White v. State

• Decision Date: 23 September 1981
• Docket Number: No. 62780,62780
• Citation: 629 S.W.2d 701
• Parties: Billy Wayne WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 701

629 S.W.2d 701

Billy Wayne WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 62780.

Court of Criminal Appeals of Texas, En Banc.

Sept. 23, 1981.

Rehearing Denied Nov. 4, 1981.

M. LeRoy Peavy, Houston, for appellant.

Carol S. Vance, Dist. Atty. and Michael Kuhn, Larry P. Urquhart and Gerlad Flatten, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The appellant was found guilty of capital murder and placed under a judgment of death. He sets out fourteen grounds of error.

In the first ground he argues that the judgment and verdict are void because the jury heard evidence, as well as the State's opening statement, before all the jurors had taken the oath prescribed by V.A.C.C.P. Article 35.22. The venire members were examined individually on voir dire, as V.A.C.C.P. Article 35.17, Section 2, permits. The trial court administered the jury oath to each juror separately after he was accepted for the jury. This practice of separately swearing jurors in capital cases was required under former law, but it has not been required under the present Code of Criminal Procedure since December 31, 1965. See Onion, "Special Commentary," 2 Vernon's Annotated Code of Criminal Procedure of the State of Texas 624 (1966). In this case the trial court failed to administer an individual oath to the third juror who was accepted. No objection was made at that time, and the matter apparently escaped the attention of everyone.

The taking of evidence commenced with the testimony of an eyewitness. He testified that he was working across the street from the scene of the murder, that he heard a noise like a firecracker come from across the street, and that he saw a man with a gun running away from the scene. At this point the jury was retired so that the court could rule on the appellant's motion to suppress this witness's testimony of identification (a ruling which we shall consider below). The court overruled the motion, and then said:

"May we have the jury-wait just a minute. It has been mentioned to me that I did not swear the jurors. But we swore them individually as I recall. I thought I swore all of them as each of them were selected, but probably in an abundance of precaution it might be a good idea to swear them at this time again. But I know I had it written out at the time in front of me and tried to do it.

"Do you have any independent recollection, Mr. Peavy, of any of the jurors not being sworn?

"MR. PEAVY (Defense Attorney): As I recall, every single one of them was sworn in, the best I recall.

"MR. URQUHART (Prosecutor): That's my recollection, Judge, that each were individually sworn.

"THE COURT: All right, bring them out, and I will.

"(Jury returns to jury box.)

"THE COURT: Ladies and gentlemen of the jury, before I proceed, let me ask you, did I swear each of you as you were selected as a juror during the past three weeks? Were there any of you that were not sworn? Do you remember?

"After the Court questioned you, after both the State and the Defendant had an opportunity to question you, it was the Court's intention at least to have each of you sworn as a juror in this case.

"Were there any of you that were not sworn? My independent recollection is that you were all sworn, but I suppose in an abundance of precaution it might be well that I ask all of you to stand and raise your right hands again, so there be no question concerning your having been sworn.

"(The jury was administered the oath by the Court.)"

The State then resumed the examination of the witness. It did not seek to re-introduce or repeat the testimony that had been given earlier. ¹

It has been held that the complete failure to administer the proper jury oath is a reversible error that may be raised for the first time on appeal. Howard v. State, 80 Tex.Cr. 588, 192 S.W. 770 (1917). But the rule is not the same if the proper oath was given, but merely given untimely. Id. In the case of an untimely oath, as was held in Caldwell v. State, 12 Tex.App. 302, 316 (1882),

"(t)he question presented is this: Will this court reverse a judgment for these irregularities, when the defendant made no objection at the time, taking his chance of being acquitted by this jury thus sworn, and holding in reserve this matter to be used in his motion for new trial, and, on failure then, to be used in this court as ground for reversal of the judgment? We think not."

Accord, Northcutt v. State, 154 Tex.Cr. 600, 229 S.W.2d 373 (1950).

In this case the proper jury oath was administered; the only problem was that the oath was not administered timely. This could not render the verdict void. The appellant made no objection to the procedure (and, in fact, told the court that all the jurors had been sworn individually). He may not raise this complaint for the first time on appeal.

