Burks v. State

• Decision Date: 11 April 1979
• Docket Number: No. 60757,60757
• Citation: 583 S.W.2d 389
• Parties: Stanley Keith BURKS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 389

583 S.W.2d 389

Stanley Keith BURKS, Appellant, v. The STATE of Texas, Appellee.

No. 60757.

Court of Criminal Appeals of Texas, En Banc.

April 11, 1979.

Rehearing Denied July 3, 1979.

E. Brice Cunningham and Walter L. Irvin, Dallas, for appellant.

Henry M. Wade, Dist. Atty., W. T. Westmoreland, Jr., Robert E. Whaley, Daniel P. Garrigan, Ron Poole and Mary K. Ludwick, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. The jury returned affirmative answers to the special issues submitted at the punishment hearing pursuant to Article 37.071, Vernon's Ann.C.C.P. Accordingly, punishment was assessed at death.

The sufficiency of the evidence is not challenged. On August 10, 1977, the body of the deceased, an elderly man, was found in his bed. His face and skull had been beaten in, his throat had been slit and his abdomen had been cut open so that his intestines and bowels protruded. The house, in which he lived alone, had been ransacked and various items of property were discovered missing. A fingerprint, identified as one of appellant's, was found at the scene. A confession was introduced into evidence, in which appellant admitted that he killed the deceased and then stole various items of property over a three-day period. Other evidence was introduced which tended to connect appellant with the murder during the course of a burglary. Suffice it to say that the evidence of appellant's guilt of the offense is overwhelming.

Appellant did not testify in his own behalf, but presented a defense of insanity, by extensive use of both psychiatric and lay testimony. However, the jury rejected this defense.

In his first two grounds of error, appellant contends that the trial court erred in failing to quash his indictment because of the systematic exclusion of blacks, Mexican- Americans and persons between the ages of 18 to 21, from the grand juries in Dallas County. Appellant relies upon Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). In Castaneda, The Supreme Court held that the defendant had established a prima facie case of racial discrimination in the selection of grand juries, by showing a disparity between the proportion of Mexican-Americans in the total population and the proportion called to serve as grand jurors over a significant period of time. Once a defendant makes such a showing, the Court held, the burden of proof shifts to the State to dispel the inference of intentional discrimination. Defendant Partida showed that the total population of his Texas county was 79.1% Mexican-American, but that over an eleven year period, only 39% Of the persons summoned for grand jury service were Mexican-American. On the list from which the grand jury which indicted Partida was selected, 50% Were Spanish-surnamed. This showing, without more, was held to establish a prima facie case of discrimination on the basis of race.

A hearing on appellant's motions to quash the indictment was held. Appellant's evidence of the alleged selective exclusion consisted of testimony taken in a hearing on this issue in another case, which evidence was stipulated to by the State. We hold that appellant has failed to establish a prima facie case of the selective exclusion of certain groups from Dallas County grand juries. ¹

With reference to the exclusion from grand juries of persons of the ages 18 to 21, appellant has failed to establish, Inter alia, that such individuals constitute a distinctive group, comparable to racial minorities or gender-based classes. See Castaneda v. Partida, supra; Curtis v. State,573 S.W.2d 219 (Tex.Cr.App.1978); Carillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978). Further, appellant has shown no disparity between the proportional representation of these individuals in the total population and the proportion called to serve as grand jurors over a significant period of time. See Castaneda v. Partida, supra; Carillo v. State, supra. A prima facie case of the selective exclusion of these individuals from grand juries has not been established.

With reference to the exclusion from grand juries of Mexican-Americans, appellant has failed to establish, Inter alia, the proportional representation of these individuals in the total population in the county. See Castaneda v. Partida, supra; Carillo v. State, supra. Without considering other facts which appellant has proven or failed to prove, we hold that he has not established a prima facie case of the exclusion of these individuals.

