Culley v. State, 48060
Decision Date | 13 February 1974 |
Docket Number | No. 48060,48060 |
Citation | 505 S.W.2d 567 |
Parties | Terry Eugene CULLEY, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Melvyn Carson Bruder, Dallas (Court appointed), for appellant.
Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
JACKSON, Commissioner.
The conviction was by a juror on a plea of guilty to murder with malice; the punishment assessed by the jury, 3000 years.
The appellant pled guilty before a jury. The facts showed without dispute, including the voluntary confession of appellant, that on September 24, 1971, about 1 P.M., appellant and two others, having carefully planned to do so, invaded the home of Jean Geron, armed with guns, in the perpetration of robbery, where they shot and killed Jean Geron. His wife, child and he children's teacher were also there, but none of the others was killed.
Ground of error number one complains of the argument of the prosecutor when he said to the jury in discussing punishment for retribution or for deterrence:
The death penalty was not a possible penalty to be assessed by the jury under the court's charge. Considering the evidence in the case, we construe this argument as a method of describing the extreme nature of the crime, rather than an effort to persuade the jury to inflict the death penalty in spite of the law as set out in the court's charge. Estrada v. State, Tex.Cr.App., 422 S.W.2d 453.
Nevertheless, the trial judge sustained a general objection and instructed the jury not to consider the argument. Such instruction sufficiently removed the harm, if any, to th extent that reversal is not required. Washington v. State, Tex.Cr.App., 488 S.W.2d 445; Barrera v. State, Tex.Cr.App., 491 S.W.2d 879; Cazares v. State, Tex.Cr.App., 488 S.W.2d 110; and cases collated under k 730(1) Texas Digest, Criminal Law.
In ground of error number one appellant also urges reversal because of an argument by the prosecutor which was not objected to, hence nothing is presented to us for review.
Ground of error number two presents the following argument by the prosecutor:
We do not approve of the argument quoted. The wishes of the wife of deceased were outside the record and should not have been recited to persuade the jury to give a high penalty. However, in view of the prompt action of the court in sustaining an objection and withdrawing it from the jury's consideration, we will not reverse on this ground. Perry v. State, Tex.Cr.App., 464 S.W.2d 660; Ramos v. State, Tex.Cr.App., 419 S.W.2d 359.
For his third contention, appellant's able attorney says that the information conveyed to the judge during the trial raising the question of appellant's competency was sufficient to require the court sua sponte to order a hearing on appellant's sanity.
The information relied upon was the testimony of appellant's brother that when appellant was in the second grade he had difficulty in speaking and retaining knowledge, for which he was placed in a special education class; that he went to schools for the retarded when in the fifth grade; that he was a bricklayer's helper and was an accomplished musician, playing several instruments. At the time of trial appellant was 21 years told. His brother said that just prior to the offense appellant was 'just normal as he could be.' The testimony of the brother did not raise the issue of insanity at time of the offense or at the time of trial.
On November 8, 1971, Dr. James P. Grigson, a psychiatrist, gave a written report to the trial judge of his psychiatric evaluation of appellant. He reported that his behavior was normal; that he was able to...
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