White v. State

• Decision Date: 14 July 1976
• Docket Number: No. 51123,51123
• Citation: 543 S.W.2d 104
• Parties: Excell WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 104

543 S.W.2d 104

Excell WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 51123.

Court of Criminal Appeals of Texas.

July 14, 1976.

Rehearing Denied Oct. 6, 1976.

J. E. Abernathy, Stan McWilliams, Robert H. Roeder, McKinney, for appellant.

Tom O'Connell, Dist. Atty. and William H. Jouette, Asst. Dist. Atty., McKinney, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; the punishment is death. The offense was committed in Collin County on May 11, 1974. The applicable statutes are V.T.C.A. Penal Code, Sec. 19.03 and Article 37.071, V.A.C.C.P. The prosecution was in Dallas County after a change of venue from Collin County. ¹

The appellant urges a reversal of the judgment, alleging that (1) the Penal Code and Code of Criminal Procedure permit arbitrary imposition of the death penalty in violation of his rights under the United States Constitution; (2) the indictment is misleading and insufficient to allege the offense of capital murder; and (3) the trial court failed to apply the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), in the voir dire of the jury.

Since the sufficiency of the evidence to show the appellant's guilt is not controverted, a full recitation of the facts is unnecessary. This prosecution arises from the murder of three persons at a grocery store in the course of a robbery at the store.

In Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), this Court considered the constitutionality of Article 1256, V.A.P.C. and Article 37.071, V.A.C.C.P. V.T.C.A. Penal Code, Sec. 19.03 has now replaced Article 1256, V.A.P.C., but insofar as concerns the attack made on the present statutes, there is no difference between V.T.C.A. Penal Code, Sec. 19.03 and Article 1256, V.A.P.C. This Court in Jurek v. State, supra, declared Article 37.071, V.A.C.C.P., and Article 1256, V.A.P.C. (now V.T.C.A. Penal Code, Sec. 19.03) to be constitutional. The Supreme Court of the United States has affirmed. Jurek v. Texas, --- U.S. ---, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). This ground of error is overruled.

The indictment, in pertinent part, alleges '. . . did then and there intentionally and knowingly cause the death of Preston Broyles, by shooting him with a gun, and the said Excell White and James Livingston and Gary Dale Livingston, acting together, did then and there intentionally cause the death of the said Preston Broyles, and in the course of committing robbery, to-wit: Excell White and James Livingston and Gary Dale Livingston, acting together did then and there while in the course of committing theft and with intent to obtain property of Preston Broyles, to-wit: a wallet, without the effective consent of the said Preston Broyles and with intent to deprive the said Preston Broyles of said property, did then and there intentionally and knowingly cause bodily injury to the said Preston Broyles by shooting him with a gun.'

Although not grammatically correct, we hold that the indictment is sufficient. If the comma and the word 'and' between the words 'cause the death of the said Preston Broyles' and 'in the course of committing robbery' were omitted, that portion of the indictment would read: 'cause the death of the said Preston Broyles in the course of committing robbery.' The latter phrase would be more correct, but we do not find that the appellant was misled or that he did not have fair notice of the offense with which he was charged. This ground of error is overruled.

The appellant contends that the trial court failed to properly apply the standards of Witherspoon v. Illinois, supra, in the voir dire examination of prospective jurors; he specifically asserts that prospective jurors Davis and Barbour were excused in violation of the standards of Witherspoon.

The rule of Witherspoon v. Illinois, supra, Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), which militates against the exclusion without further inquiry of prospective jurors for stating general objections to the death penalty, is applicable to the new procedure set forth in Article 37.071, V.A.C.C.P., for determination of punishment in a death penalty case. See Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975). See also V.T.C.A. Penal Code, Secs. 12.31(b) and 19.03.

Witherspoon specifically held that:

'. . . a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' 88 S.Ct. 1770, at 1776--1777.

It was further noted that:

'Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial may reveal, it simply cannot be assumed that that is his position.' 88 S.Ct. 1770, footnote #9 at 1773--1774.

Boulden v. Holman, supra, further explained the holding in Witherspoon as follows:

'. . . it is entirely possible that a person who has a 'fixed opinion against' or who does not 'believe in' capital punishment might nevertheless be perfectly able as a juror to abide by existing law--to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.' 89 S.Ct. 1138 at 1141--1142.

On the other hand, it was made abundantly clear in Witherspoon that the decision reached therein had no bearing on the right of the prosecution to challenge for cause any prospective juror who stated that he would automatically vote against the imposition of capital punishment without regard to the evidence which might be developed at the trial or that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt. ²

Appellant first directs our attention to the examination of venireman Theodore R. Davis. The relevant portion of that voir dire examination appears in the record as follows:

'THE COURT: . . ..

'Then I advised the jury panel further that in all capital cases where a jury has reached a verdict in a capital case--we are not talking about this one now; we are just talking about a capital murder case--where a jury has reached a verdict, then the Statutes provide that the punishment to be assessed shall either be life in the penitentiary, or death in the electric chair.

'I asked each member of the jury, from the time I instructed them, until the time they were called forward into Court, to consider whether or not in a proper case they could assess the punishment at death in the electric chair.

'Now I am asking you, in a proper case, where a jury had returned a verdict of guilty, could you and would you assess death in the electric chair, if you thought that to be the proper punishment?

'MR. DAVIS: No, Sir, I don't think so.

'THE COURT: All right, Sir. I will excuse you. Thank you very much. Give the bailiff your badge.'

While the examination of venireman Davis was not as searching as it might have been, it is sufficient to indicate that Davis could not return a verdict of death, or, conversely, that he would automatically vote against the imposition of the death penalty. Counsel for the appellant did not request further voir dire examination of either of the cited veniremen; no objection was raised at the time each was excused. ³

The other voir dire examination cited by appellant is that of Harriet Barbour. The pertinent portion of that examination appears in the record as follows:

'THE COURT: . . ..

'I asked each member of that jury panel to search their mind and conscience to determine whether or not in a proper case, if they were a member of a capital murder jury that had previously found the defendant guilty as charged in the indictment, if he or she could and would assess death in the electric chair if they thought it to be the proper punishment.

'In a proper case, could you consider and assess death in the electric chair if you felt that to be the proper punishment?

'MRS. BARBOUR: I am not sure. I think I believe in it, but I am not sure that I could carry it out.

'THE COURT: Well, of course, you are not called upon to carry it out, you understand.

'I realize the difficulty of your position. There are very very few people ever called, first, to even serve on a jury, and a smaller number of those people are called to serve on a criminal jury, and a very minute number of those people are ever called upon to serve in a capital murder case. So you have never been asked that question before.

'But since this is a capital murder case I must ask you, and I must insist you give us an answer. Now we are not referring to this case, because neither the Court nor the attorneys can precommit you as to what you would do in this case--you haven't even heard the testimony. But in a capital murder case, more specifically a criminal homicide that was committed during the course of another felony, if you were selected as a member of the jury, you had heard all of the evidence, based upon that evidence you and...