Williams v. State

• Decision Date: 22 June 1988
• Docket Number: No. 69582,69582
• Citation: 773 S.W.2d 525
• Parties: Toby Lynn WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 525

773 S.W.2d 525

Toby Lynn WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 69582.

Court of Criminal Appeals of Texas,

En Banc.

June 22, 1988.

Rehearing Granted Sept. 21, 1988.

Rehearing Denied April 12, 1989.

Bill Warren, Center, for appellant.

John S. Walker, Dist. Atty., and Robert A. Goodwin, Asst. Dist. Atty., Center, Robert Huttash, State's Atty., Austin, for state.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03(a)(2). Following affirmative jury findings to the special issues submitted pursuant to Article 37.071(b)(1) and (2), V.A.C.C.P., the court assessed punishment at death.

Appellant originally raised six points of error, but subsequently waived his first two including a complaint about the change of venue from Panola County to Collin County. ¹ As appellant, inter alia, challenges the sufficiency of the evidence to support the affirmative finding to Special Issue No. One the facts will be briefly set out before responding to the points of error.

Appellant was convicted of murdering Debra Gail Moore while in the course of kidnapping or attempting to kidnap her. The testimony of the witnesses at the guilt/innocence stage of the trial revealed the following facts concerning this offense. At around 9:30 or 10:00 p.m. on the night of December 19, 1984, Victoria Hinton and Wilma Franklin left Hinton's home to go for a walk in their hometown of Greenwood, Louisiana, a town about 15 miles from the Texas border. The purpose of their walk was to get some cigarettes, but during their walk they encountered Toby Lynn Williams, the appellant in this case. As the two women approached a bridge near Hinton's house they came upon appellant squatting down near the street, holding a .357 magnum pistol. Appellant asked the two women, with whom he was acquainted, whether "they wanted to make a couple of thousand dollars" by robbing a man at his house on Rice Road, which was nearby.

The three of them agreed to carry out the robbery, but first they decided to go to the house of a friend of Hinton's, Joe Joe Sims, to get some cigarettes. While at this friend's house they smoked marihuana, and talked, and finally went to the store for some beer and cigarettes in the car of another friend who had driven by, Odis Lindsey. They made their purchases, and after sitting in the car smoking marihuana and listening to music, Hinton, Franklin, and appellant left the car walking with Sims. Sims soon left the three of them and walked back to his own house. The planned robbery was not discussed by the three of them in the presence of their other friends.

After Sims left them, Hinton, Franklin, and appellant walked to the house on Rice Road. It was approximately 11:30 p.m. when appellant knocked on the door while holding the pistol under his jacket. Johnny Moore came around from a side entrance after turning on the outside lights. Moore asked how he could help the appellant. Appellant then pulled his gun and told Moore to get inside the house and turn off the outside lights. Appellant made Moore go back into his bedroom, where his wife, Debra Gail Moore, and their six month old child were. Appellant demanded to know where Moore's money and jewelry were located, but Moore only had about eleven dollars in cash with him. Appellant then asked if Moore had any guns and proceeded to collect Moore's shotgun, 30-30, and 22 rifle, which the two women thereafter kept trained on the Moores.

Appellant then asked Moore if he had money in the bank, and demanded his automatic teller machine card to get access to the funds. Moore told him how to use it to withdraw the one hundred and ten dollars which was in his savings account. Appellant took the keys to Moore's car and left to remove the funds from the account at an automatic teller machine, leaving Hinton and Franklin to guard the Moores. While appellant was gone, Hinton and Franklin alternately collected items of personal property from around the house and put them in pillow cases, while the other stood guard. Appellant was unable to get any money from Moore's account by using the automatic teller card. Appellant and the two women proceeded to load goods from the house into the truck, including a stereo and a console television, which appellant made Moore help him load. During this time Johnny Moore determined that appellant was Toby Lynn Williams, a former employee of his.

