Freeman v. State

• Decision Date: 18 May 1977
• Docket Number: No. 51505,51505
• Citation: 556 S.W.2d 287
• Parties: Leonard Wilson FREEMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 287

556 S.W.2d 287

Leonard Wilson FREEMAN, Appellant, v. The STATE of Texas, Appellee.

No. 51505.

Court of Criminal Appeals of Texas.

May 18, 1977.

Rehearing Denied June 14, 1977.

Olin B. Strauss, Pleasanton, R. Thomas Franklin, Jourdanton, for appellant.

J. Taylor Brite, Dist. Atty., Robert C. Koehl, County Atty., Jourdanton, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Leonard Wilson Freeman appeals from a conviction for capital murder in which the punishment was assessed at death. The indictment in the case charged:

". . . that on or about the 19th day of July, 1973, and before the presentment of this indictment, in the County of Atascosa and State of Texas, LEONARD WILSON FREEMAN (hereinafter called Defendant) did then and there unlawfully, wilfully, and with malice aforethought, voluntarily kill LUIS GARZA, a peace officer, to-wit, a Deputy Sheriff of Atascosa County, State of Texas (who was then and there acting in the lawful discharge of an official duty and who the defendant knew was a peace officer) by shooting him with a gun."

The record reflects the following evidence concerning this offense:

On July 19, 1973, appellant was driving from San Antonio toward Cotulla in a 1973 Vega coupe, with the intention of joining confederates in a robbery at a bank in Cotulla. He stopped at Charlotte, in Atascosa County, where he purchased some implements to be used in the robbery. In leaving Charlotte he got on the wrong road, and after becoming aware of his mistake turned back on the highway toward Charlotte intending to proceed to Cotulla. He was stopped near Charlotte for speeding by Deputy Sheriff Luis Garza, who was driving a fully marked Atascosa County patrol car, a 1973 Dodge. Elida Garza, wife of Luis Garza, was also in the Dodge. Witnesses observed Luis Garza writing a ticket, and next saw appellant with a pistol pointed toward the Garzas. Next, witnesses saw Luis Garza and appellant get in the officer's car and Elida Garza get in the Vega coupe. Both cars then left. Another witness later observed the cars turn off the highway onto a dirt road which led to an empty farm house in a secluded area. Atascosa County officers were notified. Shortly thereafter the bodies of Luis and Elida Garza were found in the farm house. Elida Garza was dead from a bullet wound in the back of her head. Handcuffs were attached to one of her wrists. Officer Luis Garza had three wounds in his head, but was still alive. He was taken to a hospital in San Antonio, where he died a few hours later. The evidence establishes that the death of both of the Garzas was caused by bullets fired from a .38 caliber pistol which appellant had in his Vega coupe when stopped by the deputy sheriff. Both the Dodge and Vega were found behind a barn at the scene of the shooting, with fingerprints of appellant being found on the door handle of the Dodge. The officer's pistol, shotgun, and a 30-30 caliber rifle, known to have been carried in his car, were missing. The evidence, including the written confession of appellant, establishes that appellant fired the shots causing the death of Luis Garza and his wife.

After shooting the Garzas, the evidence reflects that appellant cut across a field to the farm house of Melvin Jones. He burglarized the house (nobody was at home at the time) and stole a .410 gauge shotgun, a .303 rifle and some shells. He changed clothes there, leaving Officer Garza's hat. By "hot-wiring" the starter, he stole a 1969 Ford Ranchero and drove into Charlotte where he bought some gasoline. He next stopped at the Otto Mann home several miles form Charlotte where, using Officer Garza's pistol, he forced his way into the house, tied up those present, stated he had just killed a deputy sheriff and "they" had better do what he says, took a billfold from James Mann, dropped a piece of paper on which was a sketch of the Cotulla bank, left the Ford Ranchero and stole a 1972 Mercury car, and left on the highway to Pearsall. He was subsequently arrested while in the Mercury in Medina County by Texas Department of Public Safety officers.

A full Miranda -type ¹ warning of his rights was give him by one of the arresting officers. Later he was taken before a magistrate in Devine, who explained to him his rights as provided in Article 15.17, V.A.C.C.P. He was again advised fully and at length of his Miranda and statutory rights by District Attorney J. Taylor Brite. Thereupon, after acknowledging orally and in writing that he understood his rights of counsel and silence, he made and executed a lengthy written confession of the offenses hereinabove referred to, including the shooting of Officer Luis Garza and his wife Elida Garza.

