Boulware v. State

• Decision Date: 06 October 1976
• Docket Number: No. 50524,50524
• Citation: 542 S.W.2d 677
• Parties: Doyle Glenn BOULWARE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 677

542 S.W.2d 677

Doyle Glenn BOULWARE, Appellant, v. The STATE of Texas, Appellee.

No. 50524.

Court of Criminal Appeals of Texas.

Oct. 6, 1976.

Tom S. McCorkle, Dallas, for appellant.

Henry Wade, Dist. Atty., John H. Hagler, Douglas Mulder, Jim Burnham and Steve Tokoly, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

PART I

DOUGLAS, Judge.

In a trial before a jury, appellant was convicted of murder with malice of Donald Tucker, a peace officer acting in the lawful discharge of his official duty. Punishment, under the provisions of Article 1257(b)(1), V.A.P.C., ¹ and Article 37.071, V.A.C.C.P., ² was assessed at death.

Sometime near 11:00 p.m. on December 12, 1973, appellant went to the home of his ex-wife, Jewel Boulware, from whom he had been divorced for twelve days. Present at the house when he arrived were J. W. Cobb, Jewel's brother, Jewel's twelve-year-old daughter, and two friends. Jewel Boulware arrived shortly thereafter. At the time appellant was under a peace bond obtained by her. As Jewel attempted to telephone a friend, appellant grabbed the telephone, saying: 'You're not going to call the police.' He then produced a .357 magnum pistol and said: 'I'm going to kill you. I'm tired of you lying to me.' A violent argument ensued during which he slapped her several times and chocked her to unconsciousness. He then dragged her to a bedroom, continually repeating: 'I'm going to kill you.' He also announced that '. . . he would kill the first one that called the cops or the first cop that walked through the door.' At one time, a friend tried to call her by phone, but appellant answered and had a lengthy, very abusive threatening conversation with the caller. The friend notified the police, and Police Officers Ross and Tucker, who were in separate cars, were sent to the house. Both were in full police uniform. When the officers approached the door, a small dog barked, and appellant stated: 'There's somebody at the damn door,' and ran out of the bedroom holding the .357 magnum pistol. As Officer Tucker started to talk through the front door with Ross following, Ross heard Tucker say: 'Put down the gun, put it down.' Ross heard appellant say: 'Officer.' Appellant then fired at Tucker, the bullet entering the left side of his face and exiting at the back of his neck. Tucker fell and died almost immediately. While Ross was examining the fallen Tucker, Cobb struggled with appellant and was able to subdue him and secure the pistol. Ross handcuffed appellant's arms behind his back and left him with Cobb while he, Ross, went out to call an ambulance and other officers. When he came back the handcuffed appellant had run out the back door. Officer Baker, responding to a radio summons, searched a back alley, and after a few minutes located appellant 'laying on his stomach under the bushes.' As Baker pulled the handcuffed appellant to his feet, he said: 'You punk, you just killed a police officer.' Appellant then said: 'Yeah, you're damned right I did.' The sufficiency of the evidence is not challenged.

In a supplemental brief on appeal, appellant for the first time raises the contention that in the selection of the trial jury the court erred in failing to apply properly the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

In selecting the jury, each member of the panel was questioned by counsel individually in the absence of the others. It appears from the transcription of the voir dire examination that of the one hundred and two prospective jurors questioned twenty were excused because of their attitude toward the death penalty. Counsel for appellant ³ concedes in his supplemental brief that eighteen of these twenty panel members were excused by agreement of counsel for the State and for appellant.

This Court wrote in Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972), a death penalty case in which the Witherspoon issue was raised on appeal:

'Where the mere demeanor of the witness cannot contradict his express words so as to give them a meaning in opposition to that which they state, nevertheless, in those instances where the meaning is apparent, but is not stated as clearly as might be desired, elements such as demeanor and tone of voice, etc. are important factors in conveying the precise message intended. As was the case with Mrs. Norwood, appellant's counsel expressly waived objection, ² and the court did not question the venireman. We do not feel that this Court, having only a 'cold' record before us, can unequivocally ignore the actions of those present, in the face of no express language by the venireman which would negate our conclusion, and in the face of language which, at the worst, is only lacking in force.'

Footnote 2 on page 383 reads:

'Waiver of objection apparently will not, in itself, vitiate an improper challenge. It is, however, a factor to be considered in cases such as the one at bar, where the exact meaning of a venireman's answer cannot be ascertained with total accuracy from the words of his answer alone. The trial judge being present and having an opportunity to observe, the ruling of the trial court should not be disturbed in the absence of a showing of clear abuse of discretion.'

The above remarks are applicable to the instant appeal. A review of the voir dire examination of the excused jurors supports the admissions of appellant's counsel that not only were the eighteen venire members excused without objection but also as stated by counsel in his brief by mutual agreement of both parties. As stated in Tezeno, this Court cannot unequivocally ignore the actions of those present at the trial in the fact of no express language by the venire members which would negate our conclusion, and in the face of language which, at the worst, is only lacking in force.

Recent opinions of the United States Supreme Court show that all federal constitutional error is not reversible error. That Court handed down two opinions on the same day wherein an accused's conviction was affirmed because of his failure to urge a constitutional right, Estelle v. Williams, 425 U.S. 50, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). In Estelle v. Williams, the Court held that absent an objection the accused was not denied due process or equal protection of the laws because of wearing identificable prison clothing during his trial before a jury. While in Francis, the Court, relying on its opinion in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), held that a state prisoner who failed to make a timely challenge, as required by a state rule of procedure, to the composition of the grand jury that indicted him could not after his conviction bring that challenge in a federal habeas corpus proceeding.

In Estelle v. Williams the Court, in reversing the Fifth Circuit, discussed several cases wherein the harmless error doctrine was held applicable to cases where a defendant had been tried in prison garb. Mr. Justice Black in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), wrote:

'We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for 'errors or defects which do not affect the substantial rights of the parties.' . . . We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.'

The Court in Estelle v. Williams recognized that many courts have refused to embrace a mechanical rule vitating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. It said: '. . . that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire.' In a footnote, the Supreme Court distinguished the Estelle v. Williams case from that of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), wherein it was confronted with an alleged relinquishment of the fundamental right to assistance of counsel, stating that in this case and similar cases it has not '. . . engaged in this exacting analysis with respect to strategic and tactical decisions, even those with Constitutional implications, by counselled accused.' (Emphasis supplied).

In Estelle v. Williams, the record shows that no objection had been made to the trial judge concerning the jail attire either before or at any time during the trial. In the present case, no objection was made to the trial judge when the eighteen venire members were excused for cause without exhaustive questioning in accordance with Witherspoon and Article 37.071, V.A.C.C.P. The record shows that with respect to sixteen of the eighteen the prosecuting attorney either stated, 'we agree', or 'both sides agree', without a corresponding statement from appellant's counsel. His counsel specifically agreed to the action of the court as to two of the eighteen venire members in the court, the witnesses, and the 'we'll agree' and 'excused'. Since counsel for appellant expressly agreed to the court actions on two occasions and made no objection to the court's action on sixteen others shows implied approval. The record is void of any evidence which warrants a conclusion that there was sufficient reason to excuse the...