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DONALD GENE FRANKLIN v. STATE TEXAS (05/24/78)

May 24, 1978

DONALD GENE FRANKLIN, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE



FROM NUECES COUNTY

COUNSEL

Douglas Tinker, Corpus Christi, Clarence Williams, Pat Priest, San Antonio, for appellant.

Ted Butler and Bill M. White, Dist. Attys., Charles T. Conaway, Gordon V. Armstrong, Bill Harris, Alan E. Battaglia and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

Author: Dally

This is an appeal from a conviction for capital murder; punishment was assessed at death. Appellant was indicted in Bexar County, but a change of venue to Nueces County was ordered.

Appellant raises forty-five grounds of error. In our discussion, we shall group these grounds into the following categories: sufficiency of the evidence and closely related issues; denial of requested jury charges; admission and exclusion of evidence; refusal to quash the indictment; jury selection; and jury argument.*fn1

I.

The indictment under which appellant was tried alleged that he intentionally and knowingly caused the death of Mary Margaret Moran by cutting and stabbing her with a knife in the course of committing or attempting to commit kidnapping, robbery, and rape. Each underlying offense was alleged in a separate count. Appellant contends that the trial court erred in refusing to require the State to elect a single count to submit to the jury and in submitting verdict forms which did not require the jury to specify the underlying felony on which their verdict of capital murder was based. Appellant also challenges the sufficiency of the evidence at both the guilt and punishment phases of his trial.

Shortly after midnight on July 26, 1975, the deceased, a nurse at Audie Murphy Veteran's Hospital in San Antonio, was apparently seized by an assailant as she backed her car from its space in the outpatient parking lot, stabbed seven times, and taken to an overgrown field several miles from the hospital. She was found by searchers on the afternoon of July 30, still alive and completely nude. Her nurse's uniform and shoes, sweater, underwear, and a used Tampax were found a short distance from the spot where she was found, along with several items of her personal property. The deceased died on the morning following her discovery.

Two witnesses saw the appellant in the parking lot at the time of the abduction. James Carter, an employee of the hospital, testified that, as he walked to his car shortly after midnight, he saw appellant wearing a muscle shirt and standing beside a green Buick with a strap or hose in his hand. Appellant asked Carter where he could find a gas station. Thinking that appellant was siphoning gas, Carter sought out Jerry Galvan, a hospital security officer who was patrolling the parking areas, and related to him what he had seen. Galvan drove his Cushman vehicle to the outpatient parking lot, where he was met by a green Buick driven by a man Galvan identified as appellant. Galvan also observed the deceased's automobile out of its parking space and empty. Galvan turned around and attempted to stop the Buick, whereupon the Buick accelerated and a chase ensued. The Buick drove through a barricade, up a ramp into a grassy field, jumped a curb, and sped away on a city street. Galvan was able to get another close look at the driver of the Buick during the chase, as well as the Buick's license plate number. Returning to the parking lot, Galvan found a trail of blood, subsequently determined to be human blood of the deceased's type, running from her car in the general direction of the spot where Carter had seen appellant and the green Buick.

Using the license plate number reported by Galvan, San Antonio police determined that the green Buick was registered in the name of appellant's stepfather. He, in turn, told the police that he had sold the car to appellant. Before dawn on the morning of the abduction, several police officers arrived at the house in which appellant lived. The green Buick was parked outside. Appellant was awakened and advised of his constitutional rights, after which he voluntarily signed a consent to search. During the search of the house, police found a pair of appellant's pants soaking in a pail of rose-colored water, a muscle shirt and a pair of shoes belonging to appellant, a gold dress belonging to appellant's wife, and two pieces of shag carpet similar to carpet later found in appellant's Buick. Human blood was found in the water and on the muscle shirt and shoes. The blood on the shoes was of the deceased's type. Appellant's pants tested positively for blood, and plant material in the cuffs matched samples taken from the place where the deceased was found. Fibers found on the muscle shirt and dress matched fibers contained in the deceased's sweater.

