text:
    Mark Milton MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 51801.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      James P. Finstron, Dallas, court appointed, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky, John Ovard, Robert Whaley and Donald J. Driscoll, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder wherein the punishment was assessed at death.

On the night of November 13,1973, Martha Janette Williams, a secretary for Fantastic Photo on West Mockingbird Lane in Dallas, was working alone in the office. The appellant, a janitor at the building, picked up Curtis Lee Jones at 11 p. m. and went to the building. When he entered the office where Williams was, she appeared startled and the appellant left. Later, appellant and Jones discussed robbing “the girl in the office” and returned and apparently took money from the petty cash box. Appellant told Jones that Williams had recognized him and they had to take her with them. Jones was ordered to put Williams in the trunk of her car, and he drove that car to the Trinity River bottoms. Appellant followed in another car. After an unsuccessful attempt to sink the car, the appellant shot the deceased with a .410 shotgun.

The autopsy showed four gunshot wounds, including one to the chest at the area of the heart and one to the right side of her face, destroying it. Bruises about her face were consistent with being struck repeatedly with a fist or the butt end of a gun.

Officer William Huggins of the Dallas Police Department found the car and the body while on patrol the next day. Six spent shotgun shells were recovered in the vicinity of the car.

While no positive determination could be made, there were indications of rape, such as the finding of semen on the floor of the office, the vaginal smear taken from the deceased, and the open zipper on the deceased’s jeans.

Initially appellant complains the court erred in conducting part of the voir dire examination of potential jurors in violation of Article 35.20, Vernon’s Ann.C.C.P., which provides they shall be called in the order in which they appear on the jury list furnished the defendant.

This is what appears to have occurred. There was no special venire. The jury panel for the case was brought to the courtroom from the central jury room, where the jurors had been part of the jury panel for the week.

After their arrival in the courtroom, the trial judge explained to them the nature of the case, the estimated time the court would take to try the case and explained certain principles of law applicable to the case as permitted by Article 35.17, Vernon’s Ann.C.C.P.

Although supposedly the potential jurors had been qualified as members of the jury panel for the week, the trial judge asked for “excuses” after his explanation of the case and principles applicable thereto. The veniremen were instructed to come to the bench one at a time. Those offering “excuses” did not appear in the order their names appeared on the jury list.

We, however, do not find that the appellant objected to these veniremen appearing out of order to present their “excuses.” No error is shown. Dent v. State, 504 S.W.2d 455 (Tex.Cr.App.1974).

It should be remembered that the conduct of the voir dire examination must rest largely within the sound discretion of the trial court. Weaver v. State, 476 S.W.2d 326 (Tex.Cr.App.1972); Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975).

It is observed that after the “excuses” were passed upon the voir dire examination of the veniremen took place individually and apart from the rest of the panel.

Appellant also urges the trial court erred when it denied appellant individual voir dire examination of each prospective juror apart from the rest of the panel as required by Article 35.17, Vernon’s Ann.C.C.P.

Appellant had filed a demand that he be accorded such examination, and it had been granted by the court. It appears that appellant’s complaint is directed to the action of the court in hearing “excuses” while the balance of the panel was still in the courtroom.

It appears the few prospective jurors involved approached the bench one at a time, and there is no showing that the balance of the panel heard the interrogation at the bench. One of the purposes of authorizing separate examination of each individual juror in absence of the panel is to permit the asking of questions which might prejudice the entire panel. Under the circumstances, appellant has not shown how he has been harmed by the procedure utilized for hearing the “excuses” of some 18 prospective jurors where it was not shown the balance of the panel heard the interrogation.

In another ground of error appellant complains of the court’s action in excusing several jurors without challenge by the State or defense. We have examined the four instances cited and do find that the trial court did excuse the prospective jurors without challenge. The court should not have excused the prospective jurors without challenge except upon grounds which showed an absolute disqualification. See Article 35.19, Vernon’s Ann.C.C.P.; Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33 (1957); Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973). While it is inconceivable the State would not have challenged each of the prospective jurors for cause, such challenge could have been waived. See Article 35.16, Vernon’s Ann.C.C.P. Nevertheless, we have examined the voir dire examination of each of the prospective jurors and do not find that the appellant objected on the ground now urged on appeal — that there was no challenge for cause. The objections offered were to the grounds upon which the prospective jurors were excused. No error is presented.

The record before us further shows that three of the four prospective jurors were not willing to consider the full range of punishment in the event appellant was found guilty. The appellant was not entitled to have these three on the jury. See Article 35.16(b)3, Vernon’s Ann.C.C.P. Furthermore, the appellant has not shown that he was tried by a jury to which he had a legitimate objection. See Henriksen v. State, supra.

Appellant complains the court erred in sustaining the State’s challenge for cause to prospective juror Hill because none of the reasons for challenge for cause listed in Article 35.16, supra, were shown to be applicable.

Marada Hill first approached the bench when the court asked for “excuses.” She related she had no husband, had children 17 and 14 years of age, and was not paid when she was not at work, that she could not keep her mind on the case as she would be worrying how to pay her bills, etc., since her employment was her only source of income. Upon objection, she was not excused but interrogated again several days later during individual voir dire examination. Again she stated that her situation had been affecting her the last few days and had put a strain on her and that all she could think about was how she was going to pay her bills, etc. She didn’t think she could be a very fair juror. She was challenged and excused over the objection of the appellant.

Article 35.16(a), supra, provides that, “(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. . . . ” The statute is divided into three parts, providing challenges for cause which both the State and the defense may make, those which the State may make and those which the defense may make. We find nothing in the statute which renders these lists an exclusive basis for challenges for cause. Challenges for cause not based on any ground mentioned in the statutes are ordinarily addressed to the sound discretion of the trial judge. See and cf. Texas Power and Light Company v. Adams, 404 S.W.2d 930 (Tex.Civ.App., Tyler 1966—no writ); City of Hawkins v. E. B. Germany and Sons, 425 S.W.2d 23 (Tex.Civ.App., Tyler 1968, writ ref., n. r. e.).

Any juror who is going to be so preoccupied by personal problems so that she could not be fair certainly is “incapable or unfit to serve on the jury.” We find no abuse of discretion in the court excusing Mrs. Hill.

In two grounds of error appellant urges the trial court erred in failing to sustain challenges for cause to two prospective jurors when it was developed on voir dire that their addresses were different than their addresses on the jury list furnished the appellant. He cites Swofford v. State, 3 Tex.App. 76 (1877), and Thompson v. State, 19 Tex.App. 593 (1885), for the proposition that if the name of the prospective juror varies from that on the jury list given to the defendant the juror should be set aside.

In the instant case there was no variance as to the name and no claim the prospective jurors were not in fact the jurors summoned for duty. It appears the prospective jurors in question had previously lived at the address on the jury list and had recently moved to another address in Dallas County. The variance in address is not a challenge for cause under Article 35.-16, supra, nor can we see how such a variance as to address alone renders a juror incapable or unfit to serve on a jury when there is no question he was the juror summoned and the new address does not render the juror disqualified as to residence.

Appellant also urges the trial court erred in excusing upon challenge prospective juror Friedman for bias of the potential juror against the minimum punishment for murder since such bias does not fall within the reasons for challenges for cause provided the State in Article 35.16, supra.

The prosecutor explained to the prospective juror that if the State failed to prove capital murder (alleged to have occurred in November, 1973), then there was the lesser included offense of murder, which carried a penalty of not less than two years nor more than life imprisonment. At some length the prospective juror expressed her bias at the two years or minimum punishment and could not understand legislators enacting such punishment for murder.

