Evans v. State, 60935

• Decision Date: 28 October 1981
• Docket Number: No. 60935,No. 3,60935,3
• Citation: 622 S.W.2d 866
• Parties: Michael Wayne EVANS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 866

622 S.W.2d 866

Michael Wayne EVANS, Appellant, v. The STATE of Texas, Appellee.

No. 60935.

Court of Criminal Appeals of Texas, Panel No. 3.

Oct. 28, 1981.

E. Brice Cunningham, Walter L. Irvin, Dallas, for appellant.

Henry M. Wade, Dist. Atty., W. T. Westmoreland, Jr., Gerald A. Banks and Gerry Holden Meier, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and DALLY, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. After finding appellant guilty, the jury assessed punishment at life.

Appellant was convicted of having killed David Potts in Dallas on June 15, 1977. During the offense, the victim sustained two gunshot wounds and a fractured skull.

In his third and fourth grounds of error, appellant contends the court erred in overruling two motions to quash the indictment. Those motions urge that the grand jury commissions and grand jurors had been selected through the systematic exclusion of blacks, Mexican-Americans and persons between the ages of eighteen and thirty.

No testimony in support of these motions was offered in the instant cause. Rather, appellant's counsel and the prosecutor stipulated that the testimony in support of such motions would be the same as that previously presented to the court in connection with similar motions in Cause No. F-77-6515-KP styled The State of Texas v. Michael Wayne Evans in the 203rd Judicial District Court of Dallas County. Appellant further offered a 290 page transcription of court reporter's notes from Cause No. F-77-6515-KP as an exhibit in support of his motions in the instant cause. That transcription does not appear in the instant record, rather, we are directed to the record on appeal in Cause No. F-77-6515-KP. In that unrelated cause, appellant was convicted of capital murder and the conviction was reversed by this Court due to improper petit jury selection. See Evans v. State, 614 S.W.2d 414. Finally, appellant offered no objection to the record on appeal in the instant cause.

The general rule is that this Court cannot go to the record of another case for the purpose of considering testimony not shown in the record of the case before it. Hale v. State, Tex.Cr.App., 509 S.W.2d 637; Parker v. State, Tex.Cr.App., 545 S.W.2d 151. This Court is bound by the record on appeal as presented to us. Stockton v. State, Tex.Cr.App., 487 S.W.2d 69. In Donahue v. State, 102 Tex.Cr.R. 151, 277 S.W. 657, the parties agreed, with the approval of the trial court, that testimony from one case would be considered as evidence in support of a motion to quash in a second case. The Court refused to consider the testimony from the other case and stated:

"... We regret that we cannot consider testimony taken in another case. The record before this court in each case must be complete before it will be considered. It has never been the practice in this court, and we will not now begin the practice of considering the testimony in one case in connection with the testimony in another subsequent case that may be filed in this court. To do so would lead to endless confusion and would be out of harmony with all the known rules of appellate practice ...." Id. at 658.

We decline appellant's invitation to consider testimony presented in another case in support of the grounds of error he now seeks to present. The record on appeal in the instant case, approved without objection, contains no evidence to support appellant's allegation of systematic exclusion. Nothing is presented for review.

In his ninth ground of error, appellant contends the court erred in overruling his "Motion To Restrict The District Attorney In The Use Of Peremptory Challenges To Systematically Exclude Negro Jurors From The Panel." The record reflects that the motion was overruled, however, the court instructed the prosecutor "that the State ... is not to systematically exclude black jurors. The State may consider overall qualification of jurors in exercising its peremptory challenges."

In Duncantell v. State, Tex.Cr.App., 563 S.W.2d 252, a contention similar to that now raised was presented and the Court stated:

"Appellant initially complains of systematic exclusion of blacks from the jury. The thrust of his argument is that the State used its peremptory challenges to strike qualified blacks from the jury panel. The same argument was confronted and rejected in Ridley v. State, 475 S.W.2d 769, 772 (Tex.Cr.App.1972), wherein we stated:

" 'We hold that no systematic exclusion has been shown. To hold otherwise would in effect be abolishing our peremptory challenge practice which has always been a part of our system to help an accused as well as the State obtain an impartial jury and a fair trial.'

