Petition — DOYLE E. SKILLERN v. TEXAS (No. 80-6322)

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_. MAY 7 1981

OFr.CE OF THE CLERK

SUPREME COURT, U.S.

CORRECTED COPY

No. 80 - 6322

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

DOYLE EDWARD SKILLERN,

Petitioner,

vs.

THE STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF CRIMINAL APPEALS OF TEXAS

DOUGLAS TINKER

TINKER and TOR

622 S. Tancahua/P.O. Box 276

Corpus Christi, Texas 78403

ATTORNEY FOR PETITIONER

A te

—: ke ST en nee etree ty ae

QUESTIONS PRESENTED

1. Whether petitioner was denied his right to effec-

tive counsel in this capital case, guaranteed by the

Sixth, Eighth and Fourteenth Amendments, when the trial

court, three weeks before the trial wan to begin, substi-

tuted a new defense counsel for the one who had ably

served petitioner in the prior trial and appeal, denied a

motion for continuance designed to give the new counsel

time to prepare, and denied an alternative motion for the

prior counsel to be appointed as co-counsel.

2. Whether the trial court's error in admission of

testimony by a pathologist on the question of whether

there was a probability that the petitioner would commit

criminal acts of violence that would constitute a conti-

nuing threat to society severly undermined the fairness

and reliability of the fact finding process at the pe-

nalty phase and thereby violated petitioner's rights

under the Eighth and Fourteenth Amendments.

3. Whether the admission into evidence of an indict-

ment, where the final conviction for a lesser offense was

available, severly undermined the fairness and reliability

of the fact finding process at the penalty phase and

thereby violated petitioner's rights under the Eighth and

Fourteenth Amendments.

4. Whether the death penalty is disproportionately

severe and therefore unconstitutional under the Eighth

and Fourteenth Amendments when applied to an individual

who has not taken life, attempted to take life, or intend-

ed to take life.

——

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TABLE OF CONTENTS

Questions Presented ....eeeeeeeeeeeeeeceeeeseerrcns

Table of Authorities ....cccccccvccccccscceeccsvvces

Citation to the Opinion Below ....-.ceeeeeneeececes

TULLBGICCION .cccccccccecccsccesvcscsvcscsccsscveces

Constitutional and Statutory Provisions |

TNVOL VEE .ccccccepescveccsecvsccccccse ecteoteveese

Statement of the Case ....... Cade tevsceuees eecdoccoe

How the Federal Questions Were Raised

and Decided Below ....cccceccccerssseccesece c.

Reasons for Granting the Writ ......---- vrvr erry y

I. PETITIONER WAS DENIED HIS

RIGHT TO EFFECTIVE COUNSEL AS

GUARANTEED BY THE SIXTH, EIGHTH

AND FOURTEENTH AMENDMENTS BY DE-

NIAL OF A MOTION FOR A CONTINUANCE

AND, IN THE ALTERNATIVE, FOR AP-

POINTMENT OF CO-COUNSEL, WHERE

THE JUDGE HAD, THREE WEEKS BEFORE

TRIAL, SUBSTITUTED A NEW ATTORNEY

FOR ONE FAMILIAR WITH THIS COMPLEX

DEATH PENALTY CASE ..-eeeeeeeccccercences

A. Effective Assistance of

Counsel *e eff @ ans 6 6.8 8 6.0'6¢0 8 0 8 8 8.8 *“e @ ff @ ©

B. Denial of a Continuance ...... sans a ele

C. Denial of Motion for Appoint-

ment Of Co-Counsel ....-ceeeceeevces

SD . “CORGLOBION: <0. a cc saleanceieod oc eeePcesees

II. ADMISSION OF THE PATHOLOGIST'S TESTI-

MONY ON THE QUESTION OF FUTURE DANGE-

ROUSNESS SEVERELY UNDERMINED THE FAIR-

NESS AND RELIABILITY OF THE FACT FINDING

PROCESS AT THE PENALTY PHASE AND THEREBY

VIOLATED PETITIONER'S RIGHTS UNDER THE

EIGHTH AND FOURTEENTH AMENDMENTS .....---

A. Error in Capital Punishment

Cases ne © ff @ © eeeeee#ee#es *eeee ee *“e ee? ®e@eeee

B. Error in the Penalty Phase under

the Texas Statute ....eeeeeevnnece coe

Iil. ADMISSION OF AN INDICTMENT WHERE THE

FINAL CONVICTION FOR A LESSER OFFENSE

WAS AVAILABLE SEVERELY UNDERMINED

THE FAIRNESS AND RELIABILITY OF THE

FACT FINDING PROCESS AT THE PENALTY

PHASE AND THEREBY VIOLATED PETITIONER'S

EIGHTH AND FOURTEENTH AMENDMENTS ......-.-

IV. DEATH IS A DISPROPORTIONATELY SEVERE

AND UNCONSTITUTIONAL SENTENCE FOR ONE

WHO HAS NOT TAKEN LIFE, ATTEMPTED TO TAKE

LIFE, OR INTENDED TO TAKE LIFE ....++«++-

Conclusion

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

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eceoevoeevueeeevoe eevee e eevee eeeeeeeeeeeeeeeee eee 8 @

eceoeaoeoeevonvneeeo eee eae eoeveeveeeeeoeeaes eee eeeee eee 8 Oe

eeeeecvovneeaeneeoeee80e0ee20202020208020280280808 8080808080808 8

SaECs OO Seeeseseoesvsedoeeseoeoseeseesoe;csecaeaeseseeaeeorv eo

- iii -

sa xcoteligag ai tial OP SUPT REN Unt mene peep eee ER

» Sh 3

CASES:

Beck v. Alabama,

Caraway v. Beto,

Garcia v. State,

Irving v. State,

Jurek v. Texas,

Lockett v. Ohio,

McBee v. Boynar,

Milton v. State,

Pait v. State, 1

People v. Crump,

People v. Hines,

People v. White,

Reid v. Covert,

Gregg v. Georgia, 428 U.S. 153 (1976)

Knox v. State, 487 S.W.2d 322 (1972)

Quinones v. State, 592 S.W.2d 933 (1980)

TABLE OF AUTHORITIES

Andres v. United States, 333 U.S. 740 (1948) .....eeeees

Avery v. Alabama, 308 U.S. 444 (1940) w.seeeeeeeeceeeces

447 U.S. 625 (1980) cc eee eneennvecces

Brubaker v. Dickson, 310 F.2d 30 (9th cir.

1962) “weeeee

421 F.2d 626 (Sth. Cir. 1970) ...--eeee

Chapman v. California, 386 U.S. 18 (1967)

Gandy v. Alabama, 569 F.2d 1318 (5th Cir.

Coker v. Georgia, 433 U.S. 584 (1977) ..seeeeeeeeees wa ale

1978) weeeeees

581 S.W.2d 168 (1979) ....--+--- eo cecccce

Holloway v. Arkansas, 435 U.S. 475 (1978)

Gardner v. Florida, 430 U.S. 349 (1977) wcseeenennneeces

361 So. 2d 1360 (Miss. 1978) ....--eees

428 U.S. 262 (1976) ..ceeeeeeeeees ecccee

438 U.S. 586 (1978) ..ceeeeeeeeees ceeee

296 F.2d 235 (6th Cir. 1961) ..... cecee

559 S.W.2d 824 (1980) ...

12 So. 2d 380 (Fla. 1959)

125 N.E.2d 615 °(I11. 1955)

390 P.2d 398 (Cal. 1964)

446 P.2d 993 (Cal. 1968)

Powell v. Alabama, 287 U.S. 45 (1932) ....

354 U.S. 1 (1951) ...-eee-

- iv -

People v. Hamilton, 383 P.2d 412 (Cal. 1963) ....+-- eoee

People v. Rosario, 173 N.E.2d 881 (N.Y. 1961) «....-- eee

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) «...eeee-

Smotherman v. Beto, 276 F.Supp. 579 (N.D. Tex. 1967) ...

Page

11,14

15,21

28,30

12,16

17,19

22,30

15,21

26,29

11,18

Cases

Stein v.

Twiford v.

Unger v.

United States ex rel.

United States ex rel, Williams v. Twomey, 510 F.2d 634

United States v.

United

Voyles v. Watkins, 489 F.Supp. 901 (N.D. Miss. 1980) ...

Weems v.

Woodson v.

STATUTE:

Texas Code Crim.

OTHER AUTHORITY:

New York, 156 (1953) wcccccceccceseses

372 F.2d 670 (4th Cir.

Sarafite, 575 (1963)

Mathis v.

394 F.2d 748

487 F.2d 1197 (D.C. Cir.

eeeceecuaoeveoeneeoe eee eeeeeeevo ee eeeeeee eee eeneaeneoese 6

DeCoster,

539 F.2d 663 (8th Cir.

Faulkner, 538 F.2d 724 (6th Cir.

576 F.2d 837 (10th Cir.

596 F.2d 696 (Sth Cir.

558 F.2d 1366 (10th Cir.

Rastelli, 551 F.2d 902 (2nd Cir.

588 F.2d 1300

United States,

North Carolina, 280 (1976)

Pro. Art.

Scofield, Due Process in the United States Supreme Court

Court and the Death of the Texas Capital Murder

8 Am. J. Crim. L. 40 (March 1980)

13,14

11,12

POLI YT REN TL a TEN IN I IE INT PY Oe tt EE TUNE TT NOE TET Soe" SNE FO NR Om RIS a

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‘IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

DOYLE EDWARD SKILLERN,

Petitioner,

vs.

THE STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF. CERTIORARI TO THE COURT

OF CRIMINAL APPEALS OF TEXAS

Petitioner Doyle Edward Skillern respectfully prays

that a writ of certiorari issue to review the judgment of

the Texas Court of Criminal Appeals in this case.

CITATION TO OPINIONS BELOW

The majority and dissenting opinions of the Texas

Court of Criminal Appeals are reported at 609 S.W.2d 762

and are attached hereto as Appendix A.

JURISDICTION

The judgment of the Texas Court of Criminal Appeals

was entered on September 10, 1980. A timely petition for

rehearing was denied on December 10, 1980. On February

3, 1981, Justice Powell granted petitioner's motion to

extend the time to file this petition. This Court's

jurisdiction is invoked pursuant to 28 U.S.C. § 1257(3),

petitioner having asserted below and asserting herein

deprivation of rights secured by the United States Consti-

tution.

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Sixth Amendment to the

Constitution of the United States, which provides in

relevant part:

"In all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance

of Counsel for his defence."

and the Eighth Amendment to the Constitution of the United

States, which provides in relevant part:

"Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.”

and the Fourteenth Amendment to the Constitution of the

United States, which provides in relevant part:

"[NJor shall any State deprive any person

of life, liberty, or property, without due process

of iw... 62s

2. This case also involves the following provision

of the Texas Code of Criminal Procedure:

§37.071. Procedure in capital case.