In a trash can beside appellant's back door, police found the partially burned remains of several of the deceased's personal effects. Among the items found were the deceased's purse, billfold, credit cars, driver's license, checkbook, and nurse's scissors. Blood was found on the billfold and scissors. Also found was a knife, which tests proved could have made the stab wounds in the deceased's body and the cuts found in the deceased's uniform.

During a search of appellant's green Buick, police found a small rope with human blood stains. Human blood of the deceased's type was found on the rear seat and the shag carpeting. The rear seat also had a semen stain, although no spermatozoa were found. Vacuum sweepings from the rear of the car contained hairs matching samples taken from the deceased. Soil from under the Buick's fenders was determined to be the same as that in the area where the deceased was found. The inside door handles had been removed from the rear doors of the Buick so that the doors could not be opened from the inside.

Appellant testified that he owned the Buick and the items removed from his house. He testified that he had loaned both the Buick and his pants to a Eugene Tealer on the night in question and that Tealer had returned both items after 1:00 a. m. on July 26. He stated that Tealer had told him that he, Tealer, had thrown up on the pants and that it was Tealer who had placed the pants in the pail of water. Appellant could not explain the presence of blood on his clothing, or how the deceased's property came to be in his trash can. It was stipulated that appellant's blood was not the same type as that of the deceased.

Where several ways an offense may be committed are set forth in a statute and embraced in the same definition, are punishable in the same manner, and are not repugnant to each other, they are not distinct offenses and may be charged in one indictment. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), affirmed, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). An indictment may contain as many counts charging the same transaction as the drafter deems necessary to meet variations in the proof. Jurek v. State, supra; Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972). In Jurek, we held that an indictment alleging more than one of the aggravating conditions set forth in Art. 1257(b)(2) of the former Penal Code was not duplicitous. V.T.C.A. Penal Code, Sec. 19.03(a)(2), under which appellant was convicted, contains substantially the same wording as former Penal Code Art. 1257(b)(2).

Where only one transaction is charged, and different counts are contained in the indictment to meet possible variations of proof, the State is not required to elect upon such counts. Nor may an election be compelled where different counts charging the same offense are drawn to prevent a variance and there is evidence to support each count. Floyd v. State, 164 Tex. Crim. 50, 296 S.W.2d 523 (1956); Smith v. State, 141 Tex. Crim. 387, 148 S.W.2d 844 (1941). In the instant case, there is sufficient evidence to support a conviction under each of the three counts.

The evidence establishes that the deceased was taken by the use of deadly force from the hospital parking lot to the field in which she was found. V.T.C.A. Penal Code, Sec. 20.01(1)(A) and (2)(B). The inside door handles had been removed from appellant's car, which the circumstantial evidence indicates was used to transport the deceased to the field. This is evidence of intent to prevent her liberation. Sec. 20.01(2), supra. The field in which she was secreted was sufficiently overgrown and isolated that it took over four days of intensive searching to find her. V.T.C.A. Penal Code, Sec. 20.01(2)(A). The evidence is sufficient to support a jury finding that appellant was guilty of the underlying offense of kidnapping. V.T.C.A. Penal Code, Sec. 20.03.

The offense of robbery includes any violence in the course of effectuating theft. Lightner v. State, 535 S.W.2d 176 (Tex.Cr.App.1976). In the instant case, the evidence establishes that after the deceased was stabbed several items of her personal property, including her purse, billfold, and credit cards, were taken from her. These items were found in appellant's trash can, where an effort had been made to destroy them. From this evidence, the jury could reasonably conclude that appellant obtained the property without the deceased's effective consent and with the intent to deprive her of the property. V.T.C.A. Penal Code, Sec. 31.03. That appellant may have abandoned the property subsequent to obtaining it is of no consequence. Banks v. State, 471 S.W.2d 811 (Tex.Cr.App.1971). The evidence is sufficient to support a jury finding that appellant was guilty of the underlying offense of robbery. V.T.C.A. Penal Code, Secs. 29.01 and 29.02.