A few days later appellant along with other prisoners escaped from the Medina County jail, where he was being confined for safe-keeping. In San Antonio, by exhibiting a gun, he attempted to force Eldorado Dibbel to take him out on a highway, telling Dibbel he had already killed a deputy and his wife and didn't want to have to kill him. However, in a struggle Dibbel overcame appellant and took the gun from him. Appellant was rearrested and has been confined since that time.

Appellant did not testify, and offered no evidence. In arguing to the jury, defense counsel admitted his guilt of murder, arguing only that he should not be convicted of capital murder or assessed the death penalty.

At the punishment stage, the evidence reflected a number of prior convictions for felony offenses.

In grounds of error 7-15 inclusive appellant contends the court erred in failing to sustain defense challenges to certain named prospective jurors "after they had admitted a bias or prejudice against the appellant." Appellant's complaints are addressed to the voir dire of panel members Ogden, Cooper, Mangum, Burke, Cruz, Valdez, Hooge, Ruple and Oakley. Some of these were excused on appellant's peremptory challenges after his challenges for cause had been overruled. Others, to-wit, Mangum, Hooge, Ruple and Oakley, served as trial jurors since prior to their selection appellant had exhausted all of his peremptory challenges and his challenges for cause were overruled.

Each of the panel members named above stated on voir dire that he or she had heard of the offense at the time it occurred, either by reading of it in the newspapers or by hearing over radio and viewing television broadcasts, or by two or all of such means. Some, because of what they read, heard or discussed, originally formed opinions of guilt and prejudice unfavorable to appellant. However, when examined as to any present prejudice and opinion, each of the persons complained of stated definitely that he or she had no present prejudice against appellant or an opinion which would influence a verdict, and if selected on the jury would disregard any opinion and feeling formed earlier, and would decide the case entirely upon the evidence heard in the courtroom. Any present prejudice existing in the minds of the jurors was against the commission of the crime charged, and not personally against appellant. A juror is not disqualified because he is merely prejudiced against the commission of a crime. Chamberlain v. State, Tex.Cr.App., 453 S.W.2d 490; Wilson v. State, Tex.Cr.App., 436 S.W.2d 542.

Art. 35.16(a)(8), V.A.C.C.P., provides:

"(a) to challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made either by the state or the defendant for any one of the following reasons:

"(8) That he has a bias or prejudice in favor of or against the defendant."

The above statute does not provide that one who had at a time prior to trial entertained a prejudice against the defendant was subject to a challenge for cause. It uses the present tense, as of the time the prospective juror is being examined. None of the persons named by appellant testified that he or she "has a bias or prejudice in favor of or against the defendant." In view of the answers of each of the above named prospective jurors on voir dire that he or she did not have a prejudice against appellant, and that he or she would enter the jury with an open mind and try the case strictly on the evidence, no abuse of the court's discretion is shown in overruling appellant's challenges for cause. We quote as follows from Adami v. State, Tex.Cr.App., 524 S.W.2d 693, at p. 700:

"(11) Juror Woodal, on voir dire, stated he had formed an opinion from what he had heard and read concerning appellant's guilt or innocence, and at first equivocated some as to whether it would influence his verdict. However, he stated definitely upon examination by the court that he would not, as a juror, be influenced by anything he had heard or read about the case, and in answer to a question by defense counsel, answered as follows:

" 'Q I gather then that you feel that even though you have had previous exposure that you can overcome that and try to render a fair and impartial verdict, based on what you hear here in the courtroom, and not what you heard previously?

" 'A I think I can, I know I can.

" 'Q You know you can?

" 'A Yes.'

"The testimony of Woodal on voir dire, when taken as a whole, does not reflect that he was disqualified from serving on the jury. Scott v. State, Tex.Cr.App., 490 S.W.2d 578."

In Stephenson v. State, 494 S.W.2d 900, this Court stated:

"An objectionable juror, in the sense in which the term is used in this connection, 'means one against whom such cause for challenge exists as would likely affect his competency or his impartiality in the trial.' Hudson v. State, 28 Tex.App. 323, 13 S.W. 388, 389. Without some such showing, it is idle simply to say that a juror is objectionable."

And in Hafti v. State, 487 S.W.2d 745, this Court, in a statement applicable to appellant's contentions, said:

"It is apparent that, when...