Upon his return from attempting to get the money from Moore's account, appellant told Hinton that they would have to kill Johnny and Debra Gail Moore because they would be witnesses in a police investigation. After appellant, Hinton, and Franklin loaded up the truck with goods, appellant told the Moores to get dressed because they had to go with him to "take care of some business." It was then around 2:30 a.m. on the morning of December 20, 1984. With Hinton and Franklin in the front seat, and Hinton holding the .357 magnum pistol on the Moores, who were in the back seat, appellant drove out to a relatively deserted road just across the border inside the Texas state line, some 15 miles from the Moores' house. Appellant then told the Moores to get out of the car and give their six-month-old son to Franklin. When Mrs. Moore refused to give up her child, Franklin slapped her to try to make her obey. Mrs. Moore finally relinquished the child to her husband, who handed the baby over to Franklin.

Franklin and Hinton returned to the car with the baby while appellant made Johnny and Debra Gail Moore walk down the road from the car. Appellant then told them to take off their clothes and "make love" to each other standing up. When the couple was unable to do so, appellant ordered them to lie down on the street and have intercourse. Again, the Moores were not able to comply. While they knelt in the street facing each other, hugging and crying, wearing only their undergarments, appellant raised the 30-30 and shot Debra Gail Moore through the middle of her back. The bullet exited her body immediately below her bra, and entered Johnny Moore's body. The Moores then fell to the ground immediately adjacent to one another.

Appellant proceeded to move Johnny Moore into a ditch on the side of the road which was filled with weeds. He then tried to do the same with Debra Gail Moore, but was unable to do so, apparently because her weight was too great. Upon returning to the car, appellant said that they would have to shoot Moore again because he was not going to die from the wound which he had sustained. Hinton suggested that Moore would indeed die from the wound without shooting him again. Appellant then got in the car, pulled up to where the bodies were and shined the car headlights on each of them. The three then drove off with the baby in the car. Appellant pulled over at a house on the side of the road and left the baby on the porch of the house.

Appellant, Hinton, and Franklin then returned to the neighborhood in which they and the Moores lived. They abandoned the car in some woods located near Hinton's house, and ran through the woods. Although they had planned to go back to the Moore's house to get the truck which they had loaded with goods, they decided not to do so when they heard sirens close by. Instead, appellant, Hinton, and Franklin ran back to Hinton's trailer home where they hid until the police came to investigate. Meanwhile, at the scene, Johnny Moore managed to get up out of the ditch and walk to a house to obtain help. Moore was able to tell the police the name of his assailant. While Johnny Moore was gone to get help, his wife, Debra Gail Moore died as a result of the gunshot wound inflicted on her by appellant.

In his third point of error appellant contends the "trial court fundamentally erred in allowing the State to strike peremptorily the only remaining Black venireperson, as it systematically excluded a distinct qualified group and created a conviction prone jury."

Appellant's 1985 trial occurred before the April 30, 1986 decision of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant, a Black man, asserts in his brief that there were 140 persons summoned for jury duty in his case, and that only two of the group were Blacks. Prospective juror L.M. Jackson was successfully challenged for cause by the State without objection. The other black prospective juror, David G. Bell, was eliminated from the jury panel by a State peremptory challenge. There was no trial objection, no post verdict motions nor was the matter made an issue in the trial court at all. The Batson error is raised for the first time on appeal. Thus, we are confronted with the question we reserved in Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987), in footnote # 3 at 736--that is whether Batson error may be raised for the first time on appeal in a case that was pending on appeal at the time of the Batson decision. Further, it does not appear that the United States Supreme Court has written on the question.

In Batson, supra, the Court wrote:

"Accordingly, the component of the jury selection process at issue here, the State's privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reason at all, as long as that reason is related to his view concerning the outcome,' of the case to be tried, United States v. Robinson, 421 F.Supp. 467, 473 ( [D.C.]Conn.1976), mandamus granted sub. nom. United States v. Newman, 549 F.2d 240 (CA.1977), 'the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.' "

Batson ruled that a state criminal defendant could...