Bradley v. State

• Decision Date: 19 November 1969
• Docket Number: No. 42313,42313
• Citation: 450 S.W.2d 847
• Parties: Susie BRADLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 847

450 S.W.2d 847

Susie BRADLEY, Appellant, v. The STATE of Texas, Appellee.

No. 42313.

Court of Criminal Appeals of Texas.

Nov. 19, 1969.

Rehearing Denied Jan. 21, 1970.

Sam Wilson, Houston, for appellant.

Sam Cleveland, Stephenville, and Jim Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is murder with malice; the punishment, ten (10) years.

The indictment charges the appellant with the murder of her husband, James Bradley.

Appellant initially complains of the trial court's refusal to grant her first motion for continuance based on the unavoidable absence of co-counsel.

The indictment was presented on October 5, 1967, and the record reflects that at least by October 23, 1967, appellant was represented by counsel of her own choice, Mr. Sam Wilson of Houston, Texas.

In a letter dated January 30, 1968, State Senator Tom Creighton requested the District Clerk to note his 'appearance as attorney of record and co-counsel' in said cause.

On February 2, 1968, appellant's first motion for continuance was filed and overruled. If evidence was adduced in connection with said motion it is not in the record before us. The motion was based on the prior commitment of Senator Creighton to attend a Senate Legislative Committee hearing on February 12, the date the case was set for trial.

It should be here noted that this was not a mandatory legislative continuance as required by Article 2168a, Vernon's Ann.Civ.St. ¹

On the day the trial commenced (February 12) a second motion for continuance on the same ground was filed and overruled, and the trial proceeded with the appellant being represented by Mr. Wilson and Mr. David Cleveland of Mineral Wells.

The record reflects that appellant was ably represented by counsel of her own choice and that her rights were fully and fairly protected. The court did not err in overruling both motions for continuance. Carrell v. State, 84 Tex.Cr.R. 554, 209 S.W.2d 158; Sapp v. State, 87 Tex.Cr.R. 606, 223 S.W. 459; Caraway v. State, 98 Tex.Cr.R. 119, 263 S.W. 1063; Kerr v. State, 134 Tex.Cr.R. 368, 115 S.W.2d 672; Lopez v. State, 152 Tex.Cr.R. 562, 216 S.W.2d 183; 12 Tex.Jur.2d, Continuance, Sec. 27, p. 579. See also McKnight v. State, Tex.Cr.App., 432 S.W.2d 69.

Ground of error #1 is overruled.

Next, appellant contends the court erred in refusing to quash 'the venire from which the jury was chosen.' It is her contention that the jury commissioners sought to assure a 'responsible' jury by systematically excluding persons over 65 years of age and women with children under 18 years of age, and that the selection was made only from a list of registered voters in violation of the requirement of Article 2110, V.A.C.S., that prospective jurors selected be 'citizens of the different portions of the county, liable to serve as jurors * * *.' Appellant specifically argues that she is a female with children under the age of sixteen years and therefore a member of the class systematically excluded.

The record does not support appellant's contention. Only one of the jury commissioners testified and he related the commissioners were instructed as to the qualification of jurors; that they selected responsible people from different portions of the county, from 'all walk of life,' both men and women from all races, and had no knowledge whether the persons selected would be called as jurors in any particular case. He did testify that he had another commissioner during the selection would inquire of each other whether there was serious illness in the family or if the 'lady' had 'children under eighteen.' ² There was no showing, however, that such persons were then excluded. Neither a list of the prospective jurors nor all of the voir dire examination is in the record before us. We are in no position to pass upon appellant's claim.

We further note that Article 33.09, Vernon's Ann.C.C.P., provides that jury panels are to be selected and summoned in the same manner as in civil cases unless otherwise provided in the Code of Criminal Procedure. Article 2107, V.A.C.S., relating to the duty of jury commissioners, provides that the clerk shall furnish such commissioners with a list of those who are 'exempt or disqualified from serving on the petit jury at each term.'

It is not altogether clear from the record whether the jury commissioners had more than a list of registered voters before them at the time of the selection in question, but in Smithwick v. State, 155 Tex.Cr.R. 292, 234 S.W.2d 237, it was held that the failure to furnish the last property assessment roll of the county to such commissioners did not constitute a ground for quashing special venire drawn for a murder case, since commissioners were not required to select jurors from the assessment roll. See Article 2107, supra.

