Woodkins v. State

• Decision Date: 27 October 1976
• Docket Number: No. 53036,53036
• Citation: 542 S.W.2d 855
• Parties: Calvin WOODKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 855

542 S.W.2d 855

Calvin WOODKINS, Appellant, v. The STATE of Texas, Appellee.

No. 53036.

Court of Criminal Appeals of Texas.

Oct. 27, 1976.

Lynn S. Patton, Longview, for appellant.

Sam Baxter, Dist. Atty., Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for capital murder. Punishment was set at death.

The record reflects that appellant robbed Jimmy Kuykendall at gunpoint of approximately $90.00 on the night of November 21, 1973, in Marshall. The robbery occurred after appellant and two companions, Douglas Pilot and Ruby Hicks, had forced Kuykendall into his vehicle. After the money was taken, the appellant shot and killed Kuykendall by shooting him once in the chest and once in the back. The deceased was removed from the car and dragged to a ditch by appellant. Pilot drove the deceased's car until a short time thereafter when he failed to make a turn. Appellant and his companions abandoned the wrecked vehicle, walked back to town and divided the money taken from Kuykendall.

At the outset, appellant contends that the court erred in failing to instruct the jury that they might find appellant guilty of the offense of robbery by firearms 'which under the facts of the case and under the law constituted a lesser and included offense.'

The indictment alleged that the offense occurred on or about November 21, 1973. Thus, the indictment in the instant case was bottomed on Art. 1257(b) (2), V.A.P.C., which provided that the punishment for murder with malice aforethought shall be death or imprisonment for life if:

'the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson; . . ..'

It appears to be the position of appellant that since it was necessary for the jury to find he committed the robbery before they could find him guilty of capital murder under Art. 1257(b)(2), supra, he was entitled to a charge which would have given the jury the option of finding him guilty of robbery. We do not agree. In Graves v. State, Tex.Cr.App., 539 S.W.2d 890, this Court held that a conviction for involuntary manslaughter, where the victim was struck by a vehicle, was not barred, under doctrine of double jeopardy, by a prior conviction for driving while intoxicated arising out of the same transaction. See and Cf. Day v. State, Tex.Cr.App., 532 S.W.2d 302.

To hold that robbery was a lesser included offense of capital murder under 1257, supra, simply because it was incumbent on the State to prove the element of robbery in establishing capital murder would be an impermissibly broad extension of the law governing lesser included offenses. See the concurring opinion of Judge Odom in Graves v. State, supra, relative to interpretation of Art. 37.09, V.A.C.C.P.

Appellant contends that the court erred in failing to exclude his alleged confession, 'when same was not given in compliance with Article 38.22, Code of Criminal Procedure.'

Appellant was taken before the judge who ultimately tried this case after his arrest and it is undisputed that the judge advised appellant of his rights in accordance with the requirements of Art. 15.17, V.A.C.C.P. While appellant recognizes that it would require an extension of present law, it is urged that a district judge, recognizing the seriousness of the instant offense, should have appointed a lawyer at the time appellant was advised of his rights '. . . to immediately counsel with the Defendant regarding his rights and to make certain that these rights were fully understood by the Defendant.' No request was made for counsel. Appellant urges that the appointment of counsel by the court sua sponte would be in the spirit of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and in compliance with Sixth Amendment rights under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. We do not agree and reject appellant's contention that the confession should not have been admitted for the reason advanced herein.

Appellant contends that the prosecutor committed reversible error by injecting his own beliefs and conclusion in arguing to the jury.

The first complaint voiced is directed to an argument where the prosecutor appears to be discussing the court's charge with the jury. The record reflects that the following occurred:

'The first page primarily tells you that--what malice aforethought is, and remember, the defendant has been charged with murder with malice aforethought, this describes it. It has just one of the unique definitions, that of 'presently bent on mischief' which I certainly think applies in this case. But it tells you primarily--

'MR. PATTON (defense counsel): Now, your Honor, we object to what Mr. Baxter says and what he thinks applies in this case, your Honor, that amounts to unsworn testimony on the part of this prosecutor, and we would request that the jury be instructed to disregard his comment in that regard, your Honor.

'MR. BAXTER (prosecutor): Your Honor, I am certainly entitled to tell the Jury what my theory of the law and the facts are.

