Burns v. State

Decision Date03 May 1977
Docket NumberNo. 50576,50576
PartiesJames Paul BURNS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for capital murder. Punishment was assessed at death.

The record reflects that on August 3, 1973, the appellant, Roy Owens, and Toby Burns picked up the deceased, G. W. McDonald, as he was leaving the Follis Drive-in in Odessa. They all drove the deceased to a caliche pit, robbed him, and beat him. They left the deceased at the caliche pit, severely injured, and naked except for his socks. They returned later, picked up the deceased, and put him on the hood of Owens' car. Owens held him and the appellant hit him. The deceased fell to the ground, and Owens and appellant picked him up and placed him on the hood of the car again. Appellant got onto the hood of Owens' car and kicked the deceased twice in the head. Owens and the appellant pulled the deceased off the car by his legs and let him fall to the ground on his back.

Dr. Thomas Meek testified that McDonald died as the result of a brain injury which could have been caused by hitting, beating, and kicking the deceased about the head.

At the outset, appellant contends, "Article 1257, as amended in 1973, is unconstitutional for the reason that the caption or title to the 1973 Act, H.B. 200, appearing in Chapter 426, Acts, Regular Session of the 63rd Legislature, 1973, fails to meet the requirements of Article 3, Section 35, of the Constitution of Texas in that it 'embraces more than one subject' and is therefore insufficient to apprise the Legislature and the public of the full effect of the Amendment."

In Smith v. State, Tex.Cr.App., 540 S.W.2d 693, the exact same contention was raised and rejected by this Court.

Appellant contends, "The trial court erred in failing to remove capital punishment from the jury's consideration because at the time of the offense for which appellant was indicted no penal offense had been made a capital offense by law in violation of Articles 3 and 7, Texas Penal Code, 1925."

The instant offense was alleged to have occurred on August 4, 1973, and Art. 1257, V.A.P.C. as amended by Acts of the 63rd Legislature became effective June 14, 1973, and remained in effect until January 1, 1974, the effective date of the new Penal Code.

Appellant's contention is bottomed on the following arguments: (1) Article 1256, V.A.P.C. did not create a separate offense of "capital murder" as distinguished from other kinds of murder, (2) that Article 1257, V.A.P.C. merely established the punishments assessed for different kinds of murder (3) that Article 1256, supra, and Article 1257, supra, as amended in 1973 (providing for the penalty of life or death upon conviction for murder with malice aforethought under certain circumstances) are mutually exclusive, (4) that Article 3, V.A.P.C. declared that, "No person shall be punished for any act or omission, unless the same shall be made a penal offense, and a penalty is affixed thereto by the written laws of this state," (5) that because of Article 3, supra, it was necessary that there have been a separately declared offense of capital murder, and (6) that since there was no such separately declared offense of capital murder the appellant could not be validly convicted of capital murder.

Subsection (a) and the pertinent portion of (b) of Article 1257, supra, recite:

"(a) Except as provided in Subsection (b) of this Article, the punishment for murder shall be confinement in the penitentiary for life or for any term of years not less than two.

"(b) The punishment for murder with malice aforethought shall be death or imprisonment for life if: . . . ."

Five circumstances are then enumerated under subsection (b) where the punishment can be life or death.

The language in subsections (a) and (b) negates appellant's argument that 1256, supra, and 1257, supra, are mutually exclusive. Just as 1257b, V.A.P.C. provided that murder without malice cannot carry a penalty longer than five years upon conviction, the Article under attack provides for the penalty range for murder with malice absent the circumstances set forth in subsection (b) of 1257, supra, and the penalty under the circumstances set forth therein. We reject appellant's contention that there had to be a separately declared offense of capital murder.

Appellant contends that the trial court erred in failing to remove capital punishment from the jury's consideration because the allegation of robbery is fundamentally defective in that, "(A) The indictment does not allege robbery with the specificity required by the law of the State of Texas. (B) The portion of the indictment alleging robbery is duplicitous and multifarious and constitutes a conjunctive pleading in that it alleges murder 'while in the course of committing and attempting to commit' robbery."

The pertinent portions of Art. 1257, supra, provide:

"(b) The punishment for murder with malice aforethought shall be death or imprisonment for life if:

(2) the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson."

It appears to be appellant's position that the indictment, in averring that the murder occurred "in the course of committing and attempting to commit the offense of robbery upon G. W. 'Pete' McDonald," failed to set forth the necessary elements of robbery. In Livingston v. State, 542 S.W.2d 655, a similar contention was rejected, this Court stating:

"In Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976), we held that a capital murder indictment is not fatally defective because the elements of the robbery are not set out in the indictment charging murder during the commission or attempted commission of robbery. Under the new Penal Code, an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense. (Citations omitted.)" 1

With respect to appellant's complaint that the allegation of "(while) in the course of committing and attempting to commit . . . robbery" rendered the pleading duplicitous, this Court stated in Jurek v. State, Tex.Cr.App., 522 S.W.2d 934, "Further, the fact that each count of the indictment includes the presence of more than one of the aggravating conditions set forth in Article 1257(b)(2) does not render the indictment duplicitous . . . ."

Appellant contends that, "The trial court erred in that the jury selection process violated the guidelines of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510 (88 S.Ct. 1770, 20 L.Ed.2d 776) (1968)."

In Hovila v. State, Tex.Cr.App., 532 S.W.2d 293, we held that the holding of Witherspoon 2 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).

The new statutory scheme for capital murder (V.T.C.A., Penal Code, Sec. 19.03 (formerly Art. 1257, Vernon's Ann.P.C., as amended in 1973) and Art. 37.071, Vernon's Ann.C.C.P.), including the possible infliction of the death penalty, has been upheld by this Court in Jurek v. State, supra, and by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929. See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913.

Appellant urges that prospective jurors Doss, Singleton, Tillman, Cagle, Mitchell, Burnette, Pitner, Davis and Mann were excused for cause in violation of Witherspoon.

Prospective jurors Doss, Singleton, Tillman, Cagle, Mitchell, Burnette, Pitner and Mann stated that the fact that the punishment was death or life imprisonment would affect their deliberations on "any issue of fact" or "on issues of fact" in the case.

Prospective juror Davis stated that her opposition to the death penalty would not affect her deliberations at the guilt stage of the trial. As to whether the mandatory punishment of life or death would affect her deliberations on any issue of fact at the punishment stage of the trial the prospective juror answered, "Yes, it would," "Very likely," and "I can't say that it will not affect my deliberations."

Appellant relies on Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.1971) for the proposition that Witherspoon would not allow the State to challenge for cause a prospective juror who stated that his belief concerning the death penalty would affect his verdict on the punishment stage of the trial.

V.T.C.A. Penal Code, Sec. 12.31(b), enacted since Grider, provides:

"Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact."

In Moore v. State, Tex.Cr.App., 542 S.W.2d 664, this Court held that it was unnecessary to consider the Witherspoon question where a prospective juror had stated that her opposition to the death penalty would affect her deliberations on the fact issues submitted in the case. With respect to the narrower issue of whether a possible death penalty would affect a prospective juror's deliberations on any issue of fact at the punishment stage of the trial, this Court in Whitmore v. State (Tex.Cr.App. No. 52,325, Oct. 13, 1976) held that a prospective juror's answer that his...

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