(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 vio-

lation of the Constitution of the United States or

of the State of Texas. The state and the defendant

or his counsel shall be permitted to present argument

for or against sentence of death. *

(b) On conclusion of the presentation of the evi-

dence, the court shall submit the following issues

to the jury:

a Sa te Sakai seeders. ©. er alan nat tlt eect ee ee ee

(1) whether the conduct of the defendant that

caused the death of the deceased was committed

deliberately and with the reasonable expectation

that the death of the deceased or another would

result;

(2) whether there is a probability that the

defendant would commit criminal acts of violence

that would constitute a continuing threat to

society; and

(3) if raised by the evidence, whether the

conduct of the defendant in killing the deceased

was unreasonable in response to the provocation,

if any, by the decease.

a reasonable doubt, and the jury shall return a

special verdict of “yes” or “no" on each issue sub-

mitted.

(d) The court shall charge the jury that:

(1) it may not answer any issue "yes" unless

it agrees unanimously; and

(2) it may not answer any issue "no" unless 10

Or more jurors agree.

(e) If the jury returns an affirmative finding on

each issue submitted under this article, the court

shall sentence the defendant to death. If the jury

returns a negative finding on any issue submitted

under this article, the court shall sentence the

defendant to confinement in the Texas Department of

Corrections for life.

(f) The we of conviction and sentence of

death shall be subject to automatic review by the

Court of Criminal Appeals within 60 days after certi-

fication by the sentencing court or the entire record

unless time is extended an additional period not to

exceed 30 days by the Court of Criminal Appeals for

good cause shown. Such review by the Court of Criminal

Appeals shall have priority over all other cases,

and shall be heard in accordance with rules promulgated

by the Court of Criminal Appeals.

STATEMENT OF THE CASE

On October 24, 1974, Patrick Randel, a narcotics

agent for the Texas Department of Public Safety, was

found shot to death in his locked car at a roadside park

in Live Oak County, Texas. Agent Randel had been working

undercover for the purpose of purchasing illegal drugs

from petitioner Doyle Edward Skillern and his co-defendant,

Charles Victor Sanne. Randel's money, gun, diamond ring,

and some credit cards were missing.

Randel had last been seen by other Department of

Safety agents at 7:10 p.m., October 23, 1974, when he

left a motel room in Beeville accompanied by both petitioner

and Sanne. Randel left the state money which was to be

used in purchasing the illegal drugs in the motel room,

He then departed in his (the deceased's) car with Sanne.

Petitioner Skillern left in the car in which he and Sanne

had arrived. At approximately 8:10 p.m. the car petitioner

Skillern had driven returned and Sanne was seen entering

Randel's motel room.

Petitioner Skillern and Sanne were arrested early

the next morning, October 24, in McAllen, Texas. Petitioner

Skillern had the state purchase money in his possession,

and Sanne had Randel's credit cards and other effects in

his possession. The diamond ring was found in the seat

of the vehicle which transported petitioner Skillern to

jail.

The physical evidence introduced during the trial

clearly demonstrated that it was Sanne who had been the

“trigger man," and this was the state's position throughout

the trial.

Further, Sanne testified that he was, in fact, the

person who had done the shooting and that petitioner

Skillern was not in the car at the time the shooting took

place.

Ag Pree ae, ELT LI IOS RIO LN OTT eT OT Ee Salaieeia mo rnnge - oa eR ee aie

At the first trial, both petitioner Skillern and

Sanne were convicted of capital murder. Punishment was

assessed at death for petitioner and life imprisonment

for Sanne. On appeal to the Texas Court of Criminal

Appeals, the judgment was reversed on the ground that the

trial court had erred in allowing the jurors to separate

after the court's charge had been read to them in the

guilt phase. 559 S.W.2d 828, 833 (1977). Petitioner

Skillern's counsel at both the trial and appellate levels

was Douglas Tinker.

Three weeks before the second trial began the trial

court reli'eved Skillern's counsel, Douglas Tinker, who

had ably defended him in the earlier proceedings, and

replaced him with David Connery. No reason was given for

this sudden change in court-appointed defense counsel,

other than the court's comment "we don't need any city

lawyers to handle this case." It should be pointed out

that the first trial of this cause was in George West,

Live Oak County, Texas; for the second trial venue was

changed to Rockport, Aransas County, Texas. Tinker's

office is in Corpus Christi, the largest city in the

region; Connery's office at the time was in Rockport.

Prior to the change of venue, petitioner filed in

writing with the clerk's office of the Texas Court of

Criminal Appeals a pro se document requesting that his

first trial and appellate attorney continue to represent

him in the trial of the case. Petitioner's then attorney

also wrote a letter to the court indicating his willingness

to continue in the case. However, the said Douglas Tinker

was discharged from the case. Petitioner, in a continued

effort to prevent the discharge of Douglas Tinker, filed

a pro se application in the Federal District Court in

Corpus Christi, Texas, requesting that the State trial

court be ordered to continue Douglas Tinker as his attorney.

Such application was denied and properly so; however, it

does demonstrate petitioner's efforts to have his original

appointed attorney represent him. (Copies of Petitioner's

pro se submissions to the state and federal courts are

attached as Appendix B.)

In this regard, it should be pointed out that the

attorney Douglas Tinker was petitioner's appointed attorney

when he was tried for murder with malice and convicted of

murder without malice in Nueces County in 1972. (See

Point III, supra.) This is the prior conviction reflected

by State's exhibits 74, 75 and 76 and testified to by the

then prosecuting attorney Thomas McDowell. (Statement of

Facts, Vol. XIV p 2,765.)

Once the case was transferred to Rockport, Texas, a

pretrial hearing was had wherein petitioner continued to

make efforts to get Douglas Tinker back involved in the

case (SF Vol. II p 27) by filing a motion for additional

counsel with a specific request for Douglas Tinker. (SF

Vol. II p 29.)

The court denied petitioner's motion for a continuance

(attached as Appendix H) designed to permit Connery time

to prepare an adequate defense and familiarize himself

with the case, and also deried an alternative motion

seeking appointment of Tinker as co-counsel. At the

hearing on petitioner's request for continuance, it was

pointed out by petitioner's attorney that the first time

he had ever talked to petitioner was February 20, 1978

and that the case was set for trial March 13, 1978. (SF

Vol. II pp 34-35.) The record was further made to reflect

that March 8, 1978, just five days prior to the trial's

beginning, was the first occasion that petitioner's attorney

had had to review the record from the prior trial.

In demonstrating his lack of preparedness and lack

of time to prepare, petitioner's attorney caused the

record to reflect that there was not one witness subpoenaed

by the State who lived anywhere near Rockport, Texas (SF

Vol II p 37) and that there were at least fifty witnesses.

It is interesting to note that the State took no

position concerning the motion for continuance. (SF Vol

II p 44.)

On March 13, 1978, when the case was called for

trial, petitioner again urged his motion for continuance,

setting out all of the preparation problems he had had.

(SF Vol II pp 145, 146 & 175.) After a lengthy jury

selection process and before the evidence began, petitioner

again re-urged his continuance request. (SF Vol VIII pp

1594, 1595, 1596 and 1617.) The court also denied petitioner

Skillern's motion for severance. Both Skillern and Sanne

were once again convicted of capital murder.

Both petitioner and Sanne were sentenced to death at

the conclusion of the penalty phase of the second trial.

However, Sanne's death sentence was set aside on appeal

PP ey ee Pe ee ii i

on the ground that his sentence at the first trial consti-

tuted an acquittal of the death penalty, thereby barring

a death sentence at the second trial on double jeopardy

grounds.

At the guilt phase of the second trial Sanne took

the stand in his own behalf and admitted shooting the

deceased, claiming that he had done so in self-defense.

In the punishment phase the court admitted the testimony

of Dr. Joseph C. Rupp, a practicing forensic pathologist,

to render an expert opinion under a hypothetical fact

situation based on the evidenced introduced, that "there

is a probability that the defendant would commit criminal

acts of violence that would constitute a continuing threat

to society." The court also admitted an indictment alleging

that petitioner had committed murder with malice in the

1972 death of his brother, whereas defendant had been

found guilty of murder without malice.

In his instruction to the jury, a copy of which is

attached as Appendix C, the court instructed the jury

concerning parties to a crime and in so doing permitted

the jury to convict petitioner if he acted as a party

with anyone, not that he must be acting as a party with

the co-defendant Sanne. (Transcript p #43.)

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

l. Petitioner's first ground of error in the Texas

Court of Criminal Appeals asserted that the failure of

the trial court to grant his motion for a continuance

rendered the assistance of his counsel ineffective. Peti-

tioner also argued that denial of his motion to appoint

the attorney who had ably represented him in prior pro-

ceedings as an alternative to a continuance denied him

the effective assistance of counsel. The Texas court

rejected these claims. A. 15-16; 609 S.W.2d at 776-77.

On appeal to the Court of Criminal Appeals of Texas,

the first ground of error urged was the denial of a con-

tinuance. Petitioner's appellate brief #78-772, p 2

through p 4. Ground of error no. 2 complained of the

court's refusal to have additional counsel, and particularly

Douglas Tinker, appointed. Brief pp 4-5. At p 5 of such

brief, petitioner cited to the Court of Criminal Appeals

petitioner's writ of mandamus filed in the state court

and petitioner's temporary restraining order and injunc-

tion request filed in federal court, all seeking Douglas

Tinker's participation in the case. See Petitioner's

Appellate Brief pp 1-5, here attached as Appendix D.

2. Petitioner urged that the admission of the patho-

logist's testimony on the question of future dangerousness

was reversible error because the trial court could not

have found him qualified to render an expert opinion and

admission of this evidence denied petitioner his right to

due process guaranteed by the Fourteenth Amendment. The

Texas Court of Criminal Appeals agreed that this was

error, but found that the error was harmless. A. 12-13;

609 S.W.2d ar 773-74.

3. On original appeal, petitioner complained in his

fifteenth ground of error, Brief pp 19, 20, 21, and 22,

of Dr. Rupp's testimony. Appendix E.

4. Petitioner contended that the admission of the

indictment alleging murder with malice where the final

conviction was available and was for a lesser offense,

murder without malice, was improper and resulted in a

denial of his right to due process of law. The court

upheld the admission of this evidence. A. 12; 609 S.W.2d

at 773. ;

5. In his appellate brief in the Court of Criminal

Appeals at pp 35-36, Appendix F, petitioner complained of

the trial court's action as stated above and while not

specifically put in due process language, it clearly

reflects a due process complaint.

6. Petitioner contended that the death penalty is

disproportionately severe and therefore unconstitutional

under the Eighth Amendment for one who has not taken

life, attempted to take life, or intended to take life.

The court rejected this argument. A.14; 609 S.W.2d at

775. Petitioner's brief pp 6-7 raised the issue of the

constitutionality of the state statutes in his fourth

ground of error. Appendix G.