With reference to the exclusion from grand juries of blacks, we hold that appellant has also failed to make out a prima facie case of discrimination. Again, there is insufficient evidence to show a statistical disparity between the percentage of blacks in the total population and the percentage of blacks called to serve. The Only evidence of the total population in Dallas County and the percentage of blacks residing therein consisted of the following:

"Q. (defense counsel) Are you aware that the 1970 census for Dallas County said there were one million, three hundred twenty-seven thousand, three hundred twenty-one people in the county; and out of that, there were two hundred twenty thousand, five hundred twelve Negroes, which would roughly if you want to take my figures be about sixteen percent of the total population?

"A. (witness) I was aware there were two hundred thousand blacks in Dallas County, but I couldn't get down to the specifics."

We cannot hold that this statement by the witness was sufficient proof of the total population of Dallas County, generally, or of the total number of blacks therein, specifically. Thus, appellant has failed to establish the foundation upon which to show a disparity. Given this as the basis for our holding, we need not comment upon the method or sufficiency of proof to show the total number of blacks who served or were called to serve as grand jurors over a significant period of time. Since appellant has failed to make a prima facie case of discrimination under Castaneda v. Partida, supra, these grounds of error are overruled.

In his third ground of error, appellant complains that the admission into evidence of eleven photographs constituted reversible error. He argues that the prejudicial and inflammatory effects of these photographs outweighed the probative value of such, and that the trial court abused its discretion in overruling his objections thereto.

The complained-of photographs depict the decomposing body of the deceased after he had been killed in a very brutal manner. Other photographs depict the room in which the body was found, which was spattered with blood and bits of human tissue. In Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). We feel that if a photograph was competent, material and relevant to an issue at trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, or unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and scene of the crime would be admissible, a photograph depicting the same is admissible. Martin v. State, supra; Welch v. State, 576 S.W.2d 638 (Tex.Cr.App.1979); Shannon v. State, 567 S.W.2d 510 (Tex.Cr.App.1978); Denney v. State, 558 S.W.2d 467 (Tex.Cr.App.1977); Cerda v. State, 557 S.W.2d 954 (Tex.Cr.App.1977).

In the instant case, verbal descriptions of the body of the deceased and of the scene of the murder were admissible. Therefore, the trial court did not abuse its discretion in admitting the photographs. See Martin v. State, supra; Welch v. State, supra; Denney v. State, supra; Cerda v. State, supra. No error is shown, and this ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court erred in admitting into evidence a written confession signed by appellant. He contends that the confession was involuntary and that it was made only as a result of threats and coercion.

The record reflects that a hearing was held out of the presence of the jury. Officer Truly Holmes of the Dallas Police Department testified that on August 30, 1977, he took appellant from the county jail to his office, where they talked. Officer Holmes testified that he told appellant that he was a police officer investigating a murder, that appellant had the right to remain silent, that anything he said could be used against him in court, that he had the right to an attorney, appointed if necessary, during the questions, and that he could terminate the interview at any time. Officer Holmes stated that appellant said he understood his rights and wanted to waive them.

According to Officer Holmes, appellant first denied that he committed the offense. Holmes stated that he then told appellant of the fingerprint which was found at the scene of the murder. Holmes testified that appellant then became "disgusted" with himself for having left a fingerprint at the scene, and then said that he would talk about it. Appellant then gave a statement in which he admitted that he entered the deceased's house by cutting a screen, beat the deceased in the head with a hammer some thirty times, slashed open his throat and stomach, and then stole property over a three-day period. This statement was then typed and copy given to appellant, after which Officer Holmes read it aloud to appellant, including the constitutional ² warnings. Holmes stated that he asked appellant if there were anything which he wanted changed, and that appellant said that the statement was absolutely the truth. Appellant then signed both pages of the statement, in the presence of a witness.

Officer Holmes denied that he ever promised anything to appellant, or coerced him, or made offers of leniency or favors to him, or used any kind of persuasion or coercion in order to induce appellant to make a...