'THE COURT: Objection is overruled. You may have your exception.'

Appellant relies on Palmer v. State, 157 Tex.Cr.R. 96, 246 S.W.2d 893, for the proposition that counsel should confine themselves in argument to evidence contained in the trial and should not bring outside influence to bear upon the jury in order to obtain a conviction. In Baldwin v. State, Tex.Cr.App., 499 S.W.2d 7, cited by appellant, this Court admonished prosecutors that it was improper to argue, 'I think that he's guilty.'

The prosecutor's argument that he thinks that the definition 'presently bent on mischief' applies to this case does not fall within the prohibition of either Palmer v. State, supra, or Baldwin v. State, supra. It would appear to be nothing more than a deduction from the evidence. Assuming, arguendo, that the argument can be characterized as expressing an opinion of the prosecutor, we fail to perceive how such statement would be so prejudicial to appellant as to require reversal.

Appellant's next complaint concerning the argument of the prosecutor is reflected by the following, which took place during the prosecutor's argument:

'Then we put Ruby Hicks on the stand, I think you are probably going to hear about Ruby from Mr. Patton. He is going to call her everything in the book. I told you on the stand, when you were up there being questioned as a juror, that Ruby had been granted immunity, that Ruby is not going to be charged in this case, and that's right. I tell it to you again. She is not. But if it were not for Ruby, this crime would have gone unsolved, because she--

'MR. PATTON: Your Honor, now we object to this, that is completely irrelevant, it amounts to unsworn testimony by the Prosecutor, it is not proper, and we request the jury be instructed to disregard it, your Honor.

'THE COURT: Ladies and Gentlemen, in this case, as in all cases, and the court has so instructed you, you will make your decision based solely on the sworn testimony which you have heard from the witness stand. Now Mr. Baxter has stated that what he says is not evidence, and I want to reiterate that what he says is not evidence. And what Mr. Patton says later on is not evidence. However, they do have the right to draw inferences from the evidence, but the ultimate inference is to be drawn by the Jury and that is you ladies and gentlemen. And with that instruction, I am going to allow Mr. Baxter to proceed. Mr. Baxter, proceed--and your objection is overruled.

'MR. PATTON: Your Honor, we would further object that there is no testimony to that effect, and again request that the jury be instructed to disregard it.

'THE COURT: The objection is overruled.'

Ruby Hicks, one of appellant's two companions on the occasion of the robbery and shooting of the deceased, was granted immunity and testified for the State. She gave an eyewitness account of all the events which occurred on the occasion in question. Appellant cites Stein v. State, Tex.Cr.App., 492 S.W.2d 548, and Renn v. State, Tex.Cr.App., 495 S.W.2d 922, and calls our attention to this Court's emphasis in those opinions of the critical importance of convicting an accused only upon the evidence presented, without attempting to inflame or prejudice the minds of the jury.

The witness having furnished the only direct evidence of the robbery and shooting, it would appear to be a reasonable deduction from the evidence that the State would not have had a case without her testimony. Further, we cannot conclude that the complained-of statement injected anything new or so harmful as to constitute reversible error.

The following occurred during the opening argument of the prosecutor at the punishment stage of the trial:

'I suspect he (deceased) is trying to get out that door. He has heard that gun click once, he knows it is time to bail out. Unfortunately, he didn't make it.

'MR. PATTON: Your Honor, this is total speculation on the part of the District Attorney. There is no evidence to this, and it again amounts to unsworn testimony in matters not properly before this Jury. We ask that the Jury be instructed to disregard it.

'THE COURT: Objection is overruled, Counselor.

'MR. BAXTER: I trust this will not count against my time, your Honor.

'THE COURT: I am going to give you a little extra time, Mr. Baxter.

'MR. PATTON: Well, your Honor, I object to that as being a comment or a criticism of making objections, your Honor.

'THE COURT: Let the record show the objection. It is overruled.'

The thrust of appellant's complaint appears to be directed to the prosecutor's comment, 'I trust this will not count against my time, your Honor,' and the court's response, 'I am going to give you a little extra time, Mr. Baxter.'

Appellant urges that the foregoing constituted an effort of the prosecutor to...