Taylor v. State

• Decision Date: 11 October 1967
• Docket Number: No. 40546,40546
• Citation: 420 S.W.2d 601
• Parties: Shaper TAYLOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 601

420 S.W.2d 601

Shaper TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 40546.

Court of Criminal Appeals of Texas.

Oct. 11, 1967.

Rehearing Denied Nov. 29, 1967.

J. M. Fly, Victoria, L. S. Benge, Goliad, for appellant.

Wiley Cheatham, Dist. Atty., Quero, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury, 99 years in the Texas Department of Corrections.

Appellant does not challenge the sufficiency of the evidence, and we do not deem necessary a complete recitation of the facts reflected by this 3,800 page record. The following summary will suffice.

Appellant, a 65 year-old bachelor rancher, was charged with the murder of Lucia Cabrerra Davila Etter, age 38. The record shows that appellant's father on his death bed had extraced a promise from appellant that he would never marry and would always care for his older sisters. It appears that over a period of 15 years appellant had engaged in sexual relations with the deceased, who at the time of her death had been married to Fritz Etter, age 70, for approximately a year and a half. On November 16, 1965, at approximately 2:40 p.m. appellant followed Lucia, the deceased, and Fritz in his automobile and after overtaking their pickup truck within the city of Goliad, shot and killed both of them with his rifle. There were eye witnesses. Appellant testified that he had always paid the deceased for her favors, but sometime before the alleged offense, and particularly since her marriage to Etter, the deceased had begun to extort money from him upon the threat to reveal their long time illicit affair to his old maid sisters with whom he lived. He related that on the day in question the deceased had demanded more money, rejecting his offer of $45.00 out of the $50.00 he had as not being enough, and had motioned for him to follow. Appellant testified he concluded that the deceased and her husband were on the way to the ranch to see his sisters; that when they stopped, the deceased jumped out of the pickup and that Fritz was reaching under the seat of the pickup as if for a gun. Appellant then claimed that he remembered nothing that transpired afterwards until he was on his way home, whereupon he returned voluntarily to the Sheriff's office. Appellant's defenses were insanity and self-defense.

Appellant initially contends the evidence was insufficient to support the jury's verdict finding the appellant sane at the pretrial hearing afforded appellant by virtue of Article 46.02, Sec. 1, Vernon's Ann.C.C.P.

Appellant apparently overlooks the fact that no appeal lies from a judgment rendered in a preliminary trial on the issue of insanity. Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355; Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581. See also State v. Olsen, Tex., 360 S.W.2d 398.

Nevertheless, we observe that, in addition to the presumption of sanity, the State's evidence including medical testimony clearly supports the jury verdict. It is further noted that the same two issues present insanity and insanity at the time of the commission of the offense, were also presented to and rejected by the jury at the trial on the merits.

In view of some discrepancy in numbers and in order to discuss the grounds of error urged in a more chronological order, we have taken the liberty of re-numbering the remaining grounds of errors.

If we understand appellant's second ground of error, it is that there existed so great a prejudice in the county that he could not obtain a fair and impartial trial, and the trial court erred in refusing to change venue upon appellant's motion.

At the hearing upon the written motion for a change of venue, appellant called nine witnesses, eight of whom testified they had heard the case generally discussed and expressed their opinion that appellant could not receive a fair trial in Goliad County. The State called ten witnesses who related that the case had only been slightly discussed and that in their opinion appellant could receive a fair and impartial trial. The record reflects that Goliad County had a population in excess of 5,000 persons according to the 1960 Federal Census, and approximately 2,000 qualified voters at the time of the hearing. The court overruled such motion. Inspection of the voir dire examination indicates that approximately 39 of the 112 jurors questioned held the opinion that appellant was guilty. However, all of the twelve jurors ultimately selected had formulated no opinion as to guilt or innocence, though most had either heard the case discussed or read about the case in the newspapers. It is noted that appellant's counsel expressly stated that he was happy to accept at least 9 of the 12 jurors chosen.