REASONS FOR GRANTING THE WRIT

PETITIONER WAS DENIED HIS RIGHT TO

EFFECTIVE COUNSEL AS GUARANTEED BY

THE SIXTH, EIGHTH, AND FOURTEENTH

AMENDMENTS BY DENIAL OF A MOT ION

FOR CONTINUANCE AND, IN THE

ALTERNATIVE, FOR APPOINTMENT OF

CO-COUNSEL WHERE THE JUDGE HAD,

THREE WEEKS BEFORE TRIAL, SUB-

STITUTED A NEW ATTORNEY FOR ONE

FAMILIAR WITH THIS COMPLEX DEATH

PENALTY CASE.

Three weeks before the trial was to begin, the trial

court appointed David Connery, an attorney unfamiliar

with this case (and death penalty litigation), to replace

Douglas Tinker, an experienced trial attorney who had

handled petitioner's case in the first trial and won

reversal in the Texas Court of Criminal Appeals. The

- 10<«

trial court gave no explanation for this change. Petitioner

made a motion for a continuance, so that Connery could

properly familiarize himself with the facts and legal

arguments in this complex capital case and make the neces~

sary investigations and preparations, and, in the alter-

native, a motion for the appointment of Tinker as co-

counsel. The trial court denied both requests, resulting

in the deprivation of petitioner's right to effective

counsel. 2/

A. Effective Assistance of Counsel

This Court has long held that the Sixth Amendment

right to counsel and the Fourteenth Amendment guarantee

of due process of law are not satisfied by the mere pro _

forma assistance of counsel. Instead these constitutional

mandates are a substantive guarantee of effective re-

presentation. Powell v. Alabama, 287 U.S. 47, 71 (1932);

Avery v. Alabama, 308 U.S. 444, 446 (1940). The right to

effective assistance of counsel includes sufficient time

for thorough investigation and preparation because these

are essential to the effective representation of counsel.

Powell, supra, 287 U.S. at 57. Indeed, in the Third and

Fourth Circuits, the late appointment of counsel is con-

sidered inherently prejudicial and sufficient to make out

a prima facie showing of denial of effective counsel

because of this pressing need for time for preparation

and investigation. United States ex rel. Mathis v.

1/ Connery served as petitioner's attorney before both

the trial court and the Texas Court of Criminal Appeals.

A near-fatal automobile accident prevented him from further

participation in this case, and Tinker was reappointed.

« $23

Rundle, 394 F.2d 748, 752 (3rd Cir. 1968); Twiford v.

Peyton, 372 F.2d 670, 673 (4th Cir. 1967). It seems

logical that where

the trial court [has failed] to appoint counsel

sufficiently in advance of trial to prepare

defendant's case in a reasonably thorough manner,

and... . defendant . . . [establishes] a prima

facie case that the hasty appointment of legal

assistance may have been inherently prejudicial

to his trial by precluding him from the advantage

of an adequately prepared defense, then. . .

the state should bear the brunt of rebutting

the presumption of injury inherent in its skimpy

compliance with the sixth amendment command.

Rundle, supra, 394 F.2d at 753.

The standards for determining whether the repre-

sentation of counsel has been so ineffective because of

inadequate preparation are different in other circuits.

According to the D.C. Circuit, "a defendant is entitled

to the reasonably competent assistance of an attorney

acting as his diligent conscientious advocate," United

States v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973) and

the government has the burden of establishing a lack of

prejudice. Id. at 1204. Both the Fifth and Seventh

Circuits require that the attorney simply meet minimum

professional standards. Gandy v. Alabama, 569 F.2d 1318

(Sth Cir. 1978); United States ex rel. Williams v. Twomey,

510 F.2d 634, 640 (7th Cir. 1975), cert. denied 423 U.S.

876 (1975). The Eighth Circuit demands that the trial

counsel exercise "the customary skills and diligence that

a reasonably competent attorney would perform under similar

circumstances," United States v. Easter, 539 F.2d 663,

666 (8th Cir. 1967). The Ninth Circuit requires that the

counsel be "reasonably likely to render and [actually]

= 2s =

rendering reasonably effective assistance." Brubaker Vv.

Dickson, 310 F.2d 30, 37 (9th Cir. 1962). The Tenth

Circuit standard is the hardest to meet, that the counsel

conduct the defense in such an “incompetent or inadequate

manner as to render the trial a sham and a mockery of

justice which shocks the conscience of the court." United

States v. Fitts, 576 F.2d 837 (10th Cir. 1978).

In light of the fact that the judge in this case

substituted a new attorney for one familiar with the case

shortly before the trial was to begin and that the very

life of the petitioner is at stake, this Court should

grant certiorari to decide whether the standard set by

the Third and Fourth Circuits should be adopted.

B. Denial of a Continuance

Courts have set separate standards for the inef-

fective assistance of counsel where it results from the

denial of a continuance requested to obtain time for

preparation and investigation. In this case there is no

question but that the denial of David Connery's motion

for a continuance rendered him unable to properly prepare

petitioner's case.

In Unger v. Sarafite, 376 U.S. 575 (1963), this

Court upheld the denial of a continuance, but, in il-

luminating dicta, commented that, although the matter of

a continuance is within he traditional discretion of the

trial judge, “myopic insistence upon expeditiousness in

the face of a justifiable request for delay can render

the right to defend with counsel an empty formality.” Id.

= 13 -

at 589; see also Avery v. Alabama, supra, 308 U.S. at

446. The Court in Unger found that five days was suf-

ficient time to hire counsel and prepare a defense where

the evidence was fresh, the issues limited and well-

defined, and the motion for continuance had not been made

until the day the trial was scheduled. 376 U.S. at 590.

In petitioner's case, the facts are almost the antithesis

of those in Unger: the evidence of the 1975 murder was

no longer fresh by 1978, the issues were numerous and

extremely complex, and the motion for a continuance was

made in writing soon after the substitution of counsel

(transcript, pp 83-88) and filed March 3, 1978. It is

further submitted that its timeliness was never an issue

and the State took no position concerning the granting of

it. See motion, Appendix H.

Furthermore, Unger did not involve the possible

imposition of the death sentence. This court has long

required more stringent standards of review where the

ultimate penalty may be imposed. In Stein v. New York,

346 U.S. 156, 196 (1953), Justice Jackson wrote for the

Court that "[{w]hen the penalty is death, we, like State

court judges, are tempted to strain the evidence and

even, in close cases, the law in order to give a doubtfully

condemned man another chance." Several years later in

Reid v. Covert, 354 U.S. 1, 77 (1951), Justice Harlan

said:

So far as capital cases are concerned, they

stand on quite a different footing than other

offenses. In such cases the law is especially

sensitive to demands for . . . procedural fair-

w 26 «

—_— .

ness .. . I do not concede that whatever pro-

cess is 'due' an offender faced with a fine or

a prison sentence necesarily satisfies the

requirements of the Constitution in a capital

case. The distinction is by no means novel,

compare Powell v. Alabama, 287 U.S. 45, with

Betts v. Pract. 316 U.S. 455; nor is it negli-

gible, being literally that between life and

death. :

More recently, this Court has pointed out that, "the

penalty of death is qualitatively different from a sen-

tence of imprisonment, however long. ... Because of that

qualitative difference, there is a corresponding difference

in the need for reliability in the determination that

death is the appropriate punishment in a specific case."

Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality

opinion) (footnotes omitted). See also, e.g., Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); Beck

v. Alabama, 447 U.S. 625, 637-38 & n. 13 (1980).

The effective assistance of counsel, perhaps more

than any other single aspect of a criminal trial, is

indispensable to “a fair trial and the reliability of the

truth determining process." Schneckloth v. Bustamonte,

412 U.S. 218, 236 (1973). See also Holloway v. Arkansas,

435 U.S. 475, 489 (1978); Caraway v. Beto, 421 F.2d 636,

637-38 (5th Cir. 1970). Because whether an individual is

sentenced to death or life imprisonment should not depend

on the quality of his attorney's performance, claims of

ineffective representation must be examined very carefully

where the possible penalty is death. See, e.g., Voyles v.

Watkins, 489 F. Supp. 901, 910 (N.D. Miss. 1980) (courts

must “strictly scrutinize counsel's conduct" in death

cases); Smotherman v. Beto, 276 F. Supp. 579, 586 (N.D.

Tex. 1967).

- 15 -

ea!

Many courts have found that the denial of a conti-

nuance may deprive a defendant of his right to effec-

tive counsel and thereby violates his constitutional

rights under the Sixth and Fourteenth Amendments. See,

e.g., Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978);

McBee v. Boynar, 296 F.2d 235 (6th Cir. 1961). There are

two conflicting standards which have been applied to

determining whether the denial of a continuance has de-

prived the defendant of his right to effective counsel.

The majority rule requires a showing of an abuse of dis-

cretion and of prejudice caused by the denial of the

continuance. United States v. Rastelli, 551 F.2d 902,

908 (2nd Cir. 1977), cert. denied, 434 U.S. 832 (1977);

United States v. Houde, 596 F.2d 696 (5th Cir. 1979),

reh. denied, 604 F.2d 671 (5th Cir. 1979), cert. denied,

444 U.S. 965 (1979); United States v. Faulkner, 538 F.2d

724, 729 (6th Cir. 1976), cert. denied, 429 U.S. 1023

(1976). The Tenth Circuit requires that there be an

abuse of: discretion and that denial of the continuance

result in manifest injustice, United States v. Olivas,

558 F.2d 1366 (10th Cir. 1977), cert. denied, 434 U.S.

866 (1977), which is a much stricter standard than a

required showing of prejudice.

In Gandy, the Fifth Circuit listed several criteria

to be taken into consideration in determining whether

there had been an abuse of discretion in the denial of a

continuance, including: length of requested delay; whe-

ther other continuances had been requested or granted;

the balance of convenience and inconvenience to the liti-

gants, witnesses, opposing counsel, and the court; and

whether the requested delay is for a legitimate reason or

«' §6i,<

simply for the purpose of delay or contrivance. Gandy,

supra, 569 F.2d at 1324. In this case, the delay asked

was reasonable (no other continuances had been granted, °

at least to Connery); little inconvenience was posed

for other litigants, witnesses, opposing counsel, and

the court; and, the urgent need for more time for prepara-

tion and investigation of the numerous, complex issues

involved in this serious case presented a clearly legi-

timate reason for the continuance.

