Clark v. State
| Decision Date | 17 September 1986 |
| Docket Number | No. 69009,69009 |
| Citation | 717 S.W.2d 910 |
| Parties | Herman Robert Charles CLARK, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
The jury found Herman Robert Charles Clark, Jr., hereinafter sometimes referred to as Clark or the appellant, guilty of committing the offense of murder while in the course of committing the offense of burglary of a habitation owned by Joseph Edward Mc Clain. This constitutes the offense of capital murder. See V.T.C.A., Penal Code, Section 19.03. The jury answered each of the three special issues, see Art. 37.071, V.A.C.C.P, in the affirmative and the trial judge assessed the penalty of death. We affirm.
The appellant presents ten grounds of error, none of which challenge the sufficiency of the evidence pertaining either to the jury's verdict on guilt or to the jury's affirmative answers to the special issues that were submitted at the punishment stage of the trial. Therefore, we will only briefly point out the following regarding the facts that were adduced at both stages of the trial.
The record reflects that at approximately 3:00 o'clock a.m., while Mc Clain, the deceased, and his girlfriend were asleep in a bed in one bedroom of Mc Clain's apartment, with his girlfriend's son asleep in another bedroom, the appellant, armed with a pistol, forcibly entered the apartment and thereafter terrorized Mc Clain, his girlfriend, and her young son at gunpoint. While in the process of getting ready to rape Mc Clain's girlfriend, after he had burglarized the apartment, a three-way, hand-to-hand fight between Mc Clain, the girlfriend, and the appellant over the appellant's pistol ensued, during which the girlfriend was shot in the arm and Mc Clain was shot in the chest, which caused his death.
Against the wishes of his trial counsel, the appellant, whose written confession was taken notwithstanding the fact that Dunn, one of his trial counsel, strenuously, but unsuccessfully, attempted to personally persuade the appellant not to give the police a confession, which confession's validity is not challenged on appeal, testified at the guilt stage of the trial.
The appellant did not deny committing the burglary of Mc Clain's apartment. He also admitted that it was his carefully prepared objective after he broke into Mc Clain's apartment, which he just randomly selected, not only to burglarize it but to rape any female that might then be inside of the apartment. Nor did he deny stealing personal property of Mc Clain and his girlfriend, shooting Mc Clain, or attempting to rape Mc Clain's girlfriend. He claimed that when he shot Mc Clain he did not intend to kill him, but only shot him "to disable him so I could effect an escape from the scene." As to his written confession, appellant testified that he gave the confession because on the day prior to giving the confession he had ingested peyote and marihuana into his body, causing him "to be less inhibited about telling the truth," and "the time was past for lying."
On cross-examination, the State impeached the appellant with several prior felony convictions, namely, two 1966 burglary convictions for which he was sentenced to serve 5 years in the penitentiary; a 1970 burglary conviction for which he was sentenced to serve 4 years in the penitentiary; a 1972 burglary conviction for which he was sentenced to serve 10 years in the penitentiary. The record reflects that the appellant successfully served each of the sentences.
At the punishment stage of the trial, in addition to stipulated testimony regarding the appellant's above felony convictions the State presented evidence that established that approximately two weeks after the Mc Clain burglary-murder occurred the appellant burglarized another apartment during which he robbed the male victim and raped the female victim of that offense. The appellant also sodomized and raped the female victim's ten year old daughter. The State also introduced evidence that approximately two weeks before the Mc Clain burglary-murder, the appellant burglarized another apartment. During the course of the commission of that offense the appellant raped and sodomized the female complainant in that cause. The State also established that several months after the Mc Clain burglary-murder the appellant burglarized another apartment, and in the course of committing that offense he raped and sodomized both the complainant and her eleven year old daughter. Appellant admitted in his testimony that these were abnormal acts of human behavior. All of the victims were strangers to the appellant.
Appellant also testified at the punishment stage of the trial, again against the wishes of his trial counsel. Notwithstanding the fact that he admitted that prior to his arrest he had committed at least "sixty to seventy incidents, probably upward to one hundred crimes," Clark also testified that he was not a hardened or violent criminal. Clark testified that what Clark also testified that Clark again denied that he deliberately caused the death of McClain. By its verdict, the jury, as was its prerogative, chose to disbelieve the appellant.
In his first three grounds of error the appellant asserts that the trial judge erred in sustaining the State's challenges for cause to Roy Dell Scott and Daisy Williams Hall, two of the venire persons, because such was in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and further erred in failing to sustain his challenge for cause to Rhonda Snider Thornton, another venire person, on the ground that she demonstrated impermissible bias against the law applicable to punishment for capital murder.
We will first review the grounds of error concerning Hall and Scott.
Hall first made it known to the trial judge that she had conscientious, moral or religious scruples against the infliction of the death sentence, even in a proper case. Hall stated that she could not then think of any type of case in which she felt that she could personally vote to assess the death penalty. The trial judge then carefully explained to Hall the procedure that would be used and then inquired whether, if the State proved beyond a reasonable doubt that the special issues should be answered in the affirmative, could she "answer them yes knowing that it would automatically result in the death sentence", and she replied in the negative.
Hall, however, soon became a "vacillating" juror, see Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981) (Teague, J. dissenting opinion), as she then stated pursuant to questioning by Thomas, one of the appellant's trial counsel, that she could answer all the special issues in the affirmative, if the evidence was there, and also stated that in some instances she felt that the death penalty was an appropriate punishment, even though she generally was opposed to it.
Jones, the prosecuting attorney, next questioned Hall. He, too, explained the procedure that would be used, and he first obtained equivocating answers to questions that he posed regarding her beliefs on the death penalty. However, Jones eventually established, at least tentatively, that Hall was not a qualified venire person Q: (By Jones): Do you feel you would ever be able to answer one of these questions yes knowing it would cause a death penalty?
Thereafter, Thomas again questioned Hall, in order to see if he could convince her to change her mind. He succeeded! Hall almost immediately vacillated to his position and answered Thomas' questions almost diametrically opposed to the way that she had answered Jones' questions.
The trial judge then questioned Hall, and almost immediately received answers contradictory to what she had given Thomas.
At this moment in time, out of Hall's presence, the trial judge, Hon. Perry Pickett, pondered out loud, "I just wonder if we spent the rest of the afternoon with Miss Hall, going from me to Mr. Jones [the prosecuting attorney] to Mr. Thomas [defense counsel], if we would ever get an unequivocal answer to these questions."
Jones then re-questioned Hall, and succeeded in getting her to answer his questions in a disqualifying manner. Thomas then re-questioned Hall, but this time he did not succeed in rehabilitating Hall to a qualifying position as Hall made it absolutely clear that she was not only adamantly opposed to the death penalty, but that even if the evidence established that the answers to the special issues should be answered in the affirmative she could not participate in answering those questions in the affirmative.
The trial judge then sustained the prosecuting attorney's challenge for cause.
We will next discuss what led to the trial judge sustaining the prosecuting attorney's challenge for cause to venire person Scott.
Based upon Scott's answers to the questions asked, we find that he was both an equivocating...
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