East v. State

• Decision Date: 24 July 1985
• Docket Number: No. 69057,69057
• Parties: Wayne EAST, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 606

702 S.W.2d 606

Wayne EAST, Appellant, v. The STATE of Texas, Appellee.

No. 69057.

Court of Criminal Appeals of Texas,

En Banc.

July 24, 1985.

Preston DeShazo, Dallas, for appellant.

Patricia Elliott, Dist. Atty. and Randy Dale, Asst. Dist. Atty., Abilene, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death.

In three grounds of error, appellant complains of the exclusion of three venirepersons over his objection. He argues that all three individuals were improperly excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). ¹ Venireman Juan Jaramillo initially testified in response to the prosecutor's questions that he was against the death penalty and that he would answer the punishment questions in such a way to guarantee that a defendant would not be assessed the death penalty. During questioning by defense counsel, Jaramillo created some confusion by stating that he could consider the death penalty in a proper case, but that he would automatically vote against the imposition of capital punishment regardless of the evidence. The trial judge, in an attempt to clear up the confusion, asked the following:

"THE COURT: ... The attorneys have told you that there are a couple of questions that you would be asked, that the court would put these in writing if you find the defendant guilty. Then you might hear additional evidence regarding what punishment should be assessed. Of course, you understand, don't you, that if he's found guilty of capital murder then there are only two possibilities. That's life imprisonment or death.

"THE WITNESS: Yes, sir.

"THE COURT: Those are the only two possibilities. If you answer those two questions yes, then I have to by law, sentence this defendant to death.... If the evidence would otherwise warrant a finding of yes to both of those questions, are you telling the Court that you would nonetheless answer them no, that you would refuse to answer them yes because you would know that I would have to give him the death penalty? Is that what you are telling the Court?

"THE WITNESS: I still would be against the death penalty, sir.

"THE COURT: Okay, I understand you're against the death penalty. The question is not being in favor of or against the death penalty. The question is: Can you follow the law that I would give you, and the evidence, or would you distort the evidence and disregard evidence that you might otherwise accept to answer the questions in an untruthful way to yourself just so you could get around or circumvent the law that would require the imposition of the death penalty?

"THE WITNESS: No, I don't think I could follow you, sir.

"THE COURT: You would not follow the instructions ... that I would give you?

"THE WITNESS: No, sir."

Thereafter defense counsel again elicited from Jarimillo that regardless of what the testimony showed, he would vote against the death penalty. The State's challenge for cause was sustained by the court.

Venirewoman Helen Marie Koen initially voiced her opposition to the death penalty and then began equivocating as to how she would answer the two special issues. Finally, at the conclusion of the prosecutor's voir dire examination, she did state that regardless of whatever evidence was presented, she would automatically vote "no" on at least one of the questions in order to thwart the assessment of the death penalty. After defense counsel again presented the mechanics of the punishment phase of the trial and read to Koen the two special issues, Koen reiterated her general opposition to the death penalty. In an attempt to pin her down to the specifics, defense counsel asked the following:

"Q. Are you telling us that you could not follow the law as given by the Court?

"A. If that's what it's going to be, no.

"Q. And are you saying that you would automatically vote against the imposition of the death penalty regardless of the testimony brought--

"A. Yes.

"Q. --to you in court? No question about it?

"A. No.

"Q. And would the mandatory penalty of death or imprisonment for life affect your deliberations on the issues of fact as in State's Exhibit No. 1 there that would be submitted to you at the conclusion of the punishment hearing?

"A. Yes."

The trial court resumed the questioning and elicited from Koen that she would not answer the special issues based upon the evidence but would answer "no" on one or both of the questions in order to keep the defendant from receiving the death penalty. The trial court then sustained the State's challenge for cause.