While Article 35.16(b), supra, provides that the State is the only party that may challenge for cause when a juror has conscientious scruples in regard to the infliction of the death penalty, there is no corresponding provision provided that defense is the only party who can challenge where a juror opposes the minimum punishment. In fact, Subsection (b)(3) provides that the State may challenge if the prospective juror “has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.” It was upon this provision of the statute that the court expressly relied in sustaining the State’s challenge. While it is difficult to see why the State would challenge the prospective juror on the basis stated, we cannot conclude that error is reflected. The fact that appellant expressly waived any objection to the juror because of her bias against the minimum would not call for a different result.

For the same reasons we find no error in the excusing of the prospective jurors Barge, Pate and Cuddy, who were challenged for cause by the State on the same basis.

Appellant contends the trial court erred in overruling his challenge for cause to prospective juror Larsen and in refusing to grant any additional peremptory challenges to appellant in connection with the examination of said prospective juror.

The last prospective juror interrogated and last juror chosen was one Oscar V. Larsen. It is doubtful that the appellant properly challenged this juror for cause. Near the conclusion of the interrogation appellant’s counsel merely stated, “We’ll submit the juror” and the court responded, “Overruled.” There was nothing else to indicate a challenge for cause and no fact alleged or stated which would render the juror incapable or unfit to serve. It is also evident from the record that the court was not sure of appellant’s meaning of “We’ll submit the juror.” At the conclusion of the interrogation of the prospective juror immediately preceding Larsen the record reflects:

“MR. FINSTROM: We’ll submit the jur- or.
“THE COURT: You may step down. “MR. WHALEY: Judge, what do you mean submit?
“THE COURT: Overruled. What do you mean submit?
“MR. FINSTROM: We wiil pass the witness then.”

If it can be argued that the same was a challenge for cause, we note the appellant did not call to the trial court’s attention any of the four grounds for such challenge now urged on appeal.

Larsen testified he had some friends in the law enforcement field, a neighbor and a cousin in Detroit, Michigan. He related he also had a close friend who was shot in the line of duty, but he testified that none of the facts would affect his ability to sit as a juror in the instant case. There was nothing to show bias or prejudice by this interrogation.

Further voir dire examination reflects that Larsen vaguely remembered some newspaper accounts of the offense approximately seven months previously. He vaguely recalled an apprehension, but did not recall any janitors being arrested. He related he would take the testimony from the witness stand, that he didn’t know many facts, although there was a possibility something “might ring a bell” during the trial. This interrogation was abandoned and was not pursued in accordance with Article 35.16(a)(9), supra. We find nothing to show that appellant was subject to challenge for cause on this ground. See and cf. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

Appellant also urges Larsen was disqualified because he would not hold to his view if opposed unanimously by the other eleven jurors. This is not exactly what Larsen testified. He stated he might have some problems because he was a nervous person, but he didn’t think it would affect his vote, “but you never know until it happens.” In Orange v. State, 76 Tex.Cr.R. 194, 173 S.W. 297 (1915), it was held that a prospective juror who, in answer to the question whether, after hearing the evidence and being of the opinion that the defendant should be acquitted, the fact that the other 11 jurors were for conviction would or might cause him to change his opinion and lead him to an agreement, answered, “I don’t know; I cannot say; I am afraid and believe it might” was not subject to challenge for cause.

Appellant also urges Larsen was subject to challenge because he had a bias or prejudice against probation in a murder case. Larsen testified several times he could give due consideration to the full range of punishment, including probation, though it had no real meaning for him as a possible penalty in a murder case, that it would be a rare case where it would be applicable, but he would follow the law. The record does not show Larsen was disqualified and subject to challenge. See Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643 (1954), cert, denied, 348 U.S. 837, 75 S.Ct. 36, 99 L.Ed. 660 (1954). Appellant was not forced to take an objectionable juror.

If an additional peremptory challenge was requested after the “challenge” to Larsen was overruled, appellant has not directed our attention to where in the record such request is reflected, and we have found none. We do note that the trial court did give the appellant three additional peremptory challenges during the voir dire examination.

Appellant urges that nine prospective jurors were excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Hovila v. State, 532 S.W.2d 293 (Tex. Cr.App.1976), we held that the holding of Witherspoon was still alive and well in light of the new statutory scheme providing for the imposition of the death penalty, the adoption of which followed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

The new statutory scheme for capital murder [V.T.C.A., Penal Code, Section 19.03 (formerly Art. 1257, Vernon’s Ann.P.C., as amended in 1973) and Article 37.071, Vernon’s Ann.C.C.P.], including the possible infliction of the death penalty, has been upheld by this court in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), and by the United States Supreme Court in Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See also Gregg v. Georgia, - U.S. -, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

With this background we turn to the examination of the prospective jurors complained of.

Prospective jurors Sanders, Ritter and Clark did not believe in and were against the death penalty and would not vote for the death penalty under any circumstances. Ritter added he had been of that opinion for 30 years and was not going to change his mind. The excusing of these prospective jurors squares with Wither-spoon.

Prospective jurors Costly and Laird expressed strong opposition to the death penalty and testified that their feelings were such that if chosen they would refuse to participate in answering the questions or issues submitted to them as provided by Article 37.071, Vernon’s Ann.C.C.P. Prospective juror Reeb also expressed strong opposition to the death penalty and stated her opposition would affect her deliberations upon the issues submitted to her.

V.T.C.A., Penal Code, Section 12.31(b), provides:

“Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

It is clear that Costly, Laird and Reeb were properly excused under this State statutory provision without the necessity of consideration of whether their answers also disqualified them under the Witherspoon doctrine.

Prospective juror Bradford stated her opposition to the death penalty and then vacillated as to whether she could consider it as proper punishment in some cases. However, she consistently stated that her opposition to the death penalty would affect her deliberations on the fact issues submitted to her. Prospective juror Wheeler, after much confusion over the questions asked, stated clearly that the death penalty would affect her deliberations upon the issues. Likewise, after a lengthy interrogation, prospective juror Kearby, who expressed opposition to the death penalty, concluded her feelings so expressed would affect her deliberations on the issues to be submitted.

While it might be argued as to whether the answers of these three prospective jurors would have disqualified them under the holding in Witherspoon, nevertheless their answers were such as to disqualify them under said Section 12.31(b), supra, quoted above, without the necessity of considering the Witherspoon question.

Appellant’s contention is overruled.

Appellant complains the court erred in admitting a fingerprint comparison into evidence based on fingerprints taken from the automobile used in the offense and taken at the scene and on fingerprints taken from him after a warrantless arrest without probable cause.

Dallas Police Officer G. F. Rose testified that appellant and two other men who were thought to be working in the building (where the abduction occurred) on the night in question were asked to go to the police station and give statements about their hours of work. They were placed in separate rooms. Appellant was asked to give his fingerprints and agreed to do so. He was not placed under arrest until sometime later when the fingerprint comparison was made. Reliance is had upon Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), where the court held inadmissible fingerprint evidence taken from Davis, who with other individuals was detained without probable cause as a result of “dragnet” procedures. In that case, the Court stated:

“The State makes no claim that petitioner voluntarily accompanied the police officers to headquarters . . . and willingly submitted to fingerprinting.

The facts of the instant case do not show the “wholesale intrusion upon the personal security of our citizenry” which was roundly condemned in Davis v. Mississippi, supra. Here, the appellant voluntarily agreed to go to the police station and, while there, voluntarily gave his fingerprints. No error is presented.

In a related complaint appellant argues that his confession given (after his fingerprints were matched to those found on the victim’s automobile) was improperly obtained.

