Brock v. State

• Decision Date: 14 June 1977
• Docket Number: No. 53108,53108
• Citation: 556 S.W.2d 309
• Parties: Kenneth Albert BROCK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 309

556 S.W.2d 309

Kenneth Albert BROCK, Appellant, v. The STATE of Texas, Appellee.

No. 53108.

Court of Criminal Appeals of Texas.

June 14, 1977.

Rehearing Denied July 13, 1977.

Adrian M. Burk, Marvin O. Teague (on appeal only), Houston, for appellant.

Carol S. Vance, Dist. Atty., William W. Burge and George O. Jacobs, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder wherein the punishment was assessed at death. See V.T.C.A., Penal Code, § 19.03, and Article 37.071, Vernon's Ann.C.C.P.

Appellant contends the imposition of death as a penalty for capital murder is cruel and unusual punishment, that said § 19.03 and Article 37.071 do not provide effective guidance to a jury as to the imposition of the death penalty, that eleven prospective jurors were improperly excused in light of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), that he was deprived of due process as some prospective jurors were improperly excluded even though they met the standards set by V.T.C.A., Penal Code, § 12.31(b), and said Article 37.071. He further challenges the constitutionality of Article 35.16(a)(10). He also advances a number of other grounds of error, including a claim that the evidence is insufficient to support the jury's answer of "yes" to Special Issue No. 2 of the court's charge at the penalty stage of the trial.

A review of the facts is necessary for a proper disposition of the case. The record reflects that between 1:30 and 2 a. m. on May 21, 1974 Joe and Vivian Hargrove went to a Seven-Eleven store at 8625 East Houston Road in Harris County. When they walked into the store, they saw the appellant standing behind the manager of the store, the deceased, Michael Sedita, who was in the process of taking money out of the cash register. Appellant commanded the Hargroves to get down on the floor, and they did as he had a pistol. The appellant then told Sedita he was taking him (Sedita) with him, and they left the store. Houston Police Sergeant P. M. Hogg while on patrol observed Sedita, whom he knew, and appellant come out of the store. Appellant had Sedita by the right arm. As Hogg drove up, appellant jerked Sedita around a corner and Hogg observed a man inside the store pointing emphatically in the direction of appellant. Hogg put out a robbery in progress report to the police dispatcher, grabbed his shotgun and followed the appellant to the alley. Appellant fired at Hogg and Hogg jumped back of an ice machine. He could see the appellant had Sedita in front of him with a gun to his chest. Hogg told appellant to drop his gun and give up, as it wasn't worth anybody getting killed. Appellant said he wouldn't surrender and warned Hogg to get back.

Officers Orlando and Cormier arrived and Hogg ordered them to shut off the end of the alley. As the officers approached that end of the alley, a white Dodge Dart with its lights on sped away and shots were fired at the car. Cormier told appellant to drop his gun, but appellant told him to back up or that he would shoot Sedita. Cormier told appellant not to hurt the manager and "we will let you go." Cormier and Orlando dropped their guns to their sides and backed up. Appellant, with Sedita, retreated up the alley to Surrey Road. Officer W. E. Carmichael arrived about the same time as Cormier and Orlando and he soon joined Officers Jalamo and Phillips on Surrey Road, catching appellant and Sedita between the two sets of officers. Sedita yelled to Jalamo, "Jack, don't come any closer, the guy is sick." ¹ The officers retreated, but nevertheless appellant shot Sedita in the left chest as Sedita yelled, "Oh, God he shot me," and fell to the ground. Appellant then ran into the nearby woods. The 31 year old Sedita died at the scene despite efforts to save him, as the bullet severed the aorta, causing massive bleeding. Numerous officers sealed off the area and a search with the use of bloodhounds was commenced. Appellant was eventually apprehended in the area.

As to appellant's contention the imposition of death as punishment violates the Eighth and Fourteenth Amendments to the United States Constitution, it is observed that this court has never in its history held that the death penalty constitutes cruel and unusual punishment under such federal constitutional provisions or under the provisions of the Texas Constitution (Article I, § 13). See Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976).

Further, in Gregg v. Georgia, 428 U.S. 227, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court rejected the same contention advanced by appellant. See also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

See also Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976); Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976); Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977).

Jurek v. Texas, supra, has been decided contrary to appellant's contention that V.T.C.A., Penal Code, § 19.03, and Article 37.071, Vernon's Ann.C.C.P., are unconstitutional because they do not provide effective guidance to a jury as to the imposition of the death penalty for punishment. See also Gholson v. State, supra.

In twenty grounds of error appellant attacks the jury selection procedure used. He contends that eleven of the jurors were improperly challenged and excused in violation of the standards set forth in Witherspoon v. Illinois, supra.

In Horvila v. State, 532 S.W.2d 293 (Tex.Cr.App.1976), we held that the holding of Witherspoon was still alive and well in light of the new statutory scheme providing for the imposition of the death penalty, the adoption of which followed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See also Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976). See and cf. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 399 (1976).

In Witherspoon the Supreme Court of the United States wrote:

". . . Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected."

The court further wrote:

"Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position." 88 S.Ct. at pp. 1773-1774, footnote # 9.

We have carefully examined the voir dire examination of the eleven prospective jurors ² listed by the appellant and do not find that they were improperly challenged and excused in light of Witherspoon. Each of these prospective jurors stated clearly and unambiguously that he or she would never vote in any case to impose the death penalty regardless of the facts or circumstances involved. We find no error in the court's action in excusing these prospective jurors. See White v. State, 543 S.W.2d 104 (Tex.Cr.App.1976); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976); Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976); Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976).

Further, we note that while the appellant did object to the court's action in excusing each of these prospective jurors the objection was not always on the ground now urged on appeal. The objection to the excusing of several of these individuals was that the imposition of the death penalty was unconstitutional. ³

Appellant further argues that despite Article 35.16(b)(1), Vernon's Ann.C.C.P., ⁴ there is no longer a challenge for cause if a prospective juror states he has conscientious scruples to the infliction of death as punishment for a crime since, (1) the jury no longer assesses such punishment in its verdict (Article 37.071, Vernon's Ann.C.C.P.); and second, if the prospective juror states under oath that the mandatory penalty of death or life imprisonment will affect his deliberations on any issue of fact then and only then is he excused, not for cause but because he is disqualified by V.T.C.A., Penal Code, § 12.31(b). ⁵

We do not agree. In Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1976), this court wrote:

"While the new statutes provide that the jury shall take an oath that they will not let the penalty involved affect their deliberations and requires them only to answer questions while the judge actually assesses the punishment based on such answers, the fact remains that the jury will know that their answers will determine whether the defendant is to be punished by death or by life imprisonment. To say that the jury's answers would not be affected by their attitude toward the death penalty as a punishment for crime simply because they will not bring forth the ultimate verdict would be to disregard the obvious. We will not engage in such tenuous reasoning."

We adhere to Hovila. The fact that the jurors do not write "death" in their verdict does not mean that there is no longer a challenge for cause as provided in Article 35.16(b)(1).

Further, where prospective jurors are properly disqualified under the Witherspoon rule, the fact they may or may not have been disqualified or even questioned under V.T.C.A., Penal Code, § 12.31(b), is of no consequence. Cf. Battie v. State, 551 S.W.2d 401 (Tex.Cr.App. No. 52,325, Oct. 13, 1977); Whitmore v. State (Tex.Cr.App.1976); Smith v. State, 540 S.W.2d 693, 698 (Tex.Cr.App.1976). Cf. Moore v. State, 542 S.W.2d 664, 672 (Tex.Cr.App.1976). A prospective juror may be...