Tezeno v. State

• Decision Date: 15 March 1972
• Docket Number: No. 44331,44331
• Citation: 484 S.W.2d 374
• Parties: Ronnie Earl TEZENO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 374

484 S.W.2d 374

Ronnie Earl TEZENO, Appellant, v. The STATE of Texas, Appellee.

No. 44331.

Court of Criminal Appeals of Texas.

March 15, 1972.

Rehearing Denied May 31, 1972.

Opinion Following Commutation Nov. 16, 1972.

Bobby H. Caldwell, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Bob Bennett, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice. Trial was before a jury, which assessed the death penalty.

The appellant entered an automobile supply house in the city of Houston. An employee of the firm noticed appellant standing near the front of the store, and approached him and asked if he could help him. The appellant replied that he was 'just looking.' The employee then returned to his place at the counter and began examining a catalog. The deceased and another employee were standing behind a counter, talking on telephones. At this time appellant went to the center of the store, pulled out a pistol and stated, 'This is a stickup. Give me your money. Put them phones down. I said put them telephones down.' He then fired the pistol, the bullet striking the deceased in the chest. the deceased died from this wound.

Appellant then took money at gunpoint from an employee who had removed it for him from the cash register. He also approached a salesman who was in the store at the time and asked for his billfold, although he did not take it. At that time another person, a salesman, entered through the front door and appellant fled.

Appellant raises eleven grounds of error.

Appellant asserts by his first and ninth grounds that the trial court erred in denying his motions to quash the jury panel and to challenge the composition of the jury. He contends that the jury was composed only of whites and that blacks were excluded from the jury by the State's use of its peremptory challenges. In his motion to quash the panel, he contended 'that the members of the jury panel do not constitute the peers of the defendant,' and that 'to require the defendant to be tried by a jury other than those individuals of his class is a violation of equal protection and due process . . ..' He also claims that the jury qualifications set out by the Texas statutes are unconstitutional.

Appellant's first ground of error is overruled. The record does not disclose the race of the members of the jury, nor the race of the various members of the panel. Therefore, this Court cannot review appellant's contention. In addition, the mere fact that blacks were excluded from this particular jury, even if supported by the evidence, would not constitute a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, unless a systematic and regular pattern of exclusion is shown. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Ridley v. State, Tex.Cr.App., 475 S.W.2d 769 (delivered January 18, 1972); Hardin v. State, 475 S.W.2d 254 (Tex.Cr.App.1971); Walker v. State, 454 S.W.2d 415 (Tex.Cr.App.1970); Turner v. State, 462 S.W.2d 9 (Tex.Cr.App.1969) rev'd. on other grounds, 403 U.S. 947, 91 S.Ct. 2289, 29 L.Ed. 858 (1971); Johnson v. State, 411 S.W.2d 363 (Tex.Cr.App.1967).

Appellant's ninth ground of error is overruled. The thrust of appellant's motion to quash the panel was that he was neither a freeholder nor a householder and that to require that prospective jurors be such denied him the right to be tried by a fair and impartial jury. This contention is without merit. The case came to trial on March 31, 1970. That a juror be either a freeholder or householder was eliminated as a qualification, effective as of September 1, 1969. Article 35.12, Vernon's Ann.C.C.P., as amended, Acts 1969, 61st Leg., p. 1364, ch. 412, § 2; also see Article 35.16(a), V.A.C.C.P. (as amended 1969). Further, the record does not reflect that prospective jurors were challenged for failure to be a householder or freeholder.

Appellant alleges in his fourth ground of error that the trial court erred in not allowing him additional peremptory challenges. This contention is without merit. The record reflects that appellant requested ten additional peremptory challenges, and that the request was denied. Thereafter a prospective juror, a Mr. Reeves, was examined. At the conclusion of the examination, the following transpired:

'MR. BENNETT: We'll accept the juror, Your Honor.

'THE COURT: What says the defendant?

'MR. CALDWELL: Your Honor, at this time, we would like to renew our previous request.

'THE COURT: All right. That will be overruled.

'MR. CALDWELL: All right. I accept the juror.'

There was no attempt to challenge the prospective juror for cause.