It appears appellant was asked and voluntarily agreed to go to the police station at about 12:30 p. m. on November 16, 1973. He permitted his fingerprints to be taken about 1:30 p. m. Apparently about 2 p. m. it was learned that his prints matched those on the victim’s automobile. At this point appellant’s complicity in the homicide became likely. Appellant was later given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, Vernon’s Ann. C.C.P. At 9 p. m. he gave the confession in question. The facts here mirror those in Jones v. State, 522 S.W.2d 470 (Tex.Cr.App. 1975), and we cannot conclude that the confession was rendered inadmissible as a result of illegal detention.

It is true that appellant was not taken before a magistrate prior to the time his confession was taken. Delay, however, in being taken before a magistrate does not render a confession involuntary unless there is a causal connection between the delay and the taking of the statement. See Short v. State, 511 S.W.2d 288 (Tex.Cr.App.1974); Shadrick v. State, 491 S.W.2d 681 (Tex.Cr. App.1973); Spencer v. State, 489 S.W.2d 594 (Tex.Cr.App.1973).

Appellant advances the contention the conviction for capital murder cannot stand because the evidence wholly fails to show that the murder was committed in the course of a robbery as alleged in the indictment.

Omitting the formal parts, the indictment alleged in part that the appellant did “then and there unlawfully voluntarily and with malice aforethought kill Martha Janette Williams by shooting her with a gun, the said Mark Milton Moore and Curtis Lee Jones, acting together, then and there intentionally committed said murder in the course of committing and attempting to commit robbery upon Martha Janette Williams.” (Emphasis Supplied.)

Appellant’s confession was the narration of events upon which the State principally relied to support the theory of the robbery or attempted robbery. Omitting the formal parts of the confession, it reads:

“Last Tuesday night I dropped Curtis Jones off at his job and got to work about 5:00. I worked at my job at 1010 Mockingbird until about 6:00 P.M., when I left and Clarence left with me. I helped my girlfriend’s sister move. I had a .410 gauge shotgun under the trunk of my car. It was an old rusty thing. I went by and picked Curtis Jones up about 11:00 and went back over to 1010 Mockingbird and I opened the door and went into the building. I saw a girl in an office. I went into her office because I saw a light on. The girl acted scared and I said I was sorry. Me and Curtis left and went to a little Club on King Street. We left there and went back to 1010 Mockingbird. On the way back we was talking about robbing the girl in the office. When we got there Curtis got the .410 shotgun out of the trunk. He had a stocking over his face. We went in and the girl screamed. We asked her for her money but she said she didn’t have any. I told Curtis she had seen me and would know who I was. I told Curtis that I would finish my work, then we would take her with us. I finished up my work and put everything away. I went back to the office and told Curtis to bring her out. I turned out the lights so nobody would see us. I told Curtis to put her under the trunk of her car and he did. Then he drove her car, it was a little red Dart with a black vinyl top. Curtis drove ahead of me and I followed him. We went down under the bridge at the Trinity River over Highway 183. When we got there we tried to drive it off into the water. Curtis put it into drive and it went off the bank into the water, but would not go down. Curtis said it won’t go down, we are going to have to shoot her. Curtis opened the trunk lid and I shot her about twice with the bolt action .410 shotgun and one of us closed the lid and we left and went straight home. We got home about 2:00 in the morning.”

It must be remembered that the offense in question occurred on November 13, 1973, while Article 1257, as amended in 1973, was in effect. The amendment was effective from June 14, 1973, through December 81, 1973, when the statute became V.T.C.A., Penal Code, Section 19.03. The applicable statute, adopted following in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), provided in part that the punishment for murder shall be death or imprisonment if:

“(2) the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson . .” (Acts 1973, 63rd Leg., p. 1122, ch. 426)

The State argues that under the broader definition of robbery in the new Penal Code the murder in the instant case was clearly “in the course of robbery.” What the State overlooks is the fact that the offense occurred on November 13, 1973, prior to the effective date of the new Penal Code (January 1, 1974), although the indictment was returned and trial was had after the effective date of the new Penal Code. Section 6.01(a) [Saving Provisions] of the bill enacting the new Penal Code provides in part:

“(a) Except as provided in Subsections (b) and (c) of this section, this Act applies only to offenses committed on or after its effective date, and a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force.

Therefore, we must appraise appellant’s contention in light of Article 1257, as amended in 1973 (quoted in part above), and Article 1408, Vernon’s Ann.P.C., 1925, defining robbery under the former Penal Code.

Appellant takes the position that the robbery took place at the Fantastic Photo office on Mockingbird Lane and that the murder took place some distance away near the Trinity River bottoms and, therefore, the murder did not take place during the course of the robbery as contemplated by Article 1257, supra.

Appellant relies upon Lamberson v. State, 509 S.W.2d 328 (Tex.Cr.App.1974). There, the deceased was beaten and robbed at a house and left abandoned some distance away near a creek after having been beaten again at the creek by the defendant and his companion, who returned to the house. In about ten minutes the defendant returned to the creek and beat the deceased severely again. Two days later, the deceased was found lying face down in the creek. The cause of death was drowning. The defendant raised the question of double jeopardy and contended the trial court erred in permitting him to be tried for murder since he had been previously convicted for robbery by assault growing out of the same transaction. This court disagreed, holding that the robbery had terminated at the house with the taking of the deceased’s money and that the subsequent beatings near the creek occurred within a 30 minute period without a continuous as-saultive action tying the two crimes together.

First we observe that Lamberson involved a question of double jeopardy, which is not here presented, and that assaultive action here was continuous. Further, while the term “course” has many meanings, we observe that Webster’s New International Dictionary of the English Language, Second Edition, Unabridged, defines “course” as:

“5. A series of motions or acts arranged in order; a succession of acts or practices; as, a course of conduct.”

In using the phrase “in the course of committing or attempting to commit robbery . . . .” in Article 1257, supra, we cannot subscribe to the Legislature an intent to provide for capital murder under Article 1257, supra, only where the killing takes place at the same place and about the same time of the robbery and to permit a defendant who has committed a robbery to escape capital murder charges where he removes the robbery victim from the scene and takes him or her to another place and there kills the victim to prevent the victim’s testimony.

“The court will not adopt a construction that will make a statute absurd or ridiculous, or one that will lead to absurd conclusions or consequences; if the language of the enactment is susceptible of any other meaning.” 53 Tex.Jur.2d, Sec. 165, p. 243.

Appellant’s contention is overruled.

Appellant further complains that the trial court improperly defined “in the course of a robbery” in its charge to the jury at the guilt stage of the trial to mean conduct that occurs “in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of a robbery” because the phrase “in the course of a robbery” has a common and easily understood meaning and the definition placed an undue emphasis on it and constituted a comment on the weight of the evidence.

Article 36.14, Vernon’s Ann.C.C.P., provides that a defendant may present his written objections to the court’s charge “distinctly specifying each ground of objection.” The appellant here objected merely and simply on the basis that the court had “improperly” defined “in the course of robbery.” He did not bring to the attention of the trial court the objections he now urges on appeal, and we find no special requested charges on this matter. There was no compliance with Article 36.14, supra. We cannot conclude under all the circumstances present that the error, if any, was calculated to injure the rights of the appellant or deprive him of a fair and impartial trial. See Article 36.19, Vernon’s Ann.C.C.P.

Appellant also complains that two psychiatrists were permitted to give testimony at the punishment stage of the trial relating to one of the three issues that may be submitted to the jury under the provisions of Article 37.071, Vernon’s Ann.C.C.P. —whether a probability exists that a defendant would commit criminal acts of violence which would constitute a continuing threat to society.

Article 37.071, supra, is dispositive of this ground of error. It provides in part in Subsection (a):

“Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. . . .” (Emphasis Supplied.)

