Satterwhite v. State

• Decision Date: 17 September 1986
• Docket Number: No. 67220,67220
• Citation: 726 S.W.2d 81
• Parties: John T. SATTERWHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 81

726 S.W.2d 81

John T. SATTERWHITE, Appellant, v. The STATE of Texas, Appellee.

No. 67220.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 17, 1986.

Certiorari Granted in Part June 1, 1987.

See 107 S.Ct. 2480.

Richard D. Woods, Stephen P. Takas, San Antonio, Court-appointed, for appellant.

Bill M. White, Dist. Atty. and Bill Harris, Roy R. Barrera, Jr., and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Robert

Huttash, State's Atty., Austin, for the State

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

This is an appeal from a conviction for the offense of capital murder. The punishment is death.

The appellant contends that the trial court erred in overruling his motion for new trial. He asserts that the State selectively discriminated against him in violation of the due process and equal protection clauses of the Fourteenth Amendment by prosecuting him for capital murder. The appellant contends that he was sexually discriminated against since females in similar situations received more lenient treatment.

At a hearing on the appellant's motion for new trial, three attorneys, who had practiced criminal law in the county, testified. One of them stated that he felt it was the prosecution's practice to seek greater penalties for men than women. Another stated that it was his experience that females got better deals than males. Finally, appellant's counsel testified that in every case he had seen where the co-defendants are male and female, the female always got the better deal. The State presented no evidence.

In order to establish a constitutional violation by the selective prosecution of a defendant, it is necessary to show more than mere unequal application of a state statute. As the Supreme Court stated in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 466 (1962):

[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case imply a policy of selective enforcement, it was not stated that the selection was deliberately had upon an unjustifiable standard such as race, religion, or other arbitrary classifications. (Emphasis added)

Therefore, it is necessary that the accused show an intentional or purposeful discrimination in the enforcement of the statute against him. A discriminating purpose will not be presumed; a showing of clear intentional discrimination is required. Armendariz v. State, 529 S.W.2d 525 (Tex.Cr.App.1975); S.S. Kresge Co. v. State, 546 S.W.2d 928 (Tex.Civ.App., Dallas, 1977); Super X Drugs of Texas, Inc. v. State, 505 S.W.2d 333 (Tex.Civ.App., Houston, 1974); Enntex Oil and Gas Co. (of Nevada) v. State, 560 S.W.2d 494 (Tex.Civ.App., Texarkana, 1977). The appellant has failed to show actual or purposeful discrimination. His ground of error is overruled. Also see U.S. v. Hayes, 589 F.2d 811 (5th Cir.1979); U.S. v. Heilman, 614 F.2d 1133 (7th Cir.1980); U.S. v. Diggs, 613 F.2d 988 (D.C.Cir.1979); U.S. v. Larson, 612 F.2d 1301 (8th Cir.1980); U.S. v. Choate, 619 F.2d 21 (9th Cir.1980).

In two grounds of error the appellant argues that the trial court erred by refusing his challenge for cause to a prospective juror. The appellant contends that this prospective juror admitted having a bias or prejudice against a law upon which the defense was entitled to rely. See Art. 35.16(c)(2) V.A.C.C.P. Appellant argues that the juror had a bias against allowing a defendant not to testify or defend himself. During voir dire of venireman Mavis Corderman, the following occurred:

ON BEHALF OF THE DEFENSE

BY MR. TAKAS:

Q. Now, you have heard people talk about presumption of innocence. The presumption of innocence that every person is presumed innocent until proven guilty, do you understand that concept or do you believe you understand that concept.

A. Yes, sir.

Q. So to say what it means is that I don't have to say anything to disprove his guilt. I do not have to take any affirmative action to say I'm not guilty. I do not have to answer accusers because I'm innocent and the law presumes I'm innocent and the Constitution of the State of Texas and United States of America says I am innocent and until they lift that cloak of innocence by fair and competent evidence. Do you have any quarrel with that concept?

A. You are telling me that in other words you don't have to defend yourself.

Q. If you have a quarrel with that say it. My mother has a quarrel with it.

A. Well, I guess I do. I don't know if I would call it quarrel, but--

Q. Do you have a bias against the law that says that the Defendant does not have to defend himself?

A. There again, I guess maybe I do. I haven't thought about that.

Q. Okay.

MR. TAKAS: We challenge for cause, Judge. Bias or prejudice exists on the basic theory of law.

