Collins v. State

Citation548 S.W.2d 368
Decision Date03 November 1976
Docket NumberNo. 52961,52961
PartiesWilbur Charles COLLINS, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

GREEN, Commissioner.

This is an appeal from a conviction for capital murder, wherein the punishment was assessed at death. See V.T.C.A. Penal Code, Sec. 19.03(a)(2) and Article 37.071, V.A.C.C.P. The indictment charged that on or about October 10, 1974 appellant while in the course of committing and attempting to commit the offense of robbery intentionally and knowingly caused the death of Billy Abraham by shooting him with a gun. 1

Appellant initially contends that the trial court improperly limited voir dire examination of a juror by not permitting him to ask the following question of venire member Mrs. Edgar Lee Fortune:

"Could you, regardless of what the evidence showed in any case and I'm not talking about this case could you ever believe that regardless of what the evidence showed, that a police officer was telling a willful falsehood from that witness stand?"

The State's objection that this was an improper question, and that the venireperson had answered on direct examination that she would judge the police officer's testimony by the same criterion as any other witness was sustained. The transcription of the voir dire of Mrs. Fortune shows that she had so testified in answer to the State's questions.

The record reflects that appellant used his first peremptory challenge on Mrs. Fortune.

Appellant relies on our decision in Hernandez v. State, Tex.Cr.App., 508 S.W.2d 853, in support of his contention that the court reversibly erred in refusing him to ask the above question to venireperson Fortune. In Hernandez, the defendant was denied the right to ask the prospective jurors the following question:

"Is there any member of the panel who, regardless of what the evidence showed in any case, could not believe that a police officer was telling a willful falsehood from the witness stand?"

This Court, in holding the trial court's refusal to propound this question to the jury panel to be reversible error, stated:

"As in De La Rosa v. State, supra, (Tex.Cr.App., 414 S.W.2d 668) this appellant filed a written motion requesting the court's permission to ask the question at issue on voir dire. The motion was denied. Appellant then sought additional peremptory challenges, which were denied. He then sought to perfect a bill of exception, while the prospective jurors, were present, showing what their answers would have been. The court refused to allow him to do so. He later informed the court that he had been required to take two objectionable jurors. Finally, the court refused to honor his request that a transcript of the voir dire examination be included with the record on appeal. As in De La Rosa v. State, supra, this appellant has, in effect, been denied an effective opportunity to show harm. See also Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959)."

In the instant case, in which the panel was questioned separately, appellant complains only of the court's sustaining the objection during the interrogation of venireperson Fortune. The entire voir dire of the members of the venire is included in the record, and it reveals that this or a substantially similar question was asked and answered by practically every remaining juror without any objection by the State. In Emanus v. State, Tex.Cr.App., 526 S.W.2d 806, on page 808, we stated:

"Our research has revealed no cases resulting in reversal where the limitation of the voir dire examination complained of pertained to only one juror. In the cases we have found which were reversed for this reason, the trial court has refused the asking of certain questions or otherwise acted with reference to the jury panel as a whole. . . . The fact, conceded during oral argument, that appellant did not exercise all his peremptory challenges, is relevant in this situation and mitigates the harmfulness of any error."

The record in the instant case further discloses that appellant did not exercise all of his peremptory challenges, and he does not complain on appeal that he was forced to accept any objectionable jurors. After exercising his fifteenth peremptory challenges, he asked for additional challenges "so that we may adequately select a jury in the case." The court granted him two additional peremptory challenges. Thereafter, he used one of these, but accepted, without objection or question, the twelfth juror without having used his last challenge. See Adami v. State, Tex.Cr.App., 524 S.W.2d 693, 700, and authorities cited.

As to any harm resulting to appellant from any error in refusing to permit the above question to be propounded to the juror Fortune, we quote from Burkett v. State, Tex.Cr.App., 516 S.W.2d 147, as follows:

"(2) What, then, is the test for injury or not when the court denies the asking of a question sought to permit an intelligent exercise of the accused's peremptory challenges? We know from Livingston v. State, 152 Tex.Cr.R. 302, 214 S.W.2d 119, that injury must be shown, and that merely showing the question sought and that it was denied is not sufficient. Although Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816, did not involve the denial of a question sought expressly for the exercise of a peremptory challenge, we find the test stated there to be appropriate for this situation, in light of the latitude which should be accorded counsel in preparing himself to intelligently exercise his client's peremptory challenges. In Grizzell v. State, supra, on motion for rehearing, at 821, Judge Morrison, speaking for a unanimous court, gave guidance on the issue before us in the following manner.

"After setting out the questions which the defendant had sought to ask, and then setting out the trial court's qualification of the bills of exception, which qualifications showed other questions which were asked, it was stated:

" 'As we view the questions (sought), they were no more than a restatement of what the court's qualification shows was actually asked.

" 'The trial court must be allowed some discretion in limiting the examination of prospective jurors or some trials would never terminate. We remain convinced that the appellant has failed to show that he has been deprived of any valuable right by the limitation herein assigned as error.' Grizzell v. State, supra, at 822."

Reversible error is not presented.

In his fifth ground of error, appellant contends that the evidence is insufficient to sustain a finding that appellant murdered deceased while in the act of committing or attempting to commit robbery.

Considering the evidence in the light most favorable to the verdict, the record reflects the following:

On the morning of October 10, 1974, Billy Abraham was the only employee on duty at the 7-11 convenience store situated on the corner of 12th and La Salle Streets in Waco. He at the time had the care, control and custody of the store and its contents. At 10:00 o'clock that morning he sold a bottle of soda water to police officer Nix. At some time between 10:10 and 10:40, his dead body was found in a back room of the store with a number of bullet wounds in the head and neck, and powder burns on the back of the neck. Seven .25 caliber shell casings and four flattened slugs were found on the cement floor under or near the body. Customers entering the store who discovered the body noticed that the cash register drawer was open. The sum of one hundred fifty dollars was missing from the cash register. The evidence exonerated all customers (six) who had entered the store between the time Officer Nix had been waited on by Abraham at 10:00 o'clock and the time of the arrival of police at 10:45 after receiving police radio information concerning the murder and robbery. A few minutes before 10:00 o'clock, appellant was seen about four or five blocks from the store walking toward it. Shortly before deceased's body was found, appellant was seen by the same witness walking in a direction away from the store.

After the initial investigation by police officers during which they received some information 2 of a man seen in the vicinity of the store, a warrant was obtained for the arrest of appellant, and he was arrested that same afternoon. In a search of his home, a number of .25 caliber shell casings were found, and ballistic tests performed by expert Fred Rhymer of the Texas Department of Public Safety established that these shells had been fired by the same pistol which fired the shots that killed Billy Abraham. A pawn shop dealer testified that he had sold appellant a .25 caliber Titan automatic pistol on August 12, 1974.

A written confession signed by appellant on October 14 was admitted in evidence. In it appellant admitted entering the 7-11 store shortly after 10:00 o'clock on the morning of October 10 "to purchase a soda water." He said that "at first I was hesitant because this was the same store that I had robbed about two weeks prior to this date. However, on this date I did not see the same green and black Chevy Malibu sitting in front of the 7-Eleven. I thought there would be a different store manager. I decided to go ahead and go in . . ." In the confession he said that when he noticed "the same manager that I had earlier robbed" the manager pulled a .25 pistol, and in a struggle appellant secured possession of the pistol and shot the manager in the head, and continued to shoot all the remaining shells at him.

At the trial appellant denied that his confession was voluntarily given, or that he had voluntarily waived his constitutional rights of legal counse...

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