Earvin v. State

• Citation: 582 S.W.2d 794
• Decision Date: 10 January 1979
• Docket Number: No. 59906,59906
• Parties: Harvey EARVIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 794

582 S.W.2d 794

Harvey EARVIN, Appellant, v. The STATE of Texas, Appellee.

No. 59906.

Court of Criminal Appeals of Texas, En Banc.

Jan. 10, 1979.

Rehearing En Banc Denied Feb. 28, 1979.

Don W. Duran, Lufkin, for appellant.

Gerald A. Goodwin, Dist. Atty., Lufkin, for the State.

Before the court en banc.

OPINION

KEITH, Commissioner.

This is an appeal from a conviction for the offense of capital murder wherein the punishment was assessed at death. V.T.C.A., Penal Code Sec. 19.03 (1974), and Vernon's Ann. C.C.P. Art. 37.071 (Supp.1978-79).

Shortly before dark on December 7, 1976, appellant and his girl friend, 15-year-old Feleca Farrell, went to the rear of a filling station on Raguet Street in Lufkin for the purpose of robbing the attendant of the cash he had collected during the day. Appellant had used cosmetic makeup in painting a mustache on his face and was wearing an Afro-type wig. He was carrying a single-barrel twenty-gauge shotgun.

As he and his companion approached the filling station from the rear, they observed the deceased, Ertis Brock, going toward his car parked nearby carrying a bank bag and some papers. Appellant got very close to him and told Brock to "Hold it, mother fucker", at which time, according to Farrell, the deceased reached into his back pocket, whereupon appellant shot him in the chest. Appellant and Farrell then ran from the scene, neither taking the money, and appellant dropped the gun some distance from the scene of the murder.

Both parties were apprehended within a few days and each confessed to the details of the crime, and appellant's confession comes to us without challenge. The State made out its case by the testimony of Farrell and Bill Mickens with whom appellant had planned the robbery several days earlier. Mickens drove appellant and Farrell from the Congo Club to a point near the filling station where Brock was killed. Appellant did not testify nor did he offer any evidence in his own behalf upon the guilt-innocence stage of the trial. ¹

Appellant does not challenge the sufficiency of the evidence to sustain the conviction nor does he complain of procedural errors in the charge. In his first ground of error the complaint is made that the trial court "failed to properly apply the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and erroneously allowed the exclusion for cause of veniremen who had scruples concerning capital punishment." He then attacks the court's action in excusing eleven veniremen who either failed or refused to qualify to serve under the terms of V.T.C.A., Penal Code Sec. 12.31(b) (1974). ²

After a careful and painstaking search of the record, we now state unequivocally that appellant did not object at any time when any of the eleven prospective jurors was excused. In several instances he questioned the particular venireman concerning the person's feelings toward infliction of the death penalty often thanking the venireman for the answers given but never did he interpose an objection to the action of the court in excluding such person from the panel.

All of appellant's complaints under ground one were considered and overruled by this Court in Hughes v. State, 562 S.W.2d 857, 861 (Tex.Cr.App.1978), wherein we recognized the continuing vitality of Witherspoon But followed our prior holdings that "(f)ailure to object to the improper exclusion of veniremen waives that right and such exclusion cannot be considered on appeal." Ground of error number one is overruled.

In his second ground of error, appellant contends that it was error for the trial court to admit a colored photograph of the deceased showing the bullet hole in the chest. Appellant's reliance upon Burns v. State, 388 S.W.2d 690 (Tex.Cr.App.1965), is misplaced since Burns was specifically overruled by Martin v. State, 475 S.W.2d 265, 268 (Tex.Cr.App.1972), and we have declined several invitations to reconsider the question. See, e. g., Dugger v. State, 543 S.W.2d 374, 378 (Tex.Cr.App.1976).

In Hughes v. State, 563 S.W.2d 581, 588 (Tex.Cr.App.1978), we again considered a similar contention and used this language:

"In Alford v. State, Tex.Cr., 505 S.W.2d 813, this Court said:

'. . . a photograph, proved to be a true representation of the person, place or thing which it purports to represent, is competent evidence of those things of which it is material and relevant for a witness to give a verbal description.' "

We find no merit in ground of error number two and it is overruled.