Obviously the court deemed the testimony relevant as it was in Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976). The language of the statute is thus dispositive of appellant’s contention. Duke v. State, 61 Tex.Cr.R. 441,134 S.W. 705 (1911), and Gephart v. State, 157 Tex.Cr.R. 14, 249 S.W.2d 612 (1952), relied upon by appellant, were decided long prior to the adoption of the present statutory scheme for capital murder. Reliance thereon is misplaced. In Duke the expert was asked if the defendant was a fit subject for excessive punishment, such as death or long confinement. The court refused to permit an answer. It was upheld on appeal since it is not the province of an expert to give his opinion as to how a party accused of crime is to be punished. In the instant case the psychiatrists gave opinion testimony relating to one of the issues to be submitted to the jury at the penalty stage of the trial, but they were not asked what proper punishment should be assessed. Appellant cites Gephart for the proposition that the only legitimate testimony in the form of expert psychiatric opinion which is admissible in a criminal trial is on the issue of insanity. In light of the statute and the nature of the second issue to be submitted under Article 37.071, supra, we cannot agree with such limitation.

Appellant also submits the contention that the evidence at the penalty stage of the trial was insufficient to show that there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. See Article 37.071, Vernon’s Ann.C.C.P.

Dr. John E. Holbrook testified he examined the appellant and found him to be a sociopath of the anti-social type who was not mentally insane but who had no respect for anyone else’s property or life. He expressed the opinion that the probability was very great that appellant would commit further acts of violence and he showed no remorse for the instant offense. Dr. Charles Grigson’s testimony was to the same effect, that the appellant was a severe sociopath who was extremely dangerous and who had no regard for the life or property of another and would continue to present an absolute threat to whatever society he was involved in. Dr. Grigson testified that there was no known cure for appellant’s condition.

This testimony, taken together with that offered at the guilt stage of the trial, was sufficient to sustain the jury’s answer of “Yes” to the second issue submitted at the penalty stage of the trial.

Appellant further complains that the prosecutor argued outside the record during the punishment stage of the trial and the court erred in failing to grant a mistrial.

The argument complained of was:

“He [appellant] told Dr. Holbrook, you heard from the testimony, if he is given the chance to commit acts of that nature, of a violent nature, he will continue to do so.”

Appellant’s objection thereto was sustained and the jury was instructed to disregard the argument, but the mistrial motion was overruled. Both psychiatrists testified that in their opinion appellant would commit acts of violence in the future if given the opportunity, but neither revealed any statement to that effect made by the appellant. Therefore, the argument was outside the record, but a reading of the record reflects that the prosecutor was incorrectly summarizing the testimony rather than giving unsworn testimony. Under the circumstances, we find the prompt instruction to disregard was curative. The motion for mistrial was properly denied. Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975); Morgan v. State, 502 S.W.2d 695 (Tex.Cr. App.1973); White v. State, 492 S.W.2d 488 (Tex.Cr.App.1973); Lenzi v. State, 456 S.W.2d 99 (Tex.Cr.App.1970); Shelton v. State, 367 S.W.2d 867 (Tex.Cr.App.1963).

The judgment is affirmed.

ODOM, J., concurs in the result.

ROBERTS, Judge

(dissenting).

In this case the appellant timely and properly contended in his brief filed in the trial court that the evidence was insufficient to support an affirmative answer to the second special issue submitted at the punishment stage of this capital murder trial. See Livingston v. State, 542 S.W.2d 655, p. 663 (Tex.Cr.App.1976) (opinion of Roberts, J.), delivered this day.

I would sustain this contention and reverse, for two reasons: First, the evidence that the murder in fact took place in the course of a robbery is extremely weak. Lamberson v. State, 509 S.W.2d 328 (Tex. Cr.App.1974). Second, the psychiatric testimony is not sufficient to support an affirmative answer to the second special issue, for the reasons stated in part III of my dissenting opinion in Livingston v. State, supra.

The judgment should be reversed.

      . It is observed that at one point defense counsel inquired if the prospective juror had heard the questions propounded to the previous prospective juror and he answered, “No, sir.”

      . In his original brief appellant complained of 18 prospective jurors being excused without challenge. Some of these were excused without objection by the appellant. See Parker v. State, 457 S.W.2d 638 (Tex.Cr.App.1970). In a supplemental brief the number was pared to six and then pared to four in oral argument by appellant’s counsel.

      . It may well be a Dallas County custom or practice to use such phraseology as meaning a challenge for cause, and it is observed the trial judge was a visiting judge serving by virtue of an administrative assignment. If there is such a custom, the appellate record should so reflect.

      . In Witherspoon the Supreme Court of the United States wrote:
      “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” The Court further wrote:
      “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” Further explanation was made in Boulden v.

      Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), when the Court wrote:
      “[i]t is entirely possible that a person who has ‘a fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.”

      . See similar provision contained in Article 1257(d), Vernon’s Ann.P.C., 1925, as amended (Acts 1973, 63rd Leg., p. 1122, ch. 426—effec-tive June 14, 1973 until January 1, 1974—effec-tive date of present Penal Code).

      . If the new Penal Code had been in effect, the State would be correct.
      V.T.C.A., Penal Code, Section 29.02 (Robbery), provides in part:
      “(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
      “(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
      “(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. .
      V.T.C.A., Penal Code, Section 29.01 (Definitions — Chapter 29 — Robbery), provides in part: “In this chapter:
      “(1) ‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. . .
      In Lightner v. State, 535 S.W.2d 176 (Tex.Cr. App.1976), and Brown v. State, 535 S.W.2d 640 (Tex.Cr.App. 1976), it was held under said Sections 29.01 and 29.02 the assault involved can take place after the theft and it can still be robbery, unlike the former Code (Article 1408, Vernon’s Ann.P.C., 1925), where the assault or violence, etc., had to be antecedent to the taking of the property.

      . Article 1408, supra, provides:
      “If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years.”

      . I also believe that Lamberson requires a finding that this murder did not take place in the course of a robbery, and I would so hold.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Doyle Glenn BOULWARE, Appellant, v. The STATE of Texas, Appellee.
    No. 50524.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Tom S. McCorkle, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, Douglas Mulder, Jim Burnham and Steve Tokoly, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

PART I

DOUGLAS, Judge.

In a trial before a jury, appellant was convicted of murder with malice of Donald Tucker, a peace officer acting in the lawful discharge of his official duty. Punishment, under the provisions of Article 1257(b)(1), V.A.P.C., and Article 37.071, V.A.C.C.P., was assessed at death.

Sometime near 11:00 p. m. on December 12, 1973, appellant went to the home of his ex-wife, Jewel Boulware, from whom he had been divorced for twelve days. Present at the house when he arrived were J. W. Cobb, Jewel’s brother, Jewel’s twelve-year-old daughter, and two friends. Jewel Boul-ware arrived shortly thereafter. At the time appellant was under a peace bond obtained by her. As Jewel attempted to telephone a friend, appellant grabbed the telephone, saying: “You’re not going to call the police.” He then produced a .357 magnum pistol and said: “I’m going to kill you. I’m tired of you lying to me.” A violent argument ensued during which he slapped her several times and choked her to unconsciousness. He then dragged her to a bedroom, continually repeating: “I’m going to kill you.” He also announced that “. he would kill the first one that called the cops or the first cop that walked through the door.” At one time, a friend tried to call her by phone, but appellant answered and had a lengthy, very abusive threatening conversation with the caller. The friend notified the police, and Police Officers Ross and Tucker, who were in separate cars, were sent to the house. Both were in full police uniform. When the officers approached the door, a small dog barked, and appellant stated: “There’s somebody at the damn door,” and ran out of the bedroom holding the .357 magnum pistol. As Officer Tucker started to talk through the front door with Ross following, Ross heard Tucker say: “Put down the gun, put it down.” Ross heard appellant say: “Officer.” Appellant then fired at Tucker, the bullet entering the left side of his face and exiting at the back of his neck. Tucker fell and died almost immediately. While Ross was examining the fallen Tucker, Cobb struggled with appellant and was able to subdue him and secure the pistol. Ross handcuffed appellant’s arms behind his back and left him with Cobb while he, Ross, went out to call an ambulance and other officers. When he came back the handcuffed appellant had run out the back door. Officer Baker, responding to a radio summons, searched a back alley, and after a few minutes located appellant “laying on his stomach under the bushes.” As Baker pulled the handcuffed appellant to his feet, he said: “You punk, you just killed a police officer.” Appellant then said: “Yeah, you’re damned right I did.” The sufficiency of the evidence is not challenged.

