Battie v. State, 53166

• Decision Date: 01 June 1977
• Docket Number: No. 53166,53166
• Citation: 551 S.W.2d 401
• Parties: Billy Joe BATTIE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 401

551 S.W.2d 401

Billy Joe BATTIE, Appellant, v. The STATE of Texas, Appellee.

No. 53166.

Court of Criminal Appeals of Texas.

June 1, 1977.

John A. Brady and Robert C. Roe, Jr., Fort Worth, for appellant.

Tim C. Curry, Dist. Atty., Marvin Collins, Joe Shannon, Jr., Howard A. Borg and Jack Strickland, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for capital murder. Punishment was set at death.

The record reflects that on January 13, 1975, William Gray, manager of the In-N-Out Food Store in Fort Worth, finished his afternoon shift at 5:30 p.m. and left his niece, Peggy Hester, in charge of the store. At 7:30 p.m., Gray returned to the store and found all in order.

Appellant, in his written confession, which was admitted into evidence, stated that he, Artimus Mayfield, and Leon Turner entered the store in question that night. Appellant held a shotgun on Hester and a customer, later identified as John Howard Robinson. Turner got the money out of the cash register. Appellant then shot Hester and Robinson and the trio fled to Mayfield's house, where Mayfield hid the shotgun.

At 9:00 p.m., customers entered the store and, finding no attendant present, called the police. Upon investigation, the police discovered the bodies of Hester and Robinson in a back room. An autopsy revealed that Hester died from two shotgun wounds in the chest cavity and Robinson died from shock suffered from a shotgun wound in the abdomen. Two .410 gauge shotgun shell casings were found in the store, along with some shotgun pellets. Shotgun wadding was recovered from both bodies.

A .410 gauge shotgun, identified as the murder weapon, was recovered from Mayfield's home. It was determined that a total of $52.72 was taken from the store. The murder of Hester is the gravamen of this prosecution.

At the outset, appellant contends that the trial court erred in refusing to permit him to question prospective jurors concerning their understanding of the term "criminal acts of violence" within the context of Art. 37.071(b)(2), V.A.C.C.P. Article 37.071(b), supra, reads as follows:

"On conclusion of the presentation of the evidence (punishment stage of trial), the court shall submit the following issues to the jury:

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society . . .."

The complete voir dire of the jury is not before us; only the voir dire of the twelve jurors selected is included in the record. Complaint is raised by a bill of exception.

The bill of exception recites in pertinent part:

"Specifically, the State would question a potential juror with respect to Art. 37.071(b)(2) C.C.P., by properly indicating that the Court would instruct the Jury in the language of Art. 37.071(b)(2) C.C.P., at the conclusion of the trial, involving the question as to whether there is a probability that the Defendant will commit future criminal acts of violence that would constitute a continuing threat to society.

III.

"When the prospective juror indicated to State's counsel that he or she understood such question or could follow such question, Defendant's counsel would, upon his voir dire of such prospective juror, ask what he or she understood 'criminal acts of violence' to mean within the context of the phrase concerned.

IV.

"More specifically, Defendant's counsel attempted to determine whether such potential jurors included 'personal property' as an object that could or would be, within their understanding of the phrase, something against which 'criminal acts of violence' could be directed.

V.

"The Court initially permitted Defendant's counsel, over objection by the State, to question approximately three potential jurors with regard to their understanding of the phrase, 'criminal acts of violence,' as to whether such potential juror would include or exclude personal property within such person's understanding of the phrase concerned.

VI.

"Thereafter, during the second day of an eight day voir dire examination, the trial court advised Defendant's counsel that because of the extended time necessarily involved in questioning the potential jurors, the Court would sustain the State's objection and not permit Defendant's counsel to question any remaining potential jurors with regard to their understanding of 'criminal acts of violence,' to which ruling of the Court Defendant's counsel properly and timely excepted with respect to such remaining potential jurors, and thereafter in compliance with the Court's ruling, omitted propounding such or like questions during the remainder of the voir dire examination of the remaining potential jurors."

