Cherry v. State

• Decision Date: 28 June 1972
• Docket Number: No. 44761,44761
• Parties: James Walter CHERRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 744

488 S.W.2d 744

James Walter CHERRY, Appellant, v. The STATE of Texas, Appellee.

No. 44761.

Court of Criminal Appeals of Texas.

June 28, 1972.

Rehearing Denied Dec. 13, 1972.

Second Rehearing Denied Jan. 24, 1973.

Melvyn Carson Bruder (Court-appointed), Donald D. Koons, Dallas (Court-appointed, on appeal), for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The appellant was convicted for murder; the jury assessed the punishment at death.

As a result of a phone call received from an officer of the Mesquite Police Department on the morning of January 10, 1969, Deputies Alvin Maddox, Jr. and Eddie Raymond Walthers of the Dallas County Sheriff's Department went to the Eastern Hills Motel at 3422 Samuels Boulevard in Dallas to make an investigation. When the officers arrived, appellant, who was with Twyna Blankenship, a woman companion, invited them to enter the room. He asked, 'Is anything wrong?' and was told by the officers that they just wanted to talk to him. Appellant then handed Maddox a motor vehicle operator's license, issued in Georgia, by which he identified himself as Eldon Wildman of Atlanta, Georgia. Appellant, who was standing between the two beds in the motel room clad only in shorts, asked if he could put his trousers on. Appellant reached down and picked up his trousers which had been lying partially on the floor and partially on the nightstand between the two beds; as appellant was putting on his pants Officer Maddox observed a pistol on a shelf 'four to six inches' from the floor which had been hidden by the trousers and which was obscured from Officer Walthers' view by appellant, who was standing between Walthers and the nightstand. As Maddox was saying, 'Watch the gun, Buddy,' appellant was turning and grabbing the pistol; he said, 'You mean this one?' Walthers whirled and grabbed appellant's right hand in which he was holding the gun. Maddox also grabbed appellant's hand and the three of them fell on the bed nearest the door. As the struggle erupted, and in the midst of the woman's screaming 'Kill 'em,' the first shot was fired; it wounded Maddox in the left hand. Appellant then kicked Maddox in the stomach with both feet, propelling him over the other bed and against the wall. Simultaneously with his being kicked, and being propelled across the bed, Maddox drew his revolver and fired at appellant, striking him in the chest. At the same time appellant fired at Maddox but missed.

Maddox landed almost upside down after having been kicked by appellant; the next shot he fired struck his own foot and rendered him unable to walk. Maddox crawled around the foot of the bed across which he had been kicked and went around Officer Walthers who was on his knees reaching up towards appellant, and around appellant; as both officers reached for the gun, appellant 'pulled it back . . . and Officer Walthers reached up for the gun again and he missed and Cherry fired right into his heart . . .' As Walthers fell off the bed, appellant turned the weapon at Maddox, pointed the gun in his face, and 'clicked it several times,' misfiring each time.

After having fallen away from appellant when he pointed the pistol at him, Maddox grabbed appellant in a 'bear hug manner.' Appellant told the woman, who had been screaming all the time, to 'get this son-of-a-bitch off of me.' The woman hit Maddox over the head 'with a bottle of some kind,' causing him to temporarily lose his grip. Appellant then hit Maddox over the head with the gun. Maddox grabbed appellant again and the woman his Maddox over the head with a telephone. Appellant shook loose from Officer Maddox and he and the woman ran out the door, across the patio, got into a blue Chevrolet and left the motel.

Officer Eddie Raymond Walthers 'died of a bullet wound to the left chest with penetration of the heart and bleeding from that wound.'

The appellant's ground of error number fourteen urging that the evidence is insufficient to show appellant's guilt of the offense of murder with malice is without merit and is overruled.

The appellant's first two grounds of error complain of the change of venue to Tarrant County from Dallas County and the failure to grant a change of venue from Tarrant County to Denton County.

The offense occurred in Dallas County and the indictment was docketed in Criminal District Court No. 4 of Dallas County. The appellant requested a change of venue. His request was granted and the case was transferred to the 27th District Court in Bell County.

