Harris v. State

• Decision Date: 23 September 1970
• Docket Number: No. 42896,42896
• Citation: 457 S.W.2d 903
• Parties: Carl Bruce HARRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 903

457 S.W.2d 903

Carl Bruce HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. 42896.

Court of Criminal Appeals of Texas.

Sept. 23, 1970.

C. M. Gregg, G. P. Reddell, Texas City, for appellant.

Jules Damiani, Jr., Dist. Atty., Galveston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This appeal is from a conviction for murder where the jury assessed the death penalty.

The indictment charged the appellant with the murder of Elvie Susie Morwood 'by cutting her with a knife.' Some months prior to trial the State gave written notice that it would seek the death penalty. See Article 1.14, Vernon's Ann.C.C.P.

The State's evidence reflects that after some heavy drinking with a friend or friends the appellant returned to the home of the deceased, his foster mother, in Bacliff, Texas, in the early morning hours of January 15, 1967. At approximately 2:50 or 3 a.m. a fire marshal in Dickinson received a telephone call from a person who identified himself as Carl Bruce Harris, asked for help and stated that his mother was dead and that her throat had been cut. The fire marshal immediately relayed this message to the Galveston County Sheriff's office who dispatched units to the address that the caller had given. Ten minutes later the fire marshal received another call from the same individual giving the same address who urged him to 'hurry' as his mother's girlfriend was now dead, that 'she was killed.' This message was also relayed to the Sheriff's office.

Upon arriving at the Bacliff address at 3:15 a.m. officers found the appellant and in a nearby bedroom the bodies of two women who were identified as Elvie Susie Morwood and Martha Beene. Both women had their throats slit and a great deal of blood was splattered on the walls and standing in pools on the floor. The Sheriff observed two bloody maked footprints which closely approximated the size of appellant's feet. Appellant was arrested and Justice of the Peace Medford, who had been called to the scene as a coroner, gave the 'statutory warnings.' Such warnings were clearly in accordance with Article 15.17, V.A.C.C.P., 1965, in effect at the time and the decision of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The magistrate even offered to call a lawyer at that hour (4:45 a.m.) and appoint him prior to any questioning and warned the appellant that his interrogation by the officers was about to commence. The appellant indicated that he understood the warnings and made no request of the magistrate.

Appellant was taken to the county building in Texas City where Sheriff Kline arrived around 6:15 a.m. During his preliminary investigation the Sheriff had discovered a used band aid under the body of one of the victims. While at the county building the Sheriff had the appellant remove his shoes, revealing what appeared to be dried blood caked between appellant's toes. The Sheriff also observed a laceration on the ring finger of appellant's right hand.

Appellant was then taken to the Department of Public Safety in Houston where a chemist removed a sample of dried blood from the appellant's feet. During the return trip to Galveston County the officers initiated a conversation with the appellant which as a result thereof the officers proceeded to the Bacliff address and retrieved from the kitchen a rack containing two knives, and the appellant pointed out to the officers the knife with which he stated he killed the two women.

At 10:25 a.m. Deputy Sheriff Adams who had accompanied the appellant on the trip to Houston gave him the warnings required by Article 38.22, V.A.C.C.P., then in effect, and after the appellant stated he did not want a lawyer a written confession was taken, typed and prepared by 11:03 a.m. The appellant was not permitted to sign the same until a Justice of the Peace had been contacted, had gone to the jail and administered to the appellant warnings in accordance with Article 15.17, supra, and the Miranda decision. After reading the statement, the appellant signed the confession in the presence of witnesses and the same was notarized.

The confession revealed that he killed both women by cutting them with a knife. It related that he returned home and discovered the two women engaged in an unnatural sex act, had knocked them unconscious, obtained a knife from the kitchen and killed both his foster mother and Martha Beene; that he washed the knife and returned it to the kitchen rack and then called the fire station in Dickinson.

