Morris v. State

• Decision Date: 10 January 1973
• Docket Number: No. 45485,45485
• Citation: 488 S.W.2d 768
• Parties: Walter Lee MORRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 768

488 S.W.2d 768

Walter Lee MORRIS, Appellant, v. The STATE of Texas, Appellee.

No. 45485.

Court of Criminal Appeals of Texas.

Jan. 10, 1973.

Murray H. Nance, Jr., Stephen F. Hefner, Sherman, for appellant.

Clifford Powell, County Atty., and Robert E. Richardson, Jr., Asst. County Atty., Sherman, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder. The punishment was assessed at death.

The indictment alleged that on December 23, 1969, Walter Lee Morris killed D. C. Arnold by shooting him with a gun. The record reflects that Arnold was a sergeant of the Sherman police department.

The sufficiency of the evidence is not challenged. The main issues on appeal concern the denial of a motion to change venue and the admission of a written confession into evidence.

Most of the incriminating testimony was from the fifteen-year-old accomplice witness Jerry Fisher. Fisher testified that Walter Lee Morris, his brother L. V. Morris, Gregory Jackson and he drove from Dallas to Sherman in Gregory's 1960 model Chevrolet automobile two days before Christmas. While they were in Sherman, they drove by the Rocket Oil Service Station and L. V. Morris stated that he saw only one man there. L. V. then turned toward the back seat where Walter and Jerry were seated and asked, 'Did we want to take this one?' L. V. drove on past an underpass and stopped. Walter, who was carrying a .38 caliber revolver under his belt, put a black handkerchief over his face and asked Jerry if he was going with him. Jerry agreed and the two went to the service station where Walter looked around a corner and said that the man was sitting down. Walter then took the revolver in his hand, ran into the station and grabbed the man by the arm and jerked him out of the chair. He then took the man's billfold and a .22 caliber revolver which he gave to Jerry. Walter then took the bills from the cash register and Jerry picked up some change. They tied the hands and feet of the attendant and Jerry was attempting to open the safe when an officer drove up. They pushed the attendant into the restroom and then they entered and closed the door.

The policeman got out of his car and said, 'Rock, Rock--What's the matter, Rock?' (The attendant was known as Rock Chambers.) By then he was in the station and Walter stuck the .38 revolver out the door and fired some six times, emptying his gun at the officer. Jerry fired some two or three shots at the attendant who was on the floor and then some two or three shots as he left at the policeman on the floor. The two then ran toward their car until they saw some police officers there.

They then went to a house and when a man came to the door, Walter jerked the locked screen door open, held the '38' at his head and ordered the man to bring his wife and baby and drive the two to Dallas. The man did as he was told.

The confession of Walter Lee Morris, the appellant, was introduced. It recited that the four men went to Sherman and he and Jerry Fisher left the car to rob the attendant of the service station. It differed from the testimony of Fisher in some minor details, but not substantially. It recited that the appellant emptied his gun at the officer and ran. When they got near their getaway car, they saw the officers and went to the house and ordered the man to take them to Dallas. Sometime later, he gave some of the money taken in the robbery to Fisher. The confession also shows that he sold the gun to a man called Rob.

The testimony of the accomplice witness Fisher and the confession were corroborated by the testimony of the officers and other witnesses from Sherman. One witness testified that at about 4:30 a.m., he saw two colored men standing at either side of 'Rock' Chambers at the cash register in the station and no car was parked there. Officer Choate testified that he drove by the station at approximately 4:40 a.m. and noticed the patrol car of Officer Arnold parked at the station. He did not see Arnold, but did not consider this unusual because Arnold usually stopped there about that time every morning. A short distance away he saw two colored men in a parked car and one of them stated they had car trouble. Officer Medlin arrived and the two were directed to another all night service station.

At approximately 5:20 a.m., Officer Choate drove to the Rocket Oil Service Station and found the patrol car still parked in the driveway. He went inside to check and found Officer Arnold's body on the floor. His gun was still in the holster. The body of Chambers was in the restroom.

Officer McConnell testified that at approximately 5:35 a.m., after hearing about Officer Arnold's death, he saw two colored men in a slowly moving 1960 model Chevrolet. He stopped the car and they identified themselves as Lavera Morris and Gregory Jackson.

During the autopsy, several projectiles, both large and small, were found in Arnold's body.

Joseph Robertson, although not too definite in his testimony, identified the appellant from others in the courtroom as being the one who ordered him to take his wife and infant son along and forced him to take the two men to Dallas.

The appellant did not offer any testimony before the jury. He testified only before the court on the voluntariness of the confession.

Motion for Change of Venue

First, the appellant contends that the court erred in overruling his motion for change of venue. He filed affidavits of two compurgators which recited that because of publicity he could not receive a fair trial in Grayson County. The State filed affidavits reciting that neither of the compurgators had sufficient knowledge of the people in the county or information to justify their statements that prejudice existed against Walter Lee Morris.

At the hearing on the motion to change venue, two witnesses were called by the defense. One testified that because of the publicity about the case it would be difficult to obtain a fair trial. The other witness testified that he thought that a fair trial could not be obtained in Grayson County.

Three witnesses called by the State testified that in their opinion Morris could receive a fair trial in Grayson County.

Seventy-six prospective jurors were examined. Twenty-one were excused because they could not assess the death penalty under any circumstances. Six were excused because they could not consider a minimum penalty of two years for one convicted of murder. Five were excused for medical reasons.

Five friends of the deceased and six who had formed opinions as to the guilt or innocence were excused. Others were excused for different reasons not connected with publicity and not because of opinions formed.

No person who served on the jury had formed an opinion as to guilt or innocence, though most had heard of the case or read about it in the newspapers. This case was tried in September of 1970, some ten months after the date of the offense.

According to the 1970 census, Grayson County had a population of 80,890.

The appellant exercised only fourteen of his fifteen peremptory challenges authorized at the time.

In Taylor v. State, Tex.Cr.App., 420 S.W.2d 601, thirty-nine of the 112 prospective jurors questioned expressed an opinion that the defendant was guilty. In that case, as well as in the present case, the newspaper accounts appear to be fair and non-inflammatory and apparently published to inform the public of current events. Only fourteen peremptory challenges were used and therefore there is no showing that the defendant was forced to take an objectionable juror.

In Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, the Court said:

'The fact that petitioner did not challenge for cause any of the jurors so selected is strong evidence that he was convinced the jurors were not biased and had not formed any opinions as to his guilt. * * *

'While this Court stands ready to correct violations of constitutional rights, it also holds that 'it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.' United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331, 1338 (1956).

'* * * of course there could be no constitutional infirmity in these rulings if petitioner actually received a trial by an impartial jury.'

In Pamplin v. Mason, 364 F.2d 1, the Fifth Circuit Court of Appeals wrote:

'. . . The test is no longer whether prejudice found its way into the jury box at the trial. . . .'

and

'As we read the Supreme Court cases, the test is: Where outside influences affecting the community's claimate of opinion as to a defendant are inherently suspect, the resulting probability of...