Whan v. State, 41789
Decision Date | 26 February 1969 |
Docket Number | No. 41789,41789 |
Parties | Tracey Virgil WHAN, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Frank Mabry and Forrest F. Baird, by Frank Mabry, Houston, Mitchell, Gilbert & McLean, by Arthur Mitchell, Austin (on appeal only), for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is murder; the punishment, death.
The indictment alleged that Max Thomas Yeary and appellant did with malice aforethought kill Edward Jordan by shooting him with a gun. The second count further alleged that the murder was committed by the said Yeary and appellant while they were engaged in the perpetration of the crime of robbery.
The offense was alleged to have been committed on or about December 29, 1966. The indictment was returned January 26, 1967.
On May 10, 1967, severance was granted Yeary; the district attorney gave notice that he would seek the death penalty as the proper punishment for appellant Whan, and Hon. Frank Mabry and John Baker were appointed to represent appellant.
On May 29, 1967, the case was continued on application of appellant and set for September 11, 1967.
On August 28, 1967, the court granted appellant's motion for Expenditures not to exceed $250.00 for investigation and expert testimony as to the mental condition of appellant.
Following pretrial hearing on appellant's motion for discovery and the selection of a jury, appellant pleaded not guilty to the first count of the indictment and guilty to the second count, but changed his plea to guilty to the indictment after the witnesses were sworn, which plea of guilty was accepted and entered after proper admonition of appellant by the court as to its consequences.
Appellant's first ground of error complains that the selection of the jury and excusing of prospective jurors for cause who had conscientious scruples against capital punishment was in violation of and reveals the same situation as existed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 776, decided June 3, 1968. The voir dire examination of certain prospective jurors he alleges was preserved to show the means, mode and conduct of the court in excusing jurors for cause in anticipation of the opinion by the Supreme Court in Witherspoon.
The record includes the voir dire examination of 20 prospective jurors, 10 of whom were challenged for cause by the state because of their conscientious scruples against the death penalty. Only one juror was peremptorily challenged by the state.
The record does not support the contention that jurors were excluded simply because they expressed conscientious scruples against the infliction of death as punishment for crime. To the contrary, the jurors who were challenged by the state and excused were further examined, some by the court, as to whether their conscience would permit them to impose the death penalty, and answered in the negative.
In view of the fact that the state exercised but one of its 15 peremptory challenges, the excusing of one or two prospective jurors on the state's challenge for cause would not constitute reversible error. Scott v. State, 434 S.W.2d 678, 683.
The record reflects compliance with the Texas practice in regard to the excusing of jurors challenged by the state on the ground of conscientious scruples against the infliction of death as punishment for crime.
Pittman v. State, 434 S.W.2d 352, and Scott v. State, supra, sustain our conclusion that the Texas practice followed by the court in the selection of appellant's jury does not offend the rule in Witherspoon v. Illinois, supra.
Appellant's second ground of error complains of the refusal of the court to allow him to perfect a bill of exception.
This ground of error refers to the following proceedings reflected by the court reporter's transcription of his notes.
(At this time the jury returned to the courtroom in the custody of the bailiff and in the presence of the jury the following proceedings were had:)
'MRS. JEWEL ELIZABETH JORDAN, called as a witness on behalf of the State, after having first been duly sworn, testified as follows:
'DIRECT EXAMINATION
'Questions by Mr. Ernst:
Appellant's brief sets out that from the very beginning he anticipated that the district attorney would call the widow of the deceased as a witness. This is verified by the record referred to which reflects that appellant's counsel, on the first day of the trial, vainly sought to
Appellant's brief further recites in connection with this ground of error: * * *
We are unable to agree that appellant was denied the right to perfect a bill of exception, in violation of Art. 40.09 Vernon's Ann.C.C.P., in regard to the action of the court in refusing to suppress testimony to be offered by the widow of the taxi driver robbed and murdered by appellant and his co-indictee, and see no merit in the contention that because of her handicap and physical appearance the widow should not have been allowed to appear before the jury as a witness for the state.
The state's right to introduce evidence is not restricted by the entry of a plea of guilty by the defendant, or by his admission of facts sought to be proved. 56 Tex.Jur.2d 478, Trial, Sec. 130; Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869.
Mrs. Jordan identified as belonging to the deceased a pair of glasses found about a half mile from the body of her husband, a wrist watch recovered by Officer Atkins in a criminal investigation office of the Sheriff's office after appellant's co-indictee pointed it out and said he had placed it there, and a pair of trousers found in the abandoned taxicab some ten miles from the place where the body was found.
The record reflects that appellant and Thomas Yeary, pursuant to their plan to rob a taxicab driver, about 8:30 P.M. on December 29, 1966, called from a Lounge for a cab. Edward Jordan was the cab driver who responded to the call. Appellant and Yeary told the driver to take them to Ellington Air Base. On the way, appellant stuck a gun at the driver's head and ordered him to drive on Hall Road and an out of the way road in the southern part of Harris County, where they forced him to disrobe, robbed and murdered him.
The body of the driver, completely nude except for his socks, was found about midnight. A cigarette in his mouth was still lit and burning.
Six hulls fired from a .38 super automatic pistol were scattered up the highway and there was a pair of shorts lying on the road about three feet from the body. Three...
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