Moody v. State
| Citation | 827 S.W.2d 875 |
| Decision Date | 15 January 1992 |
| Docket Number | No. 70883,70883 |
| Parties | John Glenn MOODY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
In February of 1989, appellant was convicted, in the 350th Judicial District Court of Taylor County, Texas, of capital murder pursuant to TEX.PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp.1988). 1 The indictment alleged that the offense occurred on or about the 3rd day of July, 1988. After the jury returned affirmative answers to the special issues submitted pursuant to TEX.CODE CRIM.PROC.ANN. art. 37.071 (Vernon Supp.1989), the trial judge assessed punishment at death by lethal injection. On direct appeal, appellant raises thirteen points of error. Although appellant does not raise any evidence sufficiency claims, a brief recitation of the facts is necessary for a meaningful discussion of the points which he does raise.
The record reflects that the decedent, a 77 year old widow, was discovered by her sister on the evening of July 4, 1988, lying dead between the dining and living rooms in her own house. She was nude with a telephone cord wrapped tightly around her neck. Oral smears taken from the decedent revealed the presence of spermatozoa, indicating some sort of seminal ejaculation into her mouth. Her house was in a state of some disarray. Two rings which were normally worn by the decedent, as well as her purse and wallet, were missing. Early July 5, 1988, when appellant was booked into jail for public intoxication, he had those two rings in his pants pocket. A bloody fingerprint found on a telephone at the scene of the crime was identified as having been made by appellant. Appellant had done yard work for the decedent in the past and canceled checks indicated that she had paid him for cleaning and yard work during April and May of 1988. Testimony revealed that on the evening of July 3, 1988, a vehicle, which resembled appellant's wife's car, which appellant had custody of at that time, was seen by neighbors driving slowly through the neighborhood and parked in the decedent's driveway.
Appellant's points of error numbers three, five, ten, and eleven deal with occurrences during the jury selection process. Point number three alleges that the trial court's comments on the weight of the evidence were so prejudicial that they deprived appellant of a fair and impartial trial. This comment occurred during preliminary remarks that were being made as the special veniremembers were filling out information sheets. The trial court was inquiring if any of the panel members knew the appellant or the decedent. In making this inquiry, the trial court stated that "[t]hat's the lady that was murdered" and "this man is accused of committing her murder." Apparently, appellant's complaint is that assuming that the decedent was murdered was a comment calculated to convey an opinion of the case in violation of TEX.CODE CRIM.PROC.ANN. art. 38.05 (Vernon 1979). 2 Because we conclude that the comment was not in any way reasonably calculated to benefit the State or prejudice appellant we overrule point number three. Davis v. State, 651 S.W.2d 787, 790 (Tex.Cr.App.1983).
Point number five avers that the trial court abused its discretion by excusing a veniremember on its own motion. Statements by the trial court and sworn testimony by a deputy district clerk indicate that that veniremember was excused because he had an out-of-town vacation scheduled for the next week. While the trial court mentioned that it had made the excuse pursuant to its authority from the Government Code, apparently referring to TEX. GOV'T CODE ANN. § 62.110(a) (Vernon 1988) which allows the court to release veniremembers from jury service upon hearing any reasonable sworn excuse, it is undisputed that that prospective juror did not file a sworn affidavit prior to or at the time he was excused. Though there was discussion of getting the veniremember back to file such an affidavit, and the State refers to such being included within the record, we can find no such instrument. 3
Though the statement of facts does not include a transcription of the discussions between the trial court and this veniremember nor delineate the precise moment in time when the excusal was made, the above-mentioned comments by the trial court and the deputy district clerk do prove that the excusal was made after the entire special panel had been sworn but before any individual questioning had begun. TEX.CODE CRIM.PROC.ANN. art. 35.03 (Vernon Supp.1989) provides for such an excusal if the trial court deems the excuse sufficient. We hold that the trial court's action in the instant cause was not an abuse of discretion. Harris v. State, 784 S.W.2d 5, 19 (Tex.Cr.App.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 966 (1990). We therefore overrule point of error number five.
Point number ten claims error in failing to sustain appellant's challenges for cause to two prospective jurors who each demonstrated a bias against various aspects of the law. He did request additional peremptory strikes after he used those that he had on those two veniremembers and claimed that he was forced to accept two objectionable jurors because of such use. Veniremember Deatherage expressed concern about retaliation directed toward his brother, a local deputy sheriff. Appellant also claimed that his answer to Special Issue Number Two would be automatic after a finding of guilt and that he could not afford appellant the presumption of innocence in both phases of the trial. The concerns about possible retaliation did not indicate any inability or unwillingness to fairly and impartially follow the law.
The record reflects the following exchange between the attorneys and veniremember Deatherage:
Further questioning reveals the following:
However, upon subsequent questioning from the prosecution, Deatherage admitted that he might be "twisted up" about answering the special issues. That questioning reveals the following:
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