Smith v. State

• Citation: 455 S.W.2d 748
• Decision Date: 17 June 1970
• Docket Number: No. 42914,42914
• Parties: Allen Larrey SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 748

455 S.W.2d 748

Allen Larrey SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 42914.

Court of Criminal Appeals of Texas.

June 17, 1970.

Rehearing Denied July 22, 1970.

Melvyn Carson Bruder, Dallas, for appellant.

Henry Wade, Dist. Atty., Camille Elliott, Harry J. Schulz, Jr., W. T. Westmoreland, Jr. and John B. Tolle, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is robbery by assault with firearms; the punishment, 99 years.

The sufficiency of the evidence is not challenged.

In his first ground of error appellant contends the trial court erred in overruling his motion to quash the jury panel since he had not been served with 'a copy of the names of the persons summoned as veniremen from which the jury was to be selected to try his case.'

This appeal thus presents the question of the applicability of Article 34.04, Vernon's Ann.C.C.P., to a case where the State has failed to give written notice that it will seek the death penalty.

Article 34.04, supra, found in the chapter entitled 'Special venire,' provides as follows:

'No defendant in a capital case shall be brought to trial until he shall have had at least two days (including holidays) a copy of the names of persons summoned as veniremen, for the week for which his case is set for trial except where he waives the right or is on bail. When such defendant is on bail, the clerk of the court in which the case is pending shall furnish such a list to the defendant or his counsel at least two days prior to the trial (including holidays) upon timely motion by the defendant or his counsel therefor at the office of such clerk, and the defendant shall not be brought to trial until such list has been furnished defendant or his counsel for at least two days (including holidays). Where the venire is exhausted, by challenges or otherwise, and additional names are drawn, the defendant shall not be entitled to two days service of the names additionally drawn, but the clerk shall compile a list of such names promptly after they are drawn and if the defendant is not on bail, the sheriff shall serve a copy of such list promptly upon the defendant, and if on bail, the clerk shall furnish a copy of such list to the defendant or his counsel upon request, but the proceedings shall not be delayed thereby.'

Only recently the history of this statute and its forerunners was reviewed and it was again held mandatory in a capital case where the State was seeking the death penalty and where such extreme penalty was assessed by the jury. Marshall v. State, Tex.Cr.App., 444 S.W.2d 928.

On the date the instant trial commenced (November 20, 1968) the appellant filed a motion to quash the jury panel for a failure to comply with Article 34.04, supra. On the same date the State filed its written notice that it would not seek the death penalty, applicable to the offense charged under the provisions of Article 1408, Vernon's Ann.P.C., no previous announcement, motion or notice having been given. The order of the filing does not appear of record. Prior to jury selection, however, at the commencement of the hearing on the said motion to quash at which it was shown the appellant was in custody, we do observe that the trial judge made the comment, 'The capital feature of this has been withdrawn.' Further, the formal judgment contained in the record approved without objection reflects that prior to arraignment and jury selection the State made known to the court in writing that it would not seek the death penalty.

Article 1.14, supra, provides as follows:

'The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case in which the State has made known in open court in writing at least 15 days prior to trial that it will seek the death penalty. No case in which the State seeks the death penalty shall be tried until 15 days after such notice is given. When the State makes known to the court in writing in open court that it will not seek the death penalty in a capital case, the defendant may enter a plea of guilty, nolo contendere, or not guilty before the court and waive trial by jury as provided in Article 1.13, and in such case under no circumstances may the death penalty be imposed.'

In Clardy v. State, Tex.Cr.App., 436 S.W.2d 535, this Court held that when the State filed written notice that it would not seek the death penalty such penalty passed out of the case and 'the case was in effect reduced to a non-capital case by virtue of the provisions of Article 1.14, supra.' To the same effect is Elliott v. State, Tex.Cr.App., 412 S.W.2d 320.

And when the State waives the death penalty we do not view the prohibition against the imposition of such punishment as limited to cases where the jury has been waived. See Elliott v. State, supra. See also Article 37.07, V.A.C.C.P., 1967. Cf. Article 37.07, V.A.C.C.P., 1965.