A pelvic examination of the deceased prior to her death disclosed no evidence of rape, and vaginal smears taken during the autopsy were negative because the deceased had been having her menstrual period. However, the evidence establishes that after the deceased was seized and stabbed she was taken to the field where she was found stripped naked. Her Tampax was removed. A semen stain was found on the rear seat of appellant's car. Although not sufficient to prove the commission of aggravated rape, the evidence shows the commission of acts amounting to more than mere preparation and would support a finding that the actions were taken with the specific intent to commit said offense. The evidence is sufficient to support a jury finding that appellant was guilty of the underlying offense of attempted aggravated rape. V.T.C.A. Penal Code, Secs. 15.01, 21.02, 21.03.

Because the evidence is sufficient to support a finding of guilt under each of the three counts, the trial court did not err in submitting each count to the jury. Nor did the trial court err in permitting the jury to return a general verdict of guilty without designating under which count the guilt was found. Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975); Hintz v. State, 396 S.W.2d 411 (Tex.Cr.App.1965); Cavazos v. State, 365 S.W.2d 178 (Tex.Cr.App.1963); McArthur v. State, 132 Tex. Crim. 447, 105 S.W.2d 227 (1937).

Appellant questions the sufficiency of the evidence as to the probability he would commit criminal acts of violence that would constitute a continuing threat to society. Art. 37.071(b)(2), V.A.C.C.P. We hold that the evidence is sufficient.

During the punishment phase of the trial, the State elicited testimony from several San Antonio police officers that appellant's reputation in the community for being a peaceful and law-abiding citizen was bad. In addition, the psychiatrist who examined appellant at the time of his admission to the Texas Department of Corrections in 1970 testified that he had determined that appellant is a psychopath. The psychiatrist also testified that psychopathy is a continuing condition for which there is no known treatment and that psychopaths tend to repeat the same type of criminal activities on an accelerated scale of severity. It was the opinion of the psychiatrist that appellant would follow the classic pattern of psychopathic activity. On cross-examination, the psychiatrist stated that his prediction was within a reasonable medical certainty. Cf. Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977). The above testimony, when considered along with appellant's prior rape conviction and the evidence presented during the guilt phase of the trial, is sufficient to support submission of the second issue under Art. 37.071(b), supra, and the jury's affirmative answer thereto. Shippy v. State, supra.

II.

Appellant contends that the evidence is insufficient to establish that the acts of the appellant which were alleged and proved caused the deceased's death. Therefore, he argues, the trial court erred in refusing to submit his requested charge on aggravated assault at the guilt phase and his requested charge on causation under V.T.C.A. Penal Code, Sec. 6.04(a), at the punishment phase. He also contends that the trial court erred in refusing his request, at the punishment phase, for a circumstantial evidence charge with respect to each of the two issues submitted to the jury pursuant to Art. 37.071(b)(1) and (2), V.A.C.C.P.

The doctor who was in charge of the treatment of the deceased testified that her death was the result of irreversible shock resulting from multiple stabbings and loss of blood and subsequent complications therefrom. He further testified that he believed the deceased might have lived had she been found within forty-eight hours of being stabbed. The medical examiner who conducted the autopsy determined that the deceased died of multiple stab wounds of the chest and throat with punctures of the heart, left lung, and liver, complicated by bilateral broncho-pneumonia and atelectasis of the lungs, inflammatory action around the heart, and fluid and air in the chest cavity. The medical examiner testified that he found no evidence of disease or abnormality other than the conditions produced by the complications of the stab wounds.

