Petition — Woods v. Texas

IN THE

Supreme Court of the United States

October Term, 1978

No.

BILLY JOE WOODS,

| Petitioner,

vs.

STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF CENTIORARI

TO THE TEXAS COURT OF

CRIMINAL APPEALS

By: J. MICHAEL THORNELL

THORNELL & URBAN

609 Fannin, Suite 517

Houston, Texas 77002

(713) 222-1211

Counsel for Petitioner —

lang

; TE rca Te 2 ah»

Opinion... . a ea

Jurisdiction .. +. ++ +s.

Questions Presented .....

Statement of the Case... .

Reasons for Granting the Writ

Conclusion’. . . . » «e+e es

Appendix . . 2.<« « © © & ee

Se

CITATIONS

1. Argersing vs. Hamblin, 407 U.S. 25, 92 S.Ct. 200, 32

L. 7

J aye

2. Bradford vs. U.S. (Ca 5 La) 129 F.2d 274, cert.den.

.S8- > L.Ed.2d 547, 63 §.Ct. 205

3. Davis vs. Estelle, 529 F.2d 437, (Ca. 5th Cir., 1976)

4. Grieger vs. Vega, 271 S.W.2d 85 (1954)

a.

5. Griffin vs. California, 380 U.S. 609, 14 L.Ed.2d 106,

$.Ct.

ee

6. Hood vs. U.S., 59 F.2d 153 (1932 Ca‘10 Okla)

7. Hopt vs. Utah, 120 U.S. 430, 30 L.Ed. 708, 7 S.Ct. 614

8. Juelich vs. U.S., 214 F.2d 950 (Ca 5 Ga)

9. Linden vs. U.S.,.296 F. 104 (1924 Ca 3 NJ)

10. Livingston vs. State, 542 S.W.2d 655, cert. den., 97 S.Ct.

we) eames

1l. hogen vs. U.S., 144 U.S. 263, 36 L.Ed. 429, 12 S.Ct. 617

12." Lopes vEe Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.24

13. Malloy vs. Hogan, 378 U.S. 1,-12 L.Ed.2d 653,. 84 S.Ct. 1489

14. Martin vs. State, 475 S.W.2d 265 (Tex.Crim.App., 1972)

15. Morford vs. U.S., 339 U.S. 258, 94 L.Ed. 815, 70 S.Ct.

16. McParlan vs. State, 266 S.W.2d 133, 134 (Tex.Crim.App,

T5954)

ii

“49. Poe vs. Commonwealth, 301 S.W.2d 900 (Ky, 1957)

pS ‘Parsons vs. State, 271 S.W.2d 643, gert.den., 348 U.S.

’ L.Ed. . » 75 &.Ct. 36

.

18. People vs. Cheary, 369 P.2a@ 431 (1957)

.

20. U. S. vs. Smith, 436 F.2d 787, cert.den., 91 S.Ct. 1680,

se 402 U.S. 976, 29 L.Ed. 142

%

2i. U. S. vs. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d

iii

NO.

IN THE ~

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

BILLY JOE WOODS,

Petitioner

\ } vs .

THE STATE OF TEXAS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

The Petitioner, BILLY JOE WOODS, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of. the Texas Court of Criminal Appeals in this proceeding

only July 19, 1978.

OPINION

The opinion of the Texas Court of Criminal Appeals

on original submission of the cause appears in the Appendix

hereof.

JURISDICTION

4 The judgment of the Texas Court of Criminal Appeals

was entered and delivered on July 19, 1978, and a timely petition

for rehearing was deniet by order of the Texas Court of Criminal

Appeals on September 20, 1978. This Court's jurisdiction is

invoked under 28 U.S.C., Section 1257 (3).

Petitioner requests that this Court consider this

petition, even though late, because of the manifest injustice that

will result if this Court does not review same.

QUESTIONS PRESENTED =

1. Whether the Trial Court acted improperly in

admitting gross, inflamatory photographs of the deceased..

| 2. Whether the Trial Court improperly allowed the

attorney for the State of Texas to advise prospective jurors

that he (the attorney) cannot call the Defendant as a witness.

j 3. Whether the Trial Court erroneously permitted

the attorney for the State of Texas to inform prospective

jurors the effects of their answers to the Special Issues.

