Smith v. State

• Decision Date: 19 September 1984
• Docket Number: No. 68906,68906
• Citation: 683 S.W.2d 393
• Parties: Larry SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 393

683 S.W.2d 393

Larry SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 68906.

Court of Criminal Appeals of Texas En Banc.

Sept. 19, 1984.

Rehearing Denied Jan. 30, 1985.

C. Wayne Huff, Mike Barclay, Mark Stoltz, Dallas (Court-Appointed), for appellant.

Henry Wade, Dist. Atty., Anne B. Wetherholt, Norman Kinne, Rider Scott and Marian Bentley, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03(a)(3). The jury answered affirmatively the three special issues submitted, and punishment was assessed at death. Article 37.071, V.A.C.C.P., and V.T.C.A., Penal Code, § 12.31(a).

On appeal appellant contends that the court erred in sustaining three of the State's challenges for cause during voir dire examination of the jury panel, including a claimed violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In other grounds of error appellant complains of the introduction of certain photographs of the deceased, of an officer's testimony that substance in a photograph was blood, and of the introduction of a cash register drawer. He also urges the court erred in admitting details of a prior conviction and details of an unadjudicated robbery offense, and erred in admitting a pen packet because the prior felony conviction was based on an information without a waiver of indictment.

Appellant further challenges the sufficiency of the evidence to support the second special issue under Article 37.071, supra, and to show he would commit criminal acts of violence that would constitute a continuing threat to society. He also complains of certain questions propounded to witnesses at the penalty stage of the trial and attacks V.T.C.A., Penal Code, § 12.31(a), and Article 37.071, supra, as being in violation of the constitutional prohibition against cruel and unusual punishment.

On February 3, 1978, Fred Norris was a 16-year-old school boy who worked part time two nights a week at the Seven-Eleven store at Camp Wisdom and Polk in Dallas. He worked from midnight into the early morning hours. Norris knew Mike Mason, the deceased, the night manager of the store. They had been friends for seven years.

At 3:15 a.m. on the date in question Mason and Norris were the only employees on duty. Norris was sweeping the front porch in a well-lighted area when a man walked by and spoke to him. The man was wearing a toboggan cap but no disguise on his face. Norris identified the man as the appellant whom Norris observed enter the store. After finishing the sweeping, Norris entered the store and at this time another man also entered the store. Norris proceeded to the frozen food section to get a pizza. When he turned around, he saw the appellant pull down the cap over his face converting into a ski mask. Appellant had a pistol in his hand and was standing at the main register across from Mason. The second man had positioned himself to the left. The cash drawer was on the counter.

The second man went around the counter and threw Mason to the ground, shoving his face into the floor. Both appellant and the second man demanded Mason open the safe. Appellant stated, "Open the safe or I'll blow your head off." Mason explained that he didn't have the two keys needed and could not open the safe. The second man kicked Mason all over his body, stomped on his hands, and came from behind the counter taking the cash drawer with him. As he left appellant, still pointing the pistol, backed towards the front doors to exit, and then came forward and leaned over the counter. Holding the pistol with both hands, appellant fired one shot at Mason who was lying flat on the floor, face down. After appellant left the store, Norris spoke to Mason, and in a weak voice he uttered the name "Fred." Norris found he could not use the telephone and ran across the street to the Jack in the Box restaurant. Someone there called the police.

Dallas Police Officer Bill Parker testified he arrested Glouster Ray Smith, the second man, in the afternoon of February 3, 1978. At the time of the arrest the officer recovered a fully loaded .22 caliber Clerke pistol and found a ski mask on the floorboard of the car in which the suspect was arrested. At 4 a.m. on February 4, 1978, the second man led the witness to a wooded area near the 5100 block of Watson Street in Dallas where a cash drawer or tray with a chip on it was found. A cash register receipt from the cash drawer was shown to be from the cash register at the Seven-Eleven store in question. Appellant's fingerprints were found on the cash drawer.

When police went to arrest the appellant, he fled. The police gave chase, and after searching the neighborhood, found him hiding in a bedroom closet.