THE COURT: Do you wish to inquire?

MR. HARRIS: Yes, sir.

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ON BEHALF OF THE STATE

BY MR. HARRIS:

Q. There are a number of ways a defendant can defend himself. One of those ways can be merely asking questions of the witnesses against him, that being cross examination. I think the real question is the 5th Amendment to the United States Constitution says a person shall not be required to testify against himself or offer evidence against himself.

What that means is you will be instructed in a case where a defendant does not testify, you are instructed that you cannot and must not, first of all, it says you are instructed that the Defendant in this case has elected not to testify. You are instructed that you must not and you cannot consider that as any evidence against him. The mere fact that he did not testify. Do you think you could follow an instruction like that?

A. Yes.

THE COURT: What was your answer?

THE WITNESS: Yes. I don't quite understand what he is saying.

THE COURT: Let me see if I can help you a little, Mrs. Corderman.

BY THE COURT:

Q. The Defendant doesn't have to prove his innocence. We have talked about presumption of innocence.

A. Right.

Q. The State has the burden of proving his guilt which means they have to put on the evidence. He doesn't have to put on anything. If he and his attorneys think it's better for him to just sit there and see what they do, the law permits him to do that and you must reach your verdict based on the evidence that is offered, not the evidence that is not offered.

A. I think I can make a decision.

MR. TAKAS: Judge, I don't think that is a correct statement.

THE COURT: I will overrule the challenge for cause. You may question.

MR. TAKAS: Note my exception for challenge for cause and you are overruling it.

Article 35.16(c)(2), supra, provides:

A challenge for cause may be made by the defense for any of the following reasons:

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(2) That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof on the punishment thereof.

In order to determine if a venireman was subject to a challenge for cause, we must examine the testimony given by the venireman on voir dire in its entirety. Evert v. State, 561 S.W.2d 489 (Tex.Cr.App.1978). In reviewing the testimony given above, we conclude that the appellant has failed to establish that the prospective juror was subject to challenge for cause pursuant to Art. 35.16(c)(2), supra. The testimony of the juror elicited from both the prosecution and the trial court indicate that the juror was capable of following an instruction that she would not consider the appellant's failure to testify or present evidence as any evidence against him. The record does not support the appellant's contention. See Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978), cert. denied 441 U.S. 888, 100 S.Ct. 190, 62 L.Ed.2d 123; Simmons v. State, 594 S.W.2d 760 (Tex.Cr.App.1980); Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980). Compare Pierce v. State, 604 S.W.2d 185 (Tex.Cr.App.1980); Cuevas v. State, 575 S.W.2d 543 (Tex.Cr.App.1978); Evert v. State, supra. His grounds of error are overruled.

The appellant in his next ground of error contends that the trial court erred in overruling his motion to suppress evidence seized by Officer Jackley. The appellant argues that a pistol, subsequently shown to be the murder weapon, was unlawfully seized.

Officer Jackley testified that he was a police officer with the Live Oak Police Department. On March 13, 1979, he was clocking the speed of automobiles with radar on a highway. At approximately 10:17 p.m., he noticed a vehicle traveling at eighty-two miles per hour. The officer immediately pulled behind the vehicle and turned on his overhead lights and emergency lights. The automobile did not stop but did slow down to about sixty-five miles per hour. The car was traveling in the left lane of a divided four-lane highway and no attempt was made by the driver to move over to the right lane. Officer Jackley flashed his high beams to attract the attention of the driver. He noticed that the passenger kept turning around to look back at him and that the driver kept adjusting the rear-view mirror. He stated that there was generally a lot of movement in the car. He then turned his spotlight on the car to see the movement and get their attention. Jackley testified that the passenger looked as if she were bending over in the seat and the driver continued to fidget with the mirror.

The officer pursued the vehicle for about one mile when suddenly the vehicle quickly exited the highway to the left onto the grassy median and came to a stop. The area was dark and Officer Jackley was alone. He radioed the dispatcher his location and stepped from his vehicle. The appellant stepped out from the driver's side and approached the back of his automobile. Officer Jackley then asked the female passenger, Sharon Bell, to also get out of the automobile. She complied with his order and the officer turned...