Appellant next complains of the admission into evidence of State's Exhibits Nos. 10 and 12, being the outer jacket and sweater worn by the deceased at the time of the shooting. ³ He contends that the clothing was admissible only if it served to illustrate some point, solve some question, or throw some light on a matter in dispute. He argues that since there was ample evidence of the nature and extent of the wound, the location of the entrance into the body, and the cause of death, the clothing could serve only to inflame and prejudice the jury against him.

Although the ground of error is couched in terms of "bloody clothing", we are not referred to specific pages in the record wherein such claim is supported by testimony. However, since the extreme penalty was assessed, we have made an independent search of the record and do not find that the record supports a charge that the clothing was in fact bloody.

Moreover, Detective Lt. Goodwin of the Lufkin Police Department used the clothing to demonstrate to the jury the angle of the shot, the closeness of the gun to the body when the shot was fired, and was able to demonstrate the relative position of the parties at the time of the encounter. The autopsy revealed not only pellets from the shell but some plastic fragments had lodged in the body of the deceased. Goodwin was able to demonstrate that the gun was extremely close to the deceased's body when it was discharged. We find no error in the admission of the articles of clothing, assuming it be shown that such articles were in fact bloody.

We do not find the supporting case law cited by appellant to be in point or persuasive. In Garcia v. State, 537 S.W.2d 930, 935 (Tex.Cr.App.1976), a bloody sheet used to gag a jailer and to assist in the perpetration of the offense was held admissible, the Court saying:

"It has been held that bloody clothing is admissible if it has relevance such that a verbal description thereof would be admissible. Short v. State, 511 S.W.2d 288 (Tex.Cr.App.1974); Harrison v. State, 501 S.W.2d 668 (Tex.Cr.App.1973), and cases cited therein."

While the holes in the articles of clothing could have been described verbally, the alignment of the holes with the wound upon the body taken along with the testimony of the physician who conducted the autopsy rendered such articles competent and relevant evidence. As stated in Harrison v. State, 501 S.W.2d 668, 669 (Tex.Cr.App.1973):

"By the device of stipulations, the appellant could not deprive the State of the duty and the function of presenting to the jury all relevant evidence, nor avoid facing the full facts of the crime."

Finding no merit on ground three, it is overruled.

We experience some difficulty in coming to grips with appellant's fifth ground of error reproduced in the margin. ⁴ A study of the ground of error and the argument thereunder leads to the belief that he complains of two distinct matters, (1) "A reliable prediction of the probability defined in Article 37.071(b)(2) is impossible"; and (2) that there is No evidence in the record supporting the probability that the "Appellant will commit criminal acts of violence or constitute a continuing threat to society in the future."

The first facet of the complaint is answered adversely to appellant's contentions in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), affirmed, 428 U.S. 262, 49 L.Ed.2d 929, 96 S.Ct. 2950 (1976). See also Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977), and authorities therein cited.

The second prong of this complaint is not susceptible of as simple an answer. Pursuant to Art. 37.071(b)(1), (2), and (3), V.A.C.C.P., the court submitted questions to the jury inquiring if they found from the evidence beyond a reasonable doubt (1) that the conduct of the appellant which caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased or another would result; (2) that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) that the conduct of appellant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. The jury answered each question unanimously and in the affirmative.

Appellant challenges only the answer to the second question, his argument being that in the absence of evidence supporting an affirmative answer, the charge is arbitrary and violates his Eighth and Fourteenth Amendment rights. He cites only Smith v. Goguen, 415 U.S. 566, 576, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605, 613 (1974). ⁵

In Robinson v. State, supra, the Court noted that the provisions of Art. 37.071(a), V.A.C.C.P., concerning the presentation of evidence which the " 'court deems relevant to sentence' " and listed several matters which the jury could consider in determining whether or not a defendant would be a continuing threat to society. ⁶

We compare such guidelines with our record noting:

(a) The defendant in our case had no prior criminal record, consequently there was no testimony as to the "severity of his prior criminal conduct."

(b) When we look to the age of the defendant, we find that he was eighteen years old when the crime was committed and nineteen at the time of trial.

(c) There is no testimony that at the time of the commission of the offense he was acting under duress or under the domination of another.

(d) Nor is there...