Thames v. State

• Decision Date: 01 April 1970
• Docket Number: No. 42540,42540
• Parties: Theo Ray THAMES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 495

453 S.W.2d 495

Theo Ray THAMES, Appellant, v. The STATE of Texas, Appellee.

No. 42540.

Court of Criminal Appeals of Texas.

April 1, 1970.

Rehearing Denied May 27, 1970.

Dalton C. Gandy, Fort Worth (Court Appointed), for appellant.

Frank Coffey, Dist. Atty., and Truman Power, John Brady and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for murder; the punishment, death.

The record reflects that appellant shot and killed Billy Guy Tolleson, the operator of the Starlight Club in Fort Worth, on December 21, 1967. On the night of December 19, 1967, appellant and Earl Wayne Sanders, a co-indictee, entered the club where appellant wanted to play pool but did not want to wait his turn to play. A dispute arose and appellant produced a knife and his companion Sanders drew a pistol and challenged the customers to a fight and then left. James D. Tidwell, an employee of the club, informed Tolleson, the deceased, of this incident.

Two nights later Earl Wayne Sanders, Charles Hardin, another co-indictee, and the appellant secured pistols and while they were leaving Hardin's house, one of them stated: 'I will kill him before he knows what happened.' Shortly thereafter, all three appealed in the Starlight Club and two of them deliberately bumped into Bobby Gill, a customer, and turned and smiled at him. Tolleson told Gill that they were probably looking for trouble and to say nothing. Tidwell then informed Tolleson, the deceased, that Earl Wayne Sanders and the appellant were the two men who had previously displayed the knife and pistol and caused the disturbance. Tolleson then went behind the bar, picked up his wife's purse and secured a .22 caliber pistol and placed it in his pocket. He returned to the bar and told Hardin and Sanders that if they were going to come into the club they would have to respect everyone else, and if they had guns, they would have to leave. Hardin stated that he had not been in the previous disturbance and that Tidwell was crazy and a liar. Tolleson then slapped at Hardin who was backing up and pulling a pistol from his sweater. In the meantime, appellant had moved behind the bar. He said to Tolleson: 'Hey, buddy, I've got something for you.' Then he fired approximately five times, striking Tolleson, who was turning toward appellant pulling his own pistol. Tolleson's wife, who was also behind the bar, was wounded as she ran to get away. Appellant and his companions fled the premises.

The evidence shows that appellant was firing a .32 caliber automatic pistol and that a .38 caliber weapon had been fired in Tolleson's direction from the position occupied by Hardin and that the .22 caliber revolver (the deceased's) had been fired four times.

After leaving the club, Hardin, Sanders and appellant went to Hardin's house where they packed their belongings. Appellant threatened to kill Hardin's wife if she informed the authorities of what she had seen and heard. The three men then left with Hardin's wife and arrived in Waco between 2 and 3 o'clock in the morning. There the three men, who were still armed, secured some $10,000 from an unknown source which was divided among them.

Officers from Tarrant County secured warrants for the arrest of the group but could not find them. Sanders and the appellant fled to Colorado where they evaded arrest by taking the chief of police of Vail, Colorado, and another policeman as prisoners. They then secured transportation at gunpoint and proceeded by back roads where they thought they had a better chance to escape. They forcefully entered a farm house occupied by a woman and three children and stayed there for a short time, and later they started toward Denver. On the way, appellant took another prisoner and his automobile. Thereafter, appellant and Sanders were arrested February 16, 1968 in St. Bernard Parish in Louisiana and firearms were recovered. After appellant was placed under arrest he made a break by jumping down a flight of stairs, but he was arrested some two hours later.

Appellant presents fifteen grounds of error. In the first ground he contends that the court erred in excluding from the jury panel veniremen who voiced conscientious or religious scruples against the death penalty in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Before the voir dire examination of the prospective jurors began the trial court informed the attorneys that the holdings in Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and Pittman v. State, Tex.Cr.App., 434 S.W.2d 352, were to be utilized in the examination. Some 56 veniremen were examined. Appellant complains that the trial court abused his discretion in sustaining the State's challenge for cause on seven of the prospective jurors.