The cause of death was shown to be a bullet wound to the left back of the 26-year-old male. The bullet traveled through the aorta and pulmonary artery. The bullet which killed Mason was a .22 caliber hollow-point tip. Norris identified the ski mask found when the second man was arrested as the ski mask used in the robbery, and identified State's exhibit 15 as appearing similar to the pistol used by appellant during the offense.

Appellant offered no evidence at the guilt stage of the proceeding.

At the penalty stage of the trial the State offered evidence of appellant's reputation for being a peaceful and law-abiding person, evidence of his prior convictions in Colorado, evidence of an unadjudicated robbery in Colorado, and evidence from a psychiatrist as to appellant's future dangerousness. Appellant produced a psychologist who testified that psychiatric testimony could not predict future dangerousness.

The jury affirmatively answered all three special issues submitted under Article 37.071, V.A.C.C.P.

Appellant initially urges the trial court erred in sustaining the State's challenge for cause to prospective juror Johnnie Mae Hall because she could never assess the minimum punishment in a felony murder case.

Appellant recognizes the provisions of Article 35.16(b)(3), ¹ and that his contention was rejected in Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978); and Moore v. State, 542 S.W.2d 664, 669 (Tex.Cr.App.1976). He asks that these decisions be overturned because otherwise he will be deprived of "due process" under the Texas Constitution ² and of equal protection under both the federal and state constitutions.

He argues that the prosecution is not really harmed by a prospective juror who wants to assess more than the minimum in the event of a conviction.

This Court discussed the application of Article 35.16(b)(3) in Huffman v. State, 450 S.W.2d 858, 861-862 (Tex.Cr.App.1970), and we adhere to the reasoning there. See also Cherry v. State, 488 S.W.2d 744, 751 (Tex.Cr.App.1972).

In Hernandez v. State, 643 S.W.2d 397, 402 (Tex.Cr.App.1982), a capital murder case, this Court wrote:

"We find no error in the trial court's exclusion of Gomez; his answers certainly reflect a bias against the minimum punishment. See Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976). Furthermore, the appellant has not shown that he was tried by a jury to which he had a legitimate objection. See Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973)."

The ground of error is overruled.

Appellant contends the court erred in sustaining the State's challenge for cause to venireman Eaker when he was not disqualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Specially, appellant asserts Eaker was not shown to be so irrevocably opposed to capital punishment that he could not follow the law or obey the instructions of the trial court.

Mark Eaker stated he was opposed to the policy of death as a punishment for crime, but understood it was the law. He did not relish the possibility of being placed in position to decide whether the death penalty would be imposed. Eaker related he had served in the Navy on a nuclear submarine, and had the duty of seeing that missiles were targeted on selected sites that changed from day to day or week to week. While he agreed with the defense policy of using nuclear submarines on patrol, he questioned, even doubted he would have ever obeyed any command to fire a missile knowing the number of resulting deaths of Soviet citizens. When asked if he could take and follow the oath prescribed by Article 35.22, V.A.C.C.P., ³ he eventually stated he would have no difficulty with the guilt stage of the trial as that would be determining "a historical fact," but he had serious reservations about answering the questions at the penalty stage which could result in the death penalty. As to the second special issue under Article 37.071, V.A.C.C.P., he commented:

"Well, it's a silly law, because beyond a reasonable doubt there is a probability that exists that everyone in this room is going to commit an act of violence...

"My guess is that most members of the legislature don't understand what probability means."

Eaker gave some conflicting responses. At times he seems clearly disqualified under Witherspoon and then by his own statements seemed to rehabilitate himself. When asked, however, if he could follow the Article 35.22 oath with regard to the special issues at the penalty stage of the trial, he repeatedly stated that even if the State proved from the evidence beyond a reasonable doubt that the questions should be answered "yes," he would violate the oath and vote "no" because of his view on the death penalty. He then added, however, that under some circumstances he could answer "yes" to the special issues if the State sustained its burden. After again stating his opposition to the death penalty, the...