Appellant complains he was denied an examining trial. The record reflects the appellant was brought before Judge Medford for an examining trial on January 17, 1967, and though without counsel at the time, personally waived such examining trial after his rights had been explained to him. The record does not reflect any request subsequent to that time for an examining trial. The return of the indictment on March 2, 1967, terminated any right to an examining trial. Article 16.01, V.A.C.C.P.; Gooden v. State, Tex.Cr.App., 425 S.W.2d 645; Ash v. State, Tex.Cr.App., 420 S.W.2d 703; Murphy v. State, Tex.Cr.App., 424 S.W.2d 231; Bryant v. State, Tex.Cr.App., 423 S.W.2d 320; Trussell v. State, Tex.Cr.App., 414 S.W.2d 466; Ward v. State, Tex.Cr.App., 427 S.W.2d 876; Wallace v. State, Tex.Cr.App., 429 S.W.2d 145; Scallion v. State, Tex.Cr.App., 433 S.W.2d 438; Klechka v. State, Tex.Cr.App., 429 S.W.2d 900, cert. den. 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592; Wilhelm v. State, Tex.Cr.App., 426 S.W.2d 850; 21A Tex.Digest, Indictment and Information, Sec. 9, 10.1(1); Attorney General's Opinion C--718 (1966).

Though the preliminary hearing provided for in Article 16.01, V.A.C.C.P., may be a practical tool for discovery by the defendant, the primary justification for its existence is to protect the innocent defendant from incarceration on a totally baseless accusation. ¹ Therefore, before the accused may be held for grand jury action, our statutes require the prosecution to justify his incarceration by proving in an examining trial before a magistrate that there is probable cause to believe the accused committed the offense charged. Article 16.17, V.A.C.C.P. See also Barrett v. United States, 270 F.2d 772, 775 (8th Cir., 1959). If the grand jury returns a true bill prior to the time that an examining trial is held, the principal purpose and justification of such hearing has been satisfied. See Vincent v. United States, 337 F.2d 891 (8th Cir.), cert. den. 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281. Action by a grand jury in returning the indictment supersedes the complaint procedure and eliminates the necessity of an examining trial. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345; State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607.

At the outset we shall also consider appellant's contention that his constitutional rights were violated by the trial court's exclusion of jurors who had conscientious or religious scruples against the infliction of the death penalty. Reliance is had upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

There the Court said:

'Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.'

The case at bar was tried prior to the date of the Witherspoon opinion and without the benefit of that decision. Nevertheless, such decision is to be applied retroactively. See footnote 22 thereof. See also Pittman v. State, Tex.Cr.App., 434 S.W.2d 352; Ex parte Bryan, Tex.Cr.App., 434 S.W.2d 123.

There was no effort, however, as in Witherspoon, to sweep from the jury panel all 'conscientious objectors' in rapid succession without any effort to find out 'whether their scruples would invariably compel them to vote against capital punishment.' There was no systematic exclusion for improper cause. The jurors were examined separately and apart as required under Article 35.17, V.A.C.C.P., if requested. The appellant exercised seven of his 15 peremptory challenges and the State exercised 11 such challenges. Out of the 52 prospective jurors examined, appellant complains of the court's action in excusing seven, though others (7) were also excused because of their opposition to the death penalty. ² One (H. L. Baker) of the seven called to our attention by the appellant was in fact excused because of his disagreement with the law as to the burden of proof in a criminal case and not because of his views as to the extreme penalty. The remaining six were excused without request for further interrogation by the appellant and without objection or exception to the court's action with the judge on occasion inquiring if appellant's counsel had further questions before he ruled. Mrs. R. E. Brunson stated she not only had 'conscientious scruples' but 'could not vote for the death penalty.' O. W. Sadler stated he had 'conscientious scruples' against the death penalty, had 'studied that kind of situation quite a bit' and 'could not figure out a way that' he 'could go along.' Upon being reasked the 'conscientious scruples' question he answered, 'I have to say yes to that.' After the defense counsel stated, 'no objections,' he was excused. While being asked if she could render a verdict based on the law and evidence Mrs. Ella Curry voluntered that she was opposed to capital punishment and answered she had 'conscientious objections' and could not vote for a death penalty. Joe McBride stated he had 'conscientious scruples' and when asked if he could as a juror vote for death penalty said, 'I don't believe in the death penalty--No, sir.' Mr. Loraine Stevens, after some early difficulty in understanding the...