The range of penalty for murder was explained to the prospective juror Velma Horton, and she was asked:

'Q. My question then to you is, would you be willing to consider all the penalties provided for murder under the Texas law?

'A. Well, no, I cannot.

'Q. What part of the penalties that I have gone over with you do you object to?

'A. The death penalty.

'Q. The death penalty?

'A. Yes, sir.'

She further testified that she could not consider any set of facts or circumstances so hideous that she could vote for the death penalty. On cross-examination by Mr. Gandy, appellant's counsel, she testified that she had conscientious scruples against the death penalty, that she considered it immoral. She was then asked:

'Q. In other words, could your oath as a juror ever lead you to vote for the death penalty in any case?

'A. I don't think so.'

She was then asked:

'Q. Could you abide by the law if the Court tells you that one of the punishments for murder is the death penalty? Could you abide by the Court's instruction?

'A. Yes.

'Q. And follow the law?

'A. Yes, I think I could follow the law.'

She further testified that her feelings about the death penalty would not prevent her from determining guilt or innocence. On redirect examination she again testified that she could not conceive of a set of facts or circumstances so terrible and so hideous that she could vote for the death penalty.

The range of punishment was explained to the prospective juror Gerald T. Burch, and he testified that he did not believe in capital punishment, that his attitude toward capital punishment would prevent him from making an impartial decision on the range of punishment, and that he would exclude the death penalty. When asked if he could conceive of a set of facts where he could vote for the death penalty, he answered that he probably could. Then he was asked:

'Q. You could now? Excuse me, but I though just a moment ago that you told me that you could not conceive of any set of facts and circumstances where you could vote for the death penalty?

'A. I said I did not believe in the death penalty.'

He testified that he did not believe he could write a death penalty verdict. Again he testified that he could not conceive of a set of facts or circumstances that would cause him to vote for the death penalty and if a person was found guilty of murder, he would automatically exclude and vote against capital punishment without regard to the facts and circumstances. On cross-examination he testified that he believed that the death penalty was immoral and that he had conscientious and religious scruples against the death penalty which would compel him to vote against it.

P. C. Jackson testified that he did not believe in the death penalty, that he could never vote to impose the death penalty, and '(A)nd I couldn't, you know, I just couldn't kill a man.' On cross-examination he testified that he could not imagine such a horrible crime or a set of facts where he could impose the death penalty.

The prospective juror Scruggs testified that he could not consider the death penalty and that he could not conceive of a fact situation where he could vote for the death penalty, but five years from now his vote might be different. On cross-examination he testified that he could not write his name to a death penalty verdict under any circumstances.

Joseph Hunt testified that he could not consider the death penalty and when asked if he could ever consider it, he stated that it would have to be like the case in Chicago where all those nurses were slain, or something like that. He testified that he could not vote for the death penalty without doing violence to his conscience, and when he was asked if he could conceive of a fact situation where he could vote for the death penalty, he stated: 'I would say no again.' He was asked about the Chicago nurse case and was asked if he would change his mind and he said:

'A. More or less, yes. I would say that I--well, I will still stick with no again,'

and then definitely stated that he could not vote for the death penalty.

Barbara Sims testified that she could not impose the death penalty, but that she could determine the guilt of the accused.

Ruth Retzlaff testified that she could not give the death penalty in any murder case and '(I)f it was my family I would be a lot more different, but I wouldn't be--', and that she could not conceive of any situation that would permit her to give the death penalty; that religiously she felt that way. The court asked her if she would automatically vote against the death penalty in this case if she were selected without regard to what evidence might be developed. She answered, 'That is right. I could not give the death penalty.'

It appears that the seven prospective jurors were disqualified and the trial court did not err in sustaining the challenges for cause under Witherspoon v. Illinois, supra, where it was stated that the rule did not involve the State's assertion of 'a right to exclude from the jury in a capital case those who say that they could never vote to impose the...