Hughes v. State, 57394

• Decision Date: 15 March 1978
• Docket Number: No. 57394,57394
• Citation: 563 S.W.2d 581
• Parties: Billy George HUGHES, Jr., Appellant, v. The STATE of Texas, Appellee,
• Court: Texas Court of Criminal Appeals

Page 581

563 S.W.2d 581

Billy George HUGHES, Jr., Appellant, v. The STATE of Texas, Appellee,

No. 57394.

Court of Criminal Appeals of Texas, En Banc.

March 15, 1978.

Robert A. Scardino, Jr., Houston, for appellant.

Oliver S. Kitzman, Dist. Atty., Hempstead, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. Trial was in Matagorda County upon a change of venue from Austin County. After a verdict was returned finding appellant guilty of capital murder, the jury returned "Yes" answers to the questions required by Art. 37.071(b)(1 & 2), V.A.C.C.P., mandating a penalty of death.

The record reveals that on April 4, 1976, the appellant was stopped by Texas Highway Patrolmen Mark Frederick and Jack Leroy Reichert after they received a radio report that appellant had used a stolen credit card. As Frederick approached the driver's side of the car, the appellant fired a single shot from a 9 millimeter pistol at him. Frederick died as a result of the wound. As appellant's car departed, Reichert fired six shots into the rear of it. The appellant was not wounded, but one of the car's tires was hit. Appellant abandoned the car a short distance away and was arrested after a three-day manhunt.

Appellant entered a plea of "not guilty by reason of insanity." Appellant presented the testimony of Dr. Joseph F. Pentony, a clinical psychologist. Dr. Pentony stated he found appellant to be a "paranoid schizophrenic," and that it was "possible" that appellant could not conform his activities to the requirements of the law. In rebuttal, the State presented the testimony of Dr. John D. Nottingham, Jr., who stated the appellant was "sane" at the time of the offense. Dr. Nottingham further testified that a person can "be accurately diagnosed as a paranoid schizophrenic and still be able to recognize what conduct is wrong and be able to conform his conduct to the requirements of the law." By a special verdict, the jury found the appellant to be "sane" before finding him guilty.

Appellant first complains of the court's action in excusing juror Travis Harrison for cause. During voir dire by the prosecution, Harrison testified as follows:

"MR. KITZMAN: Well, I the law says that prospective jurors and jurors should be informed that a sentence of life imprisonment or death is mandatory upon the conviction of a capital felony. That says a prospective juror will be disqualified from serving on such jury, 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, and that's why I'm pestering you so much.

"MR. HARRISON: Yeah. There's lots of difference between death and life as far as I'm concerned.

"MR. KITZMAN: Are you telling me then you could not deliberate on these questions of fact without being influenced by your knowledge of that penalty; is that what you're saying?

"MR. HARRISON: Well, I'm afraid that's what I'm saying."

Defense counsel then gave Harrison an explanation of the reasons for the procedure, after which the following took place:

"MR. SCARDINO (defense counsel): . . . Now, knowing all that, the background and the history of it, do you still say that you would be unable to answer those questions without considering the effect of your answers; would you be able to answer the question based on the facts in evidence.

"MR. HARRISON: Of course, when I answered the question, I'd know the reason, what the judgment would probably be, because what he started out saying was could I visualize any kind of case where I could have possibly answered both of those questions in the affirmative. And I told him at the beginning that I could probably, well, I could, in the most extreme, vicious type of murder, but whether it would influence my, both of my answers, I think I would know what the judgment, or be reasonably sure what the judgment would be, and so I think that every juror would know probably what the judgment would be, and to sit here and tell you that answering those questions and forgetting about what the judgment is going to be, I don't think I'd be honest in saying that. So, this is getting back to his final question, would I be influenced by what the judgment is going to be, the forethought of it. I'd have to tell you that I would be.

"Now, like I said, I could answer both questions in the affirmative in the most extreme cases, but I couldn't answer him without being influenced by what I think the judgment would be." (Emphasis supplied.)

V.T.C.A. Penal Code, Sec. 12.31(b), provides:

"(b) 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."

Appellant contends that since Harrison testified that he could assess the death penalty "in the most extreme, vicious type of murder," that his exclusion violates the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

This Court has held that when a juror is disqualified under Sec. 12.31(b), supra, we do not need to consider his qualifications under Witherspoon. Moore v. State, 542 S.W.2d 664, cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977); Hovila v. State, 562 S.W.2d 243 (No. 56,989, 2-8-78). Harrison's testimony clearly reveals that his deliberation on issues of fact would be affected by the possibility of the death penalty. No error is shown in the exclusion of Harrison.

