Knox v. State

• Decision Date: 30 September 1987
• Docket Number: No. 69608,69608
• Citation: 744 S.W.2d 53
• Parties: James Roy KNOX, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 53

744 S.W.2d 53

James Roy KNOX, Appellant, v. The STATE of Texas, Appellee.

No. 69608.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 30, 1987.

Allen C. Isbell, on appeal only, Houston, for appellant.

Michael J. Guarino, Dist. Atty. and Susan W. Burris, Asst. Dist. Atty., Galveston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This automatic appeal is taken from a conviction of capital murder. V.T.C.A., Penal Code, § 19.03(a)(2). The jury returned affirmative answers to all three special issues submitted under Article 37.071(b), V.A.C.C.P., and the trial court assessed the mandatory death penalty.

Appellant raises five points of error on appeal. Two points allege reversible error was committed during voir dire, while the remaining points of error address the court's refusal to grant appellant's requested charge on parole eligibility at the punishment phase of trial. Appellant does not challenge the sufficiency of the evidence to sustain the conviction, however, a brief presentation of the facts will help place appellant's points of error into proper perspective.

The evidence presented at trial shows that appellant entered "Joe's Pharmacy Center" in Galveston on November 10, 1982. The pharmacy was owned by the deceased, Joseph Sanchez. According to Ronald Dyda, who worked for the deceased, the appellant approached the counter with a pistol in his hand. Dyda described the scene:

"Q. Just tell us what you remember?

"A. Okay. I remember he pointed the gun, and asked for the money. That he asked us to lie down. Joe didn't lie down, so he asked me to tape him up, tie his hands behind his back. And after that, I had a little trouble getting him tied up, so the guy asked us to lie on the floor again.

"Okay. Sometime during that the phone rang, and I don't know if it was then or a little later on. But--okay. I heard a shot. I saw the curtain, or saw the curtain fall, and Joe was laying there, and [the] guy pointed the gun at me, and asked for the money and drugs.

"Q. Did you give him some of the pills?

"A. I gave him some Demerol. I don't remember how many. I just grabbed off the shelf.

"Q. Okay. Did he then leave?

"A. Yes, sir."

During the course of the robbery the deceased received a phone call from Joanne Swindell, "about 5:25 or 5:30" on November 10, 1982. Swindell phoned to have a prescription filled, but when the deceased answered, Swindell overheard the following:

"A. * * * I then heard Joe's voice say, 'He don't know where the dope's at. He don't know where the dope's at.' As if he were pleading with someone. He said that about three times.

"I then heard Joe say, 'Here's the money. Take it all.'

"Q. When you say Joe, you are talking about Joe Sanchez?

"A. Right. At that time I heard another male voice say, 'I want the God damned dope.'

"And then Joe replied again, about three times, 'He don't know where the dope's at.' Like he was pleading, is the way I took it.

"And then the same male voice again said, 'You son of a bitch, I am going to kill you.' Then I heard a shot.

"Seemed like four or five seconds passed, and then I heard that same voice again say, 'Now you will give me the dope, you son of a bitch.'

"Q. Did that sound like he was talking to the other person in the room?

"A. Like--Right. There was another person in the room."

Both Coleen Austin and Robert Cleric testified they were sitting in "Kathy's Katerers" next door to "Joe's Pharmacy Center" around 5:30 p.m. on November 10, 1982, when they heard a loud "bang," a "pow." After checking the rear portion of the store, the two walked out the front door, "when this man came around the corner at a slight run." Both testified that the man held some brown medicine bottles in his right hand, and that his left hand was tucked under his shirt or jacket. Gene Austin, Coleen's husband, also saw the man trotting towards the corner of the street, and noticed: "In his right hand he was carrying, looked like pharmacy type bottles, might contain pills or prescriptions."

