Ward v. State

• Decision Date: 10 January 1968
• Docket Number: No. 40856,40856
• Citation: 427 S.W.2d 876
• Court: Texas Court of Criminal Appeals
• Parties: Jerry Michael WARD, Appellant, v. The STATE of Texas, Appellee.

Page 876

427 S.W.2d 876

Jerry Michael WARD, Appellant, v. The STATE of Texas, Appellee.

No. 40856.

Court of Criminal Appeals of Texas.

Jan. 10, 1968.

Rehearing Denied April 10, 1968.

Second Rehearing Denied May 22, 1968.

Thomas D. White, Charles A. Easterling, Houston, for appellant.

Carol S. Vance, Dist. Atty., Richard M. DeGuerin and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

OPINION

The offense is murder; the punishment, death.

In addition to the grounds of error set forth in appellant's brief his counsel, in oral argument, advanced the contention that the indictment was fatally defective and did not allege the name of the person alleged to have been murdered.

Under authority of Art. 40.09, Sec. 15, Vernon's Ann.C.C.P., we directed the district clerk to send to this court for its inspection the original indictment.

An inspection of said original indictment furnished no aid except to account for the condition of the reproduction of the indictment which appeared in the record on appeal. However, the record has been supplemented and such supplement duly certified by the clerk has been forwarded to this court by order of the trial judge. It includes a carbon copy of the indictment bearing the certificate of the district clerk dated November 1, 1965, (the date the indictment was filed) showing it to be a true and correct copy of the original indictment; and shown by affidavits, including those of two deputy district clerks, the court reporter and the trial judge, to be a correct copy of the original indictment.

Appellant's motion to strike the supplemental transcript which contains a certified copy of the original indictment is overruled.

The indictment alleged that appellant, on or about the 18th day of October A.D. 1965, '* * * did with malice aforethought kill Joyce Osten by shooting her with a gun.'

The first ground of error set forth in appellant's brief is that the evidence is insufficient to sustain the conviction.

The testimony shows that Joyce Osten was an 18 year old high school girl whose father was a service station operator and whose mother worked at Battlestein's Store in Sharpstown Shopping Center, in Houston.

On October 18, 1965, Joyce accompanied her mother to the shopping center, her purpose being to apply for a part time job at several stores. Mrs. Osten got out of their 1959 green Cadillac at the rear entrance to Battlestein's about 9:50 A.M. and told Joyce to take the car and park it near a Mall entrance and come in. This was the last time Mrs. Osten ever saw her daughter.

When Joyce did not meet her mother as planned, Mrs. Osten contacted her husband who notified the Houston police.

The witness Joanne Kelly testified that at about 11:00 A.M. she saw the green Cadillac run a stop sign as it approached an intersection from the direction of Sharpstown Center. She identified appellant Jerry Michael Ward as the driver and described the other occupant as 'a young girl with light colored hair.'

Doris Rodden testified that at about 11:30 she and her husband, Stafford Rodden, went to Attaway's Grocery in Alief, Texas, where she saw the Gadillac with a young couple seated in it. She identified appellant as the man behind the wheel and identified a picture of Joyce Osten, the deceased, as the girl who was in the car with appellant and who seemed unhappy and had a frown on her face.

Stafford Rodden also identified appellant as the man he saw behind the wheel in the Osten's Cadillac, parked at Attaway's Grocery at about 11:30 A.M., and testified that the other occupant was a young lady with blond hair who looked to be about 17 or 18 years old.

Alvin Robinson, who ran a Texaco Service Station in Alief, Texas, testified that at about 11:30 A.M. the Cadillac, occupied by a neatly dressed man and a nice looking girl, pulled up in his driveway and the man bought a dollar's worth of gas from him and left.

Gilbert Lopez and Robert Lopez, his twin brother, each testified that at about 11:30 A.M. he saw a green Cadillac occupied by a man and a woman entering a pasture off Renn Road.

Anita Topia testified that at about 3:15 in the afternoon she saw the Osten Cadillac make a 'U' turn on Renn Road near Howell, the man driving being the only occupant.

Later in the day the Cadillac was found on the Sharpstown Center parking lot. In it was Joyce's pantic girdle with the hose still attached.

Bob Conrad, dog trainer and kennel operator, testified that in the afternoon, in a pasture leased by him for hunting purposes, (which was shown to be the pasture the twins saw the Cadillac enter) he discovered a spray net can, two compacts, and a brush (which were later identified as belonging to the deceased) and notified the sheriff's department of his findings.