4. Whether the Trial Court erred and not sustaining

the defense challenge for cause to three prospective jurors.

5. Whether the Trial Court erred in allowing a :

State psychiatrist to talk to the Defendant without the Defendant's

attorney being present.

.

STATEMENT OF THE CASE

This is an appeal from a judgment of conviction of capital

murder from the 177th Judicial District Court (State), Harris

County, Texas. The Defendant was found guilty, and because of

affirmative answers to the two Special Issues, punishment was

assessed at death. It is from that judgment and sentence of the

Trial Court, based on the verdict of the jury, that Petitioner

requests this petition for certiorari.

This being a capital murder case, the potential

veniremem were questioned individually and a gare from each

other as provided by the Texas Code of Criminal Procedure. This

is noted only because some of the questions presented by

Petitioner ane in regards to the jury selection.

The, State's case in chief consisted of the following:

_ Four Houston police officers testified that they

had received a “burglary in process call" and went

to the apartment of the deceased. That apartment was

located upstairs, the officers knocked on the door

with no response. The officers observed someone

wearing tennis shoes walking neounit inside the

apartment. One officer, and subsequently others,

went around to the back and arrested the Petitioner

on the balcony outside the deceased apartment. The

officers entered the apartment, found the partially

nude body of the deceased. Blood and hair samples

were taken from Petitioner and a piece of deceased

‘dsiiae Whe found on the Petitioner.

Over the defense objection, all the physical evidence including

ey

+

[ |

photographs were admitted into evidence. .

During the course of the State's case in chief,

the State called Mrs. Ora E. Lindley (Tr. 1282-1286),

sister’of the deceased, who told of various illnesses

suffered previously by the deceased, and her current

treatment for cancer. She identified certain pieces

of physical evidence and was’ shown a picture of the

deceased which had previously been received into

evidence and at Tr. 1285, stated:

",...I saw her in the casket at the

funeral home too, and that one eye, while

she was in the casket, it looked like half

of a tennis ball. Oh, she was black and

blue."

All of the pictures that Petitioner objects to were introduced

and recorded at MTr. 1299.

REASONS FOR GRANTING THE WRIT

Point of Error No. One

The Offer of the Photographs of the Deceased and their

Subsequent Admission over the Objection of the Defense, in the

Instant Case Constitutes Sufficient Error that a New Trial should

be ordered for Petitioner.

Prior to any discussion of this Court's decisions and

those of the State of Texas, Petitioner assures this Court that he

is not asking this Court to enunciate any new principles of law

with respect to the admissability of photographs. Petitioner

would show that the photographs admitted and shown to the trial

jury were done so for no legitimate purpose under our system of

criminal jurisprudence. Petitioner can only speculate that the

pictures were offered for the purpose of intioning and prejudicing

the jury (Tr. 1299-1300). The photographs appear at Tr. 1407-

1411. By any standard, the photographs of the very elderly, sick

deceased woman are sickening. There is cancer protruding from

a tumor behind of of the eyeballs, etc. Petitioner's counsel

will not presume to interpret the affect on the jury or this_

Court's interpretation of same. However, Petitioner respectfully

submits that there is no disputed fact issue which these photographs

might even tend to remotely resolve. It is Petitioner's request

that this Court carefully review the photographs and determine

whether or not the learned trial judge abused his discretion in

admitting the photographs in this case alone.

The State of Texas has vacillated somewhat over the

years in outlining tests to be used by Trial Courts in admitting

photographs. An interesting and dramatic discussion occurred in

McFarlan vs. State, 266 S.W.2d 133, 134 (Tex.Crim.App., 1954)

wherein the Court distinguished between the introduction of

photographic evidence of the body of a deceased in an homocide

case and an assault case:

"A distinction is apparent. There

are no’ degrees of death, and therefore the

pictures would not be helpful to the jury

in properly assessing the punishment. Quite

the contrary is true in an assault case.”

There seems to be a recent trend, to this author, to use

a test which allows admission of the objects only when their

probative value outweighs the tendency to prejudice the minds

of the jurors. See, e.g., People vs. Cheary, 309 P.2d 431

(1957) (pictures held admissible; test mentioned); Poe vs.

Commonwealth, 301 S.W.2d 900 (Ky, 1957); 40 Texas Law Review

284-287.