In a supplemental brief on appeal, appellant for the first time raises the contention that in the selection of the trial jury the court erred in failing to apply properly the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

In selecting the jury, each member of the panel was questioned by counsel individually in the absence of the others. It appears from the transcription of the voir dire examination that of the one hundred and two prospective jurors questioned twenty were excused because of their attitude toward the death penalty. Counsel for appellant concedes in his supplemental brief that eighteen of these twenty panel members were excused by agreement of counsel for the State and for appellant.

This Court wrote in Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972), a death penalty case in which the Witherspoon issue was raised on appeal:

“Where the mere demeanor of the witness cannot contradict his express words so as to give them a meaning in opposition to that which they state, nevertheless, in those instances where the meaning is apparent, but is not stated as clearly as might be desired, elements such as demeanor and tone of voice, etc. are important factors in conveying the precise message intended. As was the case with Mrs. Norwood, appellant’s counsel expressly waived objection,3 and the court did not question the venireman. We do not feel that this Court, having only a ‘cold’ record before us, can unequivocally ignore the actions of those present, in the face of no express language by the venireman which would negate our eonclusion, and in the face of language which, at the worst, is only lacking in force.”

Footnote 2 on page 383 reads:

“Waiver of objection apparently will not, in itself, vitiate an improper challenge. It is, however, a factor to be considered in cases such as the one at bar, where the exact meaning of a venireman’s answer cannot be ascertained with total accuracy from the words of his answer alone. The trial judge being present and having an opportunity to observe, the ruling of the trial court should not be disturbed in the absence of a showing of clear abuse of discretion.”

The above remarks are applicable to the instant appeal. A review of the voir dire examination of the excused jurors supports the admissions of appellant’s counsel that not only were the eighteen venire members excused without objection but also as stated by counsel in his brief by mutual agreement of both parties. As stated in Tezeno, this Court cannot unequivocally ignore the actions of those present at the trial in the face of no express language by the venire members which would negate our conclusion, and in the face of language which, at the worst, is only lacking in force.

Recent opinions of the United States Supreme Court show that all federal constitutional error is not reversible error. That Court handed down two opinions on the same day wherein an accused’s conviction was affirmed because of his failure to urge a constitutional right, Estelle v. Williams, 425 U.S. 50, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). In Estelle v. Williams, the Court held that absent an objection the accused was not denied due process or equal protection of the laws because of wearing identifiable prison clothing during his trial before a jury. While in Francis, the Court, relying on its opinion in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), held that a state prisoner who failed to make a timely challenge, as required by a state rule of procedure, to the composition of the grand jury that indicted him could not after his conviction bring that challenge in a federal habeas corpus proceeding.

In Estelle v. Williams the Court, in reversing the Fifth Circuit, discussed several cases wherein the harmless error doctrine was held applicable to cases where a defendant had been tried in prison garb. Mr. Justice Black in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), wrote:

“We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for ‘errors or defects which do not affect the substantial rights of the parties.’ . We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.”

The Court in Estelle v. Williams recognized that many courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. It said: “. . . that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire.” In a footnote, the Supreme Court distinguished the Estelle v. Williams case from that of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), wherein it was confronted with an alleged relinquishment of the fundamental right to assistance of counsel, stating that in this case and similar cases it has not “. engaged in this exacting analysis with respect to strategic and tactical decisions, even those with constitutional implications, by counselled accused.” (Emphasis supplied).

In Estelle v. Williams, the record shows that no objection had been made to the trial judge concerning the jail attire either before or at any time during the trial. In the present case, no objection was made to the trial judge when the eighteen venire members were excused for cause without exhaustive questioning in accordance with Witherspoon and Article 37.071, V.A.C.C.P. The record shows that with respect to sixteen of the eighteen the prosecuting attorney either stated, “we agree”, or “both sides agree”, without a corresponding statement from appellant’s counsel. His counsel specifically agreed to the action of the court as to two of the eighteen venire members in question as the record shows that he said, “we’ll agree” and “excused”. Since counsel for appellant expressly agreed to the court actions on two occasions and made no objection to the court’s action on sixteen others shows implied approval. The record is void of any evidence which warrants a conclusion that there was sufficient reason to excuse the failure to raise the issue at the time of voir dire.

In Francis, Justice Stewart in speaking for the majority quoted from Davis v. United States, supra, in comparing the two cases:

“The waiver provisions of Rule 12(b)(2) are operative only with respect to claims or defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when re-prosecution might well be difficult.” 411 U.S. at 241, 93 S.Ct. at 1582. (Emphasis supplied)

In Davis, a federal prisoner, represented by counsel, was denied habeas corpus relief because he had failed to assert in a timely manner his challenge to the allegedly unconstitutional composition of the grand jury that had indicted him in advance of trial as required by Rule 12 of the Federal Rules of Criminal Procedure.

In each of these cases, as in the present case, the accused was represented by counsel and the right involved was a trial-type right. Therefore, as was stated by Mr. Justice Powell in a footnote to his concurring opinion in Estelle v. Williams: “The right involved here is a trial-type right. As a consequence, an attorney’s conduct may bind the client. See Henry v. Mississippi, [379 U.S. 443] at 451-452, 85 S.Ct. [564] at 569, 13 L.Ed.2d [408] at 415.” The issue with which we are faced here can only be resolved against appellant’s contention. To do otherwise would allow counsel two, if not more, opportunities to obtain an acquittal. It would allow defense counsel to purposely “sandbag” the trial judge into error if he received an adverse verdict. As the Supreme Court said in Estelle v. Williams :

“Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.”

In Marion v. Beto, 434 F.2d 29 (5th Cir. 1970), cert. denied 402 U.S. 906, 91 S.Ct. 1372, 28 L.Ed.2d 646, it was held that the exclusion for cause in a capital case of even one prospective juror on the ground of conscientious scruples against the death penalty deprives an accused of an impartial jury as required by the Sixth and Fourteenth Amendments. Marion’s original trial took place prior to the Witherspoon opinion being handed down. Marion v. Beto, supra, was acknowledged by this Court in Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.1971). Grider’s conviction was reversed because the procedure used in excusing prospective jurors after an initial expression of “conscientious scruples” or disclaimer of belief in capital punishment without going further and ascertaining that the prospective juror would automatically vote against the death penalty in any case regardless of the facts or consider its imposition in the case irrespective of the evidence did not square with Witherspoon or the traditional Texas practice.

All of the cases discussed so far and other cases such as Ex parte Martin, 479 S.W.2d 280 (Tex.Cr.App.1972), and Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.1972), were tried prior to the date of the Witherspoon opinion. No objection to a prospective jur- or was required in the cases tried before the Witherspoon opinion because that right was not known to attorneys before then.

