Evans v. State

• Decision Date: 24 July 1968
• Docket Number: No. 41226,41226
• Citation: 430 S.W.2d 502
• Parties: Clarence Wesley EVANS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 502

430 S.W.2d 502

Clarence Wesley EVANS, Appellant, v. The STATE of Texas, Appellee.

No. 41226.

Court of Criminal Appeals of Texas.

July 24, 1968.

Toby Goldsmith, Tim C. Curry, Fort Worth, for appellant.

Frank Coffey, Dist. Atty., Roland H. Hill, Jr., Grady Hight and R. W. Crampton, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The offense is rape; the punishment, death.

The prior opinions are withdrawn.

The disposition of this cause makes it necessary to consider only the appellant's contention that the trial court erred in refusing a court reporter when requested, to take the voir dire examination of the jury panel.

Art. 40.09(4) C.C.P., provides in part:

'At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, * * *.'

The determination of whether the requirements were complied with during the selection of a trial jury must be reviewed and appraised in accordance with the appellate record and the applicable statutes.

It was stipulated at the hearing on the second amended motion for new trial that 44 of 98 prospective jurors were challenged for cause by the state and excused by the court by virtue of their conscientious scruples against the infliction of the death penalty as punishment for crime in a proper case.

In support of the allegations in his second amended motion for a new trial that his requests for a court reporter to take the voir dire of the veniremen was denied, defense counsel, Toby Goldsmith, testified in part as follows:

'A The first juror--according to my notes--and I remember of her as being a lady, but my notes show that she was Mrs. Ruby Johnson . . . Mrs. Johnson disqualified, according to The Court's ruling, on the death penalty. In other words, she was challenged for cause by The State, and excused by The Court. Immediately after the State challenged Mrs. Ruby Johnson for cause, I requested of The Court, that he allow me to ask certain questions pertaining to her qualifications. The Court refused this request. I then asked for a Court Reporter to take down the rulings of The Court. I was instructed by The Court that I was not entitled to a Court Reporter; that if I disagreed with the rulings of The Court, to get me some by-standers' Bills . . . Mrs. Ruby Johnson was then excused on the challenge for cause by The Court, and there was no Court Reporter reporting notes or recordings of the testimony of Mrs. Ruby Johnson, as pertaining to her qualifications, on voir dire.'

The witness, Goldsmith, further testified that the court reporter took the voir dire of the first or second jurors, and maybe another, but recalls that the reporter was not in the courtroom after that; that he was allowed to examine some of the jurors challenged by the state but his requests to examine others were refused; and that after his examination of one or two jurors his further requests for a court reporter were denied, and that his requests were never withdrawn, but were renewed.

Tim Curry, also of counsel for the appellant, testified in part as follows:

'A * * * Some time, directly after the beginning of the examination, Mr. Goldsmith requested a Court Reporter, to take down the voir dire examination. At that time, The Court denied his request; and, after some discussion, The Court told him, or told all of us, that we could use By-Standers' Bills, to perfect the record; and that we were not entitled to a Court Reporter, on the voir dire examination. As to one of the jurors, the Court Reporter did come in and take his examination down. And after that juror--which was apparently the second juror--and for reasons which I don't know, the Court Reporter was not there at any other time . . . I never agreed to waive the Court Reporter. I never agreed that the Court Reporter could, at any time, leave the court room, during the voir dire examination. And to my knowledge, I never heard any one connected with the defense of this case, waive, or agree, that the Court Reporter should not be present.

'I remember, during the course of the voir dire examination, Mr. Goldsmith made several requests for a Court Reporter, in order to take the voir dire examination. At one time, he made the request for a Court Reporter, in order to get into the record that the Court was denying him a Court Reporter.

'And in answer to each of the requests, to my knowledge, we were always denied a Court Reporter by the Cpurt. That's the substance of my recollection.'

Gary Cole, another counsel for the appellant, testified to substantially the same facts as the witnesses, Goldsmith and Curry.

Grady Hight, the assistant district attorney, who tried this case, testified in part as follows:

'In the first particular juror here, Mrs. Ruby Johnson; she was a colored lady; these questions were asked. She disqualified; that is, she answered that she did have conscientious scruples and could not vote for the death penalty, no matter how serious the offense.

'In the case of Mrs. Johnson, The Court picked up her jury card from the stack in front of him, turned to her, and the words that he said were: 'Mrs. Johnson, you are excused. Return to the Central Jury Room. Do not discuss what has happened here in this court room with any one.' That may not be word for word, but that is essentially what he told her.

'It was not until that time that the Defendant through his Counsel, made the request for further voir dire examination. The Court instructed the Counsel that he had already sustained the challenge to...