Moore v. State

• Decision Date: 06 October 1976
• Docket Number: No. 51801,51801
• Court: Texas Court of Criminal Appeals
• Parties: Mark Milton MOORE, Appellant, v. The STATE of Texas, Appellee.

Page 664

542 S.W.2d 664

Mark Milton MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 51801.

Court of Criminal Appeals of Texas.

Oct. 6, 1976.

James P. Finstron, Dallas, court appointed, for appellant.

Henry Wade, Dist. Atty., Steve Wilensky, John Ovard, Robert Whaley and Donald J. Driscoll, Asst. Dist. Attys., Dallas, 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 capital murder wherein the punishment was assessed at death.

On the night of November 13, 1973, Martha Janette Williams, a secretary for Fantastic Photo on West Mockingbird Lane in Dallas, was working alone in the office. The appellant, a janitor at the building, picked up Curtis Lee Jones at 11 p.m. and went to the building. When he entered the office where Williams was, she appeared startled and the appellant left. Later, appellant and Jones discussed robbing 'the girl in the office' and returned and apparently took money from the petty cash box. Appellant told Jones that Williams had recognized him and they had to take her with them. Jones was ordered to put Williams in the trunk of her car, and he drove that car to the Trinity River bottoms. Appellant followed in another car. After an unsuccessful attempt to sink the car, the appellant shot the deceased with a .410 shotgun.

The autopsy showed four gunshot wounds, including one to the chest at the area of the heart and one to the right side of her face, destroying it. Bruises about her face were consistent with being struck repeatedly with a fist or the butt end of a gun.

Officer William Huggins of the Dallas Police Department found the car and the body while on patrol the next day. Six spent shotgun shells were recovered in the vicinity of the car.

While no positive determination could be made, there were indications of rape, such as the finding of semen on the floor of the office, the vaginal smear taken from the deceased, and the open zipper on the deceased's jeans.

Initially appellant complains the court erred in conducting part of the voir dire examination of potential jurors in violation of Article 35.20, Vernon's Ann.C.C.P., which provides they shall be called in the order in which they appear on the jury list furnished the defendant.

This is what appears to have occurred. There was no special venire. The jury panel for the case was brought to the courtroom from the central jury room, where the jurors had been part of the jury panel for the week.

After their arrival in the courtroom, the trial judge explained to them the nature of the case, the estimated time the court would take to try the case and explained certain principles of law applicable to the case as permitted by Article 35.17, Vernon's Ann.C.C.P.

Although supposedly the potential jurors had been qualified as members of the jury panel for the week, the trial judge asked for 'excuses' after his explanation of the case and principles applicable thereto. The veniremen were instructed to come to the bench one at a time. Those offering 'excuses' did not appear in the order their names appeared on the jury list.

We, however, do not find that the appellant objected to these veniremen appearing out of order to present their 'excuses.' No error is shown. Dent v. State, 504 S.W.2d 455 (Tex.Cr.App.1974).

It should be remembered that the conduct of the voir dire examination must rest largely within the sound discretion of the trial court. Weaver v. State, 476 S.W.2d 326 (Tex.Cr.App.1972); Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975).

It is observed that after the 'excuses' were passed upon the voir dire examination of the veniremen took place individually and apart from the rest of the panel.

Appellant also urges the trial court erred when it denied appellant individual voir dire examination of each prospective juror apart from the rest of the panel as required by Article 35.17, Vernon's Ann.C.C.P.

Appellant had filed a demand that he be accorded such examination, and it had been granted by the court. It appears that appellant's complaint is directed to the action of the court in hearing 'excuses' while the balance of the panel was still in the courtroom.

It appears the few prospective jurors involved approached the bench one at a time, and there is no showing that the balance of the panel heard the interrogation at the bench. ¹ One of the purposes of authorizing separate examination of each individual juror in absence of the panel is to permit the asking of questions which might prejudice the entire panel. Under the circumstances, appellant has not shown how he has been harmed by the procedure utilized for hearing the 'excuses' of some 18 prospective jurors where it was not shown the balance of the panel heard the interrogation.

