Porter v. State

• Decision Date: 21 October 1981
• Docket Number: No. 68336,68336
• Citation: 623 S.W.2d 374
• Parties: Henry Martinez PORTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 374

623 S.W.2d 374

Henry Martinez PORTER, Appellant, v. The STATE of Texas, Appellee.

No. 68336.

Court of Criminal Appeals of Texas, En Banc.

Oct. 21, 1981.

Rehearing Denied Nov. 25, 1981.

John M. Anderson, Fort Worth, J. Douglas Tinker, Corpus Christi, on appeal only, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall, Rufus Adcock and Joe C. Lockhart, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of capital murder. The punishment is death. The appellant had been previously tried and convicted for the same offense but the judgment was reversed and cause remanded in Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979). The case was retried in Nueces County after the venue was changed from Tarrant County.

The appellant asserts that the trial court erred in the following ways: by overruling his challenge to the array of the jury panel, by excusing improperly for cause several prospective jurors, by not ordering a psychiatric examination of the appellant, by not allowing the appellant's expert to examine the weapons that were introduced in evidence, by admitting an oral statement of the appellant made while he was in custody, by admitting in evidence a tape recording of police communications, and by allowing in evidence testimony concerning an extraneous offense.

The appellant in his first five grounds of error complains that the trial court erred in overruling his challenge to the array of the jury panel and in refusing to issue attachments for those who had been summoned but had not reported for jury duty.

The appellant filed a written challenge to the array pursuant to Art. 35.07, V.A.C.C.P. alleging that "jurors have been excused by individuals not authorized by law to excuse them such as deputy clerks and other law enforcement officers." A hearing was held and the appellant presented the testimony of Charles Nay. Nay testified that he was the court administrator and that he had for the court issued the summons for the jury. He stated that in each of the two groups summoned not all of the summoned jurors had appeared. He said some had legal excuses but a large number did not respond at all to the summons. Nay stated that he did not know whether or not someone who was not authorized by law had excused these jurors. However, he added that more than likely the ones not appearing had moved out of the county. The appellant, after the hearing, requested that each juror who had not responded be attached. The request was denied and appellant's challenge to the array was overruled.

We conclude that the trial court did not err in its rulings. Art. 35.07, supra, states:

"Each party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction or an acquittal. All such challenges must be in writing setting forth distinctly the grounds of such challenge. When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained."

The evidence presented by the appellant fails to show that a person unauthorized by law excused the prospective jurors or that a person "wilfully summoned jurors with a view to securing a conviction or an acquittal." The evidence only shows that several prospective jurors did not respond to the summons; nothing indicates that someone improperly excused them. See Dent v. State, 504 S.W.2d 455 (Tex.Cr.App.1974). The trial court did not err in not attaching the jurors. Art. 35.01, V.A.C.C.P., which provides for the attachment of absent jurors, is directory and not mandatory. Moreno v. State, 587 S.W.2d 405 (Tex.Cr.App.1979); Dent v. State, supra. The appellant has failed to establish that an injury occurred by the trial court's failure to grant his request for attachments. Moreno v. State, supra; Dent v. State, supra; Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980). No abuse of discretion has been shown; appellant's grounds of error are overruled.

In his next eighteen grounds of error the appellant contends that the trial court improperly excused for cause six jurors. The first juror, Susan Pace Herndon, was improperly excused, the appellant argues, because the following exchange from the final question asked the juror shows that under the holding of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) she was qualified to serve:

"Q. Despite the convictions that you have, can you put those aside, if you were on this jury, and do your duty as a citizen? Despite what your personal convictions may be, could you set those aside and serve, and do your duty as a juror in a capital murder case?

"A. Yes, I could do my duty as a juror."

However, Herndon previously testified that she had a long standing belief against the death penalty, that she could never impose it, and that she would vote automatically against the imposition of the death penalty no matter what the evidence at trial revealed. When asked by defense counsel if there was any way he could get her to agree that there are some cases where she thought the death penalty was a possibility, she responded there was not.

The entire voir dire examination of Susan Herndon was quite short and when taken as a whole makes it unmistakably clear her views "would prevent or substantially impair the performance of (her) duties as a juror in accordance with (her) instructions and (her) oaths and would prevent (her) from consider(ing) and decid(ing) the facts impartially and conscientiously apply(ing) the law as charged by the court." Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Witherspoon v. Illinois, supra. The appellant apparently argues that the final response by the juror that she could do her duty as a juror demonstrates that she was qualified to serve as a juror under Witherspoon. Indeed the appellant makes the same argument concerning the other excused veniremen; however, the argument is without merit. The question was very broad and provided little, if any, insight into her ability to serve as a juror. Nothing in the juror's response indicates that she was willing to follow the trial court's instructions and base her decision upon the evidence presented. The final question and answer were not sufficient to rehabilitate the juror and overcome her earlier testimony that she would automatically vote against the imposition of the death penalty regardless of the facts and circumstances that might emerge during the trial. Vigneault v. State, 600 S.W.2d 318 (Tex.Cr.App.1980). Appellant's reliance upon Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979) aff'd 626 F.2d 396 (5th Cir. 1980) is misplaced. In Burns a prospective juror stated three times she was opposed to the death penalty and its possible infliction would affect her deliberations. She was excused for cause and she was asked no further questions. The court vacated judgment, stating that the juror was not disqualified under Witherspoon and that other questions should have been propounded to the juror. This is clearly not the case with this venireman. She had earnestly stated her opposition to the death penalty and she would automatically vote against it. The juror was properly excused for cause. Witherspoon v. Illinois, supra; Vigneault v. State, supra; Ex parte Chambers, 612 S.W.2d 572 (Tex.Cr.App.1981); Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980); Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980) cert. denied, 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300.

The appellant also complains that venireman Zeon Martinez, Jr. was improperly excused for cause. Martinez when questioned during the voir dire examination stated he did not have any objection when told the punishment for capital murder was either life or death. However, when asked if he could assess the death penalty he stated that he could not. He stated that it was a strong belief and when asked if he would vote against the death penalty regardless of the facts he said yes. The prosecutor then explained the special issue questions under Art. 37.071, V.A.C.C.P. that the jury would have to answer. The juror stated he would automatically vote "No" to the questions because he would not want to sentence a man to death regardless of the facts and evidence. When asked on cross-examination if he could set aside his beliefs and do his duty as a citizen serving on this jury, Martinez said no. When asked how it would affect his deliberations Martinez stated that he had never killed anyone, that it would be on his conscience, and that he would worry about it when deciding the case.

The appellant argues that Martinez was qualified under Witherspoon and that the trial court excused him under V.T.C.A. Penal Code, Sec. 12.31(b) in violation of the holding in Adams v. Texas, supra. The contention is without merit. The juror repeatedly stated he would vote against the death penalty regardless of the evidence presented and further stated he could not set aside his beliefs if he served on the jury. The juror was properly excused; no error has been shown. Vigneault v. State, supra; Ex parte Chambers, supra; Sanne v. State, supra. Compare Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1981).

The appellant next asserts that venireman Alonzo Vaughn was excused in violation of the principles of Witherspoon. Mr. Vaughn testified that he had a long-standing belief against the death penalty. He stated several times that he would always vote against the death penalty regardless of the facts.

The appellant argues that despite these statements Vaughn was improperly excused because he qualified his feelings by saying, "You know, what I'm...