Appellant's request for a charge on Penal Code Sec. 6.04, supra, if appropriate at all, should have been made at the guilt phase of his trial. That section of the Penal Code provides that a person is criminally responsible only if the result for which he is being prosecuted would not have occurred but for his conduct, operating either alone or concurrently with another cause. However, the evidence is insufficient to warrant such a charge in any case. Even if it is assumed that the deceased would not have died from the stab wounds had she received prompt medical attention after the assault, the fact remains that her subsequent complications derived from the stab wounds. Not only would the deceased not have died but for the stab wounds, there was no concurrent cause of death independent of the stab wounds. The trial court did not err in refusing appellant's requested charge on Penal Code sec. 6.04, supra.

In a prosecution for murder, the issue of aggravated assault is raised when the instrument with which the murder is committed is not a deadly weapon per se or is used in a manner not ordinarily calculated to produce death, and when, in addition, the evidence raises the issue of a lack of intent to kill on the part of the accused. Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973), cert. den. 414 U.S. 1131, 94 S. Ct. 871, 38 L. Ed. 2d 756 (1974). The evidence in the instant case does not show that the knife used is a deadly weapon per se, but the evidence clearly establishes that it was used in a manner calculated to produce death. Appellant's intent to cause the death of the deceased may therefore be presumed. Marrero v. State, 500 S.W.2d 818 (Tex.Cr.App.1973); O'Brien v. State, 365 S.W.2d 797 (Tex.Cr.App.1963). There is no evidence of a lack of intent to kill on the part of appellant. See Corbett v. State, supra; Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978). The trial court did not err in refusing appellant's requested charge on aggravated assault.

The circumstantial evidence charge is not required with regard to the issue under Art. 37.071(b)(2) of whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977); King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977). We believe the reasoning of Shippy, supra, is also applicable to the issue under Art. 37.071(b)(1) of whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased or of another would result.

As we stated in Shippy, supra, a circumstantial evidence charge is not required on every facet of a case that is supported by circumstantial evidence. The established rule distinguishes between proof of the culpable act, a matter of objective historical fact which requires the charge, and proof of mens rea, a matter of psychologic fact which does not require the charge. Proof that the defendant acted deliberately and with reasonable expectation that death would result is a matter of psychologic fact. Furthermore, deliberation and expectation are matters that arise from internal psychological processes and, therefore, do not fall within the exception to the general rule we noted in Shippy, 556 S.W.2d at 250, footnote 2. We hold that the issue specified by Art. 37.071(b)(1), supra, does not require the use of the circumstantial evidence charge.

III.

Appellant contends that the trial erroneously permitted the bolstering of unimpeached identification witnesses. He also contends that his post-arrest silence was unlawfully used against him. On the other hand, appellant argues that he should have been permitted to introduce evidence of another crime similar to the charged offense and expert testimony against the death penalty.

In their original testimony, both Carter and Galvan identified appellant as the man they saw in the parking lot on July 26, 1975, but neither witness testified at the time as to any other extra-judicial identification of appellant. However, after the defense rested its case, the State called a San Antonio police officer who testified that Carter and Galvan had each picked appellant out of a lineup. The State then recalled Carter and Galvan who testified as to their lineup identifications of appellant.

While a witness who has identified the defendant at the trial may also testify that he identified the defendant while the defendant was in police custody, it has been held that others may not bolster this unimpeached testimony by corroborating the fact that the witness identified the defendant. Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965). However, such error may be waived if the objection to the testimony is not sufficient. Montemayor v. State, 456 S.W.2d 126 (Tex.Cr.App.1970). In the instant case, when the police officer was asked who Galvan picked out of the lineup, appellant's objection was, "If it please the Court, Your Honor, that is clearly impermissible under a number of cases and we object to the question." When the same question was asked of Carter, appellant's objection was, "Again, we object to the question, Your Honor." Such objections were not sufficient to preserve the alleged error. Montemayor v. State, supra.

