Smith v. State

• Decision Date: 11 July 1984
• Docket Number: No. 64412,64412
• Citation: 676 S.W.2d 379
• Parties: Jack Harry SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 379

676 S.W.2d 379

Jack Harry SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 64412.

Court of Criminal Appeals of Texas,

En Banc.

July 11, 1984.

Rehearing Denied Oct. 10, 1984.

Will Gray (on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Ray Elvin Speece and Andy Tobias, Asst. Dist. Attys., Houston, 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, where the punishment was assessed at death. See V.T.C.A., Penal Code, § 19.03; Article 37.071, V.A.C.C.P.

On appeal appellant contends that after the selection of five jurors his co-defendant, Hamilton, first agreed to become a State's witness, and the court erred in overruling his motions for mistrial, continuance and to leave to interrogate the five selected jurors on the law of accomplice witnesses, depriving him of due process and effective assistance of counsel. He also contends a prospective juror, Freeman, was excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); that the court erred in overruling his objections to the charge which combined two theories of criminal responsibility reducing the State's burden of proof when the evidence was undisputed he fired the fatal shots; that the court erred in admitting an attempted escape report from prison records; that the court erred in admitting an unadjudicated extraneous offense and the facts thereof at the penalty stage of the trial; that the evidence was insufficient to support the jury's affirmative answers to special issues numbers one and three submitted under Article 37.071, V.A.C.C.P.

Appellant concedes the evidence is sufficient to support the jury's determination of his guilt of the capital murder alleged. He acknowledges that the evidence was undisputed that he was the triggerman and fired the fatal shots resulting in the death of the deceased, Roy Deputter. Nevertheless, a brief recitation of the facts will place the grounds of error in proper perspective.

Jerome Hamilton testified that appellant, whom he had known for about seven months, spent the night of January 6, 1978 at his Pasadena apartment, and the next morning, January 7th, he and the appellant took appellant's car to the B & B Motors to have repairs made. There they met a "Jim" and Roy Hines, and a sawed-off shotgun and .38 caliber pistol were transferred from Jim's Cadillac to appellant's car. Hamilton stated they had talked to Jim two days earlier about acquiring weapons. He indicated he and appellant did not discuss with Jim and Hines a possible robbery at Corky's Corner, a convenience store, until that morning. Hamilton admitted that he and the appellant drove by the store once that morning "casing" it. About noon they drove to the store, and waited hoping the number of customers would diminish. Appellant loaded both the shotgun and .38 caliber pistol and gave the shotgun to Hamilton. Their plan was for appellant to go behind the counter and get the money, while Hamilton was to cover the rest of the store with his weapon. After waiting about 15 minutes, Hamilton and appellant entered the store armed. Appellant put on a ski mask and Hamilton pulled down a stocking hose over his face. Two teenage customers were told to move, and appellant walked around the counter. He placed his pistol to the abdomen of Saddie Hollis, the store clerk, and demanded money. Hollis began emptying money from the cash register into a paper bag. Hamilton assumed a position in front of the counter.

About this time Roy A. Deputter, the deceased, entered the store via the back door. Hamilton told him to move to the front of the store. Hamilton's attention was diverted momentarily when a male customer entered the front door. When he turned back, Deputter was holding a pistol on him. Hamilton ducked just as Deputter fired at him. Hollis, meanwhile, ducked behind some display cases, still holding the bag of money. Hamilton heard two more shots, then saw Deputter stagger toward the front of the store, apparently wounded. Deputter fired again just as he slumped to the floor. The shot went wild.

Hollis heard one of the robbers inquire, "Where is that woman with the money?" She then threw the bag out into the open area of the store. Appellant picked it up and started to the front door, but dropped the bag, spilling the money. He and Hamilton picked up the bills or currency and left, taking Deputter's pistol with them. They fled in appellant's car, and then met Jim and Hines at a beer joint, and left there in Jim's Cadilla. The guns used were returned to Jim and the money was split four ways. Later that day appellant and Hamilton were arrested at Hamilton's apartment. Deputter's pistol was recovered.

Other witnesses, including Hollis, described the events of the robbery. Several identified Smith at the scene and others said he had the appearance of one of the robbers. As appellant concedes, the evidence is undisputed he fired the fatal shots.