VII.

"At the time of such ruling by the Court in excess of two-thirds of the 71 prospective jurors that were eventually interrogated on voir dire, had not been questioned by either side and only one juror had been selected."

In King v. State, 550 S.W.2d 691 (1977), this Court, in an appeal from a conviction in a capital murder case, held that the trial court did not err in refusing the defendant's request to define in its charge words and phrases contained in Art. 37.071, supra: deliberately, probability, criminal acts of violence, continuing threat to society.

In rejecting appellant's contention, this Court first recognized that the words and phrases in issue had not been specially defined by the Legislature. Article 3.01, V.A.C.C.P., "Words and phrases," provides:

"All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined."

In King, it was recognized that this Court has rejected similar contentions relating to a trial court's failure to define "voluntarily" as contained in an indictment charging murder with malice, Joubert v. State, 136 Tex.Cr.R. 219, 124 S.W.2d 368; "burglarious entry," Thomas v. State, Tex.Cr.App., 543 S.W.2d 645; "sound memory and discretion," Hogan v. State, Tex.Cr.App., 496 S.W.2d 594; "reasonable doubt," Whitson v. State, Tex.Cr.App., 495 S.W.2d 944; "pre-meditated design," Mitchell v. State, Tex.Cr.App., 365 S.W.2d 804.

In addition, King noted that in Powell v. State, Tex.Cr.App., 538 S.W.2d 617, it was stated that the meaning of the term "an act of violence or threatened violence to a person or property" as used in V.T.C.A., Penal Code, Sec. 46.05, can be understood by a person of ordinary intelligence.

In King, it was noted that the rationale underlying the foregoing decisions was set forth in Joubert v. State, supra:

"Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury."

We immediately recognize that our holding in King that the trial court need not define "criminal acts of violence" in its charge is not dispositive of appellant's contention since appellant's complaint is directed to the need of veniremen's answers to his questions in reaching an intelligent determination of when to use his peremptory challenges. Nonetheless, we do find guidance in the King decision in considering the instant problem.

While it has been held that great latitude should be allowed a party interrogating veniremen to enable his counsel to determine the desirability of exercising on the members thereof his right of peremptory challenge, Kincaid v. State, 103 Tex.Cr.R. 485, 281 S.W. 855; Smith v. State, Tex.Cr.App., 513 S.W.2d 823, it has also been recognized by this Court that the decision as to the propriety of any question is left to the discretion of the trial court and the only review will be for abuse of that discretion.

The Legislature of this State did not see fit to define "criminal acts of violence." Where the Legislature does not define words and phrases, Art. 3.01, supra, provides they are to be "taken and understood in their usual acceptation in common language." In King, this Court found that the term "criminal acts of violence" falls into that category of words "simple in themselves" and "jurors are supposed to know such common meaning and terms." It would be paradoxical for the Legislature and this Court to presume that members of a panel know the meaning of such terms as "reasonable doubt," "criminal acts of violence," "sound memory and discretion" and on the other hand for this Court to hold that a trial court has abused its discretion in not allowing a defendant to inquire of each member of the panel as to his or her understanding of such terms.

In determining whether the trial judge abused his discretion in disallowing counsel to inquire about each venireman's understanding of "criminal acts of violence" and whether "personal property" was an object that "could or would be, within their understanding of the phrase, something against which 'criminal acts of violence' could be directed," a consideration is the length of time expended in such examination. To be sure, expediency must always be a secondary consideration when weighed against the right of a defendant to a fair trial. Nonetheless, the trial judge must be vested with some discretion lest voir dire examination get completely out of control.

The bill of exception in the instant case reflects that the trial court initially permitted counsel for appellant to ask prospective jurors questions relative to their understanding of the phrase "criminal acts of violence," but that because of "the extended time necessarily involved in questioning the potential jurors," the court sustained the State's objection and did not permit "Defendant's counsel to question any remaining potential jurors with regard to their understanding of 'criminal acts of violence.' "

In Smith v. State, supra, we said:

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