Again, Petitioner will not belabor what the law is

or should be. The test in Texas apparently is that cited in

Martin vs. State, 475 S.W.2d 265 (Tex.Crim.App., 1972) at page

267, wherein the Court announces that photographs may bé*ad-

missible if a verbal description of the body and the scene would

be admissible. Petitioner believes that the verbal description of

the deceased,given by the State's witnesses, was not (at least

to the extent given) helpful to the jury in resolviig any disputed

fact issue.

Point of Error No. Two

The \Trial Court improperly allowed Attorneys for the

State to tell Prospective Jurors that the State cannot call the

.Defendant as a Witness.

The bulk of the record that is before this Court

(approximately three/fourths) are the notes of the jury selection

process which took place before Trial Judge Stanley Kirk, (currently

removed from office and under indictment. for improper matters

regarding another jury.) Petitioner will not burden the readers

d

of this brief with a listing of each instance with each venireman

wherein the prosecuting attorney told each juror that the rules

of procedure were such that he (the prosecutor) could not call

t to take the witness stand. Petitioner asserts

that this tactic is tantamount to an improper argument commenting

on the Defendant's failure to take the stand. That is to say,

the State's attorney is trying to do prior to his case in chief,

that which he cannot do after presentation of same, at least by

way of argument. This is patently unfair and infringes upon the

Petitioner's Fifth and Fourteenth Amendment rights.

The Fifth Amendment privilege against self incrimination

applies to the States through the Fourteenth Amendment, Malloy

vs. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489 (1964).

Under the Fifth Amendment, the Defendant's failure

to testify cannot raise a presumption of guilt. See, e.g.,

Bradford vs. U.S< (Ca 5 La) 129 F.2d 274, cert. den. 317 U.S.

683, 87 L.Ed.2d 547, 63 S.Ct. 205.

“ Not only is it unconstitutional for refusal to testify

to raise an inference of guilt, it is also suobnats tittonn’ for

either the prosecutor or the judge to ‘ieee or give instructions

to the jury that such silence is evidence of guilt. Griffin vs.

California, 380 U.S. 609, 14 L.Ed.2a 106, 85 S.Ct. 1229 (1965).

_It is not necessary that the comments complained of by

Petitioner be made directly and in final argument,it is tradi-

tionally done and commented upon by prosecutors to be prejudicial.»

Clever prosecutors, as in the instant case, may make these in-

a

direct comments, prior to a jury even being sworn, and fall into

this category. Petitioner would invite this Court's attention to

Linden vs. U.S., 296 F. 104 (1924 Ca 3 NJ) and Hood vs. U.S.,

59 F.2d 153 (1932'Ca 10 Okla.).

teint of Error No. Three

The Trial Court erroneously committed the State's

Attorney to inform Prospective Jurors of the Effects of their Answers

to Special Issues.

The Assistant District Attorney repeatedly advised

the prospective jurors that affirmative answers to the Special

Issues would result automatically in the death penalty.

The Code of Criminal Procedure of the State of Texas ray

is silent, with respect to this. procedure, albeit the Texas

Court of Criminal Appeals has ‘previously held this to be a

correct procedure, 556, S.W.2da 309.!

As a quteral rule, in thre practice of criminal law

in the State of Texas, wherever the Code of Criminal Procedure

is silent as to a procedural matter, the Courts are directed

to look at the Rules of Civil Procedure. Rule 277 of the texas:

Rules of Civil Procedure prohibits the explanation to a jury

of the effect of their answer to Speciall Issues. In fact,

it has been held to be erred in civil procedures, to inform a

jury of the effect of their answers on the theory that the effect

.of their answer should not be relevant to a conscientious juror

who is trying to resolve a fact issue on the basis of the

evidence presented alone, without the interference passion,

prejudice, etc. Such a civil case holding. same is Grieger vs.

Vega, 271 S.W.2d 85 (1954).

These civil rules are obviously designed so that a

jury will not, because of sympathy alone, award a Plaintiff

e

a great sum of money even though the Defendant might not, in

fact, be legally liable. Thus, the question that this Court

must decide is whether or not a human life is any less significant

than the award of monies from an insurance company. .

Point of Error No. Four

Whether the Trial Court erred in Overruling the

Defense Challenges for Cause of Three Prospective Jurors.

The first juror complained’ of is Ms. BILLY IVY.

