Huffman v. State

• Decision Date: 25 February 1970
• Docket Number: No. 42596,42596
• Citation: 450 S.W.2d 858
• Parties: Arlice James HUFFMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 858

450 S.W.2d 858

Arlice James HUFFMAN, Appellant, v. The STATE of Texas, Appellee.

No. 42596.

Court of Criminal Appeals of Texas.

Feb. 25, 1970.

David Ball, Jr., Houston (Court Appointed) for appellant.

Carol S. Vance, Dist. Atty., and James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for murder; the punishment, death.

The appellant in his brief presents the following:

'Defendant contends there are three general grounds requiring reversal of this cause:

1. Improper selection of the jury.

2. The method used to allow Gladys Ella Prather to qualify as a competent witness against Arlice James Huffman.

3. Several rulings by the trial judge concerning the admissibility of certain testimony and evidence.

For convenience and clarity, each general ground will be discussed separately and specific points of alleged error will be examined under each general ground:'

In urging the improper selection of the jury, the appellant contends that the trial court erred in excusing five prospective jurors because they did not believe in the death penalty and that such action was in violation of the law expressed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. These prospective jurors were: Lasater, Jordan, Smith, Gates, and Wardell. Also, he contends that the trial court erred in excusing the prospective juror Joubert because she would not consider the minimum penalty even though she could assess the death penalty in a proper case.

The state gave proper and timely notice that it would seek the death penalty.

An independent examination has been made of the voir dire examination of all the prospective jurors at the trial.

Before the voir dire examination began the trial judge instructed the entire panel pertaining to their duties and the procedure which would be followed in the selection of the jury. The judge personally began the voir dire by examining each prospective juror separately in the absence of the panel. He first asked if the juror understood the instructions which he had given to the entire panel. Then he informed him of what constituted the offense of murder with malice aforethought and the range of the punishment which could be assessed in the event the defendant was found guilty. And further, whether he had any conscientious scruples against the imposition of the death penalty as the punishment for crime in a proper case. Also, he, at times, instructed them as to the presumption of innocence, circumstantial evidence, and common-law marriage.

This Court's examination of the 1365 pages of the voir dire of the jury reveals that 65 prospective jurors were excused for having conscientious scruples against the imposition of the death penalty; 12 were excused for having prejudice against assessing a two-year term as punishment for murder, and 4 were excused for having a prejudice against the law of common-law marriage. Six prospective jurors were excused by agreement. Six others were excused for miscellaneous reasons. The appellant exercised 12 peremptory challenges, and the state made 7 peremptory challenges. A total of 124 prospective jurors was examined before 12 were chosen to serve on the trial jury.

The contention of the appellant that the trial court erred in excusing the 5 prospective jurors is here considered:

Mrs. R. D. Lasater testified that she was conscientiously opposed to the imposition of death as a punishment for crime in all cases and could not impose such punishment for the offense of murder with malice aforethought. After the state had challenged Mrs. Lasater for cause, the appellant asked to take her on voir dire to further explore her feelings about the death penalty as a proper penalty in the case. The court replied that in light of her answers to the court's questions the request would be refused. The court should have granted the request to further examine Mrs. Lasater.

The voir dire examination of Lasater was made only by the trial court. No questions were addressed to her by counsel for the state or the appellant. Her testimony on voir dire was clear, positive, unequivocal, and without reservation. In light of the instructions given her by the trial court, the court's opportunity to observe her and to hear her answers, and the fact that the state exercised but 7 of its 15 challenges, the excusing of Lasater on the state's challenge would not constitute reversible error. Pittman v. State, Tex.Cr.App., 434 S.W.2d 352; Scott v. State, Tex.Cr.App., 434 S.W.2d 678; Whan v. State, Tex.Cr.App., 438 S.W.2d 918.

Ford Smith, Jr., after having the law of murder with malice aforethought and the punishment prescribed therefor explained to him by the court and counsel, repeatedly stated that he could not impose the penalty of death based on circumstantial evidence. The appellant's counsel did not examine Smith, made no request to do so, and was not refused the right. When the court excused Smith upon the state's challenge for cause, appellant's counsel asked that his exception be noted for the record.

The voir dire of the prospective juror Gates reveals that he could not impose the death penalty based on circumstantial evidence. Appellant's counsel did not examine Gates, did not ask to do so, and was not denied the privilege. When Gates was excused upon the state's challenge for cause, the appellant did not object or note his exception to such action of the court.

The prospective jurors Jordan and Wardell testified that they could not impose the death penalty where the defendant's guilt was shown only by circumstantial evidence. The appellant did not examine Jordan or Wardell, was not denied this privilege, and never expressed any reason for his failure to do so. Appellant asked that his exceptions be noted when the court excused Jordan and Wardell.

It is concluded from the record that the trial court did not err in sustaining the state's challenge to these 4 jurors.

There were no restrictions or limitations at any time pertaining to the examination, acceptance or rejection of any of the prospective jurors other than Lasater. The voir dire examination does not reveal that there was any plan, pattern, scheme, or systematic exclusion of any qualified juror or jurors.

In Pittman v. State, supra, this Court said:

'If the juror's answers be equivocal or qualified, further interrogation is permissible in order to ascertain his viewpoint. 35 Tex.Juris.2d., Jury, Sec. 115, p. 168. The appellant here made no such request for further interrogation. It has long been the holding of this Court that if it is doubtful whether the juror had conscientious scruples in regard to the infliction of capital punishment, the court's action in sustaining the State's challenge for cause on that ground will be sustained on appeal. Burrell v. State, 18 Tex. 713; Sawyer v. State, 39 Tex.Cr.R. 557, 47 S.W. 650; Myers v. State, 77 Tex.Cr.R. 239, 177 S.W. 1167; Vickers v. State, 92 Tex.Cr.R. 182, 242 S.W. 1032; see also Article 35.21, V.A.C.C.P.'

Further, in Scott v. State, supra, this Court held:

'The fact that one or more veniremen may have been excused on challenge for cause without a full showing that they would not in any case vote for the death penalty does not mean that the jury was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or...