In another ground of erro appellant, complains of the court's action in excusing several jurors without challenge by the State or defense. We have examined the four instances cited ² and do find that the trial court did excuse the prospective jurors without challenge. The court should not have excused the prospective jurors without challenge except upon grounds which showed an absolute disqualification. See Article 35.19, Vernon's Ann.C.C.P.; Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33 (1957); Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973). While it is inconceivable the State would not have challenged each of the prospective jurors for cause, such challenge could have been waived. See Article 35.16, Vernon's Ann.C.C.P. Nevertheless, we have examined the voir dire examination of each of the prospective jurors and do not find that the appellant objected on the ground now urged on appeal-- that there was no challenge for cause. The objections offered were to the grounds upon which the prospective jurors were excused. No error is presented.

The record before us further shows that three of the four prospective jurors were not willing to consider the full range of punishment in the event appellant was found guilty. The appellant was not entitled to have these three on the jury. See Article 35.16(b)3, Vernon's Ann.C.C.P. Furthermore, the appellant has not shown that he was tried by a jury to which he had a legitimate objection. See Henriksen v. State, supra.

Appellant complains the court erred in sustaining the State's challenge for cause to prospective juror Hill because none of the reasons for challenge for cause listed in Article 35.16, supra, were shown to be applicable.

Marada Hill first approached the bench when the court asked for 'excuses.' She related she had no husband, had children 17 and 14 years of age, and was not paid when she was not at work, that she could not keep her mind on the case as she would be worrying how to pay her bills, etc., since her employment was her only source of income. Upon objection, she was not excused but interrogated again several days later during individual voir dire examination. Again she stated that her situation had been affecting her the last few days and had put a strain on her and that all she could think about was how she was going to pay her bills, etc. She didn't think she could be a very fair juror. She was challenged and excused over the objection of the appellant.

Article 35.16(a), supra, provides that, '(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. . . .' The statute is divided into three parts, providing challenges for cause which both the State and the defense May make, those which the State May make and those which the defense May make. We find nothing in the statute which renders these lists an exclusive basis for challenges for cause. Challenges for cause not based on any ground mentioned in the statutes are ordinarily addressed to the sound discretion of the trial judge. See and cf. Texas Power and Light Company v. Adams, 404 S.W.2d 930 (Tex.Civ.App., Tyler 1966--no writ); City of Hawkins v. E. B. Germany and Sons, 425 S.W.2d 23 (Tex.Civ.App., Tyler 1968, writ ref., n.r.e.).

Any juror who is going to be so preoccupied by personal problems so that she could not be fair certainly is 'incapable or unfit to serve on the jury.' We find no abuse of discretion in the court excusing Mrs. Hill.

In two grounds of error appellant urges the trial court erred in failing to sustain challenges for cause to two prospective jurors when it was developed on voir dire that their addresses were different than their addresses on the jury list furnished the appellant. He cites Swofford v. State, 3 Tex.App. 76 (1877), and Thompson v. State, 19 Tex.App. 593 (1885), for the proposition that if the Name of the prospective juror varies from that on the jury list given to the defendant the juror should be set aside.

In the instant case there was no variance as to the name and no claim the prospective jurors were not in fact the jurors summoned for duty. It appears the prospective jurors in question had previously lived at the address on the jury list and had recently moved to another address in Dallas County. The variance in address is not a challenge for cause under Article 35.16, supra, nor can we see how such a variance as to address alone renders a juror incapable or unfit to serve on a jury when there is no question he was the juror summoned and the new address does not render the juror disqualified as to residence.

Appellant also urges the trial court erred in excusing upon challenge prospective juror Friedman for bias of the potential juror against the minimum punishment for murder since such bias does not fall within the reasons for challenges for cause provided the State in Article 35.16, supra.

The prosecutor explained to the prospective juror that if the State failed to prove capital murder (alleged to have occurred in November, 1973), then there was the lesser included offense of murder, which...