Lera v. State

• Decision Date: 06 May 1942
• Docket Number: No. 22075.,22075.
• Parties: LERA v. STATE.
• Court: Texas Court of Criminal Appeals

165 S.W.2d 92

LERA v. STATE.

No. 22075.

Court of Criminal Appeals of Texas.

May 6, 1942.

Rehearing Denied June 24, 1942.

Appellant's Second Motion for Rehearing Denied October 28, 1942.

Commissioners' Decision.

Appeal from District Court, Fort Bend County; M. S. Munson, Judge.

Leo Lera was convicted of murder, and he appeals.

Affirmed.

Marsene Johnson, Jr., of Galveston, C. L. Dutton, of Richmond, and Tom Branch, of Houston, for appellant.

Chas. H. Theobald, Co. Atty., and Emmett Magee, Asst. Co. Atty., both of Galveston, R. A. Bassett, Dist. Atty., of Richmond, and Clyde Kennelly, Co. Atty., and Ed Risinger, both of Rosenberg, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder. The punishment is assessed at death.

The record shows that appellant was indicted in the District Court of Galveston County for the offense of murder with malice aforethought, which offense is alleged to have been committed on or about the 25th day of December, 1938. The trial from which this appeal is being prosecuted is the third trial of the case. The two previous trials were held in Galveston County and each resulted in a verdict of guilty and the assessment of the death penalty. The judgment in each of said cases was reversed by this court. The opinion delivered on the first appeal may be found reported in 138 Tex.Cr.R. 127, 134 S.W.2d 248, and that on the second appeal in 141 Tex.Cr.R. 409, 148 S.W.2d 431. After the judgment was reversed on the second appeal, the court changed the venue from Galveston County to Fort Bend County, where appellant was again found guilty and his punishment assessed at death, from which conviction he prosecutes this appeal.

The evidence adduced upon the trial from which this appeal is prosecuted is not materially different from that on the former appeals, and since the substance of all the material evidence is set out in the opinion delivered on the first appeal, we deem it unnecessary to here re-state the same.

Appellant brings forward six complaints. Some of them relate to the admission of evidence and others to the court's action in overruling his motion for a new trial based on misconduct of the jury and the reception of evidence other than that submitted to them under the ruling of the court.

It appears to us that his main complaint is based on the alleged misconduct of the jury in this respect,—that the jurors, after retiring to consider their verdict, were advised by some member that appellant, upon a former trial, had been convicted and awarded the death penalty; that this matter was discussed by the jurors before they arrived at a verdict, which consciously or unconsciously influenced them in assessing his penalty at death. If his contention relative thereto is supported by the evidence in the record, then he would be entitled to a reversal of the judgment. The burden of proof rests upon the appellant to substantiate the allegations in his motion.

In order that this opinion may more clearly reflect the basis for our conclusion on the subject, we deem it proper to set forth the salient facts proven upon the hearing of the motion for a new trial. It occurs to us that by the process of elimination we may arrive at a definite conclusion on the question presented. The record reflects that on the first ballot and before any claimed mention was made of the former trial, all of the jurors voted guilty. Only one juror, Sam Aylor, had any information prior to the time that he was selected as a juror, that the appellant had been theretofore tried and convicted. This juror testified that he had been informed (but by whom is not disclosed by the record) that upon one of the former trials appellant had received the death penalty and upon the other, life imprisonment; that he did not remember whether or not he mentioned it in the jury room. If this juror had information prior to the time that he was selected as a juror, can it be said that he received new or additional evidence in the jury room which may have influenced him in his decision as to the punishment that should be assessed against the appellant? We think not. Jurors Miller, Braeuer, Engeling and Christian did not hear any such remark and had no knowledge thereof. Consequently they could not have been influenced by anything of which they had no knowledge. Juror Baldwin testified that he did hear the remark made by some one in the jury room that the defendant had been tried before but did not hear anyone say what penalty was assessed. The fact that appellant had been tried before was brought to the knowledge of the jurors during the introduction of evidence by inquiring of some of the witnesses by counsel if they had not testified to certain facts upon the former trial. Consequently the fact that appellant had been tried at a former time was brought to the knowledge of the jurors during the development of the case and not while they were considering their verdict. Inasmuch as the result of the former trial was not made known to the juror, he could not have been influenced thereby. Therefore, he passes from the scene of the controversy.