Even if we disregard the inadequacy of appellant's objections, his contention does not present reversible error. Where the defendant impeaches or attempts to impeach the testimony of the identifying witness, the testimony of a third party as to the witness' extra-judicial identification is admissible. Turner v. State, 486 S.W.2d 797 (Tex.Cr.App.1972); Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971); Beasley v. State, 428 S.W.2d 317 (Tex.Cr.App.1968). Appellant sought to impeach both Carter and Galvan with regard to the opportunity each had to view the man in the parking lot. Statements by the witnesses at a pretrial proceeding were used in an attempt to prove inconsistencies in their testimony. Carter's statement at the pretrial proceeding that his identification of appellant was made easier by appellant's resemblance to a movie actor of the 1930's was tested with photographs of the actor. We hold that appellant's efforts to impeach the testimony of the identifying witnesses warranted the admission of the officer's testimony.

After appellant's testimony at the guilt phase of his trial, the State cross-examined him as follows:

"QUESTIONS BY MR. CONAWAY:

"Q. Now, Donald, let me ask you something? Have you ever told this story that you just told here in the Courtroom today before?

"A. Yes, I have. Part of it.

"Q. Have you ever told that story to me before?

"A. No, I haven't.

"Q. Isn't it true that you have been under oath in a Courtroom before Judge Barlow in previous proceedings and you never told us one mumbling word about that tale you just told me?

"MR. PRIEST: We will object to that question. As your Honor knows we were then engaged in pretrial matters in which these matters were not relevant and we object to the question on that basis."

A discussion between counsel and the court was followed by:

"THE COURT: What is the question?

"QUESTIONS BY MR. CONAWAY:

"Q. Do you remember taking the witness stand, Donald Franklin, in San Antonio, Texas, before this same Judge, James E. Barlow; me asking you questions, Mr. Priest being present, this same Court Reporter being present in the Courtroom and me asking you questions about what happened out there at that house and did you say one word about Eugene Tealer or anybody being in that house or-

"MR. PRIEST: Don't say a word until the Judge rules. It is our position he is making undue comments on the exercise of the Fifth Amendment privilege. We ask the Court to-first, we object to the question.

"THE COURT: All right. It is overruled."

Appellant answered this question in the negative. Other questions of a similar nature were also asked over appellant's objection.

It is a general rule of evidence that the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination. 3A Wigmore, Evidence, Sec. 1042 (Chadbourn rev. 1970), and cases therein cited. And it has long been recognized that where an accused waives his privilege to remain silent and takes the stand, he may be cross-examined upon his testimony with the same latitude as would be exercised in the case of an ordinary witness. Fitzpatrick v. United States, 178 U.S. 304, 20 S. Ct. 944, 44 L. Ed. 1078 (1900); Brown v. United States, 356 U.S. 148, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958). On the other hand, a defendant in a criminal trial who testifies may not be impeached by his silence at the time of his arrest and after receiving Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). In the instant case, the challenged cross-examination related to appellant's failure to tell the exculpatory story at the preliminary hearings on appellant's motions to quash the indictment and suppress evidence and identification, a point which the United States Supreme Court expressly did not reach. Doyle v. Ohio, supra, footnote six.

Unless prosecutors are allowed leeway in the scope of impeachment cross-examination, some defendants will be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge. Doyle v. Ohio, supra, footnote seven. Thus, where a criminal defendant takes the stand during his retrial and denies making a statement testified to by a prosecution witness, he may be cross-examined as to why he did not deny making the statement after the same testimony was given at his original trial. Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926). The right of a defendant to present limited testimony at a pretrial hearing without waiving his Fifth Amendment rights, Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), does not prohibit the use against a defendant of false exculpatory statements made by him at such a hearing with knowledge of their falsity. United States v. Kahan, 415 U.S. 239, 94 S. Ct. 1179, 39 L. Ed. 2d 297 (1974). And where a criminal defendant takes the stand on his own behalf, prior inconsistent statements by him to the police may be used to impeach his testimony, even though the statements were obtained in violation of the defendant's Miranda rights and could not have been used by the State as direct evidence of guilt. Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971);*fn2 Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). Evidence obtained through an unlawful search and seizure may also be used for the purpose of impeaching a defendant's trial testimony. Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954).

