Woolls v. State
| Decision Date | 09 March 1983 |
| Docket Number | No. 68878,68878 |
| Citation | 665 S.W.2d 455 |
| Parties | Randy Lynn WOOLLS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted of capital murder. Upon the jury's findings that the killing was deliberate and that appellant represents a continuing threat to society, punishment was assessed at death.
Appellant now contends the court erred in overruling his motion to quash the indictment. Appellant points out that the indictment fails to allege the names of the victim of the underlying offense of robbery in the course of which the murder was alleged to have been committed, citing Silguero v. State, 608 S.W.2d 619 (Tex.Cr.App.1980); Evans v. State, 601 S.W.2d 943 (Tex.Cr.App.1980); Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); and King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980), in each of which the indictment failed to allege the name of the victim of the underlying offense and in each of which the overruling of a timely motion to quash made upon that basis was held to be reversible error.
The instant case can be distinguished from the cases cited. In the instant case, no motion to quash was made upon the basis that the indictment failed to allege the victim of the underlying offense.
Absent an attempt to draw the court's attention specifically to the failure to name the victim of the underlying transaction, nothing is presented for review. Kipperman v. State, 626 S.W.2d 507, 512 (Tex.Cr.App.1981).
Appellant next contends the court erred in permitting the prosecutor to state during the jury voir dire that:
"...
Similar statements were made by the prosecutor to several jurors who were later seated.
In its charge upon the punishment issues, the court instructed the jury in pertinent part as follows:
Appellant, in objecting to the charge, 1 stated:
We note that no objection was taken to the abstract instruction, made three paragraphs before the application to the facts of the law of mitigation for intoxication-caused temporary insanity which was objected to, that "[e]vidence of temporary insanity caused by intoxication may be considered in mitigation of the penalty attached to the offense." [Emphasis added]
Regardless of whether appellant's failure to object to the abstract instruction constituted a waiver of his prior objection, we do not perceive how appellant could have been harmed by the prosecutor's statement upon voir dire that the jury "may or may not consider" intoxication in mitigation when the court's charge later instructed them that they "may consider" it.
The ground of error is overruled.
Appellant next contends the court erred in excusing for cause, over objection and in violation of the holding of the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), five veniremembers.
Veniremember Willie Kendall stated several times in response to questioning by the prosecutor that he would answer "no" to one of the punishment questions 2 regardless of whether the State had proved to his satisfaction beyond a reasonable doubt that appellant had killed deliberately and would constitute a continuing threat to society.
Upon questioning by defense counsel in an apparent attempt to rehabilitate Kendall, the following colloquy occurred:
The State thereupon challenged Kendall for cause, and the challenge was sustained.
Veniremember Shelton stated in response to the court's voir dire that he could not consider death penalty, and that he did not think he could answer each punishment question "yes."
Upon examination by the prosecutor, Shelton stated that he could not vote to answer each punishment question "yes", and that he was irrevocably committed to vote against the death penalty regardless of the facts adduced. The State then made its challenge for cause.
Defense counsel thereupon questioned Shelton in an attempt to rehabilitate him, and the following exchange occurred:
The State's challenge was then iterated and sustained.
Veniremember Thigpen, after declaring her opposition to the death penalty, responded to the court's inquiry about whether she would automatically vote against its imposition regardless of the facts of the case by saying, "yes, I would."
Upon examination of Thigpen by the prosecutor, the following exchange occurred:
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