Chambers v. State, 54676

Decision Date24 May 1978
Docket NumberNo. 54676,54676
Citation568 S.W.2d 313
PartiesRonald Curtis CHAMBERS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

DOUGLAS, Judge.

Ronald Curtis Chambers appeals from a conviction for capital murder wherein the punishment was assessed at death.

Shortly after midnight on April 11, 1975, Mike McMahan and Deia Sutton, both college students, left a Dallas nightclub and entered McMahan's car. Appellant, Clarence Ray Williams, Jr., and two other men occupied an adjacently parked automobile. Williams and appellant exited that automobile and forced their way into McMahan's vehicle at gunpoint. Appellant ordered Sutton to get into the back seat with him. After laying a .410 shotgun on the rear floorboard, he pointed a pistol at her face and threatened to kill her.

McMahan was moved to the passenger side of the front seat. Williams then drove the car to the Trinity River bottoms while appellant robbed Sutton of her watch, coat, purse and its contents.

Williams parked the car on a levee when they arrived at the river bottoms. He and appellant pushed the students down the side of the levee and, when they got near the bottom, appellant ordered them to stop. At this point five shots were fired at them, one of which lodged in Sutton's skull. Both fell to the ground at the bottom of the levee.

Williams and appellant, apparently believing that the victims were dead, returned to the car. McMahan shouted at Sutton, asking her if she were hurt. The assailants heard him and came back to the levee. Appellant dragged McMahan to the water where he beat him viciously with the shotgun. Williams beat the woman with his fists and then choked her. When McMahan stopped screaming, appellant hit Sutton with the shotgun several times. Williams then remarked, "Well, she's dead, let's go."

After Williams and appellant had left, Sutton crawled over to McMahan and attempted to aid him. He was dead. Somehow she got to the Le Baron Hotel where police were summoned.

Officer C. R. Heyse subsequently found McMahan's body in the river bottoms. He also found a .410 gauge shotgun shell which had not been fired but which had its primer indented, a shotgun breech, and part of a gun stock.

Stephanie Jones observed appellant later that morning at her mother's house. He was washing blood and hair off a shotgun. Appellant tried to sell Sutton's coat that had been taken in the robbery.

Officer H. O. Wilkerson arrested appellant the next day. A shotgun, which was broken into several pieces, several .410 cartridges, and a .22 caliber hollow-point rifle bullet were found in the Jones' house. Credit and identification cards belonging to the deceased and Sutton were also discovered there.

An autopsy revealed that massive skull fractures and brain injuries caused McMahan's death. Part of the deceased's cranial bone had been driven into the brain, and one of his ribs had been fractured and driven into the lung. He also had suffered gunshot wounds to the right arm and to the abdomen. The latter wound was made by a .22 caliber hollow-point rifle bullet which was recovered from his right hip.

I. The Voir Dire Examination

Appellant complains that the entire jury selection process was infected with constitutional error. Initially he urges that the court erred in excusing upon challenge for cause seventeen prospective jurors for bias against the minimum punishment for murder. Each prospective juror expressed his bias against the minimum punishment and stated that he was unable to consider such punishment in a murder case. The court excused each upon challenge by the State.

In Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), we held that Article 35.16(b), V.A.C.C.P., authorizes the State to challenge for cause prospective jurors who oppose the minimum punishment. Appellant concedes that Moore was decided adversely to him, but argues that there is no basis for sustaining a challenge to veniremen who oppose the minimum punishment for a lesser included offense.

Subsection (b)(3) of Article 35.16 provides that the State may challenge if the prospective juror "has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment."

For these reasons we find no error in the excusing of the prospective jurors challenged on the basis of their bias against the minimum punishment for murder.

Appellant also urges that prospective juror Veltman was erroneously excused for his bias against the minimum punishment for murder. The record discloses that Veltman was not excused on this basis but was excused because he recalled news accounts concerning the instant offense, and because his home had been recently burglarized and was disturbed that the burglars received probation in that case. No error is reflected.

Next, appellant contends that eighteen veniremen were excused in violation of

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). 1

In Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975), 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).

The new statutory scheme for capital murder (V.T.C.A., Penal Code, Section 19.03 (formerly Article 1257, V.A.P.C., as amended in 1973) and Article 37.071, V.A.C.C.P.), including the possible infliction of the death penalty, has been upheld by this Court in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), and by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

With this background we turn to the examination of the veniremen in question.

Prospective jurors Everett, Davis, Andrews, Arboqast, Fry, George, Wolford, Plamo, Bullock, Patterson and Null were excused without objection. Failure to object to the constitutionally improper exclusion of veniremen waives that right and such exclusion cannot be considered on appeal. Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), cert. denied 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977). See and compare also Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).

Prospective jurors Nixon, Meigs and McQueen did not believe in the death penalty and would not vote for that penalty under any circumstances. These prospective jurors were excused in compliance with Witherspoon.

Prospective jurors Hamilton, Chase and McLarty expressed strong opposition to the death penalty and stated that their beliefs would affect their deliberations on the fact issues submitted to them.

V.T.C.A., Penal Code, Section 12.31(b), 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." 2

In Moore v. State, supra, 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 upon the fact issues submitted in the case. We conclude that prospective jurors Hamilton, Chase and McLarty in the instant case were properly excused under the State statutory provision. Moore v. State, supra; Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977).

Further, appellant made no objection in the trial court to the disqualification of potential juror McLarty on the basis now urged that she was excused in violation of Witherspoon. He waived any right to complain of her disqualification on appeal. Burns v. State, supra. See also Boulware v. State, supra.

Prospective juror Godbolt expressed his opposition to the death penalty and then vacillated as to whether his beliefs would affect his deliberations on the fact issues submitted to the jury. He finally decided that these beliefs would not influence his deliberations on those issues. While it might be argued as to whether Godbolt's testimony would have disqualified him under the holding in Witherspoon, the record reflects that the court excused him for personal business reasons over the objection of appellant.

Godbolt stated that he was the manager of a barber shop and that he had only one employee who also had been called for jury duty at that time. He related that he would have to close down his business if he served on the jury and that he was already in financial trouble because he was attending school as well as managing the barber shop.

The conduct of the voir dire examination must rest largely within the sound discretion of the trial court. Moore v. State, supra; Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975). It is clear from the record in the present case that prospective juror Godbolt was preoccupied by personal and business problems that would interfere with his ability to serve on the jury. We find no abuse of discretion in the court excusing him. Cf. Moore v. State, supra.

Appellant again urges that the court erred in sustaining a challenge for cause to a prospective juror, Doris Minicks.

She was a secretary for the Department of Housing and Urban Development. It was developed that the father of Sam Hudson, appellant's trial counsel, was also an employee...

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