The Texas Court of Criminal Appeals found no spe-

cific showing had been made of prejudice caused by the

denial of the motion for continuance. A. 15; 609 S.W. 2d

at 776. However, a close reading of the record reveals

that the dearth of time available for preparation and

investigation had a deleterious effect on the presen-

tation of petitioner's case. The most obvious example is

the fact that Connery was unable to provide evidence in

support of his motion for severance; because of Connery's

lack of familiarity with the case, he was unable to ap-

prise the trial court of the allegedly inconsistent de-

fenses of Sanne and Skillern. A. 14-15; 609 S.W.2d at

775-76. Further, as noted in Judge Phillips' dissent

below (joined by Judge Roberts), petitioner's attorney

did not have sufficient time to read the transcript of

the prior trial and to interview the witnesses, some 50

in number, all of whom resided in some other town. A.

18-20; 609 S.W.2d at 779-81. Judge Phillips also pointed

out that while the trial court was saying that counsel

can be ready by reading the prior transcript, the State

called “critical witnesses" not called at the prior trial.

-~i7 -

A. 19; 609 S.W.2d at 780. There are many other similar

mistakes made by counsel due to the lack of time for

preparation and investigation. Counsel did not object

immediately when the trial court, in advising prospective

juror Ollie Gray, implicitly told him that the petitioner

had a prior felony record; accordingly, nothing was pre-

served for review. A. 9; 609 S.W.2d at 770. Similarly

no objection was made to the admission of testimony bear-

ing on the theft of a car, the acquisition of a gun which

was later identified as the murder weapon, and of other

drug transactions in which Skillern was implicated. A.

10-11; 609 S.W.2d at 771-72.

The above-mentioned facts clearly show that the

denial of the motion for a continuance irreparably harmed

the petitioner's defense. In discussing the counter-

vailing interests in an adequate defense and a speedy

trial, this Court has said:

It is true that great and inexcusable de-

lay in the enforcement of our criminal law is

one of the grave evils of our time. Conti-

nuances are frequently granted for unneces-

sarily long periods of time, and delays ...

have come in many cases to be a distinct re-

proach to the administration of justice. The

prompt disposition of criminal cases is to be

commended and encouraged. But in reaching that

result a defendant, charged with a serious

crime, must not be stripped of his right to

have sufficient time to advise with counsel and

prepare his defense. To do that is not to pro-

ceed promptly in the calm spirit of regulated

justice but to go forward with the haste of the

mob.

Powell v. Alabama, supra, 287 U.S. at 59. In cases such

as this where the death penalty may be imposed, the need

for "regulated justice" in place of the mob is especially

compelling. Skillern was “hurried to trial," id. at 58,

without sufficient time to prepare an adequate defense,

and as a result was denied his constitutionally guaran-

teed right to the effective assistance of counsel.

= 18 <-

C. Denial of Motion for Appointment of Co-Counsei

The trial court also denied petitioner's motion for

the appointment of Tinker as co-counsel. Such motions,

like motions for continuances, are usually within the

province of judicial discretion, However, similar stan-

dards should apply where there has been an abuse of dis-

cretion. In this case, the continued appointment of

Tinker, who was familiar with the facts and legal issues

in this case, as co-counsel would have ameliorated the

harm done by the denial of the motion for a continuance.

In United States v. Santos, 588 F.2d 1300, 1304 (9th

Cir. 1979), cert. denied, 441 U.S. 906 (1979), the court

found that the denial of a continuance to substitute

counsel for time to prepare for trial was, in part, remedied

by the fact that he was able to consult with other defense

counsel after he was appointed. Furthermore, another

factor mentioned in Gandy, supra, 569 F.2d at 1324, was

whether the lead counsel had an associate who was adequately

prepared to try the case. Clearly, collaboration with one

who is familiar with the case and prepared for trial will

avoid at least some of the dangers of insufficient time

for preparation. Therefore, by denying the motion for

appointment of co-counsel as well as the motion for a

continuance, the trial judge abused his discretion and

deprived petitioner of his right to effective counsel.

- 19

D. Conclusion

This case, in which the trial judge denied petitioner's

motion for continuance, and, in the alternative, for the

appointment of an attorney familiar with the case as co-

counsel because the same trial judge had removed that

attorney and substituted new counsel only three weeks

before trial, presents a strong claim of the denial of

the effective assistance of counsel guaranteed by the

Sixth, Eighth and Fourteenth Amendments to the Consti-

tution. The Texas Court of Criminal Appeals, by rejecting

petitioner's appeal on this ground, has placed itself in

conflict with numerous decisions of the courts of appeals

which demand far greater solicitude for the right of

defendants to effective representation. Especially with

petitioner's life at stake, this Court should grant

certiorari to resolve that conflict.

Il.

ADMISSION OF THE PATHOLOGIST'S TESTIMONY

ON THE QUESTION OF FUTURE DANGEROUSNESS

SEVERELY UNDERMINED THE FAIRNESS AND RELI-

ABILITY OF THE FACT FINDING PROCESS AT THE

PENALTY PHASE AND THEREBY VIOLATED PETI-

TIONER'S RIGHTS UNDER THE EIGHTH AND

FOURTEENTH AMENDMENTS

The trial court admitted the testimony of Dr. Joseph

C. Rupp, a practicing forensic pathologist, in the punishment

phase of the trial on the question of whether there was a

probability that the defendant would commit criminal acts

of violence that would constitute a continuing threat to

society. The Texas Court of Criminal Appeals conceded

that the trial court could not properly have found that

Dr. Rupp had such skill, knowledge, or experience of

human behavior that this opinion was likely to aid the

jury in determining the question of petitioner’s po’ «

future dangerousness. A. 12-13; 609 S.W.?31 7/%3-74. %.

court also found that the record did not demonstrate

= 20 <

os A ee pat see re ee ” ——-—- ss SOOT

sufficient firsthand knowledge of petitioner's personal

history to qualify Rupp to express a lay opinion, ibid.

Nonetheless, the court found that although the trial

court had erred in admitting the testimony, that error

was harmless because the evidence was not less persuasive

without Dr. Rupp's testimony. A. 13; 609 S.W.2d at 774.

A. Error in Capital Punishment Cases

This Court has long held that in cases where the

death penalty has been imposed, doubts regarding the

prejudicial effect of trial error should be resolved in

favor of the accused. Andres v. United States, 333 U.S.

740, 752 (1948). More recently, this Court has given

this view additional force from the constitutional re-

cognition that:

the penalty of death is qualitatively different

from a sentence of imprisonment, however long.

Death, in its finality, differs more from life

imprisonment than a 100-year prison term differs

from that of only a year or two. Because of

that qualitative difference, there is a corre-

sponding difference in the need for reliability

in the determination that death is the appropriate

punishment in a specific case.

Woodson v. North Carolina, 428 U.S. 280, 305 (1978) (plurality

Opinion) (footnote omitted). See also, e.g., Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); Beck

v. Alabama, 447 U.S. 625, 637-38 & nm. 13 (1980). It is

only by a scrupulous observance of procedural regularity

that the requisite degree of reliability in capital punish-

ment cases can be assured.

This point reinforces the traditional view that

courts should be “exceeding slow to disregard error as

harmless . .. in a capital case," People v. Rosario,

173 N.E.2d 881, 884 (N.Y. 1961), cert. denied, 368 U.S.

866 (1961), and that they should “attach increased impor-

tance to... errors” which occur in any case in which

= 21 «

“the extreme penalty [has]. . . been imposed." People

v. Crump, 125 N.E.2d 615, 625 (111. 1955).

Thus “[w]hat may be harmless error in a case with

less at stake becomes reversible error when the penalty

is death." Irving v. State, 361 So. 2d 1360, 1363 (Miss.

1978), cert. denied, 441 U.S. 913 (1979). Accord, Pait

v. State, 112 So. 2d 380, 385 (Fla. 1959). Because death

is different from all other penalties, errors occurring

during a capital trial are subjected to the most exacting

scrutiny. See Gardner v. Florida, 430 U.S. 349 (1977).

But there are additional reasons for judicial reluc-

tance to disregard as harmless any error committed during

the penalty phase of a capital case. To the extent that

any such error creates “a substantial risk that [the

death penalty will] .. . be inflicted in an arbitrary

| and capricious manner," Gregg v. Georgia, 428 U.S. 153,

188 (1976) (plurality opinion), it arises to constitutional

| proportions, and triggers the familiar requirements that

a reviewing court must satisfy itself beyond a reasonable

doubt that the error was harmless, Chapman v. California,

| 386 U.S. 18 (1967).

It is particularly difficult to quell reasonable

doubt that an error potentially affecting the choice of

| sentence may in fact have influenced a jury to return a

verdict of death, since the range of evidence which the

| jury may consider at the penalty phase of a capital trial

is uniquely broad, and the jury has unique latitude in

deciding whether or not "the circumstances of the offense

together with the character and propensities of the offender”

justify the imposition of the death penalty, Gregg v.

Georgia, supra, 428 U.S. at 189. In this context, one

court has commented:

» 22 «

the jury may conceivably rest the death penalty

upon any piece of . . . data or any one factor

in [the] welter of matter [which may be intro-

duced at the penalty phase]. The precise point

which prompts the penalty in the mind of any

one juror is not known to us and may not even

be known to him. Yet dark ignorance must be

compounded twelve times and deepened even fur-

ther by the recognition that any particular

factor may influence any two jurors in pre-

cisely the opposite manner.

We cannot determine if other evidence before

the jury would neutralize the impact of an

error and uphold a verdict. Such factors as

the grotesque nature of the crime, the cer-

tainty of guilt, or the arrogant behavior of

the defendant may conceivably have assured the

death penalty despite any error. Yet who can

say that these very factors might not have

demonstrated to a particular juror that, a de-

fendant, although legally sane, acted under the

demands of some inner compulsion and should not

die? We are unable to ascertain whether an

error which is not purely insubstantial would

cause a different result; we lack the criteria

for objective judgment.

Thus any such substantial error in the pe-

nalty trial may have affected the result; it is

"reasonably probable” that in the absence of

such error "a result more favorable to the

appealing party would have been reached."

People v. Hines, 390 P.2d 398, 402 (Cal. 1964). See also

People v. Hamilton, 383 P.2d 412, 431 (Cal. 1963); People

v. White, 446 P.2d 993, 999 (Cal. 1968). The difficulty

of determining the motivations for jury decisions in the

penalty phase of a capital trial necessitates scrupulous

adherence to procedural due process requirements.

B. Error in the Penalty Phase under the Texas Statute

The dangers apparent in attempting to discern whether

an error has influenced any jury members are particularly

acute under the Texas capital punishment statute. According

to the Texas statute, Tex. Code. Crim. Pro. Art. 37.071,

the jury must unanimously agree that each of the three

special issues, including the question of defendant's

future dangerousness, have been proven beyond a reasonable

doubt. Clearly, where an error in admission of evidence

has been made, it is almost impossible to be sure beyond

a reasonable doubt that without that piece of evidence

| not even one juror would have entertained some doubt on

any of the special issues.

