Franklin v. State

• Decision Date: 24 May 1978
• Docket Number: No. 57348,57348
• Citation: 606 S.W.2d 818
• Parties: Donald Gene FRANKLIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 818

606 S.W.2d 818

Donald Gene FRANKLIN, Appellant, v. The STATE of Texas, Appellee.

No. 57348.

Court of Criminal Appeals of Texas, En Banc.

May 24, 1978.

Opinion on Rehearing Oct. 24, 1979.

Rehearing Denied Nov. 21, 1979.

Douglas Tinker, Corpus Christi, Clarence Williams, Pat Priest, San Antonio, for appellant.

Ted Butler and Bill M. White, Dist. Attys., Charles T. Conaway, Gordon V. Armstrong, Bill Harris, Alan E. Battaglia and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder; punishment was assessed at death. Appellant was indicted in Bexar County, but a change of venue to Nueces County was ordered.

Appellant raises forty-five grounds of error. In our discussion, we shall group these grounds into the following categories: sufficiency of the evidence and closely related issues; denial of requested jury charges; admission and exclusion of evidence; refusal to quash the indictment; jury selection; and jury argument. ¹

I.

The indictment under which appellant was tried alleged that he intentionally and knowingly caused the death of Mary Margaret Moran by cutting and stabbing her with a knife in the course of committing or attempting to commit kidnapping, robbery, and rape. Each underlying offense was alleged in a separate count. Appellant contends that the trial court erred in refusing to require the State to elect a single count to submit to the jury and in submitting verdict forms which did not require the jury to specify the underlying felony on which their verdict of capital murder was based. Appellant also challenges the sufficiency of the evidence at both the guilt and punishment phases of his trial.

Shortly after midnight on July 26, 1975, the deceased, a nurse at Audie Murphy Veteran's Hospital in San Antonio, was apparently seized by an assailant as she backed

her car from its space in the outpatient parking lot, stabbed seven times, and taken to an overgrown field several miles from the hospital. She was found by searchers on the afternoon of July 30, still alive and completely nude. Her nurse's uniform and shoes, sweater, underwear, and a used Tampax were found a short distance from the spot where she was found, along with several items of her personal property. The deceased died on the morning following her discovery

Two witnesses saw the appellant in the parking lot at the time of the abduction. James Carter, an employee of the hospital, testified that, as he walked to his car shortly after midnight, he saw appellant wearing a muscle shirt and standing beside a green Buick with a strap or hose in his hand. Appellant asked Carter where he could find a gas station. Thinking that appellant was siphoning gas, Carter sought out Jerry Galvan, a hospital security officer who was patrolling the parking areas, and related to him what he had seen. Galvan drove his Cushman vehicle to the outpatient parking lot, where he was met by a green Buick driven by a man Galvan identified as appellant. Galvan also observed the deceased's automobile out of its parking space and empty. Galvan turned around and attempted to stop the Buick, whereupon the Buick accelerated and a chase ensued. The Buick drove through a barricade, up a ramp into a grassy field, jumped a curb, and sped away on a city street. Galvan was able to get another close look at the driver of the Buick during the chase, as well as the Buick's license plate number. Returning to the parking lot, Galvan found a trail of blood, subsequently determined to be human blood of the deceased's type, running from her car in the general direction of the spot where Carter had seen appellant and the green Buick.

Using the license plate number reported by Galvan, San Antonio police determined that the green Buick was registered in the name of appellant's stepfather. He, in turn, told the police that he had sold the car to appellant. Before dawn on the morning of the abduction, several police officers arrived at the house in which appellant lived. The green Buick was parked outside. Appellant was awakened and advised of his constitutional rights, after which he voluntarily signed a consent to search. During the search of the house, police found a pair of appellant's pants soaking in a pail of rose-colored water, a muscle shirt and a pair of shoes belonging to appellant, a gold dress belonging to appellant's wife, and two pieces of shag carpet similar to carpet later found in appellant's Buick. Human blood was found in the water and on the muscle shirt and shoes. The blood on the shoes was of the deceased's type. Appellant's pants tested positively for blood, and plant material in the cuffs matched samples taken from the place where the deceased was found. Fibers found on the muscle shirt and dress matched fibers contained in the deceased's sweater.

