Moreno v. State, s. 59057

• Decision Date: 19 September 1979
• Docket Number: No. 1,Nos. 59057,s. 59057,1
• Citation: 587 S.W.2d 405
• Parties: Juan Daniel MORENO and Francisco Gonzalez Moreno, Appellants, v. The STATE of Texas, Appellee. 59059
• Court: Texas Court of Criminal Appeals

Page 405

587 S.W.2d 405

Juan Daniel MORENO and Francisco Gonzalez Moreno, Appellants, v. The STATE of Texas, Appellee.

Nos. 59057 59059.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 19, 1979.

Rehearing En Banc Denied Oct. 24, 1979.

Anthony Nicholas, Roy R. Barrera and Terrence W. McDonald, San Antonio, on appeal only, for appellants.

Oscar B. McInnis, Dist. Atty., Edinburg, and Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and CLINTON, JJ.

OPINION

ONION, Presiding Judge.

These are appeals from appellants' convictions for murder and from an order revoking the probation of appellant Francisco Moreno granted in a possession of marihuana case. The jury assessed punishment at forty (40) years' imprisonment for each appellant in the murder cases, and following revocation, appellant Francisco Moreno was assessed a five (5) year sentence.

The sufficiency of the evidence is not challenged. Suffice it to say the record shows that on Sunday afternoon of August 8, 1976, two groups of people were eating a late lunch in Wyatt's Cafeteria in McAllen. One group consisted of the appellants and two acquaintances (a husband and wife) whom they had invited to eat with them. The other group consisted of the deceased Octavio Tirado, Oscar Perez and Francisco Uranga, the latter two being citizens of Mexico. The Moreno group left the cafeteria first and some ten or fifteen minutes later the deceased and his companions left. As they approached their car, they were attacked by gunmen. Tirado was killed and Ozuna was wounded; Uranga escaped. At trial Uranga identified the appellants as the gunmen who shot and killed Tirado. Appellants relied on the defense of alibi and claimed a frame-up. Defense witnesses placed the appellants elsewhere at the time of the shooting and an attempt was made to show that Uranga arranged Tirado's murder and then sought to implicate the appellants. The jury by their verdict rejected such claims.

In their first ground of error appellants contend the trial court erred in overruling their "timely presented motion to summon 147 prospective jurors excused in violation of the applicable laws of the State of Texas."

It appears that at a previous setting of the cases the court granted appellant's motion to quash the jury panel. While it is not clear, it appears the ruling was based on irregularities and loose practices in excusing prospective jurors. Another jury panel was summoned for October 4, 1976. On such date the appellants filed an instrument simply entitled "Motion" requesting that 310 prospective jurors who had been improperly excused be summoned. The number was later changed to 147 prospective jurors. In support of their motion, appellants called a deputy district clerk who testified as to the procedures used in excusing prospective jurors summoned for October 4, 1976. Her testimony from the earlier and successful hearing on the motion to quash the jury panel previously summoned was offered. There is nothing to show that any prospective jurors summoned for October 4th from which the jury in these cases was selected were improperly excused. Further, we do not find that the appellants obtained a ruling on their "Motion." We further observe that Article 35.01, V.A.C.C.P., concerning attachment of absent prospective jurors, has been held to be directory, not mandatory. Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Dent v. State, 504 S.W.2d 455 (Tex.Cr.App.1974). We also observe they have failed to show any injury if in fact the court did refuse to summon the previously excused prospective jurors.

There appears to be some argument that the "Motion," despite its simple designation and its contents, should be considered as a motion to quash the jury array. We observe, however, that Article 35.07, V.A.C.C.P., requires that a challenge to the array be supported by an affidavit. There is no affidavit attached to the "Motion" in question. Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.1974), and cases there cited. Appellants' ground of error is overruled.

Next, appellants contend the trial court erred in failing to sustain two of their challenges for cause and subsequent request for two additional peremptory challenges or strikes.

The only part of the voir dire examination brought forward in this record is the separate examination of prospective jurors Townsend and Morin to whom challenges for cause were overruled. It does appear that prior to striking the jury lists the appellants asked for the additional peremptory challenges in light of the court's rulings on the challenges for cause to Townsend and Morin. Such request was denied. The appellants rely upon Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274 (1944), wherein this court wrote (at page 281):

". . . in the trial of a criminal case where an accused has been wrongfully deprived of a peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a further juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror. In further words, we think the accused should only be required to exercise a peremptory challenge on the objectionable juror and not a challenge for cause, nor show grounds for a challenge for cause, nor to show why such juror was objectionable to him."

Assuming, without deciding, that Townsend and Morin were disqualified and that the challenges for cause should have been sustained, ¹ we observe from the meager record of the voir dire examination before us that it does not reflect that the appellants used peremptory challenges on Townsend and Morin. While other evidence in the record reflects that neither served on the jury, the record is silent as to whether a forced peremptory challenge to each juror was the reason. Still further, and more importantly, there is no showing that the appellants exhausted all their peremptory challenges. There are no jury lists or other evidence to show what was done in this regard. We also observe there is no support for the assertion that an objectionable juror served on the jury. While Wolfe does not require that a defendant show grounds for a challenge for cause nor show why a particular juror was objectionable, a defendant must at least state that a particular juror or jurors are objectionable to him, after he has exercised peremptory challenges on other prospective jurors who were disqualified and where his challenges for cause on such jurors were overruled.

Appellants' counsel stated to the court:

"There are other jurors left on the prospective list that are objectionable to these defendants and to their attorneys, whom they would strike as prospective jurors were they not compelled to exhause (sic) their twelve challenges allowed by the Court by striking the said two named jurors, John J. Townsend, Jr. and Thomas R. Morin."

We do not conclude that such a blanket statement is sufficient to invoke the Wolfe rule. Here there is no showing that any juror who was objectionable served on the jury. The asserted fact that certain other jurors, without designation, were objectionable was certainly not sufficient in and of itself to show that any objectionable juror served on the jury that convicted the appellants.

Appellants also contend the "trial court erred in denying defendants the right of effective cross-examination by preventing defendants from introducing a pending federal indictment to establish interest, bias and motive on the part of the State's witness, Francisco Uranga."

The State filed a motion in limine which was granted ordering the appellants not to mention before the jury any indictment pending against Uranga until a hearing was held before the court on its admissibility. During the trial the appellants asked for such hearing which became their bill of exception. At the hearing it was shown that Uranga was under indictment in the United States District Court for the Southern District of Texas, Brownsville Division. The record is in some confusion as to the exact nature of the offense. The indictment was introduced for the purpose of the bill of exception, but is not to be found in the appellate record. ² The hearing did establish that Uranga was under indictment in federal court, but there was no evidence at such hearing that the federal indictment had any connection with the alleged murder and the evidence elicited was in no way shown to be relevant on the issue of bias, interest, motive, etc. The court ruled that the indictment could not be used for impeachment. In support of such ruling, the State cites Article 38.29, V.A.C.C.P., which provides:

"The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired. In trials of defendants under Article 36.09, it may be shown that the witness is presently charged with the same offense as the defendant at whose trial he appears as a witness."

It has frequently been held that by virtue of this statute a witness may not be generally impeached by showing that there is an unresolved charge pending against him, Hall v. State, 402 S.W.2d 752 (Tex.Cr.App.1966); Webber v. State, 472...