Burton v. State, s. 05-89-00376-C
| Decision Date | 20 February 1991 |
| Docket Number | 05-89-00377-CR,Nos. 05-89-00376-C,s. 05-89-00376-C |
| Citation | 805 S.W.2d 564 |
| Parties | Donald Anthony BURTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Hal E. Turley, Dallas, for appellant.
Anne Wetherholt, Dallas, for appellee.
Before WHITHAM, ROWE and THOMAS, JJ.
Donald Anthony Burton appeals from his convictions for aggravated robbery and aggravated kidnapping. After returning a guilty verdict, the jury sentenced Burton to ten years' confinement for aggravated robbery and forty years' confinement for aggravated kidnapping. In six points of error, Burton generally contends that the trial court erred in: (a) granting the State's challenges for cause for two veniremen; (b) overruling his objection to the State's improper jury argument; and (c) denying his motion to dismiss the indictments for violations of the statute of limitations, violations of his constitutional right to a speedy trial, and for violations of the Interstate Agreement on Detainers. We overrule all points and, accordingly, affirm the trial court's judgments.
Shortly after midnight on May 1, 1982, Nathan Featherston, a security guard at an apartment complex, observed Burton urinating in the parking lot. Featherston told Burton that it was illegal to urinate in public and that he needed to leave the premises. Featherston further stated that there was a restroom in the sandwich shop across the street. Burton moved as if he were going to walk away when he suddenly turned about and pointed a gun. Burton walked over to Featherston, pointed the gun to Featherston's head and told him to open his mouth. When Featherston refused, Burton told him to turn around with his hands on his head. At this time, Burton struck him in the back of the head with the gun, knocking Featherston to his knees. When Featherston got up, he saw Burton point the gun and pull the trigger twice. Apparently there were no bullets in these two chambers because the weapon just clicked. As Burton pulled the trigger a third time, Featherston kicked and knocked him backward just as the gun fired. Featherston immediately ran away in order to summon police.
Within minutes, Burton appeared at an intersection a few blocks from the complex and forced his way into a car driven by Harry Pruitt, Jr. According to Pruitt, he was stopped at a signal light when Burton ran up and began banging a gun on the passenger window of his car. After threatening to shoot Pruitt, Burton got into the car. Burton then forced Pruitt at gunpoint to drive him around Dallas. Burton showed Pruitt that the gun contained three rounds and frequently jabbed Pruitt in the shoulder, neck, and temple with the cocked pistol. In addition, Burton frequently hit the gun against the front windshield causing it to break. After approximately two-and-a-half hours, Burton decided to lock Pruitt in the trunk of the car. Burton instructed Pruitt to be quiet because he would be outside listening. After about fifteen minutes, Burton told Pruitt that he was smart to have stayed quiet because "I've been out here waiting and I'd have put a plug through that trunk." Burton then began driving with Pruitt in the trunk. During the following six hours, Burton would periodically stop, get out of the car, and then return within minutes. At about 7:00 a.m., Burton opened the trunk and forced Pruitt at gunpoint to give him his wallet. After driving around for another two hours, Burton parked the car in a vacant parking lot in downtown Dallas. When Burton had been gone more than thirty minutes, Pruitt kicked in the back seat, crawled through the space into the car, and escaped. Pruitt ran to a nearby dry-cleaning shop where employees called the police. Burton's jacket and gun were found in the car. Police officers took Pruitt home in order to get another set of keys so that he could retrieve his car. When Pruitt and a friend returned to the parking lot approximately one hour later, the car was gone. Pruitt immediately called the police to report this incident. Burton was arrested a few hours later driving Pruitt's car.
