Crane v. State

• Citation: 786 S.W.2d 338
• Decision Date: 31 January 1990
• Docket Number: No. 69977,69977
• Parties: Alvin Wayne CRANE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 338

786 S.W.2d 338

Alvin Wayne CRANE, Appellant, v. The STATE of Texas, Appellee.

No. 69977.

Court of Criminal Appeals of Texas En Banc.

Jan. 31, 1990.

Rehearing Denied March 28, 1990.

Gene Storrs, Amarillo, for appellant.

Bruce Roberson, County Atty., Perryton, and Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

CAMPBELL, Judge.

This case was tried on a change of venue from Ochiltree County to Denton County. Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03(a)(1). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death.

Appellant raises eight points of error. He challenges: the exclusion of two veniremembers who were excused for cause based on their bias against the imposition of the death penalty; the exclusion of one veniremember for cause based on her intent to require that the State show evidence of premeditation; the trial court's admission into evidence of items seized from appellant's automobile as a result of an illegal arrest; the admission of a witness's identification of appellant, arguing that the trial court erred in failing to grant appellant's motion for mistrial; the trial court's admission of evidence of extraneous offenses during the guilt/innocence stage to show motive; the trial court's admission of a tape recording of a conversation between a police officer and a radio dispatcher and a transcription of that recording; exclusion of a transcription made of tape recordings of phone calls between appellant and his wife; and finally, the sufficiency of the evidence to support an affirmative finding to special punishment issue number two. We will affirm.

On March 28, 1987, Melvin K. Drum, the deceased, was employed as Chief Deputy Sheriff of Ochiltree County, Texas. Several calls were made to Drum's residence that day concerning the activities of the appellant. The calls concerned a domestic dispute between the appellant and his wife, Linda Crane, and threatening calls made by the appellant to the residence of Mr. Gayle Rogers, the business manager of Mrs. Crane's employer.

Mrs. Crane was employed as a practical nurse at the home of Mrs. Spicer, an elderly invalid. Appellant had visited the Spicer home earlier in the day and had an argument with his wife. Appellant then smashed the windows of his wife's car as she sat in the car and the police were called. Appellant departed before the arrival of the police. Later, the appellant called Mr. Rogers' home, demanding his wife's check, although it was not yet due to be issued. The deceased and his son, Delvin Drum, an Ochiltree deputy sheriff, upon being informed of the appellant's activities, left the Drum residence to investigate. The officers departed in separate vehicles, the deceased driving an unmarked vehicle.

At trial, Sherry Vance testified that she lived across the street from the Spicer residence. On the day of the homicide, she testified that at approximately 1:25 p.m., she heard the short beep of a siren. She went to the window and observed a green car pull into the Spicer driveway. A red car, driven by the deceased, pulled in near the Spicer residence.

Ms. Vance testified that she saw the appellant's wife approach the decedent's car. Vance then saw the appellant with a shotgun. Appellant pointed the shotgun at the deceased. His wife grabbed him, shook him, and told him, "No." She then went back toward the Spicer residence. Appellant then shot the deceased who was seated in his car. Vance saw the impact of the shot on the deceased's body. The appellant then fled.

Bruce Evans, an Ochiltree County deputy, testified that when he arrived the red "kojak" light on the dashboard was still flashing. Delvin Drum testified that when he arrived, his father was slumped over in the car. The deceased's badge was plainly visible. Melvin Drum was wearing a holstered service revolver.

Based on a police broadcast, appellant was arrested by Oklahoma authorities two and a half hours later at a roadblock in Beaver County, Oklahoma for the murder of Melvin Drum.

In his first point of error, appellant alleges that the trial court erred when it excused two prospective jurors for cause based on their alleged bias against the imposition of the death penalty. Appellant contends that veniremembers Traynor and Conley should not have been excused because their bias against the death penalty was not "unmistakably clear." He argues that it was not demonstrated that the two veniremembers were "unwilling or unable to obey the law or follow their oath," citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The State responds that it need only show that the veniremember's view on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath," citing Cuevas v. State, 742 S.W.2d 331, 334 (Tex.Cr.App.1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1488, 99 L.Ed.2d 716 (1988).