In a trash can beside appellant's back door, police found the partially burned remains of several of the deceased's personal effects. Among the items found were the deceased's purse, billfold, credit cars, driver's license, checkbook, and nurse's scissors. Blood was found on the billfold and scissors. Also found was a knife, which tests proved could have made the stab wounds in the deceased's body and the cuts found in the deceased's uniform.

During a search of appellant's green Buick, police found a small rope with human blood stains. Human blood of the deceased's type was found on the rear seat and the shag carpeting. The rear seat also had a semen stain, although no spermatozoa were found. Vacuum sweepings from the rear of the car contained hairs matching samples taken from the deceased. Soil from under the Buick's fenders was determined to be the same as that in the area where the deceased was found. The inside door handles had been removed from the rear doors of the Buick so that the doors could not be opened from the inside.

Appellant testified that he owned the Buick and the items removed from his house. He testified that he had loaned both

the Buick and his pants to a Eugene Tealer on the night in question and that Tealer had returned both items after 1:00 a. m. on July 26. He stated that Tealer had told him that he, Tealer, had thrown up on the pants and that it was Tealer who had placed the pants in the pail of water. Appellant could not explain the presence of blood on his clothing, or how the deceased's property came to be in his trash can. It was stipulated that appellant's blood was not the same type as that of the deceased

Where several ways an offense may be committed are set forth in a statute and embraced in the same definition, are punishable in the same manner, and are not repugnant to each other, they are not distinct offenses and may be charged in one indictment. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), affirmed, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). An indictment may contain as many counts charging the same transaction as the drafter deems necessary to meet variations in the proof. Jurek v. State, supra; Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972). In Jurek, we held that an indictment alleging more than one of the aggravating conditions set forth in Art. 1257(b)(2) of the former Penal Code was not duplicitous. V.T.C.A. Penal Code, Sec. 19.03(a)(2), under which appellant was convicted, contains substantially the same wording as former Penal Code Art. 1257(b)(2).

Where only one transaction is charged, and different counts are contained in the indictment to meet possible variations of proof, the State is not required to elect upon such counts. Nor may an election be compelled where different counts charging the same offense are drawn to prevent a variance and there is evidence to support each count. Floyd v. State, 164 Tex.Cr.R. 50, 296 S.W.2d 523 (1956); Smith v. State, 141 Tex.Cr.R. 387, 148 S.W.2d 844 (1941). In the instant case, there is sufficient evidence to support a conviction under each of the three counts.

The evidence establishes that the deceased was taken by the use of deadly force from the hospital parking lot to the field in which she was found. V.T.C.A. Penal Code, Sec. 20.01(1)(A) and (2)(B). The inside door handles had been removed from appellant's car, which the circumstantial evidence indicates was used to transport the deceased to the field. This is evidence of intent to prevent her liberation. Sec. 20.01(2), supra. The field in which she was secreted was sufficiently overgrown and isolated that it took over four days of intensive searching to find her. V.T.C.A. Penal Code, Sec. 20.01(2)(A). The evidence is sufficient to support a jury finding that appellant was guilty of the underlying offense of kidnapping. V.T.C.A. Penal Code, Sec. 20.03.

The offense of robbery includes any violence in the course of effectuating theft. Lightner v. State, 535 S.W.2d 176 (Tex.Cr.App.1976). In the instant case, the evidence establishes that after the deceased was stabbed several items of her personal property, including her purse, billfold, and credit cards, were taken from her. These items were found in appellant's trash can, where an effort had been made to destroy them. From this evidence, the jury could reasonably conclude that appellant obtained the property without the deceased's effective consent and with the intent to deprive her of the property. V.T.C.A. Penal Code, Sec. 31.03. That appellant may have abandoned the property subsequent to obtaining it is of no consequence. Banks v. State, 471 S.W.2d 811 (Tex.Cr.App.1971). The evidence is sufficient to support a jury finding that appellant was guilty of the underlying offense of robbery. V.T.C.A. Penal Code, Secs. 29.01 and 29.02.

A pelvic examination of the deceased prior to her death disclosed no evidence of rape, and vaginal smears taken during the autopsy were negative because the deceased had been having her...