The medical testimony showed that the deceased Deputter died as a result of two gunshot wounds, either of which would have been fatal. The wounds were consistent with having been inflicted by a .38 caliber pistol.

At the penalty stage of the trial it was shown that appellant had been previously convicted of five prior felonies. One such conviction was for felony theft, and the other four were for robbery by assault. For the last robbery conviction appellant had received a life sentence, and evidence was offered that while serving the life sentence he attempted to escape.

Initially we shall consider appellant's ground of error that "Appellant was denied his rights of due process of law and effective assistance of counsel under the Texas and United States Constitutions, where, after five jurors had been selected, the prosecution made an agreement with the co-defendant, Hamilton, to testify as a witness for the State, and the court refused to grant (1) a mistrial; (2) a continuance; and (3) leave to voir dire the five jurors already selected on the law applicable to the testimony of an accomplice witness."

The ground of error is clearly multifarious and does not comport with Article 40.09, § 9, V.A.C.C.P., presenting nothing for review. See Wilson v. State, 581 S.W.2d 661 (Tex.Cr.App.1979); Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979); Euziere v. State, 648 S.W.2d 700 (Tex.Cr.App.1983). Nevertheless, in the interest of justice we shall try to identify and respond to the contentions as we understand them. See and cf. Evans v. State, 614 S.W.2d 414 (Tex.Cr.App.1981).

After five jurors were selected in appellant's capital murder case, see Article 35.17(2), V.A.C.C.P., the co-defendant, Hamilton, whose own trial had commenced almost a month earlier in another Harris County district court, entered a judicial confession in his trial implicating the appellant, and agreed to testify for the State in the appellant's case. ¹ As soon as this occurred, appellant's counsel was immediately informed of the developments.

The next day appellant moved for a mistrial because he had been denied the right to make intelligent challenges for cause or make intelligent decisions regarding the use of peremptory challenges during the voir dire examination. The court withheld any ruling for one day, recessing the trial. The following day appellant's counsel acknowledged the State had been fair in making available to him its reports, that he was aware of the co-defendant's participation in the alleged offense, and had asked questions of the jury panel on the law of parties (V.T.C.A., Penal Code, § 1.02), but had not questioned the prospective jurors on the law of accomplice witness testimony (Article 38.14, V.A.C.C.P.) as he had not anticipated the co-defendant testifying. The State responded that it was not uncommon in criminal trials for evidence to raise unsuspected issues upon which the trial court would be required to charge the jury when the jury panel had not been voir dired on the principles of law involved. The motion for mistrial was overruled.

The appellant then orally moved for a continuance so that he might investigate and prepare to respond to the new evidence. The court noted that appellant had knowledge of the possibility of the co-defendant's testimony for almost two days, and that some time would elapse before jury selection was completed and the first witness called. The motion for continuance was denied. Appellant's counsel inquired if the five selected jurors would be recalled for further voir dire examination. The court declined to rule on that "specifically but the court is not so inclined." The court also declined at the time to rule on a request for eight additional peremptory challenges. No ruling was ever obtained on this request. Appellant did not exhaust all of his peremptory challenges.

Our law, of course, expressly provides for the examination of the jury panel, in order to enable counsel for both sides to intelligently exercise both peremptory challenges and challenges for cause. See De La Rosa v. State, 414 S.W.2d 668, 671 (Tex.Cr.App.1967); Jones v. State, 596 S.W.2d 134 (Tex.Cr.App.1980). Article 35.17, V.A.C.C.P. The constitutional right to the effective assistance of counsel, both federal and state, carries with it the right to interrogate members of the jury in order to intelligently exercise both peremptory challenges and challenges for cause. See Mathis v. State, 576 S.W.2d 835, 836 (Tex.Cr.App.1979); Abron v. State, 523 S.W.2d 405, 407 (Tex.Cr.App.1975); De La Rosa v. State, supra. Nevertheless, the trial court may impose reasonable restrictions on the exercise of voir dire examination. McManus v. State, 591 S.W.2d 505, 520 (Tex.Cr.App.1979), and cases there cited; Clark v. State, 608 S.W.2d 667 (Tex.Cr.App.1980).

Here appellant does not claim the court limited his right to interrogate prospective...