Smith v. State

Citation540 S.W.2d 693
Decision Date18 February 1976
Docket NumberNo. 49809,49809
PartiesErnest Benjamin SMITH, Jr., Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

John F. Simmons, Dallas, for appellant.

Henry Wade, Dist. Atty., James B. Scott, Douglas D. Mulder, Stephen P. Tokoly and Winfield W. Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.



The offense is murder; the punishment, under Article 1257, V.A.P.C. and Article 37.071, V.A.C.C.P., death. 1

The record reflects that grocery store operator William Moon was killed during the commission of a robbery at his market.

By ground of error one appellant contends that the evidence is insufficient to support the conviction, since it was the appellant's co-defendant who killed the deceased during the robbery. Sich a contention completely ignores the law of principals, and is without merit. Thompson v. State, Tex.Cr.App., 514 S.W.2d 275; Leviness v. State, 157 Tex.Cr.R. 160, 247 S.W.2d 115.

Appellant's next contention relates to the punishment hearing. Appellant claims that the evidence is insufficient to support the jury's answer of 'yes' to Special Issue No. 2 2 of Article 37.071, supra.

This appellant testified that he had been unable to obtain a regular job since his conviction for possession of marihuana in 1970, and that he was unemployed on the night of the homicide when he met George Holden and Howie Ray Robinson at the Pussy Cat Lounge. He stated that Holden asked if he wanted to make some money and that from his prior knowledge of Holden that he was not a 'working individual', he knew that whatever Holden proposed would not be legal. Appellant testified that after he agreed to go with them he went to his home, changed clothes and got a pistol. He also stated he knew Holden had a pistol, which he gave to Robinson. They then went to the grocery store, where appellant and Robinson entered and Holden remained in the automobile. When appellant and Robinson found customers in the store; they left and did not re-enter until after the customers had left. At this point, appellant pointed the pistol at the attendant and told him, 'This is a hold-up.' When the attendant made a motion 'behind his jacket', appellant called to Robinson, who shot and killed the attendant. We pause here to observe that it was this appellant who first pointed his weapon at deceased and attempted to shoot him. It was only after the appellant's gun misfired that he called to his co-principal to complete the killing which he had attempted. 3 Following this, all the money, including the change, and a pistol kept by the attendant were taken, and the parties repaired to the house of a friend, where the fruits of the robbery were divided and the parties separated. Appellant spent the night in a house nearby.

Appellant's oral confession was also admitted into evidence.

Dr. James P. Grigson, a practicing psychiatrist appointed by the court to examine appellant, testified that his examination had led him to conclude that the appellant, though medically and legally sane, felt no remorse or sense of guilt as the result of his participation in this robbery-murder. Grigson also expressed the opinion that appellant's conduct in the future would not change. He further stated that his branch of medical science had found no cure for persons who were suffering from the type of personality disorder demonstrated by appellant.

Though not a serious one, this appellant had a criminal record. Of extreme importance is his apparent surrender to misfortune following his marihuana conviction. He made no effort to rehabilitate himself, and no serious effort to secure steady employment. There was no evidence that appellant was in any way under the domination of anyone, nor was he under any mental or emotional pressure. He simply went out to rob and was the first person who tried to kill his victim (according to his oral confession). After the killing, he testified, he paused long enough to secure a pistol from under the counter and when a cigar box containing coins spilled, he paused to recoup the coins. His entire conduct was calculated and remorseless, and the jury was justified in finding that this appellant will always constitute a continuing threat to society. 4

Appellant's third ground of error also relates to the punishment hearing. Appellant first charges that the court erred in failing to submit his requested charges five and seven, which were intended as substitutes for Special Issues one and three of Article 37.071(b), supra, and second he claims that the evidence is insufficient to support the jury's finding of 'yes' to Special Issues Nos. 1 and 3. This is clearly a multifarious ground of error and presents nothing for review.