When the appellant testified for limited purposes at the pretrial hearings the State was properly restricted in its interrogation and cross-examination of the appellant, but the appellant in those hearings was free to testify to, and had the opportunity to testify to, the same exculpatory version of the facts as he later did before the jury. We hold the trial court did not err in permitting the State to cross-examine appellant before the jury as to why he had not related his exculpatory version of the facts in the pretrial hearings.

Outside the presence of the jury, appellant elicited testimony that Eugene Tealer, the man to whom appellant testified he had loaned his car and pants on the night the deceased was abducted, had been arrested a few weeks prior to appellant's trial and charged with the rape of a nurse employed by the Audie Murphy Veteran's Hospital. The alleged rape occurred at another hospital a short distance from the veteran's hospital, where Tealer was an employee. Appellant also established that Tealer had been previously convicted of burglary with intent to rape, a case in which the victim was also a nurse. Appellant contends that the trial court erred in refusing to permit this evidence to go to the jury.

Ordinarily, evidence of offenses committed by parties other than the defendant is inadmissible. Ferrell v. State, 429 S.W.2d 901 (Tex.Cr.App.1968). The evidence proffered by appellant is not inconsistent with his guilt. Florio v. State, 532 S.W.2d 614 (Tex.Cr.App.1976); Dickson v. State, 492 S.W.2d 267 (Tex.Cr.App.1973). Although appellant apparently sought to establish mistaken identity, the proffered evidence does not establish that appellant had ever been mistakenly identified as Tealer. Cf. Holt v. United States, 342 F.2d 163 (5th Cir. 1965). Furthermore, the probative value of the evidence is weakened by the fact that appellant's original statements to the police, prior to Tealer's arrest, were to the effect that he had loaned his car and pants to Eugene "Smokey" Taylor. In checking these statements, the police determined that Taylor was in jail on the night the deceased was abducted. Tealer was brought to the courtroom during appellant's trial, and both Carter and Galvan testified that he was not the man they saw in the outpatient parking lot on July 26, 1975. Given its lack of connection to the offense charged, the trial court did not err in excluding the evidence.

During the punishment phase of the trial, appellant proposed to call a sociologist who would have testified that the death penalty does not, in his opinion, deter crime. He would also have related the history of the death penalty in Texas, pointed out the opposition to the death penalty of several religious groups, and described what occurs at an electrocution. The trial court held that the proffered testimony was irrelevant and inadmissible and refused to order the payment of public funds to bring the witness to the trial.

During the punishment phase of a capital murder trial evidence may be presented as to any matter that the trial court deems relevant. Both the State and the defendant may present argument for or against the sentence of death. Art. 37.071(a), V.A.C.C.P. What is essential is that the jury have before it all possible relevant information about the defendant whose fate it must determine. Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977).

The expert testimony proffered by appellant was relevant only to the issue of the wisdom of the death penalty generally, an issue which was settled by the legislature when it enacted V.T.C.A. Penal Code, Sec. 19.03. The testimony was irrelevant to either of the special issues submitted to the jury, Art. 37.071(b)(1) and (2), V.A.C.C.P., and contained no information about appellant whatsoever. The trial court did not err in holding the proffered testimony inadmissible.

IV.

Appellant contends that his motion to quash the indictment should have been granted because of the unlawful composition of the grand jury which returned the indictment. He also questions the nature and sufficiency of the evidence on which the indictment was based. Also, appellant challenges the manner in which the Bexar County Criminal District Attorney decides whether to seek a capital murder indictment.

Appellant contends that the grand jury which indicted him had no members below the age of thirty as a result of the systematic exclusion of such persons from grand jury service in Bexar County. However, appellant has presented no rationale or evidence to justify his suggestion that persons under thirty are a recognizable, distinct class, singled out for different treatment under the laws as written or applied. See Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977).