All of the foregoing testimony related to October 18, 1965.

The next morning Conrad joined a searching party and, during the search in the pasture, found the body of the deceased Joyce Osten, dressed only in brassiere and a blouse which had been pulled over her face.

Sticks had been piled on the body and a rope and a pair of panties were found nearby.

Dr. Robert Bucklin, Associate Harris County Medical Examiner, testified that he performed an autopsy on the body of Joyce Osten on October 19, 1965, at about 2:00 P.M. His testimony shows that the time of death was approximately 2 P.M. on October 18, 1965, (24 hours before the autopsy).

Dr. Bucklin testified that he found four gunshot wounds, three in the back of the young girl's head and a fourth in the middle of the back of her neck, and that he turned over to Police Officer P.J. Nix the bullets or fragments he recovered from her skull and neck.

Dr. Bucklin further testified that male sperm was found in the vagina of the girl which, in his opinion, was placed there about the time of her death.

Also Dr. Bucklin found a small abrasion above the deceased's right eyebrow, such as would have been consistent with her being struck with a hand or fist; and a mark on her right wrist and hand consistent with her having been tied with a rope.

James Green testified that he found a purse in the pasture off Renn Road on October 20, 1965. The purse was later identified by Mrs. Osten as the purse of the deceased.

Mrs. Sally Stump testified that appellant rented an apartment from her in September, 1965, and the day he moved in gave her a small 22 caliber pistol. Thereafter, on October 25, 1965, appellant told her that he had given her the wrong gun, and gave her another similar pistol in exchange, which she turned over to Police Officer J. E. Tucker on October 29, 1965.

The pistol delivered to J. E. Tucker was shown by expert testimony to have been the pistol from which one of the bullets which took the life of Joyce Osten was fired.

Other evidence offered for the purpose of identifying appellant as the man who raped and murdered Joyce Osten was the testimony of Houston Police Chemist and Toxicologist, Floyd McDonald, that a pubic hair taken from appellant compared identically in all characteristics to the two foreign pubic hairs he recovered from the body of Joyce Osten.

We find the evidence sufficient to sustain the conviction.

The second ground for reversal is that the court erred in not granting appellant's motion for change of venue.

Appellant challenges the sufficiency of the state's controverting affidavit because it was sworn to before an Assistant District Attorney of Harris County. The state contends that appellant's motion for change of venue is fatally defective in that it does not reflect that the compurgators are residents of Harris County, the county where the prosecution was instituted.

The trial court heard the evidence adduced by appellant in support of his motion for change of venue and which related to the means of knowledge of the compurgators and the existence of prejudice without objection, hence any insufficiency or defect in the state's controverting affidavit was not prejudicial. Davis v. State, 19 Tex.App. 201; Lemons v. State, 59 Tex.Cr.R. 299, 128 S.W. 416.

In support of his motion for change of venue appellant offered in evidence some 41 newspaper articles and 80 radio announcements referring to the case, and argues that these and other facts and circumstances set out in his brief show that he was tried largely by the news media.

There is no showing in the record that appellant exhausted his peremptory challenges or that any juror who had formed an opinion as to appellant's guilt or innocence served on the jury. See Cotten v. State, Tex.Cr.App., 406 S.W.2d 452, and cases there cited.

'The trial court has discretion in passing upon change of venue, and the applicant for a change of venue has the burden to prove the existence of the prejudice against him preventing a fair and impartial trial, such issue to be determined by the trial court.' Jolley v. State, Tex.Cr.App., 363 S.W.2d 269, citing Handy v. State, 139 Tex.Cr.R. 3, 138 S.W.2d 541; Richardson v. State, 126 Tex.Cr.R. 223, 70 S.W.2d 1003.

'It has been held that newspaper publicity, alone, does not establish prejudice or require the change of venue.' Jones v. State, 156 Tex.Cr.R. 248, 240 S.W.2d 771.

In Mendez v. State, Tex.Cr.App., 362 S.W.2d 841, purported television, radio and newspaper reports that the district attorney had stated that defendant had been charged with an offense and was one of 12 whom the district attorney most wanted to convict and most wanted to see in the penitentiary did not warrant change of venue on the basis that defendant could not reasonably expect a fair trial in the county.

As we construe the decision of the 5th Circuit Court of Appeals in Pamplin v. Mason, 364 F.2d 1, the record herein does not sustain appellant's contention that he 'was tried largely by the news media,' or was denied due process of law by the court's failure to change the venue. Appellant's second ground of error is...