Finally, venireman David Lee Hancock testified that he was opposed to the death penalty on religious grounds. Although he felt he could make an impartial decision as to a defendant's guilt or innocence, he could never vote in such a way as to inflict the death penalty because by executing the defendant, the State would be taking away the defendant's chance of possible forgiveness by God. He reiterated this belief in response to questioning by defense counsel:

"Q. My question is: Would that affect your deliberations--Assuming that you were convinced in your own mind that he had done it deliberately, that any defendant had done it deliberately-- ... Assume that the State had proven to you beyond a reasonable doubt that this defendant, or any other defendant, had deliberately killed someone in the course of committing--or as that issue asks on State's Exhibit No. 1, proven to you deliberately, would that affect your deliberations, the fact that he would receive death or life?

* * *

"A. Yes, I (sic) would affect me in the sentencing phase. I could sentence conscientiously to life imprisonment. I could answer the questions so that that would be his sentence. But I could not sentence him to execution, because that limits his possibility of being given forgiveness.

* * *

"A. ... I don't want to break any laws, but you're going to put me in a position where I will have to because even if I believe--You know, I'm going to have to answer one of these questions so that the judge will sentence him to life imprisonment.

Thereafter the trial court excused Hancock for cause.

We find no error in the trial court's excusal of these venirepersons for cause. Witherspoon v. Illinois, supra, provides that a prospective juror should not be excused simply because he or she voiced a general objection to the death penalty. Justice Stewart, writing for the majority in Witherspoon, noted:

"We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, ...." Witherspoon v. United States, 391 U.S. at 523, 88 S.Ct. at 1777, footnote 21.

Each of these three prospective jurors clearly stated that they would disregard the evidence presented and vote in such a way as to thwart the assessment of the death penalty. The trial court acted properly in excusing these individuals. Appellant's first, third and fourth grounds of error are overruled.

In his second ground of error appellant argues that the trial court erred in overruling his challenge for cause of venirewoman Martha Carter. The record shows that after the trial court overruled appellant's challenge for cause as to Carter, appellant used his seventh peremptory strike on her. Thereafter appellant used his remaining eight peremptory strikes. Appellant then requested two additional peremptory strikes which the trial court granted. However, immediately after appellant received these additional strikes, the next juror was accepted by both sides and the jury panel was complete. Thus the appellant never exhausted his peremptory challenges nor was he forced to accept any juror who was unacceptable to him. No reversible error is shown. White v. State, 629 S.W.2d 701, 707 (Tex.Cr.App.1981) (and cases cited therein.)

In his fifth ground of error, appellant argues that the trial court erred in admitting testimony by State's witness Bonnie Covington, that prior to the commission of the instant offense, appellant and his companion, Dee Dee Martin, joined Covington and her boyfriend in "shooting up a lude." Appellant was charged with murdering the deceased, an elderly Abilene woman, while robbing her and burglarizing her home. Bonnie Covington testified over appellant's objection that appellant and Dee Dee Martin came to her apartment at approximately 5:00 a.m. on the morning of the offense and stayed until 5:50 a.m. During the time they were at her apartment, appellant and Martin melted down a Preludin capsule and injected it. After "shooting up" the "lude," appellant told Covington and her boyfriend about a big deal he had to do and part of it concerned "bumping someone off."

Initially, we find no error in the admission of this extraneous offense in that Dee Dee Martin testified to the same incident of "shooting up a lude" without objection later in the trial. It has long been the rule that improper admission of evidence does not constitute reversible error if the same facts were proved by evidence not objected to. Brasfield v. State, 600 S.W.2d 288, 296 (Tex.Cr.App.1980).

Martin's testimony also indicates that the injecting of the Preludin was res gestae of the instant offense in that she testified that immediately after leaving Covington's apartment, she and appellant proceeded to the victim's house and committed the instant offense.

In Albrecht v. State, 486 S.W.2d 97, at 100 (Tex.Cr.App.1972), this Court held that evidence of an extraneous offense committed by the accused is admissible:

"[t]o show the context in...