Appellant attached to the record at hearing on Motion for New Trial a number of copies of the Victoria Advocate and clippings from the Corpus Christi Caller-Times. Most of the articles dealt with news reports of the trial on the merits after the selection of the jury. There is a showing that the Victoria Advocate had a circulation of 500 copies in Goliad County at the time, but the circulation figures in the county of other newspapers were not offered. The news accounts attached appear to be fair, non-inflammatory, and apparently published for the purpose of informing the public of current events. There is no showing that by reason of such publication there was created in the public mind a prejudice so great as to prevent appellant from receiving a fair trial.

Appellant does point to the affidavit of Dr. George Constant, appellant's expert witness at the separate sanity trial, that his life was threatened by an unknown person if he testified again. Appellant further contends that the fact the jury returned with the verdict of guilty after deliberating only an hour and twenty minutes is evidence of the jury's preconceived notion of appellant's guilt. No authority is cited in support of such proposition.

In Moon v. State, 169 Tex.Cr.R. 14, 331 S.W.2d 312, where the death penalty was imposed in a murder case, this Court held that in order to require a reversal for refusal to change venue there must be a showing that prejudice against the accused found its way into the jury box at his trial. See also Lopez v. State, 158 Tex.Cr.R. 16, 252 S.W.2d 701; Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661; Slater v. State, 166 Tex.Cr.R. 606, 317 s.W.2d 203. After a careful examination of the facts and circumstances and procedures employed, it is our considered judgment that there has been no showing of identifiable prejudice, or that the appellant was denied a fair trial or due process of law. The trial judge did not abuse his discretion in refusing to change venue.

In his third ground of error appellant contends 'that the trial court erred in ordering the Sheriff's department to summon talesmen after exhausting the list of the first one hundred jurors and forcing the defense to attempt to select a jury from persons handpicked by the Sheriff's department, when all during this time the Court had on file with the District Clerk's office a list of jurors selected by the jury commission to be used during this term of Court.'

The record indicates that the jury was selected in part from the jury panel for the week rather than by a special venire as permitted by Article 34.01, V.A.C.C.P. When it appeared to the court that such jury panel was soon to be exhausted, the court properly ordered the Sheriff to summon a group of talesmen in accordance with Article 34.02(b), V.A.C.C.P., Coliad County being a jury commission county. Appellant subsequently objected to these talesmen as being 'handpicked' by the Sheriff, composed chiefly of persons of Dutch or German extraction, and not selected from all parts of the county. The objection was overruled. Later, when it again appeared that the panel would be exhausted, the court ordered the Sheriff to summon 15 additional talesmen. At such time the court noted that there was an unused jury list selected by the jury commissioners for the term, and stated if appellant agreed, the second group of talesmen might be summoned from such list. In view of such list appellant then objected to all talesmen summoned, asking that they be dismissed. Upon being overruled, appellant's counsel then agreed to the use of such jury list by the Sheriff for summoning the second group of talesmen. It appears that subsequently a third group of talesmen was summoned by the Sheriff. We perceive no error.

In capital cases, upon the exhaustion of a special venire or the jury panel for the week (where as many as one hundered have been summoned) in counties not using the jury wheel, the additional veniremen or talesmen are to be summoned by the Sheriff upon the order of the court. Articles 34.01, 34.02, V.A.C.C.P. The court was not required to resort to jury lists selected by jury commissioners for the term of court. Further, it is not necessary that talesmen be summoned from every section of the county; Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144; Adams v. State, 158 Tex.Cr.R. 306, 255 S.W.2d 513.

Appellant contends in his fourth ground of error that the trial court erred in refusing to give him five additional challenges after he exhausted his fifteen peremptory challenges.

If we understand appellant's contention, it is that he was required to use five of his peremptory challenges when the judge refused his challenges for cause where the prospective jurors had stated they had an opinion as to appellant's guilt or innocence and that it would require evidence to remove such opinion.

This Court has, in order to give to this appeal every consideration, searched the 1,549 pages of the voir dire examination to determine which fifteen prospective jurors appellant challenged peremptorily and from this group the five of which appellant now complains.

We cannot find any testimony by these...