Burton testified in his own behalf and did not dispute the events related by Featherston or Pruitt. Burton told the jury that earlier in the day in question, he walked over to Gus Antonus' apartment, which was adjacent to his complex. Antonus was a person he met through their mutual employment, the bail bond business. He said that he and Antonus played tennis, ate dinner, and watched a movie. Burton testified that he did not remember anything else about the evening or other events until his arrest the next afternoon. According to Burton, he did not know what had happened to him until he talked by telephone to Antonus approximately one week after he was arrested. In this conversation, Antonus said that he had given Burton a quaalude laced with PCP. Burton stated that he did not know how this occurred because he did not remember taking any type of pill. Even though Burton could not provide a lot of details concerning the day's events, he told the jury that he had the gun because he had picked it up from Antonus that day. Burton explained that he had taken the gun as collateral for a $50 loan. The gun was broken and he had given it to Antonus to repair. Burton assumed that his encounter with Featherston occurred as he was walking home from Antonus' apartment.
The record reveals the following procedural history arising out of this incident: 1
Aggravated Robbery:
a) In May 1982, Burton was indicted for the aggravated robbery of Harry E. Pruitt, Jr. under cause number F82-86204-NM.
b) Counsel was immediately appointed and the case was set for announcement hearings and was ultimately set for trial.
c) Burton executed a number of speedy trial waivers, which will be discussed in connection with the fifth point of error.
d) Burton failed to appear for trial in March 1983, thus forfeiting his bond.
e) In June 1988, Burton was extradited from Nevada and returned to Texas. Announcement dates began in June 1988 and continued through March 1989. The circumstances surrounding Burton's arrest in Nevada and his subsequent return will be discussed in connection with points five and six.
f) Burton executed a number of speedy trial waivers, which also will be discussed in connection with the fifth point of error g) In March 1989, the jury trial began which resulted in the guilty verdict and the assessment of ten years' confinement.
Aggravated Kidnapping:
a) In July 1988, after his extradition from Nevada, Burton was indicted for the aggravated kidnapping of Harry E. Pruitt, Jr. under cause number F88-95257-JM.
b) Announcement dates began in August 1988 and continued through January 1989.
c) In February 1989, Burton was reindicted under cause number F89-95204-M for the aggravated kidnapping of Harry E. Pruitt, Jr.
d) In March 1989, the jury trial began in cause number F89-95204-M which resulted in the guilty verdict and the assessment of forty years' confinement.
e) Following the jury convictions, the F88-95257-JM indictment was dismissed with the trial court's consent. 2
In the first and second points of error, Burton argues that the trial court erred in dismissing two veniremen for cause. Burton first complains of the dismissal of Elree Holt. Burton's pleas to the indictments were not guilty by reason of insanity. Thus, a great deal of the voir dire examination concentrated on this issue. The State maintains that Holt was disqualified due to his inability to comprehend his duty as a juror concerning the legal standard relating to Burton's burden of proof on the affirmative defense of involuntary intoxication and the difference between voluntary and involuntary intoxication. Article 35.16(a) of the Code of Criminal Procedure provides that a challenge for cause can be properly asserted for any facts that show that the prospective juror would be "incapable or unfit to serve on the jury." TEX.CODE CRIM.PROC.ANN. art. 35.16(a) (Vernon 1989). A juror may be disqualified if he has such mental defect or disease as to render him unfit for jury service. TEX.CODE CRIM.PROC.ANN. art. 35.16(a)(5) (Vernon 1989). Great deference is to be given to the decision of the trial court in exercising its discretion in ruling on a challenge for cause because the trial court is present to observe the venireman, including his demeanor and tenor of voice. Pyles v. State, 755 S.W.2d 98, 106 (Tex.Crim.App.), cert. denied, 488 U.S. 986, 109 S.Ct. 543, 102 L.Ed.2d 573 (1988); Hernandez v. State, 506 S.W.2d 884, 887 (Tex.Crim.App.1974). Low intelligence is not necessarily a ground for challenge under article 35.16(a)(5); however, the venireman must be able to comprehend the limited function of a juror. Gardner v. State, 730 S.W.2d 675, 695 (Tex.Crim.App.1987). The record clearly indicates that Holt was confused and was unable to understand a majority of the legal issues which were crucial to a decision of this case. Further, the record reflects that Holt's views concerning the effects of intoxication were antagonistic to the State's theory of the case. Thus, we hold that the trial court properly excused Holt, and we overrule the first point.