Among any age group there will be vast variations in attitudes and experiences. The fact that two persons are the same age does not necessarily give them a community of interest. We hold that an arbitrarily defined age group does not constitute a recognizable class for the purpose of determining the lawfulness of a grand jury selection system. See United States v. Kuhn, 441 F.2d 179 (5th Cir. 1971); United States v. Gast, 457 F.2d 141 (7th Cir. 1972), cert. den. 406 U.S. 969, 92 S. Ct. 2426, 32 L. Ed. 2d 668 (1972); United States v. Potter, 552 F.2d 901 (9th Cir. 1977); United States v. Guzman, 337 F. Supp. 140 (D.C.N.Y.1972); Quadra v. Superior Court of San Francisco, 378 F. Supp. 605 (D.C.Cal.1974); State v. Williams, 310 So.2d 528 (La.1975); Hopkins v. State, 19 Md.App. 414, 311 A.2d 483 (1973). Cf. United States v. Butera, 420 F.2d 564 (1st Cir. 1970); People v. Marr, 67 Misc.2d 113, 324 N.Y.S.2d 608 (1971).

Appellant alleges that the indictment was based solely on the hearsay testimony of five assistant district attorneys. Assuming this is so, appellant does not present reversible error. Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974); Carpenter v. State, 477 S.W.2d 22 (Tex.Cr.App.1972); Jackson v. State, 470 S.W.2d 201 (Tex.Cr.App.1971). Also see United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956).

Appellant contends that because the Bexar County Criminal District Attorney exercises his discretion whether to seek a capital murder indictment on the basis, in part, of the heinousness of the crime, the results are arbitrary and discriminatory in violation of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). We disagree. The evidence adduced by appellant at the hearing on his motion to quash merely illustrates the exercise of prosecutorial discretion as recognized and approved in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). See also Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976). This ground of error is without merit.

V.

Appellant contends that twelve venire members were improperly excluded from the jury for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). He also contends, as to five of these venire members, that even if they were disqualified under Witherspoon they were nevertheless qualified under V.T.C.A. Penal Code, Sec. 12.31(b), and were, therefore, improperly excluded.

The latter contention is without merit. In a capital murder case, a prospective juror may be disqualified under Witherspoon, Sec. 12.31(b), or both. Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977). If a prospective juror is disqualified under Witherspoon, the fact that he may or may not have been disqualified or even questioned under Sec. 12.31(b), supra, is of no consequence. Brock v. State, supra. On the other hand, where a prospective juror is disqualified under Sec. 12.31(b), supra, it is not necessary for the trial court to determine whether he is qualified under Witherspoon. Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978); Hovila v. State, 562 S.W.2d 243 (Tex.Cr.App.1978); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976). The exclusion of the twelve venire members was proper, therefore, so long as each was disqualified under one of the two tests.

Albert DeAses was disqualified under both Sec. 12.31(b), supra and Witherspoon. He testified that while the mandatory life sentence would not affect his deliberations, the mandatory death penalty would. He also testified that under no circumstances would he consider giving the death penalty.

Mrs. T. A. Brown was disqualified under Sec. 12.31(b), supra. She testified that her deliberations "might be" affected by her knowledge of the possible punishment. She also testified that this knowledge would influence her determination of the fact issues.

Dorothy Mae Clawson was disqualified under Sec. 12.31(b), supra. She testified that her deliberations would be affected by her knowledge of the punishment.

Jimmy Faye Terrell was disqualified under Witherspoon. She testified that she could conceive of no situation in which it would be appropriate to punish someone by death, regardless of what the guilty person had done. She also testified that she could not vote for the death penalty.

Arlynn J. Turner was disqualified under Sec. 12.31(b), supra. She testified that she would be unable to look at the facts objectively in light of her knowledge of the punishment.

Angela Sanchez was disqualified under Witherspoon. She testified that she was against the imposition of the death penalty under any circumstances and could not serve on a jury where it came into play.

