Woodard v. State

• Decision Date: 17 February 1971
• Docket Number: No. 43440,43440
• Citation: 463 S.W.2d 197
• Parties: Loyd Dean WOODARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 197

463 S.W.2d 197

Loyd Dean WOODARD, Appellant, v. The STATE of Texas, Appellee.

No. 43440.

Court of Criminal Appeals of Texas.

Feb. 17, 1971.

H. Edward Johnson, Fort Worth (Court-appointed on appeal), for appellant.

Frank Coffey, Dist. Atty., Truman Power, Jack Q. Neal and John Garrett Hill Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder. The punishment was assessed by the jury at life.

The record reflects that appellant shot and killed his fifteen-month-old son with a rifle. Shirley Woodard, his wife, was sitting in an automobile and holding the baby at the time of the shooting. One shot hit her in the neck, but she lived.

The couple had been having marital difficulties and were separated.

Shirley Woodard testified that the first shot hit her and the second hit her baby and that she then saw appellant run with the gun. She also testified about prior difficulties and that appellant had threatened to shoot her with a pistol a short time before the homicide.

James Carey testified that when the appellant fired the last shot he started running.

Appellant's first ground of error complains of the trial court's dismissal for cause of all prospective jurors who testified that under no set of circumstances could they consider or assess the death penalty. It is contended that a jury qualified for the death penalty is one which is more apt to convict, and therefore appellant was denied his constitutional right of dur process.

No evidence to support this claim was introduced.

The same question was presented to the Supreme Court of the United States in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797. There the Court held:

'We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this was is necessarily 'prosecution prone,' * * *. Accordingly, we decline to reverse the judgment of conviction upon this basis.'

We also decline to reverse the conviction upon this basis. See Parks v. State, Tex.Cr.App., 437 S.W.2d 554. The first ground of error is overruled.

In the second and third grounds of error complaint is made that the court excluded testimony of Mary Lee Woodard, an aunt of the appellant, that someone other than appellant had admitted committing the offense. The court refused to allow this testimony.

Mary Lee Woodard testified in the absence of the jury that following the offense she went to the police station with the aunt of appellant's wife and two brothers known as the Carey boys, and that while she was there, one of the Carey boys admitted to her that he had done the shooting. The witness testified that she did not know the name of the boy who made this admission to her but that she had seen him at the trial and could point him out and identify him. Appellant's counsel then sought to have the Carey boys brought into the courtroom so that the witness could identify the one that had made the statement to her. This the court refused to allow.

The appellant's argument that such testimony was admissible as an exception to the hearsay rule was answered by this Court in Ballew v. State, 139 Tex.Cr.R. 636, 141 S.W.2d 654, which is applicable because several eyewitnesses testified and identified appellant as the guilty party. In Ballew v. State, supra, the Court stated:

'It seems to be the rule in this State that when the State relies upon circumstantial evidence alone to establish the guilt of the accused, the declarations of a third party admitting that he committed the offense are a proper matter of proof. * * * But the record in this case, in out opinion, does not bring the proffered testimony within the rule announced. In the case at bar, the State did not seek to establish the appellant's guilt by circumstances but by eye-witnesses.'

Since the testimony was inadmissible, the fact that the court refused to allow the in-court identification creates a moot question. The second and third grounds of error are overruled.

In his fourth ground of error, appellant complains that the trial court erred in...