Goad v. State, 43433

• Decision Date: 17 February 1971
• Docket Number: No. 43433,43433
• Parties: Curtis Sherman GOAD, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 129

464 S.W.2d 129

Curtis Sherman GOAD, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 43433.

Court of Criminal Appeals of Texas.

Feb. 17, 1971.

Rehearing Denied March 24, 1971.

Charles Scarbrough, Abilene, for appellant.

Ed Paynter, Dist. Atty., Abilene, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder where the punishment was assessed at 65 years.

The sufficiency of the evidence is not challenged. Suffice it to say the record reflects that the deceased, Byron Richardson, was City Marshal of Cross Plains, Texas, and that during the early morning hours of July 2, 1969, he encountered the appellant and his wife. The deceased pulled up behind appellant's pickup truck and issued to the appellant, who had been drinking heavily, a warning ticket for failure to have a valid Texas driver's license.

At this point the appellant claimed the deceased offered to be lenient if the appellant would 'fix him up' with his wife and that when the deceased placed his hand on appellant's wife the appellant got a .22 caliber rifle out of the truck and shot the deceased. The deceased got some shots off and hit the appellant in the hand and followed the appellant, who left hurriedly in his truck, for approximately three blocks until he (the deceased) lost control of his vehicle and ran up in the yard of a house.

The appellant threw the .22 caliber rifle into a field and drove to a friend's house where he stated he shot himself accidentally while rabbit hunting. He was later arrested in Cisco where he explained he had cut his hand.

The deceased remained in a hospital in Abilene for approximately a month until he succumbed as a result of the gunshot wounds he suffered at the hands of the appellant.

Appellant's initial ground of error reads:

'The appellant was denied a trial by a fair and impartial jury as the State used the statute providing for challenges for cause for concientious objections to the death penalty when the State was not seriously seeking the death sentence.'

Sometime prior to trial the District Attorney filed a written notice as required by Article 1.14, Vernon's Ann.C.C.P., that the State was seeking the death penalty. During the voir dire examination of the jury panel he exercised 21 challenges for cause under the provisions of Article 35.16(b)(1), V.A.C.C.P. Appellant contends the prosecution was thus accorded 21 additional challenges for cause which would not have been available to the State if the written notice had not been filed, and the District Attorney was not serious about securing the death penalty. He bottoms this claim upon the fact that the District Attorney accepted as jurors several individuals who indicated they could not assess the extreme punishment or who were not qualified at all on the death penalty, and thereafter continued to exercise challenges for cause based on Article 35.16(b)(1) supra, when the State could not have had a reasonable expectation of securing the maximum punishment for murder.

The appellant points out that since the advent of the 1965 Code of Criminal Procedure Only the State has the right to challenge for cause a person who has conscientious scruples against the infliction of death as a punishment for crime. Cf. Taylor v. State, 131 Tex.Cr.R. 350, 99 S.W.2d 609. He claims this gave the State an unfair advantage in the selection of the jury.

Appellant does not rely upon the systematic exclusion of certain jurors because 'they did not believe in the death penalty' in view of the holding in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, that Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, has no application where the death penalty is not assessed. He appears to claim that the jury selection methods utilized resulted in a prosecution prone jury on the issue of guilt. No evidence to support the claim that a jury selected in this manner is necessarily prosecution prone was offered. Therefore, on the basis of what this court said in Parks v. State, 437 S.W.2d 554, we cannot agree. See also Woodard v. State, Tex.Cr.App., 463 S.W.2d 197 (this day decided). And we do not agree that evidence of bad faith is indicated solely because the District Attorney accepted as jurors individuals who opposed the death penalty after filing a written notice to seek the death penalty.

Ground of error #1 is overruled.

Next, appellant contends he was denied a fair and impartial jury since the jury panel was selected by jury commissioners and did not represent 'a fair and impartial cross section of the citizens' of the county of prosecution.

No motion to quash the jury panel was filed and there is nothing to indicate any irregularities in the selection of the jury panel or that panel did not represent a fair and impartial cross section of the citizens of the county. This court can take judicial notice that Callahan County is a 'jury commissioner' county (see Williams v. State, Tex.Cr.App., 214 S.W.2d 622) and that the selection of jury panels in the district court of such county is governed by Article 33.09, V.A.C.C.P., and Articles 2104--2107, Vernon's Ann.Civ.St.

The authorities cited by appellant do not hold that failure to select a jury panel from a jury wheel denies an accused his constitutional right to a fair and impartial trial.

We overrule his second ground of error. See Bradley v. State, Tex.Cr.App., 450 S.W.2d 847.

Testifying for the State, Doyle Burchfield, Mayor of Cross Plains, Texas, related that on the date of the alleged offense the deceased was the duly appointed and acting City Marshal of Cross Plains. On direct examination, without objection, he testified the deceased was a satisfactory officer. Subsequently, the witness was recalled by the appellant out of the jury's presence and asked if he knew the deceased's reputation was that of a 'girl chaser.' The witness was also asked if he knew of several incidents in which the deceased, while acting as City Marshal, had propositioned several women for sexual intercourse and had severely beaten some boys in an attempt to secure a confession. The witness denied knowing of any such reputation, incidents, or rumors and stated his opinion would still be that the deceased was a satisfactory officer. The appellant sought to present this testimony before the jury but the court refused to permit the same.

The appellant complains of such action of the court contending the State 'opened the door' by the question on direct examination and he should have been allowed the opportunity to attempt to impeach the witness Burchfield in the manner indicated. He relies upon Arthur v. State, 170 Tex.Cr.R. 161, 339 S.W.2d 538. There, over objection, the State was permitted to introduce evidence that the reputation of the deceased for being a peaceable and inoffensive person was good. In Arthur the court noted the well established rule that it is never competent for the State in the first instance to prove the person slain was peaceable and inoffensive unless the opposite has been offered by the defense or when the accused seeks to justify the homicide on the grounds of threats made by the deceased. See Article 1258, Vernon's Ann.P.C.

Such is not the case at bar. Assuming the attempted impeachment was not on a collateral matter, the assertion of a fact or the 'Did you know' type questions put to the witness were not permissible, and the court did not err in permitting the same to go before the jury.

Next, appellant complains of the admission into evidence of a statement by the deceased to a Justice of the Peace as res gestae.

Following the shooting...