All three witnesses described the man as being extremely thin. Although Coleen Austin could not positively identify appellant as the same man she saw over three years before, she did testify that "he [appellant] is as thin as the gentleman I saw, who was extremely thin that day." Gene Austin also stated the man was "extremely thin," and that he had "shorter length, stringy type hair, rather haggardly." According to Cleric, the man "was about six foot tall, real slim, kind of dirty looking face, needed a shave and few things." Cleric could only testify that appellant closely resembled the man he saw on November 10, 1982.

Gene Austin testified that after rounding the corner the man walked across the back parking lot of his store and to the alleyway, where he got into a waiting car "and drove down the alley toward 46th Street."

George Holland, the driver of the getaway car, testified that he parked behind the pharmacy and waited while appellant got out and walked around the building. Holland stated that when the appellant returned to the car a few minutes later "he said, 'Let's get the Hell out of here. He got ignorant on me,' or something like that; he said he had to shoot him." Holland noticed that appellant carried "two or three brown pill bottles." Appellant next gave Holland directions to get out of Galveston, but when Holland learned that appellant had shot someone, he ordered appellant out of the car on the mainland side of the causeway bridge.

Appellant was later picked up by a friend, Gary Morgan, who drove appellant to the bus station in Houston. Morgan stated that appellant related the events leading up to the shooting:

"He [appellant] said that he went into the drug store, and there were two men in it; that he taped the bigger man, tapped him up, and he broke the tape. Then he taped him up again, and he broke the tape, and went for his back pocket. And Roy said he shot him in the chest, blew him back through some blue curtains, and the other guy give (sic) him the dope, and he got the money out of the cash register, and he left and got back in the car with George."

Morgan also testified that appellant had four brown bottles in his possession, of which he gave Morgan two for driving him to the bus station.

After returning to his home in Birmingham, Alabama, Morgan again saw appellant and testified about the following:

"Q. Did the Defendant seem very concerned about the death of Joseph Sanchez?

"A. No, sir, didn't seem to really bother him at all.

"Q. Did he say anything about it?

"A. He was leaning back on the couch. And he was high. And he just laughed about it."

This testimony was corroborated by a friend named Robert Clark, who stated that appellant did not seem concerned about the shooting.

Dr. William Korndorffer, Chief Medical Examiner for Galveston County, testified that the deceased died from a gunshot wound that pierced his heart and aorta, causing him to bleed to death.

No evidence was presented as to when or where appellant was actually arrested.

Appellant's first point of error alleges that the trial court erred in excluding prospective juror Evelyn Reeves from the jury panel, contending that she was qualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). His second point of error asserts that the trial court erred in overruling appellant's challenge for cause after juror Arma Weiss was shown to be biased in favor of the Galveston County Police officers with whom she had worked.

This Court has frequently addressed the voir dire issue in death penalty cases in light of Witherspoon and Witt. As noted in Ex parte Russell, 720 S.W.2d 477, 482 (Tex.Cr.App.1986), Witherspoon 's footnote 21 appeared to hold that prospective jurors may be excluded for cause if they made it

"unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Witherspoon, supra, 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, n. 21. (Emphasis in original.)"

In Witt, however, the Supreme Court "abandoned both Witherspoon 's substantive standard and its stringent burden of proof requirement." Ex parte Russell, supra, at 484. As a result, the standard established in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), was reaffirmed, to-wit, whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." The Supreme Court added: "We note that, in addition to dispensing with Witherspoon 's reference to 'automatic' decisionmaking, this standard likewise does not require that a juror's bias be proved with 'unmistakable clarity.' " Wainwright v. Witt, supra, 105 S.Ct. at 852. The modification of Witherspoon by Witt was most recently endorsed by the Supreme Court in Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

The Adams standard, as reaffirmed in Witt, has also been adopted and applied by this Court.

"The proper standard for excusing a prospective juror on the State's motion for cause is where the record viewed as a whole supports the finding that the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and oath. Wainwright v. Witt (citation omitted). In adopting this standard, the Court dispensed with Witherspoon 's reference to automatic decision making and the requirement that a juror's bias be proved with unmistakable clarity." (Footnote omitted) Montoya v. State, 744 S.W.2d 15, 19 (Tex.Cr.App.1987); see also Mann...