In his second ground of error the appellant claims that two jurors were disqualified because they were not asked to "state( ) under oath that the mandatory penalty of death or imprisonment for life will not affect (their) deliberations on any issue of fact"; V.T.C.A., Penal Code, Section 12.31(b). As we held in Smith v. State, 540 S.W.2d 693, 698 (Tex.Cr.App.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977), Section 12.31(b) does not constitute a separate oath to be administered in its own terms to each venire member, but rather is merely one criterion of qualification. The fact that the venire members were not asked this question did not render them disqualified.

The appellant expands on this theme in his third ground of error, in which he argues that the other ten jurors, who were asked the Section 12.31(b) question, were disqualified because the record does not show that they were under oath during the voir dire. This argument was raised and rejected in Duffy v. State, 567 S.W.2d 197, 200-201 (Tex.Cr.App.), cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978), and what we said there need not be repeated. "The Court of Criminal Appeals shall presume ... that the jury was properly impaneled and sworn ... unless such matters were made an issue in the court below, or it otherwise affirmatively appears to the contrary from the record." V.A.C.C.P. Article 44.24(a). No such issue was made below, and the contrary does not affirmatively appear. ² No error appears.

The fourth ground of error is that the court erred in excusing Venire Member Barbara Jean Grace. The appellant contends that Grace was not so opposed to the death penalty as to have satisfied Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The merits of this ground were not preserved for appellate review, for no such objection was made at trial. Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App., 1980; rehearing denied, April 15, 1981), cert. denied, --- U.S. ----, 101 S.Ct. 3067, 69 L.Ed.2d 431 (1981); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), cert. denied, 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977).

The appellant next complains that the trial court erred in refusing to let him examine Venire Member Grace. The trial court began the examination of Grace, as it did that of all the venire members, ³ by explaining the difference between murder and capital murder. The court then asked Grace if she could consider death as a penalty; she expressed some reluctance. The court pursued the matter, asking if Grace could "assume that responsibility ... and would write a death penalty?"

"A Yes, I guess I could, but-

"Q Now, see, you say you guess. Well, you're not saying that under no circumstances would you ever consider the death penalty, are you? You can imagine a far out case in which the death penalty, if the law provides it, that a person should receive it, can you not?

"A Yes, I can imagine that.

"Q And if you reach that point to where somebody gave you that type of case, the evidence was there and you felt beyond a reasonable doubt that that was a proper verdict, could you and would you write that verdict?

"A I'm going to have to say no.

"Q Well, you're the only one that knows. Can you tell us why you would not?

"A Well, it's just that even though I know that, you know, death would be the proper verdict and everything, it just seems like in my heart I wouldn't be able to do that, I just couldn't. I just don't feel that I could just say death to this person.

"Q You understand, of course, you would not be saying death. You would be writing the answers that you know would mean that the judge would be the one that would be sentencing the person to death. You understand that?

"A Uh-huh.

"Q And you would answer those questions so that the judge would not be forced to give the individual death; is that what you're saying?

"A Right. At least I would not give him death. So, therefore, I would want the judge to not give him death also.

"Q Consequently, you would make your answers so that he could not receive death as a penalty; is that right?

"A Yes, sir. Even though I know what's right, I know what you're saying, you know; but deep in my heart, I just don't feel like I could write death to a person. So, therefore, I would want the judge to consider not giving death to him.

"Q Well, Miss Grace, of course there's nobody that can find any fault with how you feel. You're the one that has to make that decision. I told you yesterday we would find no fault with you, didn't I?

"A Yes, sir.

"Q Nobody is going to find any fault. All we need to know, are you so precommitted that regardless of how right you thought it was you would never write a verdict that would represent the death penalty?

"A Right. Now, I have to say no.

"Q When you say now, explain that.

"A No, I just could not do it. I just don't think I could.

"MR. URQUHART: I would make a motion, Your Honor. I believe that the lady is being honest with the Court.

"MR. PEAVY: I'd like to ask her just a few questions, Your Honor.

"MR....