In Bell County, the appellant objected to trial in that county on the grounds that Bell County was not within the same district nor in a district adjoining Criminal District Court No. 4 of Dallas County. Appellant further alleged that there were counties within adjoining districts to Criminal District Court No. 4 of Dallas County which were not subject to the same conditions that required the transfer of the case from Dallas County. Request was made that the case be returned to Dallas County under the provisions of Article 31.03, Vernon's Ann.C.C.P. ¹ The case was transferred back to Criminal District Court No. 4 of Dallas County. ²

Honorable John Mead, Judge of Criminal District Court No. 4 of Dallas County, transferred the case to a county in an adjoining district, Criminal District Court No. 1 of Tarrant County.

The appellant objected to the change of venue and transfer of the case from Dallas County to Tarrant County, in both the Criminal District Court No. 4 of Dallas County and Criminal District Court No. 1 of Tarrant County, urging that the case should be transferred to a district court in Denton County, that being an adjoining district to the Criminal District Court No. 4 of Dallas County which was not subject to the same condition which required the transfer from Dallas County. The appellant offered to make proof that he could obtain a fair trial in Denton County, Texas.

The appellant did not file a motion for change of venue from Criminal District Court No. 1 of Tarrant County in that court. The objections to being tried in Tarrant County Criminal District Court No. 1 cannot be construed to be a motion for change of venue from Tarrant County. It was the appellant's position that he was entitled to one of three alternatives: (1) that the case be transferred to a 'district court of Denton County, Texas, because under the pleadings and as a matter of law he was entitled to have his case tried in Denton County, Texas;' (2) that the court transfer the case 'back to Dallas County, Texas, for the purpose of having a hearing and taking evidence on whether the same conditions that required the original transfer of venue from Dallas County, Texas, existed in Denton County, Texas, under the provisions of Article 31.03, V.A.C.C.P.;' or (3) that Criminal District Court No. 1 of Tarrant County 'hold a hearing and take evidence on the question of whether the same conditions which required the original transfer of venue from Dallas County, Texas, exist(ed) in Denton County, Texas; . . .'

To follow the appellant's argument and interpretation of Article 31.03, V.A.C.C.P., would give the appellant a right to select the county to which a case could be transferred on a change of venue.

We do not construe Article 31.03, V.A.C.C.P., as does the appellant. Criminal District Court No. 1 of Tarrant County is in an adjoining district to that of Criminal District Court No. 4 of Dallas County. The case was not transferred 'beyond an adjoining district' and the provision providing that 'if upon timely contest by appellant the record of the contest affirmatively shows that any county in his own and the adjoining district is not subject to the same conditions which required the transfer' will be grounds for reversal is not applicable to the facts of this case. Appellant's grounds of error number one and number two are overruled.

In his third ground of error, the appellant urges that the 'court erred in excusing twenty-two veniremen upon the State's challenge for cause pursuant to Article 35.16, Section b(1), Code of Criminal Procedure, in violation of Amendment VI and XIV, United States Constitution.'

In argument in support of this ground of error the appellant advances a rather narrow interpretation of the Supreme Court opinions in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969). It is his contention that the State may only inquire of a prospective juror whether he will Consider the death penalty--'all that is required of a prospective juror is that he be willing to consider the death penalty as punishment for a crime$' The 'crucial question' he says is 'Can you consider the death penalty as punishment for a crime?' He argues that the twenty-two prospective jurors who were excused were not 'queried as to whether or not they could consider the death penalty' but on the other hand, all the prospective jurors who were excused were interrogated 'in terms of whether they could vote for, inflict or give the death penalty.'

The appellant's interpretation of the authorities upon which he relies is too restrictive. Under Witherspoon, the State is entitled to determine not only that the prospective juror will consider the death penalty, but also whether there are circumstances conceivable under which he could assess such a penalty.

'. . . The most that can be demanded of a venireman in this regard is that he be willing to Consider* all of the penalties provided by state law, And that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.** If the voir dire testimony in a given case indicates that veniremen...