Batten v. State

• Decision Date: 25 February 1976
• Docket Number: No. 50945,50945
• Citation: 533 S.W.2d 788
• Parties: Mildred Opal BATTEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 788

533 S.W.2d 788

Mildred Opal BATTEN, Appellant, v. The STATE of Texas, Appellee.

No. 50945.

Court of Criminal Appeals of Texas.

Feb. 25, 1976.

Milton E. Douglass, Jr., Wichita Falls, for appellant.

Timothy D. Eyssen, Dist. Atty., and Roger E. Towery, Asst. Dist. Atty., Wichita Falls, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for capital muder (V.T.C.A. Penal Code, Sec. 19.03(a)(3)), wherein the jury assessed the punishment at life imprisonment.

The appellant was charged with hiring one James Bates to murder her husband, George Batten.

At the outset, we are confronted with the most serious question in the case--that the trial court erred in denying the appellant fifteen peremptory challenges to which she was entitled in a capital case under Article 35.15(a), Vernon's Ann.C.C.P., as amended.

The record reflects that the alleged offense occurred on June 29, 1974, the indictment was presented on July 17, 1974, and the trial commenced on September 16, 1974.

Both parties assert that the trial court took the position that since the State had not filed written notice it would seek the death penalty such penalty was no longer in the case ¹ and limited the number of peremptory challenges for the appellant to ten, which is the proper number for non-capital cases. He further refused a written request by the appellant to examine the jurors separate and apart (Article 35.17, Vernon's Ann.C.C.P., as amended) and instructed the jury at the voir dire examination that the only penalty was life imprisonment if the appellant was found guilty of capital murder. After the jury found the appellant guilty of capital murder, the court at the penalty stage of the trial did not submit the questions required by Article 37.071, Vernon's Ann.C.C.P., but simply instructed the jury that the 'punishment authorized for this offense is confinement in the State Penitentiary for life.' The jury in its verdict assessed life imprisonment.

The parties agree that the trial court in limiting the number of peremptory challenges apparently relied upon the provisions of Article 1.14, Vernon's Ann.C.C.P., 1965, as amended 1967, ² and the decisional law thereunder ³ that where the State fails to give written notice it will seek the death penalty such penalty is waived, although the nature of the offense is not changed and certain procedural requirements relative to capital cases need not be met.

However, said Article 1.14 was amended in 1973 to simply read:

'The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.' (Acts 1973, 63rd Leg., p. 1127, ch. 426, Art. 3, Sec. 5, effective June 14, 1973) ⁴

This amendment was a part of the statutory scheme adopted for the trial of capital murder cases following the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

In the same bill Article 35.15(b), Vernon's Ann.C.C.P., 1965, was amended. It had provided that in non-capital cases 'and in capital cases where the State has made known to the court that it will not seek the death penalty' each party was entitled to ten peremptory challenges. The 1973 amendment eliminated the phrase in quotes, but it did not affect Subsection (a) of the statute which provided for fifteen peremptory challenges for each party '(i)n capital cases.' At the same time Article 35.17, Vernon's Ann.C.C.P. (voir dire examination), was amended. Section 1 thereof was rewritten, and the references to 'capital case in which the state's attorney has made known that he will not seek the death penalty' was deleted. In Section 2 thereof the phrase 'when the state's attorney has made known he will seek the death penalty' was replaced with the phrase 'In a capital felony case . . .' The amendments to Articles 1.14, 35.15 and 35.17, supra, clearly removed any requirement that the State give written notice of its intention to seek the death penalty and clarified the number of peremptory challenges available in view of such amendment. These amendments became effective June 14, 1973, prior to this 1974 offense and trial, and must be considered in light of the provisions of the statutory scheme relating to criminal homicide, including the classification of felonies into categories, including capital felonies (V.T.C.A. Penal Code, Sec. 12.04), the provisions for punishment for a capital felony (life or death, V.T.C.A. Penal Code, Sec. 12.31), as well as the provisions of V.T.C.A. Penal Code, Sec. 19.03, defining capital murder, which Section on January 1, 1974, superseded Article 1257, Vernon's Ann.P.C., as amended in 1973.

In light of the foregoing, it is clear that the trial court was in error in holding that the State had waived the death penalty and in limiting the number of peremptory challenges, but we must determine if such error was reversible error.

