Shippy v. State, 53831

• Decision Date: 27 April 1977
• Docket Number: No. 53831,53831
• Parties: John Charles SHIPPY aka Jon Frank Prewitt, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 246

556 S.W.2d 246

John Charles SHIPPY aka Jon Frank Prewitt, Appellant, v. The STATE of Texas, Appellee.

No. 53831.

Court of Criminal Appeals of Texas.

April 27, 1977.

Rehearing Denied June 1, 1977.

Certiorari Denied Oct. 31, 1977.

See 98 S.Ct. 422

Stephen E. Blythe, Edward S. Johnson, Temple, for appellant.

Joe Carroll, Dist. Atty., Belton, Bob D. Odom, Atty. Pro Tem. appointed on appeal, Killeen, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted for capital murder. The trial court assessed his punishment at death after the jury affirmatively answered the issues submitted to them at the punishment phase of the trial. Article 37.071, V.A.C.C.P.

The record reflects that the deceased returned from work to his home where he discovered appellant in the act of burglary and theft. Appellant seized a long-bladed hunting knife and stabbed his victim a total of twenty-seven times, fatally wounding him. Appellant then took the money from the deceased's wallet and fled.

Appellant raises nineteen grounds of error. We have grouped these into six general areas and will dispose of them in the following order: (1) denials of requested jury instructions; (2) challenges to the jury selection process; (3) complaints to the admission of evidence; (4) challenges to the sufficiency of the evidence on particular points; (5) complaints of prosecutorial jury arguments; and (6) attacks on the constitutionality of Art. 37.071, V.A.C.C.P.

JURY INSTRUCTION ISSUES

Appellant contends the trial court erroneously refused, after a timely request, to submit a charge on circumstantial evidence with regard to the issue of whether there was a probability he would commit future acts of violence constituting a continuing threat to society. (Issue number two of Art. 37.071, supra.) He argues that there can be no direct evidence on this issue since it pertains to the probability of a future act occurring, and therefore, he was entitled to a circumstantial evidence charge on this issue.

This is a question of first impression, and one of difficult determination. Some light may be cast on the subject by examining the rule that has required such a charge, or dispensed with the requirement, in other situations.

Judge Graves writing in Stocks v. State, 147 Tex.Cr.R. 164, 179 S.W.2d 305, at 308, reviewed statements of the rule in earlier cases:

"We early said in the case of Beason v. State, 43 Tex.Cr.R. 442, 67 S.W. 96, 98, 69 L.R.A. 193: 'The rule is this: That it is only necessary where the main fact, or as one case puts it, "where the gravamen of the offense," or, as another case has it, "where the act of the crime," rests solely upon circumstantial evidence, that then it becomes a case known as a case of circumstantial evidence requiring a charge upon that. In the Buntain case, (Buntain v. State ), 15 Tex.App. 515, Judge White used the following language: "If a court were required to charge the law of circumstantial evidence in all cases where reliance was had upon circumstances to establish any particular fact, then, indeed, there would be but few, if any, cases in which such a charge would not be required; but such is not the rule. A charge upon circumstantial evidence is only required when the evidence of the main facts essential to guilt is purely and entirely circumstantial." '

"Again, in Hanks v. State, Tex.Cr.App., 56 S.W. 922, we have said that: 'We are aware of the rule, and we adhere to the same, that when the main fact constituting the gravamen of the offense is proved by direct testimony, and the intent merely with which the act was done is proven by circumstantial evidence, a charge on circumstantial evidence will not be absolutely necessary.'

"Again, if the intent alone is determined by circumstances, such would not render the case as one depending upon circumstantial evidence. Jones v. State, 34 Tex.Cr.R. 490, 492, 31 S.W. 664." (Emphasis added.)

The rule does not require a circumstantial evidence charge simply because intent is only shown circumstantially, ¹ and this rule has been reaffirmed in recent cases. Green v. State, Tex.Cr.App., 533 S.W.2d 769; Davis v. State, 516 S.W.2d 157; Sloan v. State, 515 S.W.2d 913.

The rule, then, does not require a circumstantial evidence charge on every facet of the case that is only supported by circumstantial evidence. Of what significance is this observation in the present context?

First, issues at the punishment stage are not submitted to establish "the gravamen of the offense," or "the act of the crime," or "the main facts essential to guilt." Guilt has already been established when this stage of the proceedings is reached. In this respect the issue on which a circumstantial evidence charge was sought in this case is even further outside the scope of the established rule than is the issue of intent. By analogy we may say the established rule does not require a circumstantial evidence charge on the issue.

Second, inasmuch as the established rule appears to strike a distinction between proof of the culpable act (a matter of objective historical fact) and proof of mens rea (a matter of psychological fact), and requires a circumstantial evidence charge only on circumstantial proof of the former, ² proof of the second issue of Art. 37.071, supra, by circumstantial evidence would not appear to require a circumstantial evidence charge, the issue being one of a psychological fact rather than objective historical fact. The judgment the jury is called upon to make in answering this issue is one that by its very nature may only be made upon consideration of numerous and various circumstances that are incapable of reduction to an exhaustive, comprehensive list. This very character of the issue led the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, to uphold the Texas statutory scheme because this issue so construed affords the defendant found guilty of capital murder the opportunity to present mitigating circumstances to the jury at the punishment stage. That Court further described this issue thusly:

"Focusing on the second statutory question that Texas requires a jury to answer in considering whether to impose a death sentence, the petitioner argues that it is impossible to predict future behavior and that the question is so vague as to be meaningless. It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced." (Footnotes omitted.) 428 U.S., at 274, 96 S.Ct., at 2957.

For these reasons we conclude that issue number two of Art. 37.071, supra, is an issue that does not fall within the rule that dictates use of the circumstantial evidence charge. The ground of error is overruled.

Appellant also contends that the trial court improperly denied his request to instruct the jury at the punishment stage of the trial that one act of capital murder does not establish a pattern of behavior from which can be inferred a probability that the appellant would commit future criminal acts of violence constituting a continuing threat to society.

Such a charge would have constituted an improper comment on the weight of the evidence and was properly denied. This ground of error is also overruled.

JURY SELECTION ISSUES

Two grounds of error raise jury selection issues.

First, appellant contends that the prohibitions of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, were violated when the trial court sustained the State's challenge for cause to prospective jurors J. C. Barton and Mrs. Jimmy L. Conner.

We overrule the contention regarding Barton because no objection was voiced to the exclusion of this prospective juror. Boulware v. State, Tex.Cr.App., 542 S.W.2d 677, at 683, states:

". . . we hold that the failure to object to the improper exclusion of a venire member waives that right and it cannot be considered on appeal."

An exception to the exclusion for cause of Mrs. Conner was voiced. She, however, stated that she could not take the oath provided by V.T.C.A., Penal Code Sec. 12.31(b). ³

In Moore v. State, Tex.Cr.App., 542 S.W.2d 664, we held that the inability to take the oath required by this statute disqualifies the prospective juror and Witherspoon considerations are unnecessary. Mrs. Conner was properly excused.

The second complaint of improper jury selection process alleges that the requirements of Art. 34.04, V.A.C.C.P. ⁴ were violated by the trial court. During the voir dire, the appellant notified the court that one of the veniremen had been called out of order. The trial court replied that one of the prospective jurors had been summoned but had established a reason that he deemed sufficient for her excuse pursuant to Art. 35.03, V.A.C.C.P. ⁵ This excuse was given under oath.

Article 34.04, supra, was allegedly violated because the trial court denied appellant's motion requesting a recess...