At the beginning of voir dire examination of Ms. Traynor, the State asked the following:

Q: [By Mr. Cobb, Prosecutor] As I understand what you checked is "I would never under any circumstances return a verdict which assessed the death penalty". Is that correct?

A: That's correct.

Q: Can you tell me what that feeling is based on?

A: Well, I just don't feel that I as an individual or anyone, or any other individual, has the right to determine somebody's death.

Q: Is that a personal feeling? Is that a religious feeling? I mean, is it based on some religious concept, just your own personal feelings, or a combination of them?

A: It's a combination of both.

Q: Okay. Has there ever been a time in your life where you did believe that the death penalty was appropriate?

A: No, I don't believe so.

Q: Okay. Would you--would the--would your opposition to the death penalty be true under any set of circumstances?

A: I think so. I can't think of any circumstances that I would feel otherwise.

During her examination, Ms. Traynor acknowledged that if she were under oath she might be compelled to answer the special issues affirmatively although she would not want to do so. On further examination by the State, Ms. Traynor stated that unless compelled she could not in good faith take an oath that would result in the death penalty. The State challenged Ms. Traynor for cause based on her opposition to the death penalty. The judge withheld his ruling until the appellant examined the veniremember.

Appellant's attorney attempted to rehabilitate Ms. Traynor. He explained the structure of the trial and the special questions and stressed the fact that the jurors were under oath to follow the law. These arguments did not persuade Ms. Traynor. She continued to assert that she could not answer all the questions affirmatively, if it would result in the death penalty:

Q: [Mr. Cross, Defendant's attorney] Or are your feelings so strong that no matter what the evidence proves to you, no matter that it's proven to you beyond a reasonable doubt, you're always going to answer the questions in a certain way regardless of what the evidence is?

A: I don't think I could answer all three of those questions "yes" knowing that it meant the death penalty.

Q: No matter what the evidence was?

A: Right.

Q: No matter what the facts were?

A: Right. I think my feeling is that I would be--I would be swayed towards answering at least one "no".

The United States Supreme Court has determined that a prospective juror may be subjected to a challenge for cause based upon that juror's views on the death penalty when the record shows that the prospective juror's views would "prevent or substantially impair the performance of his or her duties in accordance with the oath taken and the trial judge's instructions." Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); see also Bennett v. State, 742 S.W.2d 664, 674 (Tex.Cr.App.1987), 486 U.S. 1051, 108 S.Ct. 2815, 100 L.Ed.2d 917 (1988), aff'd, 766 S.W.2d 227 (Tex.Cr.App.1989). A trial court's decision to excuse such a potential juror for cause under Witt should not be reversed absent a clear abuse of discretion. Ransom v. State, No. 69-338, slip op. at 17 (Tex.Cr.App. June 14, 1989). A reviewing court should consider the voir dire as a whole, giving due deference to the ruling of the trial court. Id.

In the instant case, prospective juror Traynor stated that she was opposed to the imposition of the death penalty and would avoid answering all of the special questions affirmatively unless compelled to under oath. On examination by appellant's attorney, Traynor stated she would not answer all the special questions affirmatively, regardless of the evidence or the facts, knowing that affirmative findings would authorize the imposition of the death penalty. In light of these statements, the trial court did not err in sustaining the state's challenge for cause.

Appellant also argues that prospective juror Donley was improperly excused for cause. Donley stated that he was against imposition of the death penalty. He indicated that regardless of the evidence he would always tend to answer at least one of the special questions "no" so that the defendant would not receive the death penalty. He did concede that if it were a unique situation where the defendant was a killer for hire who had repeatedly murdered others, he could impose the death penalty. However, when examined by appellant's attorney, Donley remained steadfast in his opposition to the death penalty.

Based on the responses given by Mr. Donley, we find that the trial court did not err in excusing him. The overall character of the examination of the two veniremembers reveals a deep-seated opposition to the death penalty that would have affected their ability to follow their oaths and the instructions by the trial court. Bennett, 742...