Evans v. State
| Decision Date | 25 May 1983 |
| Docket Number | No. 68914,68914 |
| Citation | 656 S.W.2d 65 |
| Parties | Michael Wayne EVANS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for capital murder. Punishment is death, the jury having returned affirmative answers to the questions submitted under Art. 37.071, V.A.C.C.P.
In his first two grounds of error appellant contends it was error to admit his oral confession and keys found as a result of the confession. He argues these two grounds together, raising four contentions. Three of his arguments are based on Article 38.22, V.A.C.C.P., regarding statutory requirements for the admission of confessions. Two of those contentions are based on provisions of Art. 38.22 that were not in force at the time of the confession and therefore do not apply. See Acts 1977, 65th Leg., ch. 348, sec. 3, effective Aug. 29, 1977. No trial objection was made on the third contention now raised under Art. 38.22, so nothing is presented for review. In his remaining argument under these grounds of error he asserts the officer to whom appellant gave the oral statement was not aware of the fact that appellant had previously been given Miranda warnings by two other officers. The record contradicts appellant's assertion of fact. No error is presented. Also, see Moon v. State, Tex.Cr.App., 607 S.W.2d 569, 572, and Maloy v. State, Tex.Cr.App., 582 S.W.2d 125, 129. The first two grounds of error are without merit.
The next five grounds of error are argued together by appellant and concern the composition of the grand jury and grand jury commissioners. In Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), the Supreme Court wrote:
"... in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs."
To show underrepresentation it is essential that the record demonstrate the composition of the county. See Espinoza v. State, Tex.Cr.App., 604 S.W.2d 908. Here no evidence on that point was presented. The grounds of error are without merit. Furthermore, in his argument under this ground of error appellant asserts none of the members of the grand jury that indicted him were of his race, but the record reflects that two of the twelve grand jurors were.
Appellant argues grounds of error eight through fifteen together. These grounds all concern exclusion of evidence of prior convictions of the witness Earl Stanley Smith. Appellant and Smith together committed the double murder-robbery that resulted in this prosecution. Smith was called as a witness by the defense. On appeal appellant argues that the State cross-examined the witness on matters foreign to the direct examination, and this authorized him to impeach Smith by showing his prior convictions. He relies on Article 38.28, V.A.C.C.P., which provides:
"A party may, when testimony of his own witness is injurious to his cause, attack the testimony in any other manner except by offering evidence of the witness' bad character."
In his argument appellant overlooks the restriction on impeachment under this article that prohibits showing bad character. Proof of prior convictions is a form of impeachment by showing bad character. See Ray, Law of Evidence, sections 644 et seq, especially section 648. This argument by appellant is without merit.
He also contends proof of Smith's prior convictions should have been admitted at the punishment stage as a mitigating circumstance under Art. 37.071, V.A.C.C.P. We do not see how the conviction and punishment of a co-defendant could mitigate appellant's culpability in the crime. Each defendant should be judged by his own conduct and participation and by his own circumstances. If evidence of a co-defendant's convictions and punishment were admissible, why not the convictions in all other capital murders and the punishment in those cases? We do not believe this is what the right to present mitigating circumstances to the jury was meant to include. The law contemplates evidence personal to the...
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