"These dangers are even more striking where the error

lays in the admission of tes'imony on the question of

future dangerousness by an individual who is purported to

be an expert. Expert testimony may be given great weight

by jurors who have little personal knowledge of the likeli-

hood that any particular criminal would pose a future

danger to society. It is possible that some jurors may

mistakenly rely on the expert's testimony in place of

their own judgment because of an earnest desire to place

the burden of imposing the death sentence on another

person. 2/ Because of the strong possibility of reliance

on allegedly expert testimony as well as the substantial

interest in carefully scrutinizing error in capital cases

to ascertain chat it is harmless beyond any reasonable

doubt, the error in this case should be found to have

deprived the petitioner of the fairness and reliability

in capital sentencing guaranteed by the Eighth and

Fourteenth Amendments. It is impossible to be certain

beyond a reasonable doubt that the testimony of Dr. Rupp

on the petitioner's future dangerousness did not influence

a single juror in his vote on that issue.

2/ Scofield, Due Process in the United States Supreme

Court and the Death of the Texas Capital Murder Statute,

8 Am. J. Crim. L. 1, 40 (March 1980).

—)

IIl.

ADMISSION OF AN INDICTMENT WHERE THE

FINAL CONVICTION FOR A LESSER OFFENSE

WAS AVAILABLE SEVERELY UNDERMINED THE

FAIRNESS AND RELIABILITY OF THE FACT

FINDING PROCESS AT THE PENALTY PHASE

AND THEREBY VIOLATED PETITIONER'S

RIGHTS UNDER THE EIGHTH AND FOURTEENTH

AMENDMENTS

In the penalty phase of the trial, where admission

of prior criminal offenses is permitted, the trial court

admitted into evidence the indictment for murder with

malice of petitioner's brother even though petitioner had

been convicted of murder without malice in that case.

The Texas Court of Criminal Appeals upheld the admission

of the indictment into evidence. A. 12; 609 S.W.2d at

773.

Under Tex. Code. Crim. Proc. Art. 37.071(3) (a), the

evidence of a prior criminal record which is permitted

after a finding of guilt is limited to a final conviction

in a court of record, or a probated or suspended sentence

that has dacktten prior to trial, or any final conviction

material to the offense charged. However, Texas courts

do permit pleadings, indictments, complaints, and infor-

mations as evidence to prove the prior criminal record.

Knox v. State, 487 S.W.2d 322, 326 (1972). Furthermore,

under the procedure for the penalty phase of a capital

trial, the court is given discretion to admit all relevant

evidence. Tex. Code Crim. Pro. Art. 37.071(a). However,

Texas cases permitting testimony about prior criminal

conduct other than prior final convictions have only

admitted evidence of unadjudicated crimes. Garcia v.

State, 581 S.W.2d 168 (1979); Quinones v. State, 592

S.W.2d 933, 945 (1980); Milton v. State, 599 S.W.2d 824

(1980). No case has held that in the penalty phase of a

death penalty case an indictment alleging a greater of-

fense than the final conviction is admissible.

» 25

The central question is whether evidence of an in-

dictment for a prior criminal offense is relevant where

the final conviction for a lesser offense is available.

In Jurek v. Texas, 428 U.S. 262, 276 (1976), this Court

said that "[w]hat is essential is that the jury have

| before it all possible relevant information about the

individual defendant whose fate it must determine." But

| the central constitutional concern has been to make sure

that all possible mitigating factors are admitted because

of the Eighth Amendment prohibition of cruel and unusual

punishment. In Lockett v. Ohio, 438 U.S. 586, 608 (1977),

the Court found the Ohio capital punishment statute uncon-

stitutional because of the limited range of mitigating

circumstances that could be considered. The Court stressed

the need for individualized consideration of capital

cases:

Given that the imposition of death by public

authority is so profoundly different from all

other penalties, we cannot avoid the con-

clusion that an individualized decision is

essential in capital cases. The need for

treating each defendant in a capital case with

that degree of respect due the uniqueness of

the individual is far more important than in

noncapital cases. A variety of flexible tech-

niques -- probation, parole, work furloughs, to

name a few -- and various postconviction re-

medies may be available to modify an initial

sentence of confinement in noncapital cases.

The nonavailability of corrective or modifying

mechanisms with respect to an executed capital

sentence underscores the need for individualized

consideration as a constitutional requirement

in imposing the death sentence.

Id. at 605. The Chief Justice, writing for the plurality,

| explained the decision in Jurek as upholding the Texas

statute "because three judges concluded that the Texas

Court of Criminal Appeals had broadly interpreted the

second question . . . so as to permit the sentencer to

consider ‘whatever mitigating circumstances’ the defen-

dant might be able to show." Id. at 607.

«2 =

Clearly, the constitutional support for admission of

all possible mitigating factors does not extend to the

admission of aggravating factors. Indeed, because of the

nature of the Eighth and Fourteenth Amendment rights at

stake in the imposition of the death penalty, there is a

special need for careful scrutiny of evidence admitted to

support the imposition of the death penalty. Woodson v..

North Carolina, supra, 428 U.S. 280, 305 (1976) (plurality

opinion).

In this case, the trial court admitted an indict-

ment, which is only an allegation, where the final con-

viction, which is the jury's determination of truth, was

available. In this context, there is obviously no sub-

stantial interest in imposing the death penalty based on

mere allegations. Where the final conviction is avail-

able, the indictment -- being only an allegation -- is

simply not relevant to the question of whether the defen-

dant presents a future danger to society. Admission of

the indictment in this case deprived petitioner of the

reliability in capital, sentencing guaranteed by the

Eighth and Fourteenth Amendments. As was discussed in

the previous section, the application of the harmless

error doctrine is not appropriate for errors made in the

admission of aggravating evidence in the penalty phase of

a capital punishment trial.

» 27

IV.

DEATH IS A DISPROPORTIONATELY SEVERE AND

UNCONSTITUTIONAL SENTENCE FOR ONE WHO HAS

NOT TAKEN LIFE, ATTEMPTED TO TAKE LIFE, OR

INTENDED TO TAKE LIFE

At the second trial, Sanne admitted killing Randel;

thus it is undisputed that Skillern did not personally

commit the act of murder. Furthermore, there is no

evidence placing Skillern at the scene of the murder nor

is there any evidence that Skillern intended that Randel

be murdered. Therefore, petitioner's sentence raises the

question of whether the imposition of the death penalty

in a case of this kind is "so disproportionate in com-

parison to the nature of the defendant's . . . involve-

ment in the capital offense as independently to violate

the Eighth and Fourteenth Amendments." Woodson v. North

Carolina, supra, 428 U.S. at 305 n. 40 (plurality opi-

nion).

It is a settled Eighth Amendment principle that

"punishment for crime should be graduated and propor-

tioned to offense." Weems v. United States, 217 U.S.

349, 366-67 (1910). This Court has held that a punish-

ment is unconstitutional where it "(1) makes no reason-

able contribution to acceptable goals of punishment and

hence is nothing more than the purposeless and needless

imposition of pain and suffering; or (2) is grossly out

of proportion to the severity of the crime. A punishment

might fail the test on either ground." Coker v. Georgia,

433 U.S. 584, 592 (1977). While the Court has concluded

that “the death penalty for deliberate murder [is] neither

the purposeless imposition of severe punishment nor a

punishment grossly disproportionate to the crime,” ibid.,

= 26 <

it held in Coker that the death penalty was dispropor-

tionate and therefore unconstitutionally excessive for

the non-homicidal crime of rape.

Petitioner's death sentence does not and cannot rest

upon a finding that he deliberately committed a paeder,

At most it rests upon a finding that petitioner was a

participant in a non-homicidal crime. His participation

in that crime has been made the basis for a death sentence

exclusively through the operation of vicarious-liability/

felony-murder doctrines that permitted him to be convicted

of murder despite the absence of any intent to kill or

action of his directed to the killing. Nothing else in

this record sustains the death penalty.

The history of the actual use of the death penalty

in the recent past confirms without question that the

combined effect of the exercise of jury discretion and

the discretion of executive and prosecuting officials has

been the de facto abolition of the death penalty for non-

triggermen in felony-murder situations. A search for all

reported appellate opinions in post-1954 cases submitted

to the Court in Lockett v. Ohio, supra, reveals only six

cases out of 363 where clearly identifiable felony-murder

non-triggermen were executed. The last such execution

took place in 1955, twenty-six years iy By comparison,

there have been 72 executions for rape in this country

since 1955. See Lockett v. Ohio, supra, 438 U.S. at 624-

25 (concurring opinion of Justice White). Thus, it is

apparent that executions for homicides not clearly com-

mitted by the person executed have been a good deal less

prevalent in this country than the practice declared

- 29 -

unconstitutional in Coker v. Georgia, supra. Looking as

this Court did in Coker to "guidance in history and from

the objective evidence of the country's present judg-

ment,” id. at 593, one finds that the death penalty for

non-triggermen is virtually extinct.

The behavior of juries and public officials in non-

triggerman cases is indicative that there does not exist

with regard to these cases such "moral outrage," Gregg v.

Georgia, supra, 428 U.S. at 183 (plurality opinion), that

"the only adequate response may be the penalty of death,"

id. at 184. And, whatever assumptions may be made regard-

ing the deterrent effect of the death penalty for "care-

fully contemplated murders," id. at 186, or in categories

of cases for which "other sanctions may not be adequate,"

ibid., it is simply common sense that the use of the

death penalty against a non-triggerman who does not commit,

attempt, or intend a killing will not reduce the incidence

of murder. Thus, the execution of petitioner and of

Similarly situated murderers-by-legal-fiction would "be

so totally without penological justification that it

results in the gratuitous infliction of suffering." Id.

at 183.

This issue was raised in Lockett v. Ohio, supra, 428

U.S. at 609 n. 16, but the plurality did not address it.

However, Justice White based his concurring opinion on

the view that it violates the Eighth Amendment to impose

the penalty of death without a finding that the defendant

" possesed a purpose to cause the death of the victim. Id.

at 624. Justice White said:

=~ 36 «

The value of oo punishment as a deter-

rent to those lacking a purpose to kill is

extremely attenuated. Whatever questions may

be raised concerning the efficacy of the death

penalty as a deterrent to intentional murders

. - « its function in deterring individuals

from becoming involved in ventures in which

death may unintentionally result is even more

doubtful. Moreover, whatever legitimate pur-

poses the imposition of death upon those who do

not intend to cause death might serve if in-

flicted with any regularity is surely dis-

sipated by society's apparent unwillingness to

impose it upon other than an occasional and

erratic basis.

Id. at 625. Justice Rehnqdist and Justice Blackmun were

troubled by Justice White's insistence on a requirement

of culpable intent for infliction of the death penalty.

Id. at 635 (Rehnquist, J. dissenting); id. at 614

(Blackmun, J. concurring). But Justice Blackmun explained

his unease by his doubts that, "the Court, in regard to

murder, could easily define a convincing bright-line rule

such as was used in regard to rape to make workable a

disproportionality approach." Id. at 614 (Blackmun, J.

concurring) (footnote omitted).