We have held that our Texas practice did not violate Witherspoon in Pittman v. State, 434 S.W.2d 352 (Tex.Cr.App.1968); Scott v. State, 434 S.W.2d 678 (Tex.Cr.App. 1968); and in Harris v. State, 457 S.W.2d 903 (Tex.Cr.App.1970). The Supreme Court, without discussing the difference between our procedure and that of the State of Illinois, set aside Harris’ conviction in 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971), and cited Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), and Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969). Both Maxwell and Boulden involved pre-Witherspoon convictions as did Harris.

At the time the convictions were set aside by the Supreme Court of the United States, that Court would not uphold any conviction where the penalty of death had been assessed. The Supreme Court of the United States, as now constituted, has upheld the death penalty in Gregg v. Georgia,-U.S. -, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Proffitt v. Florida, - U.S. -, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and has held that objections must be made at the trial to preserve for review errors of constitutional dimension.

This Court was faced with a similar situation following the United States Supreme Court’s decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), wherein it was held: “Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” In Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972), that decision was given retroactive effect in Texas. See also Walker v. State, 486 S.W.2d 330 (Tex.Cr.App. 1972). Then, in Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974), we held that where an accused’s trial occurred prior to Argersinger counsel’s failure to object upon a ground not yet established as a defect of constitutional magnitude did not constitute a waiver, citing Ex parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.1972).

The waiver rule was not applied to cases tried after Argersinger. See Wright v. State, 511 S.W.2d 313 (Tex.Cr.App.1974), where the defendant was convicted of the felony offense of driving a motor vehicle upon a public road while intoxicated, subsequent offense. Wright contended on appeal that the misdemeanor conviction alleged in the primary offense was void because he was not represented by counsel at that conviction. No objection was made to the introduction of the judgment and other papers reflecting the misdemeanor conviction complained of on appeal. His trial occurred almost one year after Argersinger. In distinguishing Ex parte Casarez, supra, we held that Wright’s “. . . failure to object when the complained of exhibits were offered into evidence constitutes a waiver of the claimed rights. Ex parte Gill, Tex. Cr.App., 509 S.W.2d 357; Ex parte Bagley, Tex.Cr.App., 509 S.W.2d 332.” A constitutional ground may be waived by a failure to object. Thompson v. State, 537 S.W.2d 732 (Tex.Cr.App.1976); Mutscher v. State, 514 S.W.2d 905 (Tex.Cr. App.1974); United States v. Lazarus, 425 F.2d 638 (9th Cir. 1970). See also Wright v. State, supra. In Gibson v. State, 516 S.W.2d 406 (Tex.Cr. App.1974), this Court wrote:

“. . .It has repeatedly been held that even constitutional guarantees can be waived by failure to object properly at trial, including an illegal arrest, Bardwell v. State, 489 S.W.2d 627 (Tex.Cr.App. 1973); Bowie v. State, 401 S.W.2d 829 (Tex.Cr.App.1966), the admission of the fruits of an illegal search, Ashford v. State, 502 S.W.2d 27 (Tex.Cr.App.1973); Mortier v. State, 498 S.W.2d 944 (Tex.Cr. App.1973); Northcutt v. State, 478 S.W.2d 935 (Tex.Cr.App.1972); Brown v. State, 457 S.W.2d 917 (Tex.Cr.App.1970); Perez v. State, 394 S.W.2d 797 (Tex.Cr. App.1965), an improperly conducted lineup or tainted identification, Robinson v. State, 502 S.W.2d 819 (Tex.Cr.App.1973); Lee v. State, 459 S.W.2d 851 (Tex.Cr.App. 1970); and the voluntariness of a confession, Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973); Crawford v. State, 480 S.W.2d 724 (Tex.Cr.App.1972); Harris v. State, 465 S.W.2d 175 (Tex.Cr.App. 1971); Born v. State, 411 S.W.2d 739 (Tex.Cr .App.1967). ...”

A failure to timely object waives any error in the admission of evidence and presents nothing for review. Shumake v. State, 502 S.W.2d 758 (Tex.Cr.App.1973).

In Hovila v. State, 532 S.W.2d 293 (Tex. Cr.App.1976), we held that Witherspoon is alive and is equally applicable under the procedure set forth in Article 37.071, V.A.C. C.P., and went on to say that in Hovila’s case the cursory examination of the veniremen was insufficient to meet the test promulgated by the United States Supreme Court in Witherspoon and as applied by this Court in Grider.

In view of the recent decisions of the Supreme Court of the United States that a constitutional guarantee may be waived by a defendant’s counsel for the failure to object such as to the improper organization of a grand jury at the trial level and our decisions above discussed on waiver, we hold that the failure to object to the improper exclusion of a venire member waives that right and it cannot be considered on appeal. Hovila v. State, supra, and all cases insofar as they hold to the contrary are overruled. See also Tezeno v. State, supra.

We hold that, absent an objection, the trial court did not err in excusing the jurors, Hurse and Holt, even though they were not questioned as thoroughly as they might have been with reference to their ability to render the death penalty no matter what the trial may reveal.

Appellant next contends that the trial court abused its discretion in excusing, over his objection, venire member Dariline Harris. On the voir dire examination, the prosecuting attorney explained the provisions of Article 1257(d), V.A.P.C. [V.T.C.A., Penal Code, Section 12.31(b)], and of Article 37.071(b), V.A.C.C.P., and asked her and received answers as follows:

“If you were on the jury, and you know about this mandatory sentence of death or life, would that afiect the way that you answered those questions?
“Yes, sir.
“In other words, you’d answer one of the questions no to see to it that he wouldn’t get the death penalty?
“Yes.
“Is that right?
“Yes.”

Although appellant attempted to rehabilitate her, she at no time stated that the mandatory penalty of death or imprisonment for life would not affect her deliberations on any issue of fact. Under Article 1257(d), V.A.P.C., incorporated in V.T.C.A., Penal Code, as Section 12.31, she could not be a fair and impartial juror. The trial court properly held her to be disqualified. See Moore v. State, 542 S.W.2d 664.

Since an agreement was followed in the selection of the jurors and because there was no objection to the action of the trial court to the dismissal of the prospective jurors long after Witherspoon v. Illinois, supra, had been decided, no reversible error has been shown.

The judgment is affirmed.

      . As amended, Acts 1973, 63rd Leg., p. 1122, ch. 426, Art. 1, Sec. 1, effective June 14, 1973. Section 19.03 of the new Penal Code is substantially similar to old Code Article 1257 as amended. The evidence establishes that the crime was committed on December 12, 1973. The trial was in April, 1974, after the effective date of the new Penal Code.

      . Added by Acts 1973, 63rd Leg., p. 1125, ch. 426, Art. 3, Sec. 1, effective June 14, 1973.

      . Appellant’s counsel who filed this brief was also trial counsel who participated in the voir dire examination.

      . Other grounds of error are overruled. They have been discussed in Part II of this opinion. They add nothing to the jurisprudence and will not be published. See Thompson v. State, 514 S.W.2d 275 (Tex.Cr.App.1974), and Wood v. State, 523 S.W.2d 248 (Tex.Cr.App.1975). The matters discussed include: admission of statements made immediately after his arrest; scope of cross-examination; denial of offer of impeachment evidence; alleged violation of husband-wife privilege, and complaints about the court’s charge.


author: RAY, Justice.

text:
    In re ESTATE of Richard ROSBOROUGH, Jr., Deceased.
    No. 8363.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 7, 1976.
    Rehearing Denied Oct. 26, 1976.

      Paul Anderson, Marshall, L. F. Burke, Longview, for appellant.
    Coffee, Coffee & Chantilis, Dallas, for appellee.
   RAY, Justice.

