, appellant’s excellent court appointed attorneys made no serious effort to develop the facts as to the publicity and its effect on the prospective jurors. He satisfied himself by merely asking if they had seen any of the news articles or seen a television report of the robbery.

Three of the jurors could not remember ever having read anything about the robbery. One read only the headlines; the remaining eight remembered reading something about it in the paper or hearing a report on television, but each was implicit in their statements that they formed no opinion as to the appellant’s guilt therefrom. The examination was conducted with extreme care as we had occasion to commend in Enriquez v. State, Tex.Cr.App., 429 S.W. 2d 141. This is a far cry from Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239, relied upon by appellant. In that case five members of the panel had learned from reading the newspaper about eight sets of facts which were not admissible at Williams’ trial. No such facts are before us here and we find no error in the Court’s failing to change venue. The Court did not err in overruling the motion for change of venue made at the conclusion of the selection of the jury.

The 24th through 28th grounds of error relate to the failure of the Court to sustain his many challenges to venireman Barrett.

Quintana v. State, Tex.Cr.App., 441 S.W. 2d 191, and the cases there cited dispose of these contentions.

His 30th and 31st grounds relate to proof that appellant was carried by the Deputy Sheriff to Scott and White Hospital. Clearly such proof was relevant to the issue of insanity which was raised. The objection that the same was immaterial is not considered as ground of error unless there is a possibility of harm to the accused.

Appellant’s 32nd, 33rd, and 34th grounds of error relate to the introduction of evidence as to the results of the pretrial, sanity hearing. We had occasion recently to hold that such evidence is admissible, in Wilkinson v. State, Tex.Cr.App., 423 S.W. 2d 311. Appellant cites no authority to the contrary.

The 35th and 36th grounds of error relate to the Court’s charge in which he instructed the jury that “every person charged with crime is presumed to possess sufficient mental' capacity to advise and assist his counsel in preparing and presenting a rational defense of the offense of which he is charged,” and improperly shifted the burden of proof on the question of insanity. Recently in Fuller v. State, Tex.Cr.App., 423 S.W.2d 924, we said:

Every person is presumed to be sane (in absence of an unvacated judgment of insanity) and to have sufficient judgment and reason to be responsible for his acts until the contrary is established. It is by reason of this presumption that the law casts upon one relying on insanity as a defense to a crime the burden of establishing by a preponderance of the evidence that his intellect was so disordered that he did not know the nature and quality of the act he was doing, or if he did know that he was unable to distinguish between the right and wrong as to the particular act charged.

See also the opinion by the then Circuit Judge Burger in Keys v. U. S., 120 U.S. App.D.C. 343, 346 F.2d 824.

The ground numbered 37 relates to Dr. Moore’s testifying from the hospital records which appellant had already introduced into evidence. We find no merit in such ground.

His grounds of error 38, 39, 40, 41 and 42 relate to the photographs taken at the scene of the shooting. We have examined them with care and fail to find them inflammatory and hold that they were properly admissible.

The 43rd and 55th grounds relate to the testimony of Dr. Wittstruck concerning the autopsy performed on the two deceased. This Court has held that the State may not be limited in its proof by an offer to stipulate, Rodriguez v. State, Tex.Cr.App., 373 S.W.2d 258. They were entitled in a murder case to show the course of the bullet. Whaley v. State, Tex.Cr. App., 367 S.W.2d 703, relied upon by the appellant can have no application to Dr. Wittstruck’s medical testimony.

Appellant’s 44th ground of error is that at the time the Court heard argument on a motion for instructed verdict the appellant was not present. The State answers by stating, and the record supports them, that as soon as the Court realized that appellant was not present he brought the proceeding to a halt and had appellant brought into the courtroom and reheard the argument in appellant’s presence. Thus, no error is presented, Cason v. State, 52 Tex.Cr.R. 220, 106 S.W. 337.

His 45th and 46th grounds of error are that the court failed to quash the indictment and failed to grant his motion in arrest of judgment because the indictment was duplicitous. This contention has been fully met in our earlier discussion of his grounds of error 17 through 21.

We overrule his 47th ground of error in which he stated that the verdict is contrary to the law and the evidence.

The 48th ground of error relates to the questioning of one Marvin Wilson, appellant’s witness, at the hearing on punishment where Wilson was asked if he knew about the appellant’s prior misdemeanor conviction for the offense of impersonating an officer, Article 429, V.A.P.C., which did not involve moral turpitude. The term, prior criminal record, has been defined by the 1967 amendment of Article 37.07, V.A.C.C.P., so as to include misdemeanors where the conviction was in a Court of Record.

His 49th ground of error relates to the testimony of one Rolston who stated that shortly after the killings, and as appellant was fleeing the scene, appellant exhibited to him a credit card bearing a name other than his own. We have concluded that such evidence was admissible under the holding of this Court in Churchill v. State, 167 Tex.Cr.R. 26, 317 S.W.2d 541, which discusses the “general doctrine which permits a full showing as to flight.” ²

His 59th and 60th grounds of error relate to the failure of the Court to instruct the jury that the object of punishment is to suppress crime and reform the offender. In Crain v. State, Tex.Cr.App., 394 S.W.2d 165, this Court held that such a charge as requested would be a comment on the weight of the evidence and the failure to grant did not constitute reversible error.

Grounds 51, 52, and 53 relate to the action of the Court in sustaining the State’s objection to certain argument by defense counsel in which they sought to read to the jury a portion of a resolution adopted by the Baptist General Assembly, and other resolutions by other religious groups and as to what Jesus would have said to the jury about their verdict.

Since none of the matters set out above were in evidence, the Court was clearly right in limiting the counsel’s argument to the evidence adduced.

The 54th ground asserts jury misconduct growing out of a discussion of the parole law. We have examined the testimony of the ten jurors who were examined at the hearing on the motion for new trial and find only one who could remember a discussion of parole. His testimony fits with the category of cases cited in the opinion of this Court in De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544, 546, and does not constitute jury misconduct.

Ground number 56 which relates to the Court’s refusal to instruct the jury to return a verdict of not guilty is overruled.

The 57th ground relates to Deputy Stovall’s testimony as to his opinion that a bullet had penetrated the Kaskas’ automobile. Any policé officer with experience comparable to that of Stovall would be qualified to give such an opinion.

The ground of error numbered 58 is that the verdict did not find him guilty. We quote from the verdict as follows:

“We, the jury, having found the defendant Oscar Turner, guilty of the offense of murder with malice aforethought, assess his punishment therefore as death.

(s) Donald M. Headen Foreman.”

Finding no reversible error, the judgment is affirmed.

DOUGLAS, J., not participating.

1 . The citator reflects that Scott has not been overruled.

2 . See also Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393.