The defense objection is restated at Tr. 1111-1112, and the

objection went to ‘the fact that Ms. IVY-held the belief that -

if a person was eunviktes ‘of capital murder, they would commit

it again. Juror IVY was number 25 and her testimony appears

at’ Tr. 369-395. This appears to be almost the reverse of the

Witherspoon situation. At this point in the trial (jury

selection),. Juror IVY certainly had no evidence upon which to

sentence a man to oath.

The second juror complased of by Petitioner is

Juror LIVINGSTON (Tr. 539-565), ‘ake testified that there ‘would

_ be a question in his mind about the defense presenting no

>

evidence, and he stated he could not put this out of his mind.

The defense challenges for cause were made at Tr. 561 and Tr.

1112 (close reading of the transcript reveals that the defense

attorney at the trial level inadvertently called this juror by

the wrong name, i.e., WILLIAMSON). |

The third juror, JONES, whose testimony appears

at Tr. 606-627, states that "I would require the Defendant to.

testify," and that he would want or expect a rebuttal of the

State's evidence. Your Petitioner presented his challenge

for cause at Tr. 1112-1113 and Tr. 627, and the Trial Court

overruled same. The defense was forced to use a peremptory

challenge again.

This Court has long held the existence of a state

of mind of a juror which will prevent him from acting with

impartiality as a ground for a challenge for cause. See Logan

vs. U.S.; 144 U.S. 263, 36 Lawyers Edition 429, 12 S.Ct. 617

(1892), and Morford vs. U.S., 339 U.S. 258, 94 Lawyers Edition

815, 70 S.Ct. 586 (1949).

Any juror who has formed an opinion on the merits

of a given case and who cannot disregard that opinion and render

a verdict only on the evidence produced, should be disqualified

for cause. This Court enunciated the test in Hopt vs. Utah,

120 U.S. 430, 30 Lawyers Edition, 708, 7 S.Ct. 614. See also

Juelich vs. U.S., 214 F.2a 950 (Ca. 5 Ga); Parsons vs. State,

271 S.W.2d 643, cert den, 348 U.S. 837, 99 Lawyers Edition 660,

‘10

75 S.Ct. 36.

The existence of an actual basis as a state of mind

on the part of a prospective juror which will prevent him or

her from acting within entire impartiality and without prejudice

to the substantial and substantive rights of the Defendant

constitutes a ground for a challenge for cause. See~Mor ford vs.

U.S., supra. : Bets

It is Petitioner's belief that a careful reading of

the Court Reporter's notes of the testimony of the three prospective

jurors will convince this Court that a challenge for cause should

have been sustained with respect to each, and in the absence there-

of, a new trial should be granted.

Point of Error No. Five

Whether or not the Trial Court Erroneously allowed

a State's Psychiatrist to Examine the Petitioner Without the

Benefit of having an Attorney Present.

The punishment trial of the Petitioner commenced at

Tr. 1350. JOSE G. GARCIA, M.D., a psychiatrist, was called

by the State of Texas (Tr. 1363-1371), who testified in response

toa hypothetical question posed by the Assistant District Attorney

(Tr. 1365-1366), that a person under the hypothetical question

_as presented would, in fact, constitute a continuing threat to

society and would commit future acts of violence. The defense

objected to the hypothetical question and the same was overruled

at Tr. 1364.

ll

#%

A

~

Literally as this brief is being dictated, the

American Psychiatric Association is passing and will subsequently

issue, guidelines that no psychiatrist can or should eithically

answer that type of -question.

Petitioner is aware that there dre a number of

cases holding explicitly that a Defendant is not entitled to

have his attorney present at psychiatric examinations. See for

example Livingston vs. State, 542 S.W.2d 655, cert den, 97 S.Ct.

2642 (1976); U.S. vs. Smith, 436 F.2d 787 cert den, 91 S.Ct. 1680,

402 U.S. 976, 29 Lawyérs Edition 142. ‘However, there are numerous

cases from this Court which have held that a criminal Defendant

is entitled to counsel at any stage at a criminal proceeding

where his substantial rights are involved. See Argersing vs.

Hamblin, 407 U.S. 25, 92 S.Ct. 200,32 Lawyers Edition, 2d 530

(1972); Loper vs. Beto, 405 U.S. 473, 92 S.Ct. 1914, 31 Lawyers

Edition 2d 372 (1972); U.S. vs. Wade, 388 U.S. 218, 87 S.Ct.