However, the question arises in this case not only

because Skillern did not intend the killing, but also

because he did not perform any act directed to the kill-

ing -- or at least the record is silent in that regard.

There is little problem in drawing the line between trigger-

men and non-triggermen in felony-murder situations where

the non-triggermen has not planned the killing. As Judge

Phillips noted in his dissenting opinion below, "[a]t

trial it was undisputed that Sanne not Skillern shot the

deceased." A. 17; 609 S.W.2d at 778.

The strongest evidence before the trier of fact

concerning petitioner's participation in the crime itself

was his leaving in a separate car in the same direction

that the deceased and Sanne went, his arrest the following

«Sh 's

morning in possession of the deceased's pistol, perhaps

the ring and the “buy” money from the motel room where

the deceased had stayed, and the similarity between a

pistol found on the side of a road some thirty miles

distance from the scene of the shooting and one possessed

by petitioner some months before the shooting.

There is an absolute absence of any affirmative

evidence showing petitioner intended the death or partici-

pated in it.

Therefore, because petitioner did not personally

commit the murder nor plan it, this Court should grant

certiorari to determine whether the death sentence should

be found disproportionately severe and unconstitutional

under the Eighth Amendment.

CONCLUSION

For the foregoing reasons, the Writ of Certiorari

should be granted.

" PINKER and TOR

622 S. Tancahua/P.O. Box 276

Corpus Christi, Texas 78403

ATTORNEY FOR PETITIONER

- 32 -

APPENDIX A

--<- Fi

SO OOO AE Oe ONG LALLA LE Ge Bort aE ee,

762 . Tex.

three considerations in the property divi-

sion: James’ conduct, the disparity of earn-

ing power of the spouses, and the rights of

the parties’ adult disabled son.

The second reason given by the court of

_ civil appeals in concluding that fault should

not be considered is that fault does not ever

lie totally with one spouse, and that consid-

eration of fault would “require a trial judge

to assess each and’ every bicker, nag and

pout, as well as greater faults, of .each

spouse.” 594 S.W.2d at 545. Again, we do

not agree. We are not here concerned just

with bickers, nags and pouts. Here, we

have unchallenged findings of cruelty, adul-

tery, and desertion. Both the Legislature

and the courts have traditionally considered

these to be “fault.” In this situation, we

agree with the trial court that fault may be

a consideration to be weighed in the divi-

sion of property. This does not mean that

fault must be considered in all cases where

a divorce is granted on fault grounds. Our

holding is that it may be considered.

{5} In considering fault, along with oth-

er factors, the trial court is directed by

section 3.63 to make a property division

which is “just and fair.” The. division

should not be a punishment for the spouse*

at fault.’ That would be an abuse of the

trial court's discretion. There is a differ-

ence between making a just and right divi-

sion of the property with due regard for the

children of the marriage, as approved in

Hedtke almost sixty years ago, and punish-

ing the errant spouse. In general, the trial .

courts in Texas have perceived this distine-

tion. The trial court has broad discretion in

determining the disposition of property in

divorce actions and this discretion will not

be disturbed unless an abuse of discretion is

shown. McKnight v. McKnight, 543 S.W.2d

at 866; Cockerham ‘ v. 527

S.W.2d 162, 173 (Tex.1975); Bell v, Bell, 513

S.W.2d 20, 22 (Tex.1974), Considering the

record before us, we are unable to say that

the trial court abused its discretion,

{6} In his brief in the court of civil

appeals, James complains that there was no

parties in a divorce action. Maggard v. Hag-

gard, 550 S.W.2d 374, 378 (Tex.Civ.App.-Dal-

las 1977, no writ); Waggener v. Waggener, 460

A-1

609 SOUTH WESTERN REPORTER, 2d SERIES:

evidence to support the award of attorney's

fees to Laura. The court of civil appeals

did not rule on this point. James filed no

motion for rehearing in the court of civil

appeals and no brief in this Court. He.

attempted to raise the point.on oral argu...” |

ment. "

od S' ee

Neither party complained of ‘the action,’ 4 '

or inaction, of the court of civil appeals, and

neither party has a point or cross-point in 3

this Court on attorney's fees. While we —

may look to points in the court ‘of civil .

appeals upon which to affirm that court's

judgment, the judgment of that court was

that of reversal and remand. The attor-

ney’s fees point was a “no evidence” point;

and, if sustained and severed, it would have

may not, therefore, use that point here.

* resulted in a reversal and rendition.. We ,/-

‘1.

Since the attorney's fees question has. not. *

been preserved to this Court, we have no.

jurisdiction to decide it...”

The judgment of the court of civil ap-

peals is reversed and the judgment of the ~.”

; Pam? ott

trial court is affirmed.

" - ,

sat i @ “ick wh

Charles Victor SANNE’ and Doyle * .

Edward Skillern, Appellant, © *' ;

v. . ‘ ® Sars

The STATE of Texas, Appellee. a

Nos, 63254, 63255, A

Court of Criminal Appeals of Texas,

Sept. 10, 1980,

Rehearing Denied Nov. 5, 1980 for +

No. 8240 then

Rehearing Denied Dee. 10, 1980 for _

No. 63256. » 7

Following remand, 559 S.W.2d 828, de-

fendants were convicted in the 3€th Judicial

S.W 2d 251, 254 (Tex.Civ.App.-Dallas 1970, no

writ) . . Z o 2

: a

‘

» Ape < Os

i. tobe

-SANNE y. STATE _

Cite as, Tex.Cr App. 608 S.W.26 762 * ll

| peststet Gnavts’ Asnsute Open, Sehin:

Miller, J., of capital murder, and they ap-

_ pealed. The Court of Criminal Appeals, ~

Odom, J., held that: (1) defendant, who

| received favorable answer to second punish-

ment issue in first capital murder trial,

should not have been subjected to risk of

vote for death penalty only if victim were

very close friend; (3) probable cause to stop

and detain occupants of automobile arose

when officers learned that the automobile

was stolen; (4) arrest of defendants was

authorized when defendant, who pointed to

| his belt when asked whether he was carry-

ing weapon, was found in possession of

| second punishment issue as to second de-

fendant; (7) neither defendant was entitled

to severance; (8) absent showing of how

discretion for trial court to overrule defend-

ant’s motion for continuance; and (9) nei-

ther defendant was entitled to eppointment

of additional counsel.

~ ment for life, judgment as to one defend-

ant's appeal is affirmed; judgment as to

other defendant affirmed.

Phillips, J., dissented and filed opinion

in which Roberts, J., joined.

1. Criminal Law o 193

Defendant, who received favorable an-

swer to second punishment issue in first

capital murder trial should not have been

subjected. to risk of receiving penalty of

death upor retrial following reversal of

first conviction. Vernon's Ann.C.C.P. art.

+. ST.0TL

A-2

As reformed to punishment by confine-

en ee eee ee ee

2 Constitutional Law @=250.2(4), 267

examination of entire venire where defend- ;

ant did not establish that he would have =i

exercised \is peremptory challenges differ- '

ently had he been permitted to do so. Ver-

non's Ann.C.C.P. art. 35.13; U.S.C.A.Conat.

Amend. 14. “ ;

3% Jury e108 ~~

In capital murder satan it was.

proper to sustain state's challenge for cause

to venireman who stated he could vote for “.

death penalty only if victim were very close

friend. Vernon's Ann.C,C.P. art. 35.16."

4. Jury 149 : ~ ill

oo aes gan ond eantiiaftie<

motion for mistrial sought after trial court

excused accepted and sworn juror for illness

before jury was completed where it had ~

become apparent that the juror would be .

unable to serve. Vernon's Ana.C.C.P, arta. *

35.16, 35.19. 7 Pom

5. Criminal Law 172

A “jury” had not been impaneled whee

accepted and sworn juror was excused for

illness where the juror was excused before ,

selection of jury was completed, and thus -

jeopardy had not attached before the juror ‘4

was excused, and defendant was not twice ,

in jeopardy. Vernon's Ann.C.C.P.

arts. 35.16, 35.19; U.S.C_A.Const- Amend. 5. .

6. Jury 40

It was proper for trial court to excuse,

sua sponte, venireman upon discovering de-

fect in venireman's hearing. Vernon's Ann.

C.C.P. arts. 35.16(aX4), 35.19. :

1. Jury @83(1)

It was not error to overrule defendant's

wok

++.

° .

. _ . 4,

; ,

——_ 6

— we

LL A OS ES ee

a &

164 Tex. 609 SOUTH WESTERN REPORTER, 2d SERIES

8. Jury @131(15)

No abuse of discretion occurred in lim-

iting defendant's cross-examination of veni-

reperson where the venireperson stated she

. Could render impartial verdict and proposed

questions were cumulative of those already

asked and answered. e

9. Jury @131(4) “7 ee

Record failed to establish error in con-

nection with alleged action of trial court in

~ implicitly advising prospective juror that

defendant may have had prior felony rec-

ord. .

10. Jury @110(12)

No error occurred in denying defend-

ant’s challenge for cause to venireman

where defendant had expressly accepted the

juror and codefendant exercised perempto-

ry challenge against the juror. -

11. Arrest €>63.5(6)

Probable cause to stop and detain occu-

pants of automobile arose when officers

learned that the automobile was stolen.

U.S.C.A.Const. Amend. 4.

12. Arrest @63.4(16)

: ‘Arrest of defendants, who were lawful-

ly stopped after officers learned that auto-

mobile defendants were using was stolen,

was authorized when defendant, who point-

ed to his belt when asked whether he was

carrying weapon, was found in possession of

pistol. U.S.C.A.Const. Amend. 4.

13. Criminal Law = 394.5(2)

Defendant lacked standing to challenge

admission of gun, ring, and money taken

from codefendant following their arrest and

search. U.S.C.A.Const. Amend. 4.

14. Criminal Law o= 1169.3

“ Codefendant’s admission that he shot

victim with 38 revolver obtained from par-

ticular third person rendered harmless any

error committed in admitting testimony of

state's ballistics expert, who was unable to

express opinion respecting particular .38 re-

volver introduced into evidence.

15. Criminal Law = 1169.2(2)

Any complaint as to admission of testi-

mony that automobile in which defendants

A-3

were apprehended was stole from witness’

home was waived where other testimony

OES

that the automobile was reported stolen had

been given without objection. eS ee

16. Criminal Law ¢=>1036.1(1) 2. °< =".

Failure to object at trial to testimony

waived claimed error, ©) 7 7 F

PRED “ey

17. Criminal Law e=3693 0°

e°R ">

Testimony that certain phone number &

at address in specific city was registered to

specific party did not, either expressly or by

implication, show offense extraneous - to

_ Charged capital murder, and thus it was not

improper to admit such testimony. . rr

18. Criminal Law @=1130(2) “°° 7°

Ground of error’ challenging admission ~

of 16 different exhibits offered by state on

basis that admission of such exhibits had

“cumulative” prejudicial effect was multi- “ti

farious and presented nothing for review. -

Vernon's Ann.C.C.P. art. 40.09, subd. 9.