However, we will briefly discuss the contention. In substance, appellant contends, without citation of authority, that Special Issues 1 and 3 are not applicable to one charged as a principal. 5 To agree with such contention would require that we ignore this Court's interpretation of the law of principals. Earlier in the opinion we declined to do so. Further, regarding the sufficiency of the evidence, the facts set forth under ground of error two are sufficient to support the jury's affirmative responses to Special Issues Nos. 1 and 3.

By ground of error four, appellant claims that the indictment is fatally defective because it fails to set out the elements of robbery in his indictment charging him with murder during the commission or attempted commission of robbery. Appellant contends that the indictment should allege the elements of robbery as well as murder.

Appellant's contention was answered adversely to him in Jones v. State, 53 Tex.Cr.R. 131, 110 S.W. 741, and Oates v. State, 48 Tex.Cr.R. 131, 86 S.W. 769, which hold that an indictment need not allege the constituent elements of a felony which the defendant was committing or attempting to commit at the time of the homicide charged in the indictment. See also Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785; Watts v. State, Tex.Cr.App., 516 S.W.2d 414; Earl v. State, Tex.Cr.App., 514 S.W.2d 273, which hold that under the new code an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense.

In grounds of error five and six, appellant attacks the constitutionality of Article 1257, supra, Sec. 19.03, V.T.C.A., Penal Code, and Article 37.01, supra. His contentions have been answered adversely to him in our recent opinion in Jurek v. State, Tex.Cr.App., 522 S.W.2d 934.

Appellant also contends that the caption of the death penalty statute under which he was tried, Article 1257, supra, fails to meet the requirements of Article III, Sec. 35, of the Texas Constitution in that it 'embraces more than one subject, and is therefore insufficient to apprise the Legislature and the public of the full effect of the amendment.'

Appellant's brief contains no citation of authority, and no discussion of his contention. Without further elaboration from him, we are unable to meet appellant's contention other than to observe that the caption covers the one subject legislated upon by the Act.

Appellant's seventh and ninth grounds of error will be discussed together. In the seventh ground of error appellant asserts that Article 1257(d), V.A.P.C., imposes 'an unrealistic, repressive oath on prospective jurors and limits inquiry into their qualifications' required by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. As we construe the statute it neither imposes a repressive oath on prospective jurors not prohibits the inquiry which appellant claims he was denied. However, the appellant does not call to our attention any portion of the record where he was denied an opportunity to make such inquiry.

Appellant seems to be laboring under the impression that Article 1257(d), supra, in itself constitutes an oath to be administered in its own terms to each venireperson. Our interpretation of this statute is that it merely provides one criteria by which each venireperson is to be qualified. This is in agreement with that portion of Witherspoon set forth at 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, footnote 21. 6

In his ninth ground of error appellant says that the trial court 'erroneously allowed the exclusion for cause of veniremen who had scruples concerning capital punishment.' Upon rebriefing on orders of this Court, appellant now points out certain named members of the venire who he claims were inadequately examined and excused because of their views as to the death penalty. We have now examined the voir dire to which appellant points and find that they were tested in accordance with the terms of Article 1257(d), supra, and were additionally questioned so as to substantially comply with the mandate of footnote 21 of Witherspoon. 7 This venire qualification can be distinguished from Hovila v. State, Tex.Cr.App., 532 S.W.2d 292 (Decided April 30, 1975), where the voir dire complied neither with Witherspoon nor with the mandate of Article 1257(d), supra. The questions propounded by the court to each jury panel were leveled solely as to the answers to the issues set forth in Article 37.071(d), supra, and not to the ability of the venirepersons to pass upon the guilt or innocence of the accused or 'any issue of fact.'

Ground of error eight charges the State used its peremptory challenges to strike four members of the venire who were black, thereby excluding members from the jury who were the same race as appellant.

Appellant's contention was answered adversely to him in Hill v. State, Tex.Cr.App., 487 S.W.2d 64, in which we adhered, as we do here, to our earlier holding in Ridley v. State, Tex.Cr.App., 475 S.W.2d 769, wherein we stated:

'We hold that no systematic exclusion has been...

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