McKenzie v. State

• Decision Date: 03 December 1969
• Docket Number: No. 42319,42319
• Citation: 450 S.W.2d 341
• Parties: F. L. McKENZIE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 341

450 S.W.2d 341

F. L. McKENZIE, Appellant, v. The STATE of Texas, Appellee.

No. 42319.

Court of Criminal Appeals of Texas.

Dec. 3, 1969.

Rehearing Denied March 4, 1970.

Jake C. Cook, Fort Worth (court appointed on appeal only), for appellant.

Frank Coffey, Dist. Atty., John Brady, Rufus Adcock, Ronald W. Quillin, John Howze and Truman Power, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for murder; the punishment, death.

The appellant, in his first ground of error, complains that the trial court erred in not granting his oral motion to quash the indictment on the ground that it does not sufficiently allege the elements of the offense of murder by arson. The formal parts having been omitted, the indictment reads as follows:

'One F. L. McKenzie, hereinafter styled Defendant, in the County of Tarrant and State aforesaid, on or about the 5th day of May, in the year of our Lord One Thousand Nine Hundred Sixty Eight did then and there voluntarily and with malice aforethought kill W. C. Davis, Jr. by unlawfully and willfully setting fire to and burning the house of James A. Hayes there situate, thereby killing the said W. C. Davis, Jr.'

The sufficiency of an indictment is measured by whether it sufficiently apprises the defendant of the offense with which he is charged in that it apprises him of what he must be prepared to meet, and whether it provides a sufficient shield for the plea of prior conviction or prior acquittal in the event of another prosecution against him for a similar offense. Cameron v. Hauck, 383 F.2d 966 (5th Cir. 1967). The state is not required to plead its evidence. 4 Branch's Penal Code, Sec. 2185 and cases cited. The indictment sufficiently apprised appellant of the act he is charged with committing and the offense of murder with which he is charged. Willson's Tex.Crim.Forms Anno., 7th Ed., Sec. 1803.

The appellant's first ground of error is overruled.

It is contended that the trial court erred in denying appellant's motions for change of venue and continuance.

These motions are in one instrument which is signed by the appellant and his counsel and sworn to only by his counsel. Art. 31.03, Vernon's Ann.C.C.P., requires that a motion for change of venue be supported by the affidavits of the defendant and at least two credible persons, residents of the county where the prosecution is instituted.

Evidence was offered in support of the motion for change of venue.

The trial court in view of the evidence offered, which has been examined, did not abuse its discretion in refusing the motion for change of venue.

There is no showing that the motion for continuance was ever considered or acted upon by the trial court.

The second ground of error is overruled.

Error is urged on the ground that the trial court proceeded to trial in Cause No. 75,744 (the instant case) instead of No. 76,440.

It is undisputed that both cases grew out of a single act of arson which caused the deaths of eight persons. From the record, there appears no prejudice in first trying Cause No. 75,744. Further, the record fails to show any objection to the order of trial. The third ground of error is overruled.

It is contended that the trial court erred in permitting the selection of a portion of the trial jury when one of appellant's attorneys was not present in court.

Two attorneys were retained to represent appellant. The court, at the commencement of the jury selection, gave the names of the two attorneys representing the appellant to the jury and told them that one would be there later. Two members of the trial jury were selected during the temporary absence of the attorney. The trial court did not err in proceeding with the trial in the absence of one of appellant's attorneys.

It is contended that the trial court erred in depriving the appellant of his right to be tried by an impartial and constitutionally selected jury.

Appellant takes the position in his brief that his trial counsel did not object to any of the 18 challenges for cause which were made by the state because of conscientious scruples during the examination of the sixty-four prospective jurors, and did not question them as to whether they could conceivably vote for the death penalty in some cases where the facts warranted such penalty, and never used the guidelines suggested by the trial court.

Before the beginning of the voir dire examination, the trial court informed trial counsel as follows:

'Gentlemen, in selecting jurors in this case we are going to be governed entirely, as far as the death penalty is concerned, by the law as set out in the Witherspoon case and the other cases in the Criminal Court of Appeals that have been decided since that date.'