19. Criminal Law @>696(6) Mg .3f%

Defendant was not entitled to have po- -

lice officer’s testimony concerning defend-

ant’s reputation for truth and veracity

stricken where objection was not urged at .

earliest opportunity, and cross-examination

and voir dire of the officer revealed basis

for his testimony sufficient to qualify him. ©

20. Criminal Law e=381

Any objection based on remoteness of

time at which witness became acquainted

with defendant's reputation would go to

weight, not admissibility, of reputation tes

timony.

21. Indictment and Information = 137(1)

It was not error to overrule defendant's

motion to quash indictment and his special

plea in bar challenging statute governing

second punishment issue in capital murder

prosecutions on basis that it failed to afford

jury channeled and defined guidance and

instruction as to what conduct or other fac-

tors may be appropriately considered by

them in determining whether defendant

would probably commit criminal act of vio-

lence constituting continuing threat to soci-

ety. Vernon’s Ann.C.C.P. art. 37.071.

3 ad ieee

e "+e

TAI T° «oom

“a

—

OUST SE RTI

ST Te Sy ey yee ow wen

SE A ee ean ee

OT TOT CEN ees ye

09 hit Se

eee S atc AK... % ted

22. Homicide 354

In capital murder prosecution, it was

not error to admit during punishment phase

indictment alleging murder with malice,

even though conviction was for murder

without malice. Vernon’s Ann.C.C.P. arts.

37.07, § 3a), 37.071(a). *

. 23. Homicide 354

In capital murder prosecution, evidence

-as to defendant's joking conversations

about having buried brother under concrete

* patio and that defendant should have killed

. brother’s wife instead of brother because

she was uglier of the two, and evidence as

to abortive burglary plan, did not exceed

scope of prior criminal record admissible in

punishment phase. Vernon's Ann.C.C.P.

arts. 37.07, § 3(a), 37.071(a).

24. Homicide 354

Trial court has wide discretion in ad-

mitting or excluding evidence at punish-

ment phase of capital murder trial. Ver-

non’s Ann.C.C.P. arts. 37.07, § 3(a), 37.-

071{a).

25. Criminal Law 479

It was error to allow forensic ‘iii

gist to express his opinion as to second

punishment issue in capital murder prosecu-

tion where trial court could not properly

have found that the pathologist had such

skill, knowledge or experience about human

behavior that it was probable his opinion

would be of assistance to jury in making

factual determination whether there was

probability that defendant would commit

criminal acts of violence and be continuing

threat to society in future, and record did

not reflect that the pathologist had suffi-

cient firsthand familiarity with defendant's

personal history to qualify him to express

lay witness opinion that defendant would

be continuing threat to society. Vernon's

Ann.C.C.P. art. 37.071. |

26. Homicide ¢=354

Error in allowing forensic pathologist

to express opinion as to second punishment

issue in capital murder prosecution was

harmless where evidence abundantly dem-

onstrated that defendant had antisocial per-

sonality, and record established that minds

SANNE v. STATE

Cite as, Tex.Cr.App., 608 S.W.24 762

of average jury would not have found

State’s case less persuasive had the patholo-

gist’s opinion testimony not been admitted,

Vernon's Ann.C.C.P. art. 37.071.

27. Homicide e354 '

In capital murder preseention, otdenee wae

presented at punishment phase, together ~.

with evidence presented at guilt phase, was

sufficient to support verdict on second pun-*

ishment issue. Vernon's — art. °

37.071. = ae er

i +7 oo

= . .

28. Homicide ¢=354 .:

Law of parties applies to guakhencie”

issues in capital murder case, and thus fact —

that codefendant did the shooting did not’ .

* Tex. 165

prevent evidence from being sufficient to

support submission of first and third pun-

ishment issues. Vernon's Am.OGP... ort *

29. Criminal Law @=622(2)

It was not abuse of discretion to refuse |:

_ to grant defendant's pretrial motion for . -

severance sought on basis that codefendant. _

had ptior felony convictions admissible

against codefendant where defendant also—

had prior conviction that was admissible at. .

trial, and defendant feiled to establish how ~ ©

he would be prejudiced by joint trial with

codefendant.’ Vernon's Ann.C.C.P. | arts.

36.09, 37.07, § 3(a), 37.071, 38.29, 40.09, subd.

tote te ny ing? .

30. Criminal Law ¢=622(4)

It was not timely to urge motion for:

severance at end of guilt stage of capital

murder prosecution and before evidence on

punishment phase was heard. Vernon's

Ann.C.C.P. arts. 36.09, 40.09, subd. 9. .-

31. Criminal Law €=622(2) .

. It was not error to deny a motion to

sever sought on basis that codefendants

_ would raise inconsistent defenses where

there was no showing that trial court was

apprised of the allegedly inconsistent de-

fenses and there was no support in record

for such aspect of the motion. Vernon's .

Ann.C.C.P. arts. 36,09, 40.09, subd. 9.

a ee

'- 766 Tex.

* “ a if

32. Criminal Law = 5§90(2) _

Absent showing of how defendant was

prejudiced by fact that counsel had only 22

days to prepare defense following appoint-

ment, it was not abuse of discretion for trial

court to overrule defendant’s motion for

continuance.

33. Criminal Law ¢=641.5

The “category of cases” principle did

not entitle defendant to appointment of

additional counsel in capital murder prose-

cution, since there is no mandatory provi-

sion for appointment of additional counsel

in capital cases. ;

3H. Criminal Law 641.5

’ In capital murder prosecution, it was

not abuse of discretion to refuse to appoint

. additional defense counsel where defendant

failed to show harm arising from such fail-

ure. .

35. Indictment and Information ¢=87(3)

' Allegation in indictment that offense

was committed “anterior to the present-

ment of this indictment” was sufficient to

meet requirement that indictment disclose

affirmatively that it was presented subse-

quent to date of alleged offense. Vernon's

Ann.C.C.P. art. 21.02, subd. 6. pete

36. Criminal Law ¢641.12(1)

Witnesses ¢= 266

' Record failed to establish that defend-

- ant was denied right of cross-examination

and right to effective assistance of counsel

on numerous occasions throdghout capital

murder trial when trial court allegedly as-

sumed role of prosecution.

Allen C. Lee, Rockport, for Sanne.

David B. Connery, Jr., Houston, for Skil-

lern. ; >:

William L. Hardwick, County Atty.,

George West, Thomas L. Bridges, Dist.

Atty., Sinton, Charles D. Butts, Sp. Pros.

Atty., San Antonio, Robert Huttash, State's

Atty., Austin, for the State.

Before the court en banc.

609 SOUTH WESTERN REPORTER, 2d SERIES

OPINION

~ ODOM, Judge. .

‘These are appeals from convictions for

capital murder. Appellants were charged

as parties to the offense and were tried —

together a second time after the first con- ;

viction was reversed by this Court. Skil-

“

lern v. State, 559 S.W.2d 828. Punishment

was assessed at death in each case after the 7

jury returned affirmative answers to the’

punishment issues ae under. meee

37.071, V.A.C.C.P. . <

' Eighteen penis of error ‘te. been -

raised by Sanne and twenty-three by Skil-~ -.:

lern. For convenience, we will group tons

gether for discussion those grounds from

the two briefs which touch upon sianilar:

points of law.

Ths eultidedia’ tl she telgmes Gatien ’

The facts forming the basis of this prosecu-

has not been challenged by either appellant. ;

tion are summarized in the opinion on the ~

State, supra. In addition, Sanne took the

stand in his own behalf at the second trial

‘appeal of the first conviction. Skillern'v. =

and admitted shooting the deceased, but

claimed he acted in self-defense... wg

*" SANNE’S JEOPARDY ISSUE.’

(1) In bis first and second gresnde of

mitted reversible error in refusing to grant |

his pretrial motion of former jeopardy and

_ - error Sanne urges that the trial court com- ~

in refusing to instruct the jury to answer —

“No” to the second punishment issue under

Art. 37.071, V.A.C.C.P. He bases his argu- -

ment on the jury's finding in his first trial

that he would not commit criminal acts of

violence that would constitute a continuing ©

threat to society, and the consequent assess-

ment of life imprisonment. As a result of

the first jury's decision, Sonne contends, he

should not have been forced to run the risk

second trial.

Recently, in Brasfield Vv State, ‘00

S.W.2d 288, this Court held that the princi-

ple of Burks v. United States, 437 U.S. 1, 98

S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene

v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57

court’s reversal of a death penalty on the

basis of insufficient evidence to sustain”the

jury’s affirmative answer to the second

punishment issue. Accordingly, it was held

that the State could not again seek the

death penalty against the defendant. The

defendant, therefore, was accorded the pro-

tection upon retrial which accrued to him

when the appellate court found as a matter’

of. law that life imprisonment was the only

- verdict permissible under the evidence. A

fortiori, when, as in the case at bar, the

defendant has in fact received a favorable

verdict on the issue of future dangerousness

in his first trial, he should be entitled to the

_ game protection against having his life

placed in jeopardy a second time. We hold,

then, that having received a favorable an-

swer to the second punishment issue in his

first trial, appellant Sanne should not have

been subjected to the risk of receiving the

penalty of death upon his retrial following

reversal of his first conviction, and that his

SANNE v. STATE

Cite as, Tex.Cr.-App.. 609 S.W.24 762

L.Eu.2d 15 (1978) applies to the appellate

state and federal constitutions to require

the defendant in a capital case to exercise

peremptory challenges upon. the examina- -

Tex: 767

tion of individual prospective jurors, and to.” ~~

deny him the right of the defendant in a

non-capital felony case to make a sensible’

and circumspect exercise of his peremptory

~~ °

challenges after examination of the entire ~ .-

venire. ee ae, ee I, Pa iis

Assuming, without deciding, that this’ ne

constitutional challenge is not without mer- - oom

it, we are constrained to find that harm has». *,

not been demonstrated under'the facts of |. '.

this case. The flaw in Skillern’s argument ©.

is that he has not shown that he would have eS

exercised his peremptory challenges differ- “

ently, and that a jury he did not want was

impaneled as a result of the procedure fol-'. “-:

lowed. That such a showing is-incumbent *..°

upon defense counsel may be extracted «°-'_

from the rules previously enunciated by this»

Court with respect to determination of + ~

harm arising from jury selection errors, dis- +’ -

cussed in Payton v. State, Tex.Cr.App., 872. °°

punishment must be reformed from death § W.2d 677. «gata tanass

me ee ee

‘

to life. This holding, however, affects only

the punishment stage, and does not affect

the jury's determination of appellant's guilt

of the crime charged. We therefore must

consider the other grounds of error ad-

dressed to the guilt stage of appellant

Sanne’s trial.' eae

; JURY SELECTION ISSUES

. [2] Skillern’s fifth ground of error rais-

es a challenge to the constitutionality of

Article 35.13, V.A.C.C.P., which provides in

part:

“A juror in a capital case ... held to

be qualified, shall be passed for accept-

ance or challenge first to the state and

then to the defendant. Challenges to jur-

ors are either peremptory or for cause.”

