Gholson v. State

Decision Date20 October 1976
Docket NumberNos. 51920 and 51921,s. 51920 and 51921
Citation542 S.W.2d 395
PartiesSelwynn Barry GHOLSON, Appellant, v. The STATE of Texas, Appellee. Larry Joe ROSS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for capital murder. Appellants were tried in a joint trial following a change of venue from Bell County. Each appellant's punishment was set at death.

On September 14, 1974, appellants Selwynn Barry Gholson and Larry Joe Ross entered the Walburg State Bank in Walburg. They ordered the bank's vice-president, an employee, and a customer to lie down on the floor at gunpoint. About $3,000 was then taken. Before they left the bank, one of the two men shot each of the three victims in the head. All three survived and testified against the appellants at trial.

The bank's vice-president was able to call the Williamson County Sheriff's office and give a rough description of the holdup men. Walter Ferguson told the Sheriff's Department that he had seen the two men leave in a blue General Motors automobile. These descriptions were put out by radio to all Central Texas law enforcement units.

At approximately the same time as the robbery, off-duty Highway Patrolman Hollie Tull left his residence in a radioequipped marked black and white highway patrol car. The Temple police dispatcher put out the description of the holdup men and received a radio transmission from Tull, which resulted in the dispatcher checking on license number BRT209. The dispatcher conversed with Tull four times and lost contact. Tull was subsequently found by his car shot to death, with six pistol wounds and a shotgun wound to the head.

The abandoned getaway car with license number BRT209, a blue Chevrolet, was found not far away. It was registered to appellant Ross' father. A number of items linking appellants to the getaway car and to the scene of the murder were found. Two witnesses observed a fight between Tull and two black men, and the subsequent shooting at Tull's car.

Appellant Gholson was captured in a field near Temple. Appellant Ross was arrested at his father's home in Granger a week later. The murder of Tull is the gravamen of this prosecution.

Appellants urge that Art. 37.071, V.A.C.C.P. is unconstitutional (1) 'in that imposition of the death penalty is a cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution,' (2) 'in that its special issue procedure allows arbitrary and capricious imposition of the death penalty in violation of the due process clause of the Fourteenth Amendment to the United States Constitution,' and (3) that Art. 37.071, supra, is 'unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment. . . .'

Appellants' contention relative to the statute being violative of the Eighth Amendment was answered adversely to them in Jurek v. Texas, --- U.S. ---, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See also Gregg v. Georgia, --- U.S. ---, 96 S.Ct. 2909, 49 L.Ed.2d 859.

Appellants' claim that the special issue procedure set forth in Art. 37.071, supra, allows arbitrary and capricious imposition of the death penalty was likewise rejected by the United States Supreme Court in Jurek v. Texas, supra. See also Jurek v. State, Tex.Cr.App., 522 S.W.2d 934.

The contention of vagueness is directed to the second question asked the jury in accordance with Art. 37.071(b)(2), supra, 'whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.' This argument was rejected by this Court in Jurek v. State, supra, and ultimately by the United States Supreme Court in Jurek v. Texas, supra. See also Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976).

Appellants contend that the trial court erred in admitting a notebook containing highly inflammatory writings over appellants' objections for the reason it was not shown to have been made by appellants and for the further reason that the prejudicial nature of the notebook far outweighed its probative value.

Fingerprints of both appellants, along with unidentified prints, were found on the book. Inside the front cover appears 'AUG. 74 BRO. J. ROSS.'

The notebook was recovered from the abandoned blue Chevrolet bearing license number BRT209, determined to have been registered to appellant Ross' father.

Nine sheets in the notebook contain handprinted statements. A few of the recitations are, 'the streets run red with whitey's blood,' 'shoot whitey in the head until he is dead,' and 'this is how I fell (sic) about the dog ass white honky fag ass punk type low life bastard devil swine shit ass white trash no good mother fucking white people. Kill white babys (sic) too all must die.' The latter statement was at the bottom of the first page beside '(The Black Assassins),' '(By Brother Orun Rashann Allah).' On still another page there appears:

'Thirteen stars on the origanal flag

'Thirteen devils from the demon's bag

'Thirteen berries and thirteen leaves

'Thirten colonyies of land grabing theives

'And thers thirteen airrows in the eagels claw 67 corporations that wage the devil's war

'Who's Doing It For Us

'My People The Time Is Now!

