Chappell v. State, s. 48820

• Decision Date: 05 February 1975
• Docket Number: Nos. 48820,s. 48820
• Citation: 519 S.W.2d 453
• Parties: Larry CHAPPELL, Appellant, v. The STATE of Texas, Appellee. Felix HORNSBY, Appellant, v. The STATE of Texas, Appellee. Larry TWINE, Appellant, v. The STATE of Texas, Appellee. to 48822.
• Court: Texas Court of Criminal Appeals

Page 453

519 S.W.2d 453

Larry CHAPPELL, Appellant, v. The STATE of Texas, Appellee.

Felix HORNSBY, Appellant, v. The STATE of Texas, Appellee.

Larry TWINE, Appellant, v. The STATE of Texas, Appellee.

Nos. 48820 to 48822.

Court of Criminal Appeals of Texas.

Feb. 5, 1975.

Rehearing Denied March 15, 1975.

Jerry L. Jamieson and Mike Beard, Waco, for Chappell.

Paxton King Littlepage, Mart and M. Frank Beard, Court Appointed, Waco, for Hornsby.

Dan E. Mayfield, Jr., Court Appointed, Waco, for Twine.

Martin D. Eichelberger, Dist. Atty., Dick Kettler, Ken Crow, Joe Guyton and Frank M. Fitzpatrick, Jr., Asst. Dist. Attys., Waco, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ON APPELLANTS' MOTION TO REINSTATE THE APPEAL

ROBERTS, Judge.

The appellants were convicted of the offense of murder with malice, and were given the death penalty. Sentence was later commuted to imprisonment for life.

This appeal was originally dismissed because the record did not reflect proper notice of appeal. Such a showing now having been made, we will discuss the merits of the appeal.

Counsel for each appellant has filed a separate brief. Appellant Chappell's brief consists of one-hundred and eighteen pages raising twenty-three grounds of error. Appellant Twine's original brief consists of eighty-six pages raising thirty-five grounds of error. Appellant Hornsby's original brief consists of one-hundred and one pages in which twenty-two grounds of error are raised. ¹ Although a number of the contentions overlap, there has apparently been no effort on the part of counsel for the appellants to combine and simplify the briefs when grounds of error common to all appellants occur. In this regard, we commend to counsels' attention our decision in Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974).

Although there are ninety total grounds of error presented between the three appellants, sixty-four are common to all three. We will deal with these similar contentions first, incorporating each into the discussion of appellant Chappell's complaint and then dispose of the remaining contentions individually.

Appellant Chappell's first eleven grounds of error relate to the voir dire examination, during which the court refused to discharge certain veniremen for cause. The eleven contentions are argued together in conjunction with appellant's twelfth ground of error which relates to the change of venue. Appellants Hornsby and Twine have, likewise, argued their respective grounds of error concerning the change of venue and the discharge of veniremen for cause together. Since these grounds are common to each appellant, they will be disposed of in one discussion.

Preceding the argument of each appellant, there is a voluminous summarization of the voir dire examination of each of the one-hundred and forty-four veniremen. There has been no attempt to segregate the statements of contested and uncontested veniremen, or to limit argument to those jurors selected after appellants had exhausted their peremptory challenges. No distinction is made, in the body of the arguments, between the various contentions being urged, and no reference is made to specific portions of the testimony wherein certain statements alleged to have been made by the veniremen are shown. Reference is made to the aforementioned summaries; however, that reference is by number only (i.e., venireman number eight). The argument contains a number of statements by veniremen against whom no complaint is made, which are apparently offered to support the contention regarding change of venue.

In sum, the contentions presented are multifarious and are not presented in such a way that these contentions can be determined and understood. This presentation does not comply with requirements of Article 40.09, Sec. 9, Vernon's Ann.C.C.P., and the cases construing that rule. Nothing is presented for review.

However, it appears from the record and jumble of evidence outlined in the briefs that the evidence presented on the question of change of venue was conflicting. We have held that in such circumstances it is generally not an abuse of discretion for the court to deny the change of venue. Lewis v. State, 505 S.W.2d 603 (Tex.Cr.App.1974); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); and Flores v. State, 493 S.W.2d 785 (Tex.Cr.App.1973). As to the contentions regarding the voir dire examination, a close perusal reveals that the majority relate to the court's failure to discharge certain veniremen for cause, thereby causing appellants to use peremptory challenges in order to remove them from the panel. Appellants recognize that it is well-settled rule in our criminal practice that one may not complain of the court's failure to discharge an objectionable juror for cause unless he is forced to accept an objectionable juror as a result. See Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972). Despite the exhortations of appellants' briefs, we are not inclined to alter this salutary rule.

