Livingston v. State

• Decision Date: 06 October 1976
• Docket Number: No. 52139,52139
• Citation: 542 S.W.2d 655
• Parties: James LIVINGSTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 655

542 S.W.2d 655

James LIVINGSTON, Appellant, v. The STATE of Texas, Appellee.

No. 52139.

Court of Criminal Appeals of Texas.

Oct. 6, 1976.

Bob Hillin, Dallas, on appeal only, for appellant.

Tom O'Connell, Dist. Atty., Howard Shapiro and Barry Elliott, Asst. Dist. Attys., McKinney, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding 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, Sec. 19.03, and Article 37.071, Vernon's Ann.C.C.P. ¹

The case was tried in Dallas County following a change of venue from Collin County. After trial and entry of judgment, the cause was transferred back to Collin County, without objection, for the purpose of appeal, it being noted that the trial judge, court reporters, attorneys for both parties, witnesses were all residents of Collin County and the grounds upon which the original change of venue had been granted had been terminated.

Initially appellant contends the court erred in overruling his motions to quash the indictment. In a single ground of error appellant lists thirteen reasons why the indictment is defective. Clearly the ground of error is multifarious and not in compliance with Article 49.09, Vernon's Ann.C.C.P. See Rodriquez v. State, 530 S.W.2d 944 (Tex.Cr.App.1975); Campbell v. State, 525 S.W.2d 4 (Tex.Cr.App.1975); Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.1975); Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975); Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974). Nevertheless, we shall consider the same. See Article 40.09, Sec. 13, Vernon's Ann.C.C.P.

The indictment, omitting the formal parts, reads as follows:

'. . . that one Excell White and James Livingston and Gary Dale Livingston, acting together on or about the 11th day of May in the year of our Lord One Thousand Nine Hundred and Seventy-four, and anterior to the presentment of this indictment, in the County of Collin and State of Texas, did then and there intentionally and knowingly cause the death of Billy Glen St. John, by shooting him with a gun, and the said Excell White and James Livingston and Gary Dale Livingston, acting together, did then and there intentionally cause the death of the said Billy Glen St. John, and in the course of committing robbery, to-wit: Excell White and James Livingston and Gary Dale Livingston, acting together did then and there while in the course of committing theft and with intent to obtain property of Billy Glen St. John, to-wit: A wallet, without the effective consent of the said Billy Glen St. John and with intent to deprive the said Billy Glen St. John of said property, did then and there intentionally and knowingly cause bodily injury to the said Billy Glen St. John by shooting him with a gun . . .'

This is the same indictment as in Excell White v. State, 543 S.W.2d 104 (Tex.Cr.App.1976), except that the name of the victim is different. The victim there was alleged as Preston Broyles. In White the court wrote:

'Although not grammatically correct, we hold that the indictment is sufficient. If the comma and the word 'and' between the words 'cause the death of the said Preston Broyles' and 'in the course of committing robbery' were omitted, that portion of the indictment would read: 'cause the death of the said Preston Broyles in the course of committing robbery'. The latter phrase would be more correct, but we do not find that the appellant was misled or that he did not have fair notice of the offense with which he was charged. This ground of error is overruled.'

The same can be said of the instant indictment.

Both of appellant's motions to dismiss the indictment were overruled, and it does not appear that appellant offered any arguments to the trial court in support of the general assertions in the written motions. On appeal, thirteen specific complaints are directed to the indictment. Most of these were never called to the trial court's attention, and having failed to object on these grounds during trial, he is precluded from raising them for the first time on appeal, Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975), unless such contentions are cognizable under Article 27.08, Vernon's AnnC.C.P., to-wit: that the indictment failed to allege the constituent elements of the offense. See Terry v. State, 517 S.W.2d 554 (Tex.Cr.App.1975); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). Unless the complaints (not presented to the trial court) fall within the exception, nothing is presented for review. As to those complaints presented to the trial court, e.g., (1) indictment, vague, uncertain, misleading, not apprising the appellant of which offense he is charged; (2) does not state offense; (3) charges more than one offense, etc., we conclude that what we said in White v. State, supra, is controlling, and no error is presented. And we do not find the other contentions fall within the announced exception calling for review.

