Emanus v. State

• Decision Date: 09 July 1975
• Docket Number: No. 50063,50063
• Citation: 526 S.W.2d 806
• Parties: James EMANUS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 806

526 S.W.2d 806

James EMANUS, Appellant, v. The STATE of Texas, Appellee.

No. 50063.

Court of Criminal Appeals of Texas.

July 9, 1975.

Bill Davis, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., and Davis S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

Appellant was convicted by a jury of murder with malice under Arts. 1256 and 1257, Vernon's Ann.P.C. The jury assessed his punishment at fifty years' imprisonment.

In his first ground of error, appellant complains of the trial court's refusal to allow him to perfect a bill of exception relative to the Voir dire examination of one of the prospective jurors. He contends that such a ruling by the trial court prohibited him from showing the harm, if any, he suffered by not being allowed to ask certain questions of the prospective juror.

The complaint thus alleges an unreasonable restriction of the appellant's Voir dire examination. We are of the opinion that error, if any, would be apparent from the transcription of the Voir dire proceedings. In moving to the harmfulness of any alleged error, we deem it unnecessary to consider whether the trial court actually committed error in restricting the Voir dire examination.

There are two tests for harmless error in connection with Voir dire proceedings. The test for ascertaining the harmfulness of an error in denying a proper challenge for cause is to look to the exercise of a defendant's peremptory challenges. If there is no showing that he was forced to accept an objectionable juror because he had exhausted his peremptory challenges, an error in denying a challenge for cause is harmless. Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974). An error in the unreasonable restriction of a defendant's Voir dire examination of the prospective jurors is quite another matter. Such examination is for the purpose of enabling counsel intelligently to exercise his peremptory challenges and a requirement that he exercise all his peremptory challenges would ordinarily make no sense. Burkette v. State, 516 S.W.2d 147 (Tex.Cr.App.1974); Mathis v. State,167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959). The test for ascertaining harm in such cases is whether the trial judge's limitation of the Voir dire examination amounted to an abuse of discretion, thus depriving appellant of a valuable right. Burkette v. State, supra; Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816 (Tex.Cr.App.1957) (opinion on motion for rehearing); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974); Barrett v. State, 516 S.W.2d 181 (Tex.Cr.App.1974) (dissenting opinion). 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. Thus, counsel's inability intelligently to exercise his peremptory challenges stretched to the entire panel of veniremen. The case at bar presents a situation in which counsel's Voir dire examination was limited as to one prospectively juror only. 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.

Appellant's reliance on Morris v. State, 411 S.W.2d 730 (Tex.Cr.App.1967), Vines v. State, 479 S.W.2d 322 (Tex.Cr.App.1972), and Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973) is misplaced. Those cases related to the requirement of Art. 40.09, Sec. 4, Vernon's Ann.C.C.P. that Voir dire proceedings be recorded upon request. And they held that reversal would be required if error in the Voir dire proceedings was merely alleged, if a proper request that the proceedings be recorded had been denied. ¹ The rationale of Morris and its progeny required reversal where an appellant was prevented by the violation of a mandatory statute from showing the harm he had suffered during Voir dire. In the instant case, however, the harm, if any, is discernible from the face of the Voir dire statement of facts, regardless of the way in which the prospective juror would have answered the excluded questions. We are not compelled to reverse because of the mere allegation of harm, as the appellant is suggesting that Morris et al., would require us to do. ² We are capable of ascertaining the harmfulness of the trial court's rulings on the Voir dire questions propounded by appellant's counsel by referring to the record. And we concude that error, if any, was harmless.

Appellant's first ground of error is overruled.

In connection with appellant's remaining grounds of error, it becomes necessary to summarize the testimony surrounding the facts of the offense in question. William M. Higgins testified for the State that he was walking east on Main Street in Lubbock on February 9, 1973, the date of the offense. He stated that appellant passed him walking at a normal pace going in the opposite direction and that the deceased, Larry Jack Stevens, a plainclothes Lubbock police officer, also passed him walking slightly faster after the appellant. Higgins testified he heard someone say 'Turn me loose' or 'Go away' or words to that effect and he looked over his shoulder to see what was happening. He saw appellant knock the deceased to his knees and then take out a pistol and fire three quick shots at him. As Higgins ran for cover, he testified, more shots were fired and both men fell to the sidewalk wounded. Stevens was pronounced dead soon thereafter. When asked what had happened by an investigating officer, appellant replied, 'It's simple. I shot him and he shot me.' Two other witnesses testified that they heard one shot and then a volley of shots, but they stated that it appeared to them that appellant fired the first shot. No other witness was able to relate any conversation between appellant and the deceased.

Appellant's second and third grounds ascribe error to the trial court for his failure to charge the jury on the issues of murder without malice and self-defense. Appellant claims that these issues were raised by the evidence, entitling him to charges thereon.

Article 1257c of Vernon's Ann.Penal Code provided as follows:

'In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.'

The appellant did not testify. We are asked to find adequate cause for a sudden passion to arise in a man of ordinary temper on the basis of the other witness' testimony. There was some testimony suggesting that the deceased may have attempted to detain appellant and there is evidence that someone, presumably the appellant, said 'Turn me loose,' or words to that effect. Witness Higgins did not say that these words were shouted, screamed, or spoken with any degree of intensity of feeling. This is not evidence of such anger, rage, resentment, or terror as to render anyone incapable of cool reflection, whatever the cause. There is no suggestion that the deceased brandished a weapon or attacked appellant as in Monroe v. State, 501 S.W.2d 639 (Tex.Cr.App.1973) or Armentrout v....