The court further informed counsel of the guidelines and definitions that would be considered when an objection was made that a prospective juror had conscientious scruples against the imposition of the death penalty. He also instructed counsel that, 'The defendant's counsel, if he wishes, will be given an opportunity to cross-examine each prospective juror on these particular points.' After inquiry by the court, there were no objections to the manner and method outlined for the voir dire examination. In his brief, the appellant states that the court gave excellent guidelines for the voir dire examination of prospective jurors.

In view of the gravity of this cause, an independent examination has been made of all the voir dire examinations of the prospective jurors at the trial.

A total of 64 prospective jurors were examined before 12 were chosen to serve as the trial jury.

According to the appellant's brief, 18 prospective jurors were challenged for cause by the state and excused by the court for having conscientious scruples against the imposition of the death penalty. This court's examination reveals that 17 were so excused and the other juror was excused for health reasons. At the conclusion of the individual examination of each of the 18 jurors, the court at times asked if the appellant had any objections to the juror being excused, and whether the inquiry was made or not the appellant announced that he had no objection in all except three. The appellant exercised 15 peremptory challenges and the state made 8 peremptory challenges. Three were challenged for cause by the appellant and excused. Eight were excused by the court and by agreement of counsel.

It is evident from the examination of this record that when the court at the outset informed counsel of the guidelines, definitions, manner and methods of conducting the voir dire of the prospective jurors that both parties concentrated their selection process in accordance therewith by developing and weighing the responses of the jurors for the purpose of acceptance or rejection. In numerous instances when the state challenged for cause, the court inquired of the appellant if he had any objection. There were no restrictions or limitations at any time pertaining to the examination, acceptance or rejection of any prospective juror. While the evidence supports the conclusion that each of the 17 had conscientious scruples against the death penalty, it does not reveal that there was any plan, pattern, scheme, or premature exclusion because of such scruples.

It is concluded from the independent examination of the voir dire of the prospective jurors as shown by the record that the appellant was not deprived of his right to a trial by an impartial and constitutionally selected jury.

The sixth ground of error is that: 'The trial court erred in not granting appellant's lawyer more than 15 challenges for cause.'

This matter arose as follows:

'Mr. Winder: Your Honor we have one more juror to pick, of course, and we have completely ran out of scratches or challenges. I wonder if we could impose on the Court to have a few more?

'The Court: On what grounds?'

The record reveals that the appellant did not respond to the court's inquiry. The next three prospective jurors were excused for the reason that they could not impose the death penalty. Without any examination of two, the appellant announced that he had no objection to them being excused and the third was excused without examination or complaint by the appellant. After extended interrogation, the twelfth juror was accepted by the appellant without complaint or any request for an additional challenge. The sixth ground of error is overruled.

The appellant contends that the trial court erred in finding that appellant's confession was voluntarily made and in admitting it into evidence.

Appellant also urges error in the admission of his confession made after he was indicted and was without the assistance of counsel and prior to the appointment of counsel for him.

The evidence reveals that the appellant was arrested on May 5, 1968, by the police in Juarez, Mexico. At 10:30 a.m., May 9, 1968, the appellant was turned over to the El Paso Police who turned him over to the sheriff of Tarrant County.

The appellant filed a motion to suppress his confessions. It alleged that the first purported confession dated May 9, 1968, and taken before Justice of the Peace Snooks in El Paso was not admissible because it recited that a crime was committed on May 5, 1958, which was a date ten years prior to the offense charged. The motion further alleged that the second purported confession taken before R. J. Adcock, (Assistant District Attorney of Tarrant County) does not show any date and under what circumstances said confession is alleged to have been signed.

At the hearing on the motion to suppress in the absence of the jury on October 17, 1968, the state announced that it would only offer in evidence the confession made by the appellant to R. J. Adcock, Assistant District Attorney.

The warning given appellant by Magistrate Snooks on May 9, 1968, in his office in El Paso was in accordance with Art. 15.17,...