Bodde v. State

Decision Date14 June 1978
Docket NumberNo. 58337,58337
PartiesGerald Lee BODDE alias Jerry Cannon, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of capital murder; the punishment is death.

Forty-seven grounds of error are presented; however, twenty-five grounds of error are unsupported by argument and authority. See Art. 40.09, Sec. 9, V.A.C.C.P. We will consider some of the unbriefed grounds of error in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P. In those grounds of error which have been briefed appellant's contentions concern the constitutionality of the capital murder statutes and the manner in which the death penalty was imposed; jury selection; the restriction of voir dire examination; the court's failure to sua sponte declare a mistrial when a juror who had been empaneled revealed that he previously had been convicted of a felony; the court's charge on circumstantial evidence at the punishment stage of the trial; and the sufficiency of the evidence in regard to punishment.

It is alleged that appellant, on or about January 4, 1975, intentionally caused the death of Bernice Hartsfield by hitting, beating, and striking her with a pipe and with an unknown instrument while in the course of committing robbery.

On the afternoon of January 3, 1975, appellant kidnapped Roberta Dodd, the six-year-old daughter of Mrs. Jean Dodd. Appellant previously had dated Mrs. Dodd and had shared an apartment with her and her three children for several months. The next day appellant talked to Mrs. Dodd by telephone and demanded $1,000 ransom for her daughter; Mrs. Dodd then contacted officers of the Houston Police Department, and they established electronic surveillance on her telephone. Appellant called Mrs. Dodd again on January 5 and repeated his ransom demand; he also told her that if she notified the police he would "send Roberta home in a pine box." Appellant called again on January 6 and instructed Mrs. Dodd to bring the money to a fast food restaurant in Houston where she would be met by a third party.

Mrs. Dodd followed appellant's instructions; after telephone calls from appellant and a conversation with a third party whom appellant instructed her to meet at a nearby apartment, she met appellant outside the apartment complex. Appellant told Mrs. Dodd that her daughter had witnessed a murder, "and if I can kill an old lady, I can kill a child." After talking with Mrs. Dodd for approximately twenty minutes concerning the return of Roberta and payment of the ransom, appellant was arrested by officers who were hiding in one of the apartments at the complex. Appellant was carrying a pistol. Appellant subsequently led officers to an apartment in San Antonio where Roberta Dodd was found.

The car which appellant was driving when he was arrested was registered to the deceased, in whose home the appellant had been a tenant. Non-negotiable bonds and credit cards in the deceased's name as well as diamond rings belonging to her were found in the apartment which the appellant had rented in San Antonio. Appliances and clothing belonging to the deceased were found in her car. The deceased's body was found wrapped in a quilt and tied with electrical cord in a closet of her home. An autopsy revealed that her death was caused by multiple fractures of the skull, compatible with having been struck repeatedly by a blunt instrument.

A. E. Jackson, the attorney of the deceased, testified that he was present at her home on the morning of January 3, 1975, to discuss the revision of her will; bonds worth $12,000 belonging to the deceased were lying on the kitchen table during the discussion. Appellant entered the kitchen and he and Jackson were introduced. The deceased, who was eighty-one years old, left an estate of $789,000.

Appellant concedes that the same contentions that he has raised regarding the constitutionality of the Texas death penalty statutes have been decided adversely to him. See Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App. 1975), affirmed, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Brock v. State, 556 S.W.2d 309 (Tex.Cr.App. 1977); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App. 1976). We adhere to our previous disposition of these contentions. Appellant also attacks the statutory scheme for capital punishment on a basis that this Court has not had occasion to decide. He argues that appellant was deprived of due process because he could not testify at the punishment hearing and admit his guilt without waiving error that occurred during the guilt stage of the trial. See Downey v. State, 505 S.W.2d 907 (Tex.Cr.App. 1974); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App. 1972). We cannot say that this common-sense rule of procedure denied appellant due process of law.

Appellant also contends that capital punishment is wantonly or freakishly imposed in Harris County because the decision whether to seek the death penalty is made by the district attorney, who acts without written guidelines. He argues that the prosecutorial discretion in deciding whether to seek the death penalty is unfettered, and therefore impermissible. In short, appellant's complaint is that the prosecutor may decide not to seek the death penalty in some cases in which it arguably could be imposed. In rejecting a similar contention in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court reasoned as follows:

"(T)he petitioner . . . notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them . . . The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty . . . Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution."

See Jurek v. Texas, supra; Franklin v. State (No. 57,348, decided May 24, 1978); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App. 1976).

Appellant contends that this state's statutory scheme for the selection of jurors in a capital case, see Arts. 35.15, 35.17, 37.071, V.A.C.C.P.; V.T.C.A. Penal Code, Sec. 12.31(b), does not comport with the constitutional requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This question has been resolved adversely to appellant's contention. Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App. 1975); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App. 1977), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294; Moore v. State, 542 S.W.2d 664 (Tex.Cr.App. 1976). Appellant also urges that eight venire members were improperly excluded from the jury.

Appellant concedes that venire members Kattie Mae Thomas, Ira Fay, Frances Dove, and Louis Williams were or "may very will have been" disqualified under Witherspoon, but argues that they were improperly excluded because they were not shown to have been disqualified under V.T.C.A. Penal Code, Sec. 12.31(b). In a capital murder case, a prospective juror may be disqualified under either Witherspoon or Sec. 12.31(b) or both. Franklin v. State, supra; Brock v. State, supra; Moore v. State, supra. A prospective juror who is disqualified under Witherspoon need not be disqualified or even questioned under Sec. 12.31(b). Franklin v. State, supra; Brock v. State, supra. Conversely, a prospective juror who is disqualified under Sec. 12.31(b) need not be disqualified or questioned under Witherspoon. Franklin v. State, supra; Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App. 1978); Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App. 1978); Burns v. State, supra; Moore v. State, supra.

These four venire members testified that under no circumstances could they vote to return a verdict which would result in the imposition of the death penalty. They were disqualified under Witherspoon. Prospective jurors Thomas and Fay also testified that knowing that death was a possible punishment would affect their deliberations. They were disqualified under Sec. 12.31(b) as well.

Clifford Minor testified that under no circumstances could he vote to return a verdict that would result in the imposition of the death penalty. He was disqualified under Witherspoon.

Bobbie Thompson testified that under no circumstances could she vote to return a verdict that would result in the imposition of the death penalty; she also testified that knowing that death was a possible penalty would affect her deliberations. She was disqualified under Witherspoon and Sec. 12.31(b). The appellant's counsel did not question Thompson on voir dire.

Jan Elizabeth Scott testified repeatedly and unequivocally that in answering the second question at the punishment hearing, Art. 37.071(b)(2), V.A.C.C.P., she would hold the State to a more stringent standard of proof than that required by the statute, "beyond a reasonable doubt." She was properly excluded for cause under Art. 35.15(b)(3), which provides for the exclusion of a venire member who "has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." See Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App. 1978); Moore v. State, supra; Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App. 1972), cert. denied 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199.

Barbara Teter testified that she had had a nervous breakdown approximately eighteen months previously, at which time she was...

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