1926, 18 Lawyers Edition 2d 1149.

The right to counsel’ has been extended to all critical

stages of criminal proceedings-- critical stage being defined

where substantial rights of the Defendant ‘are involved. See Davis

vs. Estelle, 529 F.2d 437, (Ca.5th Cir., 1976). This Court in

other cases has held that the Defendant is entitled to counsel

and identification (lineup). Petitioner would argue.that a psy-

chiatri¢ examination is a “critical state of the criminal proceeding"

as much or more than a Yineup. Probably such an examination could

ri 12

and would more likely result in substantial prejudice to the

Defendant in that the psychiatrist is a learned, trained individual

usually dealing with an inadapt, unlearned Defendant.

CONCLUSION

For these reasons a writ of certiorari should issue

to review the judgment and opinion of the Texas Court of

Criminal Appeals.

Respectfully submitted,

THORNELL & URBAN

Original Signed By

MICHAEL THORNELL

BY: J. MICHAEL THORNELL

609 FPannin, Suite 517

Houston, Texas 77002

(713) 222-1211

COUNSEL FOR PETITIONER

DATED: Q-y A

nic. Ree

13

i

CERTIFICATE OF SERVICE

I hereby certify that on the {2 day of Ski ,

1979, three copies of the petition for writ of certiorari were

mailed, postage prepaid to the Honorable Mark White, Attorney

General of the State of Texas, Supreme Court Building, Austin,

Texas 78701, Counsel for the Respondent. I further certify

that all parties required to be served have been served.

Original Signed By

MICHAEL THORNEL|

- MICHAEL THORNELL

COUNSEL FOR PETITIONER

14

7.

rr?

BILLY JOE WOODS, Appellant

NO. 58,774 Vs. Appeal from HARRIS County

THE STATE OF TEXAS, Appellee |

+ OPINION

This is an appeal from a conviction for capital murder.

After a veediel was returned finding appellant guilty of

capital murder, the jury returned affirmative answers to the

questions required by Article 37.071(b)(1), (2), V.A.C.C.P.,

mandating a penalty of death which was toposes by the court.

The sufficiency cf the evidence is not challenged;

however, the State's evidence shows that in the middle of the

night appellant climbed up some poles and lattice work to the

balcony of the second story apartment of a 63 year old woman

who was afflicted with cancer and could move about only with

the aid of a walker. Appellant forced the door open from the

balcony into the apaktuetit and once inside robbed the occupant

and beat and strangled her to death. He also apparently

“attempted to perform some sort of sexual act with her because

she was found to be nude from the waist down, several hairs

from her head were found jammed in the zipper of appellant's

fly which was open when he was arrested at the scene, and a

considerable amount of feces and blood from the deceased were

found on the front of sins tera s trousers, shorts, shirt and

shoes.

The defense offered no evidence at the trial either on

guilt/innocence or punishment.

We will first consider appellant's contention that error

was committed when someone other than the judge assigned to

try the case heard and ruled on appellant's motion for a new

trial. Be

The record reflects that the Honorable Stanley C. Kirk,

Judge of the 78th District Court of Wichita County, was

- Appendix “A*-

\

>

Woods - 2

administratively assigned to’the 177th District Court of

Harris County prior to the trial in this case. Judge Kirk

presided dur ing the hearing on appellant's pretrial motions,

the voir dire of prospective jurors, the guilt/innocence stage

of the proceedings and the hearing on punishment. ‘Subsequently,

appellant filed a motion for a new trial and the record reflects

that the Honorable Larry Gist presided at that hearing. Appellant

raised no objections to Judge Gist presiding at the hearing and

presented no evidence on his motion for new trial.

This court will judicially notice that the Honorable Larry

Gist is the duly elected Judge of the Criminal District Court

of Jefferson County and, in the absence of an objection made

to his presiding. at the hearing on the motion for a new trial,

all objections to his authority to sit are considered waived

and it is presumed that he was in the regular discharge of

his duties pursuant to Article 1916, V.A.C.S., authorizing

District Judges to exchange benches or hold court for each other.