'Ourun Rashann Allah'

Recitations relative to the 'white devil' and the supremacy of the black man appear on other pages.

At the guilt stage of the trial, the notebook was admitted only for the purpose of showing that a book was found in the car in question bearing both appellants' fingerprints. The court ordered that it not be shown to the jury. At the punishment stage of the trial the contents were admitted into evidence over appellants' objections.

Pursuant to Art. 37.071(b)(1), (2), supra, the court submitted questions to the jury inquiring if they found from the evidence beyond a reasonable doubt (1) that the conduct of the appellants which caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; and (2) that there is a probability that the appellants would commit criminal acts of violence that would constitute a continuing threat to society.

Article 37.071(a), supra, provides in pertinent part that, 'In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas.' See Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976).

In Jurek v. Texas, supra, the United States Supreme Court in discussing the questions asked the jury at the punishment stage of the trial under 37.071(a), supra, stated:

'What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.'

We find appellants' reliance on Arnott v. State, Tex.Cr.App., 498 S.W.2d 166, to be misplaced. In Arnott, this Court held that a notebook containing what appeared to be records of narcotic transactions was improperly admitted at the guilt stage of the trial where the defendant was being tried for possession of heroin. This Court reasoned that the only inference to be drawn from the admission of the notebook was that appellant was dealing in narcotics and, finding no link between the notebook and the defendant, this Court concluded that the admission of same constituted reversible error. While a number of distinctions are readily discernible in the instant case and Arnott, we first observe that the notebook in the instant case was tied to appellants by their fingerprints.

The notebook in the instant case does not purport to be a personal communication by or to either of appellants. If the statements can be attributed to any person, it would appear that it would be 'Ourun Rashann Allah.'

An extra-judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated therein, without violating the hearsay rule. Arnott v. State, supra; Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; McCormick & Ray, Texas Law of Evidence, Sec. 781.

The complained-of exhibit recited intense statements of hatred toward the white race and advocated acts of violence toward the white man. The evidence reflected that the notebook had been in possession of appellants. Clearly, the evidence was not offered for the truth of the statements recited in the book. Art. 37.071, supra, provides, '. . . evidence may be presented as to any matter that the court deems relevant . . .' not secured 'in violation of the Constitution of the United States or of the State of Texas.' In Livingston v. State, supra, it was noted that 'such provision gives the court wide discretion in the evidence that may be offered.' We conclude that the court was not in error in deeming the exhibit to be relevant since we find that it was pertinent to the second question asked under Art. 37.071, supra, '(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.'

Appellants contend that the court 'erred in overruling appellants' motion for mistrial following the State's argument stating 'God bless those officers who died in the line of duty like him, and their families."

The record reflects that the following occurred during the prosecutor's argument:

'God bless Hollie Tull and his family. God bless those officers who died in the line of duty like him and their families.

MR. KREIMEYER (defense counsel): Your Honor, we are going to...

To continue reading

Request your trial
83 cases
  • May v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 20, 1981
    ...v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.d.2d 250 (1977); Gholson and Ross v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), cert. denied, 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977). In Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979),......
  • Castillo v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 30, 1987
    ...is based on a discussion of matters other than the instant offense. Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976). Appellant relies upon Wagner v. State, 687 S.W.2d 303 (Tex.Cr.App.1984) (Opinion on Rehearing). There the police officer......
  • Powell v. State, 67630
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 8, 1987
    ...of the defendant's future dangerousness. To the same effect are Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), cert. den., 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Shippy v. ......
  • Reeves v. State, 10-96-196-CR
    • United States
    • Court of Appeals of Texas
    • May 6, 1998
    ...Crane v. State, 786 S.W.2d 338, 351 (Tex.Crim.App.1990); Porter v. State, 623 S.W.2d 374, 385 (Tex.Crim.App.1981). In Gholson v. State, the Court stated that "[a]n extra-judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not fo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT