Hammond v. State

• Decision Date: 31 October 1990
• Docket Number: No. 69831,69831
• Citation: 799 S.W.2d 741
• Parties: Karl HAMMOND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 741

799 S.W.2d 741

Karl HAMMOND, Appellant, v. The STATE of Texas, Appellee.

No. 69831.

Court of Criminal Appeals of Texas En Banc.

Oct. 31, 1990.

Rehearing Overruled Nov. 28, 1990.

David R. Weiner, court appointed on appeal only, San Antonio, for appellant.

Fred G. Rodriguez, Dist. Atty., Ron Mendoza, Daniel Thornberry, Asst. Dist. Attys., San Antonio, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appellant was indicted in two paragraphs for the offense of capital murder. Paragraph one alleged appellant intentionally committed the murder of Donna Lynn Vetter in the course of an aggravated sexual assault against her. V.T.C.A. Penal Code, § 19.03(a)(2). Paragraph two alleged appellant intentionally killed Vetter in the course of committing burglary. Id. Both paragraphs were submitted to the jury, which returned a general verdict of guilty. Article 37.07, § 1(a), V.A.C.C.P. The jury answered both special issues submitted to it in the affirmative, Article 37.071(b)(1) & (2), V.A.C.C.P., and punishment was assessed at death. Id, § (e). Appeal is automatic to this Court. Id., § (h).

Appellant brings six points of error. He does not assail sufficiency of the evidence in any respect. We therefore will not recite the facts of the offense except as necessary to explicate particular points of error. We will affirm.

In his first point of error appellant contends that the trial court erred in failing to grant the State's challenge for cause against venireman Verda Wilborn Tealer, whom appellant contends the record shows was absolutely disqualified from jury service under Articles 35.16(a)(2) and 35.19, V.A.C.C.P., on account of a former conviction for theft. ¹ At the conclusion of hearings held to determine whether the venireman had ever been convicted of theft, the trial court made a finding of fact that, inter alia, "[t]here was never a judgment entered adjudging her guilty of theft." The trial court concluded Tealer was qualified. In our view the record supports both the finding and conclusion of the trial court.

Voir dire of venireman Tealer occurred on the morning of March 12, 1987. After questioning was complete, both sides expressly indicated Tealer was an acceptable juror, and she was preliminarily sworn in as the twelfth juror in the cause. Tealer was dismissed and the parties proceeded to voir dire prospective alternates. After a noon recess, the prosecutor revealed that his office had just discovered venireman Tealer "has been convicted of shoplifting," and was therefore absolutely disqualified. Through an investigator for the District Attorney's Office, the State produced a record from the San Antonio Police Department showing arrest of one "Verda Mae Wilborn" for the offense of shoplifting on "11-24-62." The card bore the same date of birth as venireman Tealer's, and an address identical to a former address listed on Tealer's juror information card. In a column designated "disposition" appears the notation: "Pd $25.00 12-3-62". Defense counsel argued, and the trial court agreed, that this notation could have reflected no more than forfeiture of a bond in the event "Verda Mae Wilborn" had failed to appear in municipal court at the appointed time. The trial court asked the State to obtain any judicial records reflecting on the matter, and another recess was called so that venireman Tealer could be located.

Tealer testified in judge's chambers that she had indeed been charged with shoplifting when she was eighteen years old, that her grandfather had paid $25.00 to bail her out, and that she had never entered a plea in the cause. Defense counsel pointed out to the court that if a plea was entered on her behalf, See Articles 518 and 782, V.A.C.C.P. (1925), Tealer might be unaware of that fact. Another recess was taken to allow service of a subpoena to obtain records from the corporation court.

When the hearing continued in open court the next day, Sandra Bruce was called to the stand. The record indicates she was "Court Division Supervisor" for Municipal Courts in San Antonio. She produced a docket book for cases in Corporation Court of the City of San Antonio for 1962. On the basis of entries appearing in the docket book, Bruce had written a letter, notarized and dated March 13, 1987, the same day as the hearing, which stated: "On the 3 day of December, A.D., 1962, Verda Mae Wilborn, pled guilty [to theft under $5.00], and was fined $25.00. The fine was paid on December 3, 1962." Both the letter and the docket book were admitted into evidence for record purposes. Bruce conceded there was nothing on the face of the docket to indicate whether "Verda Mae Wilborn" had actually been present and entered a plea of guilty in her own behalf. Nevertheless, Bruce did testify that the docket entries demonstrate a plea of guilty was entered for her. It is not clear to us how the docket demonstrates that fact, and Bruce did not elaborate. What is clear from the docket is that $25.00 was in some fashion "PAID" on December 3, 1962, as stated in the letter.