Still further, in a separate ground of error appellant contends the failure of this capital murder indictment to allege ownership of property taken in the robbery renders the indictment fundamentally defective. Reliance is had upon Lucero v. State, 502 S.E.2d 128 (Tex.Cr.App.1973), dealing with a robbery indictment under the former Penal Code. In Watson v. State, 532 S.E.2d 619 (Tex.Cr.App.1976), it was held that failure to allege ownership of property taken in a robbery indictment drafted under the present Penal Code does not render the indictment defective. See also Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976); Brown v. State, 535 S.W.2d 640 (Tex.Cr.App.1976). Since it is not necessary to allege ownership in a robbery indictment, we reject the contention that such ownership of property taken must be alleged in a capital murder indictment which alleges the murder occurred during the course of a robbery. See V.T.C.A., Penal Code, Sec. 19.03(a)(2). Further, such capital murder may occur before the completion of the robbery and property may not even be taken. See V.T.C.A., Penal Code, Secs. 29.01 and 29.02. Still further, in Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976), we held that a capital murder indictment is not fatally defective because the elements of robbery are not set out in the indictment charging murder during the commission or attempted commission of robbery. Under the new Penal Code, an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense. See Smith v. State, supra; Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975); Watts v. State, 516 S.W.2d 414 (Tex.Cr.App.1974).

Appellant also advances the contention that the trial court erroneously excused twenty-one prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975), we held that the holding of Witherspoon ² was still alive and well in light of the new statutory scheme providing for the imposition of the death penalty, the adoption of which followed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

We have carefully examined the voir dire examination of the twenty-one prospective jurors listed by appellant and do not find that all were excused for their opposition to the death penalty. One woman, for example, was excused because she would require a greater burden of proof upon the State than 'beyond a reasonable doubt.' Of those who were excused for death penalty opposition, we find that the test of Witherspoon was carefully met in each instance. No error is reflected.

The appellant also challenges the sufficiency of the evidence to sustain the conviction. The record reflects that the deceased, Billy Glen St. John, left his home near McKinney for work in Dallas early on May 11, 1974. His wallet contained $15.00, and, according to his wife, he was driving a red pickup truck. Gary Lyn Coker also worked in Dallas. About 6:45 a.m. on the same date, John Rogers was driving east on Hwy. 380 in Collin County and observed a light colored automobile, facing east, on the outside of the gas pumps at the Hilltop Grocery Store. He also saw a red pickup truck parked under the canopy, facing west, with an oil can on its hood. Rogers saw a man with a shoulder weapon get out of the passenger side of the light colored automobile and move to the back of the automobile where the proprietor of the store stood.

Leonard Davis and his wife left their home about 6:45 a.m. in separate automobiles for the purpose of getting gasoline at the store in question. On his way he observed an old white car travelling east on the highway. When he arrived at the store, he heard something and went into the store where he smelled gunpowder. Davis observed the proprietor, Preston Broyles, lying face down to his right. He saw another body (later shown to be Coker) lying by the meat counter. A third victim (later shown to be the deceased) raised upon his elbows and made a statement to Davis. Davis instructed his wife to made a telephone call at the nearest house and he left.

Police and ambulance attendants arrived at the store, shown to be three miles east of McKinney, and found Coker and Broyles dead. The deceased St. John was still alive and was carried to the Collin Memorial Hospital, where he died during emergency treatment for four gunshot wounds resulting in injury to the liver, kidneys, bowels, stomach and pancreas. Dr. Vincent DiMair, who performed the autopsy, expressed the opinion that St. John was shot while he was lying face down on the floor.

Chief Deputy Sheriff Gerald Kunkle testified that upon receiving a call he went to the Hilltop Grocery Store and found the cash register open. It contained only coins, no currency. He found ten .30 caliber hulls in the store. District...