"See also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)." Id. at 254.

The record in the instant cause contains no evidence as to the racial composition of the jury panel or as to the composition of the jury which was ultimately selected. The mere alleged use of peremptory challenges to strike qualified blacks is not a prohibited systematic exclusion of blacks in the selection of petit juries. See Chambers v. State, Tex.Cr.App., 568 S.W.2d 313. Appellant's ninth ground of error is overruled.

In his eighth ground of error, appellant maintains the court abused its discretion in refusing to sequester the jury. Appellant contends that such action was necessary because he had been tried and convicted in a previous trial which received daily publicity.

In the instant case, the jury was selected on July 17, 1978. Appellant presented evidence which showed that during November of 1977, numerous newspaper articles were published concerning his trial for an unrelated capital murder. On the basis of such publicity from the previous trial, appellant urges that the jury in the instant cause should have been sequestered.

Whether to grant a motion that the trial jury be sequestered is a matter within the sound discretion of the trial court. Art. 35.23, V.A.C.C.P.; Freeman v. State, Tex.Cr.App., 556 S.W.2d 287. In Brantley v. State, Tex.Cr.App., 522 S.W.2d 519, no abuse of discretion was found in the court's refusal to sequester the jury. There, the court admonished the jury not to speak with anyone concerning the trial or read or listen to any news media about the case. Further, the defendant in Brantley, failed to show that the jury had violated the court's admonishments. In Creel v. State, Tex.Cr.App., 493 S.W.2d 814, it was held that in the absence of a showing of harm, there is no abuse of discretion in the court's refusal to sequester the jury.

In the instant case, appellant has not alleged or proven how he was harmed by the court's refusal to sequester the jury. The court admonished the jurors not to discuss the case with anyone. The jurors were further instructed not to read, listen to or watch anything about the case outside the courtroom. There is no showing that the jurors violated the court's instructions. The publicity with which appellant was apparently concerned appeared in the newspaper some nine months before the trial of the instant cause. We find no abuse of discretion in the court's refusal to sequester the jury. Appellant's eighth ground of error is overruled.

In his sixth ground of error, appellant maintains the court erred in admitting his written statement into evidence. He contends the statement was inadmissible because he was physically and verbally abused, not given his warnings and promised a five year sentence if he would sign the statement.

Appellant filed a motion to suppress his confession and the court held a hearing thereon in compliance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Art. 38.22, V.A.C.C.P. At that hearing, Officer John Landers of the Dallas Police Department, testified that he arrested appellant for the instant offense on July 11, 1977. At the time of his arrest, appellant was given his "blue card" warnings by Landers. On July 14, 1977, appellant signed a statement concerning the instant offense. Landers stated that he gave appellant his warnings before taking the statement and before the statement was signed. The entire statement was read aloud by Landers to the appellant before it was signed. Landers related that appellant indicated that he understood his rights and wanted to discuss the offense with the authorities.

Appellant testified that he was never given his warnings. He stated that Landers "made up" the contents of the statement and that he signed it without having an opportunity to read it or have it read to him. Appellant testified that on the day of his arrest, he was physically and verbally abused by Officer Marshall Touchton of the Dallas Police Department. He further testified that Landers had threatened to "put Touchton back on him" if he did not sign the statement. He stated that Officer M. P. Southall, of the Dallas Police Department, had likewise threatened to call in Touchton if appellant refused to tell the truth. Finally, appellant stated that Landers said that appellant would receive a five year sentence if he signed the statement.

Touchton testified that he participated in the interrogation of appellant. He stated that at no time did he physically or verbally abuse appellant. Southall testified that he did not threaten appellant "with Touchton" if he refused to sign the statement or tell the truth. Landers denied that he had threatened to call in Touchton if appellant refused to sign the statement. Landers further testified that appellant had not been promised anything, including a five year sentence, in return for signing the statement.

The judge at the Jackson v. Denno hearing is the sole judge of the weight of the evidence and credibility of the witnesses. He may believe or disbelieve all or any part of any witness' testimony. Hughes v. State, Tex.Cr.App., 562 S.W.2d 857. The evidence in the instant...