It is observed that the appellant properly objected to the refusal of the court to permit her fifteen peremptory challenges, used the ten challenges permitted, and complained that there were still jurors who were objectionable to her. Cf. Peak v. State, 522 S.W.2d 907 (Tex.Cr.App.1975); Chappell v. State, 519 S.W.2d 453 (Tex.Cr.App.1975). She also requested additional challenges. See Acosta v. State, 522 S.W.2d 528 (Tex.Cr.App.1975).

In Boles v. State, 102 Tex.Cr.R. 634, 279 S.W. 261 (1926), two defendants were jointly tried for murder. The trial court limited the defendants to a total of fifteen peremptory challenges in all rather than eight each as the statute (Article 691, Vernon's Ann.C.C.P., 1916) then required. The trial judge qualified the bills of exception by stating he had overlooked the fact that there was a joint trial, his attention was not directed to the same, and no injury was shown. In reversing, this court said:

'We think the action of the learned judge in this instance was clearly erroneous, and that under the law it was not incumbent upon the appellants to show injury, but that, when they are deprived of this right to exercise their full number of peremptory challenges, there is but one thing for this court to do, and that is to reverse the case.'

In Benson v. State, 95 Tex.Cr.R. 311, 254 S.W. 793 (1923), this court held that if the privilege of exercising peremptory challenges conferred by statute is denied the right to a fair trial is abridged.

In several cases decided under former Codes of Criminal Procedure, it was held that the defendant was entitled to his fifteen peremptory challenges in a capital case even though the prosecutor had announced he would not seek or ask for the death penalty. This was so because such announcement did not have the effect of removing death as a possible penalty and the jury theoretically could still impose death. Therefore, the refusal to permit the fifteen challenges the error. See Kerley v. State, 89 Tex.Cr.R. 199, 230 S.W. 163 (1921); Viley v. State, 92 Tex.Cr.R. 395, 244 S.W. 538 (1922) (Opinion on Rehearing). See also Perez v. State, 99 Tex.Cr.R. 489, 244 S.W. 548 (1922).

It was also true in trials under former Codes that if death was not a possible penalty, regardless of the nature of the offense charged in the indictment, it would not be error to refuse the fifteen peremptory challenges applicable to capital cases. In Cheek v. State, 4 Tex.App. 444 (1878), the Court of Appeals in 1878 held that where a person was charged with a capital offense but convicted of a lesser included offense and then awarded a new trial he could not upon re-trial be convicted of any higher offense than the one of which he was originally convicted and upon re-trial was limited to the challenges which were applicable thereto. See also Hudson v. State, 28 Tex.App. 323, 13 S.W. 388 (1890); Blackwell v. State, 29 Tex.App. 194, 15 S.W. 597 (1890); McKinney v. State, 31 Tex.Cr.R. 583, 21 S.W. 683 (1893); Welcome v. State, 438 S.W.2d 99 (Tex.Cr.App.1969); Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969). In Walker v. State, 28 Tex.App. 503, 13 S.W. 860 (1890), there was no error in refusing to order a special venire applicable to capital cases in view of the fact that it was undisputed the defendant was less than 17 years old at the time of the alleged offense and thus could not be given the death penalty under Article 35 of the then existing Penal Code ⁵ despite the fact he was charged with a capital offense. Cf. Cheek v. State, supra. And it has been held that when the capital feature of an indictment for robbery by assault with a firearm has been abandoned the defendant is not entitled to a special venire. Cabellero v. State, 171 Tex.Cr.R. 133, 346 S.W.2d 343 (1961). As earlier noted under the provisions of Article 1.14, Vernon's Ann.C.C.P. 1965, as amended, when the State waived the death penalty in a capital case, 'the case was in effect reduced to a noncapital case.' Clardy v. State, 436 S.W.2d 535 (Tex.Cr.App.1968). See also Elliott v. State, 412 S.W.2d 320 (Tex.Cr.App.1967); Smith v. State, 455 S.W.2d 748 (Tex.Cr.App.1970). It is clear that these cases were decided on the 'penalty' view of the case. If the death penalty was not legally possible, then it was not a capital case. It is noted that Article 47, Vernon's Ann.P.C., 1925, provides in part: 'An offense for which the highest penalty is death is a capital felony.' In such former Code cases, although death was no longer a possible penalty, the defendant was subject to the remaining range of punishment provided by statute, which was usually a wide range of punishment.

It is observed that said Article 47 has now been replaced by V.T.C.A. Penal Code, Secs. 12.02, 12.03 and 12.04. Sec. 12.02 divides offenses into felonies or misdemeanors; Sec. 12.03 classifies misdemeanors; Sec. 12.04 classifies felonies and provides in Subsection 1 for 'capital felonies.' The punishment for a...