Mary Lee Shuler was disqualified under Sec. 12.31(b), supra. She testified that her deliberations would be affected by her knowledge of the punishment.

Clarence Stuart was disqualified under Witherspoon. He testified that while he could vote to convict in a circumstantial evidence case, he would never vote for the death penalty in such a case. He was biased against law upon which the State was entitled to rely. See Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977).

Mrs. Edway T. Askey was disqualified under Witherspoon. After she testified that she was opposed to capital punishment, the following exchange with the district attorney took place:

"Q. And it is a feeling that you have had for some time, that is all your life, that it is not proper to punish someone by taking his life regardless of what he might have done, no matter what his crime might have been? Is it your feeling taking someone's life should be left to God and not men or women?

"A. I believe they should be punished, you know, go to prison or, you know,-

"Q. Right.

"A. Some kind of punishment.

"Q. If someone commits a crime he should be punished but if I understood your statement to me it was that you were opposed to the death penalty and you don't go alone (sic) with punishing somebody that strong. Is that what you are telling me?

"A. Well, I just don't believe in it.

"Q. Could you, under no circumstances, see yourself sitting on the jury and hearing evidence in a case, a capital murder case, listening to the evidence and hearing that somebody had committed a crime, a terrible crime, and knowing by your participation in the trial that the person on trial might be put to death, could you ever do that in keeping with your conscience?

"A. I don't know. I guess-it is not my religious belief. I guess it is my conscience, I guess. I just believe in punishing them."

After explaining to her the procedure used at the punishment phase, appellant's counsel asked:

"Q. Under those circumstances, then, could you listen to the facts in the case and determine whether the individual was guilty of capital murder or not guilty of capital murder without being effected (sic) in that decision by the fact that the law might impose the death penalty?

"A. I wouldn't know.

"Q. I am sorry, ma'am?

"A. I said I don't know.

"Q. ... Do you think you can consider the facts and decide about the facts without being effected (sic) by the fact that there is a possibility that the sentence will be life or death?

"A. I think the sentence would be life."

Further questions elicited a statement that she thought she could answer the questions of fact without being affected by the death penalty.

In the light of the cold record before us, it is difficult to say whether Askey unequivocally stated whether she would automatically vote against the imposition of death. See White v. State, 543 S.W.2d 104 (Tex.Cr.App.1976). However, Witherspoon does not require certain formal answers, and Askey's answers reflect not only on her feelings, but on her ability to serve as a fair and impartial juror. Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972). The trial court did not err in excluding her from the jury.

Robert R. Pate was disqualified under Sec. 12.31(b), supra. He testified that he believed that his knowledge of the punishment would affect his deliberations.

Carolyn Snapka was disqualified under Sec. 12.31(b), supra. The record contains the following exchange:

"THE COURT: ... Now, would the fact that you know what the punishment will be or could be if you find the man guilty, would that effect (sic) your deliberations as to the facts or color your deliberations?

"JUROR: I guess so.

"THE COURT: Do you think that when you are looking over the facts you would always have it in the back of your mind what the punishment might be?

"JUROR: Yes.

"THE COURT: The question really addresses itself to the objectivity, whether you think you can be objective. Do you think you can view the facts and pass on the facts objectively, uneffected (sic) by the fact you know what punishment might be?

"JUROR: I think so.

"THE COURT: You think you can or cannot?

"JUROR: I think I can."

After further explanation, the court again asked if the knowledge of the punishment would affect her deliberations, to which she replied, "Yes."

The answers are plainly contradictory. In such a case, we are reluctant to second-guess the decision of the trial judge who had the benefit of observing the venire member's demeanor and tone of voice. See Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978); White v. State, supra; Tezeno v. State, supra. The trial court did not err in excluding Snapka from the jury.

Patricia Villareal was disqualified under Sec. 12.31(b), supra. She testified that the nature of the punishment "would always be in the back of my mind," and that she ...


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