The forerunner of Article 34.04, supra, was former Article 601, V.A.C.C.P., 1925, which was found in a chapter of the old Code entitled 'Special Venire in Capital Cases,' which preceded the chapter 'Formation of a Jury in a Capital Case.' Such chapters were applicable to the trial of capital felony cases where death was a possible penalty, the State not then having the authority to waive the death penalty. The selection of juries in non-capital cases was governed under the old Code by Chapter Four thereof entitled 'Jury in Cases Not Capital.' Often, under the former Code when the State sought a punishment less than death in a capital case being tried, it was necessary to observe the jury selection procedure prescribed for capital cases since the death penalty was still a possible penalty. Frequently much unnecessary time, effort and expense were wasted. To avoid the same it was not uncommon for the State to waive and abandon the capital feature of an indictment, i.e., the firearm or deadly weapon allegation in a robbery indictment in order that the case might proceed as a non-capital case of robbery by assault, ¹ or permit the defendant to plead to a lesser included offense to the one charged in the indictment.

There can be no question, however, that former Article 601 (now 34.04) supra, had application to all cases where death was still a possible penalty. Where the defendant in a capital case under the former Code was in custody, it was mandatory that the special venire or jury list be served upon him one full day (now two days) prior to trial, though the right to service of a copy of such list was considered waived if not asserted or claimed in limine. The defendant 'on bail' was also entitled to such list upon timely application, but such right could likewise be waived by the failure to make a request for the same. See Houillion v. State, 3 Tex.Cr.App. 537; Roberts v. State, 5 Tex.Cr.App. 141. See also 35 Tex.Jur.2d, Sec. 159, p. 227. If there had been a failure to serve a copy of such list and the defendant asserted his right under Article 601 (now 34.04), the remedy was simply to see that service of such list was made upon the defendant and to pass the case for one full day (now two days). Such action would meet the requirements of the statute. Marshall v. State, Tex.Cr.App., 444 S.W.2d 928 and cases there cited. The failure of the State to have complied with the statute on the date set for trial did not waive the death penalty or reduce the case to a non-capital one.

And it is clear that Article 601 (now 34.04) had no application to the trial of non-capital cases even where the maximum possible punishment was life.

The sole aim of former Article 601 (now 34.04), supra, was to compel the service of an authentic copy of the special venire, or jury panel for the week (see Article 601--A, V.A.C.C.P.) unless waived, so that a copy of such list would be in the accused's hands at least one day (now two days) before he is called upon to select the jurors in a case where death is a possible penalty. See Adams v. State, 95 Tex.Cr.R. 226, 252 S.W. 797.

In the 1965 Code of Criminal Procedure the Legislature sought to eliminate as far as possible the unnecessary differences between the selection of juries in capital cases and non-capital cases (see Chapter 35--'Formation of the Jury'--Articles 35.01--35.28, incl.) retaining certain distinctions in capital cases where the State was seeking the death penalty.

Among some of the statutes relating to jury selection found in the 1965 Code of Criminal Procedure are the following:

Article 35.13, V.A.C.C.P., 1967, provides:

'A juror in A capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance or challenge first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause.' (emphasis supplied)

Even before the 1967 amendment to such statute, the 1965 version of Article 35.13, supra, was held inapplicable to non-capital cases, even those cases where the indictment originally charged a capital offense. Fuller v. State, Tex.Cr.App., 409 S.W.2d 866; Elliott v. State, Tex.Cr.App., 412 S.W.2d 320; McClain v. State, Tex.Cr.App., 432 S.W.2d 73.

Article 35.15, V.A.C.C.P. (Number of challenges) provides in part:

'(a) In capital cases both the State and defendant shall be entitled to fifteen peremptory challenges. * * *

'(b) In non-capital felony cases and in capital cases where the State has made known to the court that it will not seek the death penalty, the State and defendant shall each be entitled to ten peremptory challenges.' (emphasis supplied)

In Article 35.16 (616) V.A.C.C.P. (Reasons for challenge for cause) it is stated:

'(a) * * *

'(b) A challenge for cause may be made by the State for any of the following reasons:

'1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, In a capital...