The next venireman called was challenged for cause by appellant, and the challenge was sustained. The next juror was expressly accepted by appellant. The next juror was challenged peremptorily by the State. The following day appellant again requested additional peremptory challenges, and the request was denied. The first venireman called on that day was challenged peremptorily by the State. The next juror was accepted with any objection waived by appellant as follows: 'MR. CALDWELL: No objections, Your Honor.' Objection to the next juror was likewise waived. The next and final juror was accepted by appellant.

Appellant does not claim that the court erroneously overruled one of his challenges for cause. Also, he does not show that an 'objectionable' juror was placed on the jury, or that he tried in any way to challenge any juror after he made his request for additional challenges. No error is shown. Rodriguez v. State, 399 S.W.2d 818 (Tex.Cr.App.1966); Teter v. State, 166 Tex.Cr.R. 489, 316 S.W.2d 756 (1958); Bayless v. State, 166 Tex.Cr.R. 479, 316 S.W.2d 743 (1958).

Appellant contends in his second ground of error that the death penalty constitutes cruel and unusual punishment, and that its imposition in this case is therefore violative of the Eighth and Fourteenth Amendments to the United States Constitution. This Court has held to the contrary on numerous occasions, e.g., Curry v. State, 468 S.W.2d 455 (Tex.Cr.App.1971); Morales v. State, 458 S.W.2d 56 (Tex.Cr.App.1970); David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970); Grant v. State, 449 S.W.2d 480 (Tex.Cr.App.1969). Further, an examination of the Constitution of the United States reveals through the amendments to the same, that the death penalty for crime is recognized. The Fifth Amendment to this Constitution says 'No person shall be held to answer for a capital, or otherwise infamous crime . . ..' Black's Law Dictionary defines a capital crime 'affecting or relating to the head or life of a person; entailing the ultimate penalty. Thus, a capital crime is one punishable with death.' The Fourteenth Amendment to the Constitution of the United States says as follows: Section 1. '. . . nor shall any state deprive any person of life, liberty or property without due process of law . . ..' Thus, it is evident that the Constitution foresees the death penalty as punishment for crime both in an amendment that was adopted at the same time as the Eighth Amendment and in the Fourteenth Amendment on which appellant herein relies. Further, the Constitution of the State of Texas, Varnon's Ann.St. in Article I, Section 19, provides: 'No citizen of this State shall be deprived of life, liberty . . . except by due course of the law of the land.' This Court holds to the opinion that it has enunciated many times before that under the Constitution of the United States or the State of Texas, that the death penalty is not cruel and unusual punishment.

Appellant's third ground of error states that the trial court erred in denying his motion for continuance which was filed on the day prior to trial. He alleged in his motion that his attorney of choice had not had sufficient time to prepare for trial, and that he desired to have a psychiatric examination prior to trial. Appellant offered no evidence in support of his motion. The record reflects that appellant had been represented by appointed counsel since December 30, 1967 (trial commenced on March 31, 1970).

A motion for continuance on the ground that counsel has had insufficient time to prepare for trial is addressed to the discretion of the trial court and the failure to grant such a motion is not error absent a showing of abuse of discretion. Gordy v. State, 160 Tex.Cr.R. 201, 268 S.W.2d 126 (1953); Wiley v. State, 159 Tex.Cr.R. 297, 263 S.W.2d 568 (1954); Abrego v. State, 157 Tex.Cr.R. 264, 248 S.W.2d 490 (1952); Jones v. State, 156 Tex.Cr.R. 248, 240 S.W.2d 771 (1951); Williams v. State, 148 Tex.Cr.R. 427, 187 S.W.2d 667 (1945).

In the case at bar, we find no abuse of discretion. Appellant offered no evidence as to the particulars of his counsel's need for further preparation. Further, by the allegations in the motion he states that his employed counsel had been retained for two weeks prior to the date of the motion. He also had been represented by appointed counsel for three months prior to the motion. No abuse of discretion is shown.

Appellant contends in his fifth ground of error that the court erred in admitting hearsay testimony.

Appellant was arrested in a cafe in Houston in the presence of one Beverly Lindsey. Upon searching appellant and Lindsey, the arresting officer found a pistol in Lindsey's purse. At that time she told the officer that appellant had passed the pistol to her when the officer entered the cafe. The officer was permitted to testify over appellant's objection, as to Lindsey's statement. Lindsey was not called as a witness.

Appellant contends that the admission of Lindsey's testimony was error. He contends that such testimony was hearsay, and that its admission deprived him of his right to confront the witness against him.

The right of confrontation is...