This is a probate case. Appellant (Proponent), Malinda Rosborough Daniels, has appealed from an order of the County Court of Harrison County in .which the will of Richard Rosborough, Jr. was denied probate. Appellant was the named independent executrix in the Rosborough will. Ap-pellee, Vivian Rosborough Hines, a daughter of the decedent, is the contestant of the will and appellee herein.

Appellant Daniels, a sister of the decedent, as the named independent executrix of the will, filed an application for probate of the Rosborough will and for letters testamentary. Appellee Hines filed her opposition to the independent administration and also filed her petition contesting the probate of the will. The cause was tried to the court without the aid of a jury. The trial court entered an order denying probate of the will and appointed a temporary administrator, L. A. Moon. From the order of the trial court, Appellant Daniels, as proponent of the will, has perfected her appeal and submits six points of error for our consideration.

The decedent, Richard Rosborough, Jr., died on May 14, 1975. The will offered for probate was dated September 20, 1972. Rosborough named his two sisters, Malinda Rosborough Daniels and Clara Rosborough Smith, and his daughter, Vivian Rosbor-ough Hines, as beneficiaries under his will.

Appellee Hines, as contestant of the will, attempted to show that the document was a forgery and was lacking proper attestation. Expert testimony was introduced to show that the signature of the decedent Vas not original, but had been traced from another writing, first in pencil and then in ink. One of the purported attesting witnesses, Drew Rodgers, testified that he signed the document out of the presence of the decedent and without knowing what the instrument was.

Appellant Daniels attempted to show that the decedent and the two witnesses all signed the will in the presence of each other. The remaining attesting witness, Susianna Shaw, and the notary public, Mrs. L. L. Scott, both testified that the testator and attesting witnesses signed in the presence of each other. Susianna Shaw and another witness, Elizabeth James testified that Drew Rodgers told them that he had been offered $2,000.00 to help break the will. They added that he offered to share the sum with Mrs. Shaw if she would also testify against proper attestation.

Appellant Daniels asserts that the trial court was in error in admitting testimony that the signature of the testator was forged when the pleadings making that allegation were not verified; that the will was properly executed and proven; and that she was improperly replaced as executrix.

After the proponent of the will (Daniels) had fully presented her case in the trial court and before the contestant had offered any opposition testimony, a motion was made that the court accept the will for probate. The proponent asserted that no issue was before the court and that the evidence that the will was a forgery could not5 be presented because the pleading to that end had not been verified. The motion was overruled by the trial court. The appellant (proponent) urges error in the trial court’s ruling. The appellant relies upon Tex.R.Civ.P. 93(h). The rule provides the following:

“A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit .
(h) Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it state[s] that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.

Appellant contends that the genuineness of the signature of the testator was not put in issue by the unverified plea of forgery.

Tex.Prob.Code Ann. Sec. 10, formerly Tex.Rev.Civ.Stat. art. 3315, provides the following:

“Any person interested in an estate may, at any time before any issue in any proceeding is decided upon by the court, file opposition thereto in writing and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition, as in other suits.”

The only express requirement regarding the “opposition” is that it be “in writing.” There is no suggestion that it be verified.

Rule 93(h), supra, does not apply to the application to probate a will. It was stated in Hogan v. Stoepler, 82 S.W.2d 1000 (Tex.Civ.App. Austin 1935, no writ) that:

“An application to probate a will is not in any proper sense a pleading founded in whole or in part upon an instrument in writing. The proceeding is one in rem, the very purpose of which is to establish the genuineness, the validity, and the execution under the essential formalities of law of the instrument as the last will and testament of the testator.”

Tex.Prob.Code Ann. Sec. 88, formerly Tex.Rev.Civ.Stat. art. 3348, provides that the proof required for probate shall be that the applicant must first prove to the satisfaction of the court:

“If the will is not self-proved as provided by this Code, that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will. . . . ”

However, our Supreme Court said in Boren v. Boren, 402 S.W.2d 728 (Tex.1966):

“The self-proving provisions attached to the will are not a part of the will but concern the matter of its proof only. The only purpose served by such self-proving provisions is to admit a will to probate without the testimony of a subscribing witness. In re Price’s Estate, 375 S.W.2d 900, 903 (Tex.Sup.1964). The provision was introduced into the Texas Probate Code in 1955 as an alternative mode of proving a will. Acts 1955, 54th Leg., p. 88, ch. 55. It was not the purpose of the Legislature to amend or repeal the requirement that the will itself must meet the requirements of the law. Section 59 expressly states that a self-proved will, except for the manner of proof, shall be treated no differently than a will which is not self-proved. The execution of a valid will is a condition precedent to the usefulness of the self-proving provisions of Section 59. This Court approved the judgment and opinion in McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.1965, writ ref.), that a will was a nullity because the signatures of the testator and the witnesses appeared on the self-proving provisions, but not on the will itself.
A testamentary document to be self-proved, must first be a will.”

Tex.Prob.Code Ann. Sec. 59 outlines the requisites of a will to be as follows:

“Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen (14) years who shall subscribe their names thereto in their own handwriting in the presence of the testator. .

Section 59 then provides that the will may be made self-proved such that the testimony of the witnesses at the time of probate may be made unnecessary. It is further stated in Section 59:

“A self-proved will may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved. In particular and without limiting the generality of the foregoing, a self-proved will may be contested, revoked or amended by a codicil in exactly the same fashion as a will not self-proved.”

Thus, one who offers a will for probate with the self-proving certificate properly executed and attached to the will, makes out a prima facie case that the will has been properly executed and may have the will admitted to probate if he has fulfilled the other requirements of [Section 88(a), (b) of] the Texas Probate Code. As stated in Boren v. Boren, supra, the self-proved provisions of Section' 59 were placed in the Texas Probate Code to provide an alternative mode of proving a will. If opposition is filed to the probate of a will, then the opponent must put on proof to overcome the proponent’s prima facie case. The proponent of the self-proved will may elect to stand on his prima facie case made out by the self-proving affidavits, (of the testator and the attesting witnesses in the self-proving certificates) or he may go forward with the evidence by calling one or more of the witnesses to the stand to testify.

The burden is always upon the proponent of a will to establish that it meets the necessary requisites of a will as outlined (in Section 59, supra) and that burden never shifts. It is the duty of the court in proceedings to probate wills, whether contested or not, to determine that the instrument being offered for probate meets the statutory requisites of a will before admitting the will to probate. Hogan v. Steepler, supra.

If appellant’s contention concerning Rule 93(h), supra, were correct, all proof of the execution of wills under the legal formalities as required by statute would be dispensed with, in the absence of a verified plea of non est factum; and the statute requiring such proof would be rendered nugatory.

The purpose of Rule 93(h) was to dispense with the proof of execution of a written instrument which forms the basis (in whole or in part) of an action or defense, absent which, its execution is deemed admitted.

“A will is not a written instrument capable of being adduced in evidence in support of any pleading of recovery or defense until it has been admitted to probate. A plea of non est factum would clearly not be necessary if its probate was not alleged. And, if alleged, such a plea would not lie since its probate, if not void on its face, could not be attacked collaterally. It is manifest, therefore, that this article [Tex.Rev.Civ.Stat. art. 2010, subd. 8, now Rule 93(h)] has no bearing upon a proceeding brought to probate a will, the execution of which under requisite legal formalities is the only matter for adjudication, the burden of establishing all essential elements of which is imposed upon the proponent.” Hogan v. Steepler, supra.

Appellant’s first point of error is overruled.

Appellant’s second, third, fifth and sixth points of error assert proper execution and proof of the will and urge that the trial court’s denial of probate was against the great weight and preponderance of the evidence.

