Hughes v. State

• Decision Date: 15 March 1978
• Docket Number: No. 51827,51827
• Citation: 562 S.W.2d 857
• Parties: Anderson HUGHES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 857

562 S.W.2d 857

Anderson HUGHES, Appellant, v. The STATE of Texas, Appellee.

No. 51827.

Court of Criminal Appeals of Texas, En Banc.

March 15, 1978.

Larry Miller, Dallas, for appellant.

Henry M. Wade, Dist. Atty. and W. T. Westmoreland, Jr., Douglas D. Mulder, Stephen Tokoly and Les Eubanks, Asst. Dist. Attys., Dallas, for the State.

Before the court en banc.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of capital murder wherein the punishment was assessed at death. See V.T.C.A., Penal Code, Section 19.03, and Article 37.071, V.A.C.C.P.

During the early morning hours of September 23, 1974, appellant drove into a service station in Mesquite, a suburb of Dallas, in a truck which he had previously stolen. The station was closed for the night and, when appellant saw a Buick automobile parked inside, he broke the glass out of a window and climbed through it into the station. The keys were in the ignition of the automobile. Appellant drove the vehicle out and started around to the front of the station when a marked police car drove in and blocked his path.

A uniformed officer got out of the police car and ordered appellant to exit the Buick. As appellant got out he had in his hand a .32 caliber pistol which he pointed at the officer. When the officer saw this he drew his revolver and fired a shot at appellant. Appellant started shooting and the officer fell to his knees. Appellant then obtained a 12 gauge shotgun from the stolen truck and shot the officer in the right side and killed him.

Appellant left in the Buick. After disposing of the pistol, shotgun, shotgun shells and his boots, he drove to Parkland Hospital where he entered the emergency room and advised the attendant that he had been shot. Shell fragments were removed from his thigh.

Appellant was thereafter arrested at the hospital and taken to the Mesquite police station where he gave a written confession after having been warned of his rights by a magistrate. In his confession he stated that he had disposed of the items mentioned above by throwing them in Blue Lake. Upon being taken to the lake, he admitted the falsity of that portion of his statement and directed the officers to a vacant house where the officers recovered the items sought.

Appellant does not challenge the sufficiency of the evidence. He first contends that the appeal should be abated because the trial court erroneously pronounced sentence. The identical contention was rejected in Hovila v. State, 532 S.W.2d 293, 297 (Tex.Cr.App.1976), wherein it was observed that "the provisions of Article 37.071, supra, referring to 'sentence to death,' etc., refers (sic) to the assessment of punishment and not to a formal sentence, and the provisions of Article 42.04, supra (V.A.C.C.P.), still control." As in Hovila, the trial court was apparently misled by the awkward wording of Article 37.071, supra, but it apparently recognized that another sentence setting the execution date would be required. Accordingly, there is no reason to abate the appeal because the court pronounced sentence. It will be regarded as surplusage.

Appellant next contends that Article 1257, V.A.P.C., violated the Eighth and Fourteenth Amendments to the United States Constitution. Since this article was repealed effective January 1, 1974, and was not even in existence at the time of the commission of the instant offense, it is not relevant to this case.

Appellant contends that this State's new statutory scheme for capital murder, including the possible infliction of the death penalty, violates his constitutional rights to due process and to be free from cruel and unusual punishment. He further contends that imposition of the death penalty under any circumstances offends the Eighth and Fourteenth Amendments. The same contentions were rejected by this Court in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), and by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Appellant next contends that twenty-four veniremen were excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). ¹

In Hovila v. State, supra, we held that the holding of Witherspoon was still viable in light of the new statutory scheme providing for the imposition of the death penalty adopted after the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), we held that it was unnecessary to consider the Witherspoon question where the prospective juror was disqualified under V.T.C.A., Penal Code, Section 12.31(b). See also Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977).

Section 12.31(b) provides:

"Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact."

Prospective jurors Margaret Houston and Ida Barton expressed opposition to the death penalty. When asked by the court whether such opposition would affect her deliberations on the three fact issues submitted to the jury at the punishment stage, Houston stated that her beliefs could affect her deliberations on the issues because she "would not want to send a man to death. . . ." Barton stated that her feelings would give her "a lot of problems" in answering the special issues objectively and that those feelings would influence her answers to the questions submitted to her.

It is clear that Houston and Barton were properly excused under Section 12.31(b) and that we need not determine whether their statements also disqualified them under the Witherspoon doctrine.

Neither the court nor the prosecutor questioned prospective juror Norma McClay with regard to whether she was unequivocally opposed to the death penalty in all circumstances. The court observed that she had expressed opposition to the death penalty in a questionnaire and inquired whether such opposition would affect her deliberations upon the fact issues. She responded that she would answer the three questions without regard to the consequences of such action, but then vacillated and stated that she did not know whether her deliberations would be affected by her beliefs. When the court stated that she had to determine whether her deliberations would or would not be affected, she equivocated and finally stated that she did not know.

Prospective juror Virginia Ball stated that she believed in the death penalty only in certain cases. She expressed doubt that she could answer special issue number two affirmatively because she did not think she could predict a defendant's future conduct. She then stated that she would have to consider the issue carefully before answering and that she "might" give an affirmative answer under certain circumstances. The court then told her that it required a definite response. After more equivocation, she stated that she did not know whether the mandatory penalty of death in the event of a "yes" answer to each of the special issues would affect her deliberations upon special issue number two.

Upon interrogation by the court, prospective juror Irene Hawk stated that she believed in the death penalty "in some cases," but then stated that she did not believe she could answer each special issue "yes." She declared that she could not answer the issues affirmatively without difficulty even though the evidence dictated affirmative answers.

Section 12.31[b] does not disqualify prospective jurors who would find it difficult to impose the death penalty. But this provision does disqualify those prospective jurors who cannot state under oath that the mandatory penalty of death or life imprisonment will not affect their deliberations on any issue of fact and, thus, could not be fair and impartial jurors. None of the three prospective jurors in question McClay, Ball and Hawk could state that the mandatory penalty would not affect her deliberations upon the fact issues. While it is clear that the answers of these prospective jurors would not have disqualified them under the holding in Witherspoon, nevertheless their answers disqualified them under Section 12.31(b), without the necessity of considering the Witherspoon question. Moore v. State, supra; Burns v. State, supra.

Prospective jurors Albert Baysinger, Gus Reese, Jeremiah Sherman, Ethelene Shaw, Ila Mays, Beverly Thomas, Alan Hurley, Oliver Graves, Harvey Nix, Ruth McKelvey, Annie Kelly, Beulah Darnell and Martha Sloan all clearly indicated that their deliberations on the special fact issues would be affected because the imposition of the death penalty was dependent on their answers to such issues. Accordingly, these prospective jurors were disqualified under Section 12.31(b).

Prospective juror Lawrence Shaw stated his opposition to the death penalty and, when asked whether he could vote for this penalty under any circumstances, he replied that he could not. He then stated that "there could not be an iota of doubt" before he could answer each of the three fact issues in the affirmative. The court inquired whether this meant that he held the State to a greater standard of proof than the beyond a reasonable doubt standard, and he responded affirmatively. The court ruled that Shaw was disqualified and excused him.

It is clear from the record that Shaw was biased or prejudiced against a phase of the law upon which the State was entitled to rely for punishment, and, thus, was subject to a challenge for cause under Article 35.16(b)(3), V.A.C.C.P. Generally, the court should not excuse a prospective juror without challenge unless...