Branch v. State, 42306

• Decision Date: 10 December 1969
• Docket Number: No. 42306,42306
• Citation: 447 S.W.2d 932
• Parties: Elmer BRANCH, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 932

447 S.W.2d 932

Elmer BRANCH, Appellant, v. The STATE of Texas, Appellee.

No. 42306.

Court of Criminal Appeals of Texas,

Dec. 10, 1969.

J. G. Souris, Vernon, for appellant.

Bill Neal, Dist. Atty., Vernon, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is rape by force; the punishment, death.

The record reflects that the victim, a widow, lived alone some twelve miles north of Vernon and a distance of about two blocks from the home of her son. Testifying at the trial she positively identified appellant as the Negro man who, about 2 A.M., after gaining entrance into her house through a window, by force ravished and had sexual intercourse with her, and after demanding and taking money she had in her coin purse and threatening to repeat his act, finally drove away. She immediately ran to her son's home and reported the matter. She described her assailant as being a young Negro man, wearing dark trousers and tennis shoes. Her son relayed the information to the sheriff by telephone and told the sheriff that the suspect was believed to be in an automobile headed toward Vernon.

The sheriff immediately alerted all officers in the area by radio, requesting them to stop any car containing colored subjects coming into Vernon from the north. Within minutes a vehicle driven by appellant pulled into a service station on the north side of Vernon. Police officers of the City of Vernon observed that he was wearing tennis shoes and dark trousers which were unzipped, and detained him until other officers arrived.

The tennis shoes worn by appellant were compared with the footprints found near the house in which the offense was committed and they matched.

The first ground of error complains that the conviction is void because of jury misconduct in that during their deliberation one of the jurors 'quoted scripture from the Bible to other jurors.

The second ground of error complains that the court erred by failing to grant appellant's motion to subpoena certain jurors to prove the alleged jury misconduct.

We find no merit in these grounds of error, first because the allegations if proved would not constitute ground for reversal and second, because such allegations were not supported by affidavit of one in position to know what transpired in the jury room during the deliberations of the jury, hence was insufficient as a pleading. Johnston v. State, Tex.Cr.App., 396 S.W.2d 404, cert. denied, 384 U.S. 1024, 86 S.Ct. 1976, 16 L.Ed.2d 1029; Clifton v. State, 170 Tex.Cr.R. 245, 339 S.W.2d 902; Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663; Brown v. State, 160 Tex.Cr.R. 150, 267 S.W.2d 819; Vowell v. State, 156 Tex.Cr.R. 493, 244 S.W.2d 214; Hicks v. State, 158 Tex.Cr.R. 45, 251 S.W.2d 409.

Ground of error No. 3 presents the contention that the judgment of conviction with punishment assessed at death violates the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States; and poses the question of whether capital punishment inflicted as a punishment for 'a crime less than murder' constitutes cruel and unusual punishment within the meaning of the Eighth Amendment, and whether when inflicted in a rape case involving a Negro defendant and a Caucasian complaining witness such a defendant has been deprived of equal protection of law under the provisions of the Fifth, Eighth and Fourteenth Amendments.

Appellant relies upon the dissenting opinion in Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119, but concedes that this court has held that death in a rape case does not constitute cruel and unusual punishment and is not unconstitutional. Siros v. State, Tex.Cr.App., 399 S.W.2d 547.

Ground of error No. 3 is overruled.

The fourth ground of error presents the contention that the constitutional right of appellant to an impartial jury was violated in that the prosecution was permitted to challenge for cause 'all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty.'

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 776, is cited and relied upon.

The voir dire examination of the prospective jurors does not support the ground of error. All of the jurors excused because of scruples in regard to inflicting the death penalty answered that they could not vote for the death penalty regardless of what the circumstances were or however terrible the crime might be, or words of similar import.

The juror Meers, part of whose voir dire is set out in appellant's argument under this ground of error, was excused for reasons other than his attitude toward capital punishment, appellant's counsel stating: 'It is agreeable with us.'

We find no violation of the rule announced by the Supreme Court in Witherspoon v. Illinois, supra. The jury appears to have been selected in a manner consistent with the Texas rule set out in Pittman v. State, Tex.Cr.App., 434 S.W.2d 352, and Scott v. State, Tex.Cr.App., 434 S.W.2d 678.

Ground of error No. 4 is overruled.

The fifth ground of error complains of the overruling of appellant's motion 'to suppress or limit evidence seized as a result of illegal arrest.'

The arrest claimed to be illegal was the detention and subsequent arrest of appellant. The evidence claimed to have been unlawfully seized is the tennis shoes appellant was wearing.

The officer had no warrant and no time to obtain a warrant. The identity of...