The contestant introduced evidence which casts doubt that Drew Rodgers properly attested the will and offered proof that the signature of the testator was a forgery. Rodgers, himself, testified that he signed the will out of the presence of the testator and without knowledge that the document was a will. A specialist in handwriting identification and document examination testified that the purported signature of the testator was not original and was a forgery. We conclude that the evidence was sufficient to raise fact issues regarding the attestation by Rodgers and the execution of the will by the testator. The trial court, as the trier of fact in this instance, concluded that the will should be denied probate.

While there are serious allegations of grave misconduct raised by the proponent against the contestant’s means of obtaining testimony, still, the discretion of the appellate court to act is limited. On an appeal from a judgment denying probate, in a case tried without a jury and in which there were no findings of fact or conclusions of law requested, the question on appeal is whether there is any evidence to support the judgment on any theory. Krumb v. Porter, 152 S.W.2d 495 (Tex.Civ. App. San Antonio 1941, writ ref’d) 61 Tex. Jur.2d, Wills, Sec. 339, P. 498. We have looked at all of the evidence in the record and cannot say that the judgment of the trial court is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, and therefore, the judgment of the trial court must be sustained. Appellant’s second, third, fifth and sixth points of error are overruled.

Appellant’s fourth point of error is as follows:

“The Probate Court erred in appointing a Temporary Administrator, replacing Ma-iinda Rosborough Daniels, named as Independent Executrix of Richard Rosbor-ough, Jr. Estate, by the Testator in his will.”

We find Appellant’s fourth point of error to be without merit and it is therefore overruled. The trial court did not replace Appellant Daniels because the court never appointed her to act in any capacity. Under Sections 131 and 132 of the Texas Probate Code, the trial court had authority to appoint L. A. Moon as temporary administrator to protect the assets of the estate. The trial court was not required to appoint Appellant Daniels as the temporary admin-istratrix following the court’s denial of the will to probate, even though appellant was named the independent executrix in the will that was denied probate. Mulry v. Grimes, 280 S.W.2d 350 (Tex.Civ.App. Waco 1955, no writ). Appellant’s fourth point of error is overruled.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Jesus GONZALEZ and Angelina D. Gonzalez, Appellants, v. Jose De Jesus REGALADO and Adalilia Regalado, Appellees.
    No. 5629.
    Court of Civil Appeals of Texas, Waco.
    Sept. 23, 1976.
    Rehearing Denied Oct. 28, 1976.

      John D. Wennermark, San Antonio, for appellants.
    Sam C. Bashara, San Antonio, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This cause is before us on petition for writ of error to a $1,745. default judgment rendered against petitioners in suit for breach of contract; and further decreeing petitioners take nothing against Third Party defendant, Allstate Real Estate.

Plaintiffs Regalado and wife sued (petitioners) defendants Gonzalez and wife April 21, 1975 for breach of contract praying for $1,745. damages.

Defendants filed no answer and on June 4, 1975 the trial court rendered default judgment against defendants.

On June 27, 1975 defendants filed motion for new trial and motion to set aside default judgment.

On July 3,1975 the trial court vacated its default judgment and granted defendants a new trial.

On August 8, 1975, defendants Gonzalez filed Third Party Action against Allstate Real Estate for breach of contract and alternatively for contribution for any damages alleged against defendants in plaintiffs’ petition.

Third Party Defendant Allstate moved to strike the Third Party Action and alternatively to sever the action against it.

Such motion was overruled by the trial court on September 29, 1975.

Defendants having still filed no answer to plaintiffs’ original suit the trial court rendered default judgment for plaintiffs against defendants (petitioners) for $1745.; and further decreed petitioners as Third Party Plaintiffs take nothing against Third Party Defendant Allstate.

Petitioners (defendants and Third Party Plaintiffs below) invoke our appellate jurisdiction by writ of error, asserting 4 points of error.

1) The trial court erred in reinstating the default judgment on October 17, 1975, after prior default judgment had been set aside by the granting of a new trial.
2) The trial court erred in granting this default judgment when defendants had a written answer on file.
3) The trial court erred in granting default judgment in favor of cross defendant Allstate Real Estate against cross plaintiffs (petitioners here).
4) The trial court erred in granting a default judgment to plaintiffs when their petition did not state a cause of action.

Point 1 asserts the trial court erred in “reinstating the prior default judgment.”

This case was filed April 21, 1975, and when defendants filed no answer the trial court rendered the first default judgment against them on June 4, 1975. Defendants moved to set aside such default judgment, and on July 3,1975, the trial court set aside its default judgment and granted defendants a new trial. Defendants still filed no answer and the trial court granted the second default judgment on October 17, 1975. We think that this was a new judgment and not simply a reinstatement of the first default judgment.

Point 2 asserts the trial court erred in granting default judgment when defendants in fact had a written answer on file. Defendants contend their motions to set aside the first default judgment and for new trial constitutes an answer to plaintiffs’ petition. Defendants cite Martinec v. Maneri, CCA (San Antonio) NWH, 494 S.W.2d 954, which holds it is error to render a default judgment against a party who has a “pleading” on file even though the pleading be defective.

Assuming such contention to be correct, defendant is in court, but still has not filed an answer to plaintiffs’ action. This is to impliedly waive all errors of pleading or proof except such as appear from the facts in the record were not intended to be waived. The judgment is a nil dicit judgment, and all error of pleading being waived, the court examines the petition only to determine if it attempts to state a cause of action within the court’s jurisdiction. Spivey v. Saner-Ragley, Tex. Com.App., 284 S.W. 210; Thornhill v. Elskes, Tex.Civ.App., 381 S.W.2d 99; O’Quinn v. Tate, Tex.Civ.App., 187 S.W.2d 241. And plaintiffs’ petition does state a cause of action within the jurisdiction of the trial court.

The judgment recites that evidence was heard. Defendants have brought forward no statement of facts. In the absence of a statement of facts, it must be presumed on appeal that sufficient evidence was introduced to support the judgment of the trial court. Ehrhardt v. Ehrhardt, Tex. Civ.App., 368 S.W.2d 37; Englander v. Kennedy, Tex.Civ.App., 428 S.W.2d 806.

Point 3 asserts the trial court erred in granting default judgment in favor of cross defendant Allstate against petitioners.

Rule 360 requires the petition for writ of error state the names and residences of the parties adversely interested.

Petitioners’ petition for writ of error did not name Allstate as a party adversely interested, or give its address or cause service to be had upon it. Thus the judgment as pertains to Allstate and the Third Party action is not before us for review. Highsmith v. Tyler State Bank & Trust Co., Tex.Civ.App., 194 S.W.2d 142; Ponca Wholesale Mercantile Co., v. Alley, Tex.Civ. App., 378 S.W.2d 129.

Point 4 asserts the trial court erred in granting a default judgment when plaintiffs’ petition did not state a cause of action.

Plaintiffs’ petition was sufficient to give fair notice of their claim and stated a cause of action.

Defendants did not except to plaintiffs’ petition and thus waived “every defect, omission or fault either of form or substance,” under Rule 90 TRCP. Moreover, insufficiency of pleading cannot be raised for the first time on appeal. Lewter v. Dallas County, Tex.Civ.App., 525 S.W.2d 885; Sherman v. Provident American Insurance Company, Tex., 421 S.W.2d 652; Texas Department of Corrections v. Herring, Tex., 513 S.W.2d 6.

The invalidity of the judgment appealed from is not disclosed by the papers on file in the ease. Pace Sports, Inc. v. Davis Brothers Publishing Co., Inc., Tex., 514 S.W.2d 247.

All petitioners’ points are overruled.

AFFIRMED.

      . Sometimes spelled Nihil Dicit.