Twine contends he was forced to accept two objectionable jurors. His argument in his brief, however, is directed to the acceptability of only one of these. It appears that the juror suffered from a hearing defect in one ear. However, the record also reflects that his hearing in his unaffected ear was excellent and that he heard and understood all the questions directed to him by the parties. We can only conclude that his hearing was not so impaired as to render him unfit for jury service. Art. 35.16(a)(5), V.A.C.C.P.

Appellants Chappell's and Hornsby's first through twelfth grounds of error and appellant Twine's first through sixteenth grounds of error are overruled.

Appellant Chappell's fifteenth contention urges that the court erred in refusing to grant his request for severance. Article 36.09, V.A.C.C.P., provides that severance shall be granted it, via timely motion with evidence, it is made known to the court that one defendant has a prior admissible conviction or that a joint trial would be prejudicial to any defendant.

Appellant did file his motion in a timely manner and alleged therein that one of his co-defendants (Larry Twine) had a final conviction against him, in that he had plead guilty to the offense of armed robbery. However, appellant makes no reference to any portion of the record containing evidence presented on the issue of his co-defendant's conviction. Article 36.09, supra, expressly requires that evidence be introduced in order to support a motion for severance. In the absence of such an offer of proof, denial of severance is not an abuse of discretion. See Thornton v. State, 451 S.W.2d 898 (Tex.Cr.App.1970); Bolding v. State, 493 S.W.2d 186 (Tex.Cr.App.1973); and Jackson v. State, 504 S.W.2d 488 (Tex.Cr.App.1974). In further appears that the conviction in question was not, in fact, final. Twine appealed his conviction and it was not affirmed until February 9, 1972 (Twine v. State, Tex.Cr.App., 475 S.W.2d 774), long after the trial involved here.

In appellant Hornsby's thirteenth ground of error, it is, likewise, urged that the trial court erred in denying appellant's motion for severance. Although this ground of error is multifarious and not in compliance with Art. 40.09, V.A.C.C.P., we have considered it in the interest of justice and find it without merit.

It is appellant Hornsby's first contention under this ground of error that being tried jointly with the co-defendants maximized the security precautions taken at trial. He maintains that such extreme security measures prejudiced him and that it created a 'frightening' atmosphere suggestive of dangerous and desperate men being on trial. It is appellant's position that security precautions could have been held to a minimum of each defendant had been tried separately. This would have lessened the impact which is claimed to have been so prejudicial.

The record reflects that there was a total of thirty-two law enforcement officers stationed around and through the courthouse. There were thirteen officers stationed within the courtroom itself, of which three were uninformed officers of the Department of Public Safety and one or two were uniformed sheriff's deputies. The remainder of the opfficers were in plain clothes. The justification for such precautions was based on the conduct of a previous trial of all three defendants for robbery by firearms in a Waco motel. During that trial, it was proven that appellant Twine assisted by appellant Hornsby, without reason or provocation, shot both the husband and wife who owned and operated the motel. In the trial of that cause, it became necessary to call for additional police supervision in order to prevent additional intimidation of the jury and witnesses. Several of the jurors in the previous trial had requested police protection. Both the previous and present trials were racially inflamed. The court stated it had reason to believe that a confrontation was being provoked in order to effectuate the defendants' removal from custody. It should be noted that the appellants were on trial for the violent crime of murder while attempting to escape from jail. Also, after the trial was in progress, the security precautions were substantially relaxed by reducing the number of uniformed officers in the courtroom. We find the measures taken in this case to be justified and well within reason under the present circumstances and, consequently, there was no abuse of discretion in denying severance on this ground.

Appellant Hornsby's second basis of complaint for the failure to sever the cases is that the other defendants had a previous admissible conviction. As we mentioned before, the convictions complained of in the instant case were not final. Furthermore, they were offered to show the appellants were in lawful custody when they attempted to escape from jail.

The record reflects that each of the three co-defendants was convicted of the same crime. Art. 39.09, supra, contemplates a...