Peach v. State, 498 S.W.2d 192 (Tex.Cr.App. 1973); Floyd v. State,

488 S.W.2d 830 (Tex.Cr. App. 1972). Further, it is not improper

for different judges to sit at different hearings in a case,

and this holds true, absent an abuse of discretion, even if an

objection is made. Hogan * State, 529 S.W.2d 515 (Tex.Cr.App.

1975); Balderas v. State, 497 S.W.2d 298 (Tex.Cr.App. 1973);

Joines v. State, 482 S.W.2d 205 (Tex.Cr.App. 1972); Lavallas v.

State, 444 §.W.2d 931 (Tex.Cr.App. 1969). No error is shown.

Appellant next alleges that the trial court erred in

overruling his objections to the hypothetical question posed to

the psychiatrist who testified for the State during the hearing

on punishment. His first complaint, that the hypothetical

question was based on evidence not introduced in the punishment

phase of trial but rather in the guilt/innocence phase of the

trial, is éicaxte-wtukbud merit because this court held in

Brock v. State, 556 S.W.2d 309 (Tex.Cr.App, 1977), that evidence

elicited at the guilt stage as well as the penalty. stage of the

trial may be considered.

Woods - 3

Appellant also complains that two phrases in the hypothetical

\ question are not supported by the testimony. The phrases are

w, . . kicked in a lady's door forcibly . ..." and". . . and

was then caught in the room with her . cs

In Atkinson v. State, 511 S.W.2d 293 (Tex.Cr.App. 1974), this

court stated: :

"A hypothetical question must be based upon the

facts of the case. Robertson v. State, 463 S.W.2d

18 (Tex.Cr.App; 1971).

"The applicable rule has been stated as

follows:

"'Counsel propounding the question

is entitled to the witness' opinion upon

\ any combination of facts inferable from

the proof. He may and usually does assume

facts in accordance with his theory of the

case. If the opponent desires to secure

the expert's opinion upon a different set

of facts he may do so. on cross-examination.'

McCormick & Ray, Evidence, §.1403, at p. 240

(2d ed. 1956)." ;

The evidence showed that the balcony door to deceased's

apartment was opened with considerable force having been exerted

near the bottom of the door and appellant had abrasions and

bruises on his knees. Appellant was not arrested in the room

with the deceased woman, but he was observed in the tiny

apartment containing her body before he was arrested as he

exited the apartment onto the balcony. Under these circumstances,

we find no error in the hypothetical question.

In his third ground of error, appéllant complains that the

State introduced! certain exhibits by stipulation when in fact

{

appellant did not so stipulate. Appellant's brief contains neither

argument nor citation of authority in support of his position and,

after a review of the portion of the record referred to in the

brief, we find no error. The exhibits complained of contain the

record of appellant's conviction for attempted aggravated rape m

in Louisiana in 1970. These documents were properly admissible

under Article 373la, V.A.C.S., as business records, and appellant

and’ his trial counsel stipulated that certain portions of the

documents , relating to appellant's parole violation in Louisiana

~

oo”

Woods - 4

and a summary of ithe facts of the attempted aggravated rape

offense, could be removed from the exhibits before allowing the

jury to have the documents.

This ground of error is overruled.

Appellant next complains that the trial court forced

disqualification of a juror by improperly commenting on the

weight of the evidence and the facts of the case. The record

reflects that prospective juror Sandifer was questioned on

voir dire outside the presence of other jurors and prospective

jurors and was apparently having some difficulty in understanding

the various degrees of murder as provided in the laws of this

State. The trial court made the complained of comment, after

an extended cobloquy with Sandifer, as follows:

“THE COURT: You see, sir, we have certain

degrees of murder in Texas. And we have certain

cases where a crime has not been. committed

negligently, there is no negligence, but there

is intent. And a crime is committed intentionally

where a person intentionally kills someone.

"But, when a person does not intentionally

do an act which then results in the death of

someone, that would be negligent homicide. That

would not apply to this case, I do not think.”

(Emphasis added. )

No objection was made to this comment and thus nothing is

presented for review. Hovila v. State, 562 S.W.2d 243 (Tex.Cr.

App. 1978); Jenkins v. State, 488 S.W.2d 130 (Tex.Cr.App. 1972);

Minor v. State, 469 S.W.2d 579 (Tex.Cr.App. 1971).