In the second point, Burton objects to the dismissal of venirewoman Joanne Fant. The record reveals that Fant's son had been convicted within the preceding months of burglary of an automobile. Although Burton's counsel obtained a commitment from Fant that she would be fair and impartial if selected, she also stated that she was concerned that she would project her feelings about her son into this case. She stated that her son's conviction had upset her to the point that she did not think she could be a fair juror to the State. Article 35.16(b) permits the State to challenge for cause on the grounds "[t]hat he has a bias or prejudice against any phase of law upon which the State is entitled to rely for...
To continue reading
Request your trial
-
Huff v. State
...1995, pet. ref'd) ; Bryant v. State, 819 S.W.2d 927, 931 (Tex.App.–Houston [14th Dist.] 1991, pet. ref'd) ; Burton v. State, 805 S.W.2d 564, 575 (Tex.App.–Dallas 1991, pet. ref'd). However, even these courts hold that when a prisoner takes it upon himself to deliver the request for final di......
-
Walker v. State
...III(b) (Vernon 1979); Bryant v. State, 819 S.W.2d 927, 931 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd); Burton v. State, 805 S.W.2d 564, 575 (Tex. App.-Dallas 1991, pet. ref'd). If the prisoner delivers the transfer request to the warden where he is incarcerated for forwarding, then th......
-
In re Ryan, No. 10-04-00128-CR (TX 10/20/2004)
...[14th Dist.] 1991, pet. ref'd); Crosland v. State, 857 P.2d 943, 945-46 (Utah 1993) (orig. proceeding); see Burton v. State, 805 S.W.2d 564, 575 (Tex. App.—Dallas 1991, pet. ref'd). Relator argues under Article V of the IADA. The IADA provides: "If the appropriate authority shall refuse or ......
-
Hoang v. State
...however, the trial court announced that on the authority of Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990) and Burton v. State, 805 S.W.2d 564 (Tex.App.--Dallas, 1991), it was confident that it still retained jurisdiction over the cause. In the course of the discussion, in the absence of......
-
Jury Selection and Voir Dire
...S.W.2d 503 (Tex. Crim. App. 1992); CCP Art. 35.16(a)(5) • Low intelligence would affect his ability to serve as a juror—Burton v. State, 805 S.W.2d 564 (Tex.App.—Dallas 1991, pet. ref’d ); CCP Art. 35.16(a)(5) • Inability to read and write would affect his service as a juror—Allridge v. Sta......
-
Jury Selection and Voir Dire
...S.W.2d 503 (Tex. Crim. App. 1992); CCP Art. 35.16(a)(5) Low intelligence would affect his ability to serve as a juror—Burton v. State, 805 S.W.2d 564 (Tex.App.—Dallas 1991, pet. ref’d ); CCP Art. 35.16(a)(5) Inability to read and write would affect his service as a juror—Allridge v. Sta......
-
Jury Selection and Voir Dire
...S.W.2d 503 (Tex. Crim. App. 1992); CCP Art. 35.16(a)(5) • Low intelligence would affect his ability to serve as a juror—Burton v. State, 805 S.W.2d 564 (Tex.App.—Dallas 1991, pet. ref’d ); CCP Art. 35.16(a)(5) • Inability to read and write would affect his service as a juror—Allridge v. Sta......
-
Jury Selection and Voir Dire
...S.W.2d 503 (Tex. Crim. App. 1992); CCP Art. 35.16(a)(5) Low intelligence would affect his ability to serve as a juror—Burton v. State, 805 S.W.2d 564 (Tex.App.—Dallas pet. ref’d); CCP Art. 35.16(a)(5) Inability to read and write would affect his service as a juror—Allridge v. State, 850 S.W......