Mr. Schroeder testified that he was for the death penalty on the first ballot before he heard any remark as to the result of the former trial. He further testified that he did hear some one say that he had heard that the defendant received the death penalty upon the former trial and life imprisonment upon another trial; that this was just casually mentioned; that he did not remember who made the remark because he was not interested therein. It occurs to us that since this juror was for the death penalty before the remark was made, he could not have been influenced thereby. Moreover, he was not interested enough in the remark to remember who made it.

Mr. Sydow testified that at the time he was selected as a juror he did not know that the defendant had been theretofore tried and given the death penalty; that he heard of it before the evidence was concluded but did not remember who made the statement; that said statement was not used by any juror in the discussion of the case; that it was just a casual remark. He further testified that he first voted for life imprisonment and then changed to the death penalty; that he did not remember whether he did so before the remark was made or thereafter. If he changed before it was made, it certainly did not induce him to change his mind. If he changed after he heard the remark, then the burden was on appellant to prove that fact. Under such uncertain and equivocal testimony, we would not be justified in holding that the trial court abused his discretion to the prejudice of the appellant in overruling the motion for a new trial as to said juror.

Juror Roehr testified that after he was selected as a juror but before he had made up his mind as to what punishment should be awarded to the defendant, he heard some member of the jury say that he had heard that the defendant had received the death penalty upon a former trial; that this was news to him but he did not think that anyone tried to use it in order to make some one vote for a heavier penalty; that the remark was not used by them when they were arguing about the penalty to be assessed; that it was just a casual remark.

Mr. Cumings testified that at the time he was selected as a juror he had no knowledge of the result of the former trial, but that he knew from the evidence introduced that there had been a former trial; that he believed that something was said in the jury room about defendant having received the death penalty on the previous trial, but this was not made before they reached a verdict; that it was made while they were balloting on the sentence; that he did not know exactly what time he heard the remark; that he did not know whether it was before or after they had reached their verdict; that whoever made the remark said that he believed that appellant had received the death penalty at Galveston and that was the reason the case was sent to Fort Bend County. Analyzing the testimony of this juror, it occurs to us that it is just about as certain that the remark was made after they had arrived at their verdict as that it was made before they did so. It seems that if the remark was made as claimed by appellant, it did not make enough impression upon either of the jurors who claimed to have heard it to remember who made it.

The testimony of the jurors, when stripped of all immaterial verbiage, amounts to this,—that some juror remarked that he had heard that on a former trial appellant had the death penalty assessed against him, but the matter was not discussed among them, nor did anyone attempt to use it as a "prize-pole" on any of the jurors in order to bring about the infliction of the death penalty. Consequently we would not be justified in concluding that any use was made of the claimed remark by any of the jurors to the prejudice of the appellant. Eight members of the jury stood for the death penalty at the start and four were either undecided or were for life imprisonment. Would we be justified in holding that a matter which was merely mentioned but not discussed and not used as an argument to induce any or all of the jurors to change from life imprisonment to the death penalty was the result of the remark complained of? We think not. In our opinion, the evidence adduced upon the trial shows a reckless disregard by appellant for human life and an unsatiable desire to kill. This, in all probability, was the moving cause in the change of the jurors on the punishment rather than the casual remark complained of. It would seem unusual for twelve men whose duty it was to determine the punishment to be assessed against a defendant to immediately agree upon the penalty. It is not expected. If such were demanded, then there would be no need of holding a jury after the first ballot on the question. The law requires that they be held a reasonable length...