Further, any error in the comment was rendered harmless

when appellant, without ever mentioning the court's comment,

successfully challenged the prospective juror for cause after

the prospective juror evinced his strong leanings toward the

death penalty whenever a defendant is found guilty of capital

murder. i.

In his fifth ground of error, appellant argues that the

court erred in allowing the State to tell prospective jurors

*

*

that the defendant's prior criminal reccrd could be introduced

at the punishment phase of the trial. Appellant alleges that

most veniremen were told by the assistant district attorney

/

Woods - 5

that during the punishment phase new evidence could be

presented that was not presented at the guilt/innocence phase

and specifically that each juror Was told that "the defendant's,"

or "a defendant's,"' prior criminal record could be introduced

and considered for punishment purposes, or as an aid in

answering the special issues submitted to them. He indicated

four specific instances in which this occurred.

While we perceive that it would be error for a prosecuting

attorney to tell prospective jurors that the defendant in the

case to be tried had a prior criminal record, it is of course

a correct statement of the law that after a finding of guilty,

evidence may be admitted as to the prior criminal record of a

defendant. Article 37.07, V.A.C.C.P. We have carefully examined

each of the four instances indicated by appellant in his brief,

and in fact have carefully considered the entire voir dire

iendwation of all prospective jurors, and do not find support

for appellant's ground of error.

All prospective jurors were examined on voir dire outside

of the presence of the other jurors and prospective jurors, and in

the first instance cited by appellant the State in examining

prospective juror Lawson, who was later peremptorily excused by

the defense, commented: ©

"And I might say this, in answering these

questions you would be able to consider evidence

that you had heard from the first part of the trial

as well as new evidence that you would be entitled

to hear from the second part of the trial, such as

in the second part of the trial a defendant's prior

character, prior convictions, if any, things to heip

the jury to decide how to answer these questions would

be admissible in the punishment part of the trial

which may or may not be admissible in the first part

of the trial. So you have all this evidence to base

your answer on."

The second instance cited by appellant contains no comment

by anyone relating to a prior criminal record.

The third instance cited by appellant occurred during the

examination of prospective juror Smith, later peremptorily

excused by the defense, when the State commented:

Woods - 6 ,

‘4 . Now, in the punishment part of the trial there

could be more evidence presented, such as a defendant's

character in the community or any prior criminal history

or records, if he had any, this type thing to help the

jury decide the answer to the two questions.’

In the fourth instance cited by appellant in his brief, the

State in examining prospective juror Costello, who became a

juror in the case, commented:

"In addition, at the punishment stage new

evidence will be presented, such as defendant's

prior criminal records, if he had any, things such

as this. Now, it would be the state's burden to

prove to you beyond a reasonable doubt that the

answer to these two questions should be yes and if

the state did not prove to you, you would have to

answer no. Could you do that?"

These quoted comments are typical of the comments directed

to most of the prospective jurors and because they do not

_inform the prospective jurors that this defendant did in fact

have a prior criminal record, we find no error.

It should also be noted that we find only two instances in

which appellant objected to these sorts of comments. The first

time occurred after twenty prospective jurors had been examined

(and after the first three "instances" cited by appellant in his

brief had gone by without objection). The court sustained the

objection as to the use of the word "the" in the phrase "the

defendant's vrior criminal record, if any," and advised the State

to use the word "a" instead of "the." The second time occurred

after twenty-six more prospective jurors had been examined and

no ruling was obtained on the objection.

This ground of error is overruled.

Appellant next lists seven "Points of Consideration" in his

brief which he urges this court to consider “in determining if

appellant recieved (sic) a fair trial and was accorded due

process of law as contemolated by the First, Fourth, Fifth,

Sixth and Fourteenth Amendments to the Constitution of the United

_ States and their counterparts in the Texas State Constitution."

Woods - 7

These "Points of Consideration" are without citation of

authorities or argument, are not in compliance with Article 40.09,

§.9, V.a.6.¢C.P.; and therefore present nothing for review. Hicks

v. State, 545 S.W.2d 805 (Tex.Cr.App. 1977); Byrom v. State, 528

§.W.2d 224 (Tex.Cr.App. 1975); Henriksen v. State, 500 S.W.2d 491

(Tex.Cr.App. 1973); McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.

1972).

The judgment is affirmed.

ONION, Presiding Judge

(Delivered July 19, 1978) .

En banc