Appellant contends, "The trial court erred in failing to properly apply the standards of Witherspoon v. Illinois, in the voir dire examination of venireperson Mrs. John E. Fitzmorris." During voir dire by the prosecution, the record shows "MR. KITZMAN: . . . Let me ask you if you have any conscientious or religious scruples against the infliction of the death penalty as punishment for crime?

"MRS. FITZMORRIS: I'm afraid I do. I just can't.

"MR. KITZMAN: As I've told you before, however you feel about that is the right answer and I'm not here to persuade you that you ought to feel any differently than you do, however you do.

"Do you feel that you've done something about your feeling about that?

"MRS. FITZMORRIS: Well, I feel that people who do these things are ill, really, and I feel that you should make it possible somehow to have a place for them. I think that other people should be protected from them, and it seems to me if we can send a man to the moon, we could do that.

"MR. KITZMAN: Well, unfortunately, we are not doing it, are we?

"MRS. FITZMORRIS: No.

"MR. KITZMAN: You said you think they are ill. Does that mean that you're telling me that you think that anybody who commits a horrible murder has got to be insane in order to do it?

"MRS. FITZMORRIS: I really feel that way.

"MR. KITZMAN: I'm going back to the death penalty matter.

"Can you conceive of a circumstance so bad, so horrible, that if you were sitting on the jury and had the responsibility, that you would purposely vote for a death penalty, in the case where the law provided for it and the facts warranted it?

"MRS. FITZMORRIS: I don't think so, no.

"MR. KITZMAN: Are you telling me that you just could not do that?

"MRS. FITZMORRIS: No, couldn't do it.

"MR. KITZMAN: We challenge for cause, Your Honor."

During voir dire by counsel for appellant that followed, the record reflects:

"MR. SCARDINO: Do you think a person could be mean enough to kill?

"MRS. FITZMORRIS: Well, yes. They can.

"MR. SCARDINO: Do you think a mean person is crazy?

"MRS. FITZMORRIS: Yes.

"MR. SCARDINO: That all mean people are crazy?

"MRS. FITZMORRIS: I think they are. They're sick.

"MR. SCARDINO: Just because they are mean?

"MRS. FITZMORRIS: Yes.

"MR. SCARDINO: Can you envision a crime that is so horrid, that is so bad, for a person to plan terrible plots, gets the tools to carry it out, the guns, the ropes or the knives, carry it out and carries out a scheme, takes somebody's money or kidnaps someone's baby or robs somebody or burglarizes their house; while doing so, kills in order to achieve his end. He has no remorse for what he did but he's caught and brought to trial.

"Do you think a person like that could ever consider the death penalty. Not that give it. But would you consider the death penalty for a person like that?

"MRS. FITZMORRIS: I don't know, I don't think so. I just don't know.

"MR. SCARDINO: You're just not sure what you would do?

"MRS. FITZMORRIS: No.

"MR. SCARDINO: Then you cannot state that you would automatically vote against the death penalty in every case?

"MRS. FITZMORRIS: No, I can't.

"MR. SCARDINO: You would not vote against it in every case?

"MRS. FITZMORRIS: I don't know. I just don't know.

"MR. SCARDINO: You don't know if you would automatically vote against it?

"MRS. FITZMORRIS: No, I I just can't; I can't say.

"MR. SCARDINO: It's a hard question.

"MRS. FITZMORRIS: Yes.

"MR. SCARDINO: Not everybody likes to answer that question, and we understand your difficulty in deciding and I appreciate your listening to our questions.

"We pass the juror back, Your Honor.

"THE COURT: Juror excused on the challenge.

"MR. SCARDINO: Note our exception to the Court's ruling."

Appellant argues that under Witherspoon, unless a venireman "states unambiguously that he would vote against the imposition of capital punishment no matter what the trial might reveal," a venireman is not subject to challenge for cause. The recent Supreme Court case of Davis v. Georgia, 429 U.S. 122, 50 L.Ed.2d 339, 97 S.Ct. 399, is urged by appellant in light of the holding therein that the exclusion of a single venireman in violation of Witherspoon constitutes a denial of due process and a death penalty imposed in such a case cannot stand. In its opinion, the Supreme Court did not set forth the...