Ground of error #2 is overruled.

In her third ground of error appellant complains of the trial court's refusal to limit the exclusion of jurors who had conscientious scruples against the death penalty.

If it be appellant's contention that there was a Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, violation, we first observe that there is not a complete record of the voir dire examination before us. Evans v. State, Tex.Cr.App., 430 S.W.2d 502. Secondly, we note that in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, the Supreme Court said:

'Our decision in Witherspoon does not govern the present case, because the jury recommended a sentence of life imprisonment.'

Such holding would be applicable here since a 10 year sentence, not the death penalty, was imposed.

If, however, it be appellant's contention that the jury selection methods utilized resulted in a prosecution prone jury to decide the question of guilt, then attention is called to Parks v. State, Tex.Cr.App., 437 S.W.2d 554, which, relying upon Bumper and Witherspoon, was decided contrary to appellant's contention. Appellant certainly has offered no more data than available in those cases to demonstrate that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt.

Ground of error #3 is overruled.

We shall delay a discussion of appellant's grounds of error, #4, #5 and #6 at this point to avoid unduly lengthening this opinion.

Donald McGaha, 24, testified that he met the appellant in a lounge in Montgomery, Alabama in May, 1967, began dating her, became intimate with her, and lived at her house for some 3 and 1/2 months; that during such time appellant referred to her husband, the deceased, an Army Sergeant stationed in Vietnam, with vile names calling him 'the sorriest person on earth'; that she expressed an intention to seek a divorce upon her husband's return; that she expressed a wish that he would be killed in Vietnam or that his homebound plane would fall and crash.

McGaha related that after a trip to Florida together, he and appellant discussed marriage; that she in effect told him he had everything she wanted in a man except money; that the deceased had $30,000 in life insurance which could be used to pay off all debts, buy a home, and they could then live off his (McGaha's) salary as a fireman; that they discussed a hired assassin, but then this was abandoned due to the lack of money and knowledge of an available assassin; that by the time the deceased returned it was known he would be stationed at Fort Wolters, Texas.

McGaha further related that upon the deceased's return the appellant asked him to kill her husband; that the deceased would not agree to a divorce and was going to kill her and her children, that he (McGaha) agreed to do so but was unable to bring himself to kill when he had his first opportunity in Montgomery.

It was then decided, according to McGaha, that the killing would take place after appellant and her husband arrived in Texas that she would send a map of Mineral Wells and their address; that she would unload the pistol they had, would open a window, dump her purse out and break a porch light to give the indication of a burglary.

McGaha further testified he received a letter from appellant after her departure (which had been mailed to a Beth Grimes in Montgomery) and that enclosed in such letter was a map of Mineral Wells and the location of the house rented by the appellant and the deceased clearly marked thereon; that on September 20, 1967, shortly before noon he received a long distance call from appellant in Mineral Wells placed from a pay telephone informing him that she and the deceased were 'moving in' and inquiring if he was still 'going to do it.'

McGaha related he gave her an affirmative answer and stated it would be the following night around midnight.

Without describing all the details McGaha testified he drove from Alabama to Mineral Wells and around 3:30 a.m. on September 22, 1967, approached the front door of the house in question for the second time that morning, called the deceased's name, knocked at the door, and yelled 'Telegram for Mr. Bradley'; that the deceased came to the door with a pistol; that he shot the deceased; fell off the porch, fired a second time, fled to his automobile and returned to Alabama.

To corroborate McGaha's testimony the State offered Patricia Hamilton, a nearby neighbor, who testified that after she heard loud talking, shots being fired and a car being driven off she arose from her bed and saw a woman in the Bradley house raising or lowering or 'doing something' to a window.

Other evidence shows that when the police arrived the window in question was open and unlatched; that the contents of appellant's purse were scattered on a divan and appellant stated $40 or $50 was missing therefrom, but she did not know whether the deceased or someone else had taken the money; that her husband had been in a fight in a beer joint earlier that night; that she had the day before unloaded their pistol without knowledge of her husband, had retrieved it from...