On cross-examination of Bruce, defense counsel elicited the fact that the docket contained a judgment form that had been neither completed nor signed by the judge of the corporation court, but left totally blank. Upon perusal of the docket book, the trial court ascertained that no judgment form had been filled out for any of the cases reflected therein. Defense counsel argued to the court that without a judgment of conviction, the challenge for cause could not be sustained. The trial court agreed, at least, that the question "boils down to, can you have a conviction without a judgment in a corporation court case[?]". The trial court hypothesized that because there was not a single judgment form filled out in the docket book, actual judgment must have appeared in some other place in 1962. ² To test this hypothesis, the trial court sent for Judge Robert Lozano to testify. ³

Lozano acknowledged that the docket sheet was never signed in prosecutions in corporation court in 1962. Asked by the court where the judgment would appear, Judge Lozano answered: "... it would be on the jacket. There were those little manilla folders and then the judgment was down at the bottom of the jacket on the face." Alluding to what we take to be Texas Department of Public Safety v. Casselman, 417 S.W.2d 146 (Tex.1967), Lozano opined "that if it [apparently, the jacket] was stamped on its face and the fine was paid that it became a final--final judgment[.]" ⁴ We gather that any "jacket" associated with Tealer's case was at some point destroyed. See note 2, ante. At the conclusion of Judge Lozano's testimony, the trial court adjourned the hearing until the following Monday, without ruling on the State's challenge for cause.

Court reconvened on Monday, March 16, 1987, and the trial court inquired whether appellant persisted in his desire that Tealer remain as a juror in his case. Both counsel and appellant himself acknowledged that he did. The trial court then proceeded to announce its findings of fact and conclusions of law, viz: that, inter alia, "[t]here was never a judgment entered adjudging her guilty of theft"; that "[t]he certificate prepared by the Corporation Court clerk, Sandra Bruce, being admittedly inaccurate, is incorrect and, therefore, a nullity"; and that "[i]t is the ruling of the Court that the juror, Verda Wilborn Tealer, is qualified and the challenge for cause is overruled."

Counter to his steadfast position at trial, appellant now maintains Tealer should have been excused because she was absolutely disqualified, and no consent on his part could render her acceptable. Article 35.19, supra. Whether Tealer was absolutely disqualified, however, was a question of fact to be resolved by the trial court in the first instance. Article 35.21, V.A.C.C.P. Especially in view of the absence either of an admission from the venireman that she had been convicted of theft, or a judgment of conviction reflecting same, it was within the province of the trial court to find as an historical fact that the venireman had not been "convicted of theft" for purposes of Article 35.16(a)(2), supra. Given "evidence ... which might be called conflicting," a trial court has discretion to find, or for that matter refuse to find, facts such as would justify a challenge for cause. Clark v. State, 140 Tex.Cr.R. 25, 143 S.W.2d 378, at 382 (1940); see also Marras v. State, 741 S.W.2d 395, at 403 (Tex.Cr.App.1987); Anderson v. State, 633 S.W.2d 851 (Tex.Cr.App.1982). This must be so even though the purported basis of the challenge constitutes an absolute disqualification under Article 35.19, supra.

Appellant argues that in view of facts established, viz: that a plea of guilty was entered by someone on behalf of Tealer, and that on the same day, December 3, 1962, $25.00 was "PAID," "a presumption of regularity must prevail." In essence he thus argues that we must presume a judgment of conviction followed the entry of the plea, and that the $25.00 was in payment of a fine pursuant to that judgment, not the forfeiture of an earlier bond. For this proposition he cites Frame v. State, 615 S.W.2d 766, at 770 (Tex.Cr.App.1981) and Green v. State, 510 S.W.2d 919, at 921 (Tex.Cr.App.1974). Because nothing in the record rebuts this presumption that a judgment of conviction was entered, appellant maintains, Tealer should have been excused.

In Green v. State, supra, the defendant claimed the jury had been allowed to separate without his consent, in violation of Article 35.23, V.A.C.C.P. Finding no foundation in the record to support such a claim, this Court reiterated caselaw holding that "where the record is silent, there is a presumption that procedural rules were complied with." 510 S.W.2d at 921. We concluded that "[w]here procedural requirements do not affirmatively appear in the record to have been violated, a presumption of...