“The claim is made that it violates the equal

protection and due process clauses of the

1, Sanne’s fifteenth, sixteenth, seventeenth, and

eighteenth grounds of error raise various con-

tentions pertaining to the punishment phase of —

* this prosecution. Since the judgment is to be

reformed to reflect a sentence of life imprison-

ment, thus giving Sanne the most favorable

verdict possible in this type of case, none of

A-6

We will describe two methods that could” ”

have been used to show the harm required —; .

to preserve this constitutional challenge for“ —

review. On the one hand, a defendant may

choose to use a peremptory challenge to. "ip

exclude a prospective juror while claiming

he should have the right to reserve the

strike until after the entire venire has been ~

questioned. In such a case, harm would be -

shown by use of all peremptory challenges,

denial of a request for additional perempto-

ry challenges, and the seating of a juror °

upon whom the defendant would have exer-

cised peremptory challenge. This rule al-

lows correction of any error by giving the

defendant an extra peremptory challenge

for use against the venireman the defend- 4

ant would have stricken if given a choice —

between him and the venireman against ©

whom a peremptory had already been used.

these grounds need be discussed. Phelps v.

State, Tex.Cr.App., 594 S.W.2d 434; Marini v.

State, Tex.Cr.App., 593 S.W.2d 709. " x

2. The similarity between this rule and that a>

plicable in the case of an improper denial of a

challenge for cause should be apparent. See

768 Tex.

In the case at bar the record reflects two

occasions on which Skillern exercised per-

- emptory challenges while claiming the right

to reserve them. He did not, however,

show a request for additional peremptory

strikes after exhaustion of his peremptory

challenges, the next vital step in demon-

strating harm. No error has been shown.

from this standpoint.

On the other hard, a defendant may, as

' Skillern did with respect to two veniremen, _

join the issue by declining to use a peremp-

tory challenge to excizde a prospective jur-

or while claiming he should have the right

to reserve the strike. In such a situation,

is the defendant must show that at the end of

examining the venire, he made a retroactive

request to exercise his peremptory chal-

lenges in the manner to which he claims he

is entitled. In this way, the trial court is

accorded the opportunity to nullify any er-

ror stemming from adherence to the com-

plained of procedure. In the case at bar,

the record fails to reflect that Skillern

made such a request. Accordingly, we do

not reach the merits of this ground of error.

The fifth ground of error is overruled.

(3) Skillern’s ninth ground of error as-

serts the trial court erroneously sustained

the State’s challenge for cause to venire-

man Frank Garza. He claims that Garza

was excused in violation of the doctrine of

Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1770, 20 L.Ed.2d 776 ( 1968).? Specifi-

_ cally, appellant argues that Garza should

not have been excused because it wes

brought out that he could vote for the ©

death penalty in a case where a very close

friend was the victim. Prior to this testi-

mony, the prosecutor had elicited the fol-

lowing from Garza:

Payton, supra. There, the extra peremptory

challenge compensates for the one used against

the venireman who was Subject to challenge

for cause. -

3. The same claim is advanced by Sanne in his

fourth ground of error. As to him, however,

* the contention is moot and need not be dis-

cussed. In Phelps, Supra, this Court stated:

“... Witherspoon is inapplicable to a

case where the jury votes for a sentence of

Se eee

609 SOUTH WESTERN REPORTER, 2d SERIES

Now, do you have any conscien-

tious scruples against voting for or giving

the death penalty as a punishment for ' ig

crime in the Proper case? -

“A. Yeusin 9 0 Ro ND:

“2. You do have? © 0 0) eS hee 3

“A. I'm against capital punishment. . pe

“Q. I see. Now, when you ‘gay, +

‘against capital punishment,’ are you tell- --

ing us that you could not, under any. 7 {

+e ewnatad

‘

circumstances as a juror, vote for a ver- Se ese.

dict that would result in that being the i;

_ penalty? nohe ey ne

“A. I'd have to vote against it. “T just -

don’t believe in capital punishment, ** *» ty

«As

q ”

“Q. Are you telling us that you can: =":

think of no circumstances or no fact situ- .

ation, regardless of how severe were the -.“ ot

. facts, knowing that that might be the. -

penalty if you voted to find someone .

guilty, you could not do so because that

would be the result? ; yt

“A. Yes, I couldn't vote for Capital

punishment.” y

A-7

In O'Bryan v. State, 591 S.W.2d 464, this |

Court held that a prospective juror who

Stated that the only circumstance under * 56

which he could vote for the death penalty - -

was if the victim was a member of his

family was properly excused under Wither-

spoon. The reasoning of that decision is —

quoted below, because it applies with equal ‘?

force in the instant case:

Bowman could consider capital punish-

ment only if the victim of the crime were

a member of his family. In such a cir- -

cumstance, venireman Bowman would be

uftable to serve as a juror because of his

"interest and prejudice in the case. Artie.

life imprisonment and there is no evidence

that the jury selection process produces a

jury that is necessarily ‘prosecution prone."

Bumper v. North Carolina, 391- U.S, 543 (88

S.Ct. 1788, 20 L.Ed.2d 797] (1968),”

This principle should hold equally true where,

as in the present case, life imprisonment is

assessed as a matter of law. Sanne’s fourth

ground of error is overruled, ‘

‘ e ,

(I}t is apparen’, that venireman . -

SANNE v. STATE

Tex. 769

Cite as, Tex.Cr.App., 608 S.W.2d 762

cle 35.16, Vernon’s Ann.C.C.P. The abili-

ty to consider capital punishment as a

tool of vengeance by a person aggrieved

by the loss of a family member is surely

not within the contemplation of Wither-

spoon. No other group would be more

predisposed to vote for capital punish-

ment than a jury composed of surviving

members of the deceased victim's family.

The situation in which Bowman could

consider the imposition of death as a pen-

- alty is the situation which Witherspoon

proscribes—the imposition of the death

penalty by a ‘hanging jury.’

“The voir dire of Bowman revealed

that he would not vote for capital punish-

ment in a case where he was otherwise

qualified to sit as a juror. In those situa-

tions, Bowman was resolved to vote

against capital punishment, regardless of

the evidence produced. He was properly

excused under Witherspoon.” (Emphasis

added.)

The only circumstance under which venire-

man Garza stated he could vote for the

death penalty was if the victim were a very

close friend. Just as in O'Bryan, where the

juror stated he could vote for the death

penalty only if the victim was a member of

his family, Garza’s exception to his opposi-

tion to the death penalty would render him*

unable to serve as a juror because of his

interest and prejudice in the case. Article

‘5.16, V.A.C.C.P. In addition, the ability to

consider the capital punishment where a

close friendship existed between the venirer

man and the victim of the crime is a situa-

tion sufficient to be outside the contem-

plation of Witherspoon. This ground of

error is overruled.

[4] Sannc’s seventh ground of error and —

Skillern’s eleventh challenge the trial

court's refusal to grant motion for mistrial

when the court excused Dorothy Jean Las-

siter Turner for illness after she had been

accepted and sworn as & juror, but before

the jury was completed. It is contended

that it was reversible error for the court to

complete the selection of the jury, rather

than discharge those jurors who had been

sworn and begin the selection process anew.

We disagree with the appellants’ conten-

tions. .

609 $.W26--17

It was proper to excuse this juror when it

became apparent she would be unable to

serve. Under Articles 35.16 and 35.19, V.A.

C.C.P., the juror was absolutely disquali-

fied. That the juror had been sworn did

not render these provisions inapplicable. .

Jury selection had not been completed.

The trial court acted correctly in selecting a

juror to replace the one excused. The rule

of Ellison v. State, 12 Parse + 3 et ae

(1882) that

Wows (A]fter a juror has bee once

impaneled in a felony case, it is beyond’

the power of the court to excuse him

from serving in the case, and that in case

of sickness or accident rendering it im-.

practicable to proceed with the trial of

the case before the jury as then constitut- .

ed, the court shall discharge that jury and.

‘ proceed to form another for the trial of, ht oe

the case.”

is hereby overruled. eee pA at ean

(5) In this same ground of error appel- ”

lant Sanne urges that he was twice placed -

in jeopardy when the juror was excused,

Pees:

oo Crete eters = ries

So Peck ae Sm0

—

vr en

ete

reasoning that jeopardy attached once the _- ; E

individual juror had been qualified and

sworn. Long ago, this Court answered this

very contention adversely to Sanne's posi-

tion.

court v rote:

“No jury, within any construction of

that word supported by any authority

erance. Six men alone were impaneled.

They could not render a verdict in a

felony case. The jurors, in the capacity

of a jury, were never os rd (em. ,

phasis added.) > te

In the present case, as in Steen, | a “jury”

had not been impaneled when the individual

juror was excused. A jury had not been

_impaneled so jeopardy had not attached.

In Steen v. State, 242 S.W. 1047...

(1922) the Court addressed the merits of a ~

plea of jeopardy which arose when it was. -

discovered that the fifth of six jurors who |

had been sworn was absolutely disqualified. —

The trial court discharged all six, and con-.

tinued the case until the next term. The

known to us, was charged with his deliv-

‘

. .

ii et Al Ae Bete eee erat tm + oy

770 Tex.

See, Crist v. Bretz, 437 U.S. 28, 98 S.Ct.

2156, 57 L.Ed.2d 265. These grounds of

error are overruled.

[6] Sanne’s eighth ground of error and

Skillern’s sever*h ground of error address

the action of the trial court in excusing

venireman Willard Clifford Anderson sua

” sponte upon discovering a defect in hearing

and without a challenge for cause from the

State.. This contention is without merit.

In Valore v. State, Tex.Cr.App., 545 S.W.2d

477, the Court stated: -

' “A trial court should not, sua sponte,

excuse prospective jurors for cause unless

they are absolutely disqualified. Pearce

v. State, Tex.Cr.App., 513 S.W.2d 539;

Henricksen v. State, Tex.Cr.App., 500

S.W.2d 491.”

Under Articles 35.16(a)(4) and 35. 19, V.A.C.

C.P., a defect in hearing rendering a pro-

spective juror unfit for jury service is an

absolute disqualification. The trial court

acted properly in excusing venireman An-

derson. See Redd v. State, Tex.Cr.App.,

578 S.W.2d 129.

[7] Skillern’s sixth, tenth, and twelfth

grounds of error predicate error upon the

trial court’s action in overruling his chal-

lenges for cause to three prospective jurors.

‘+ The three grounds can be dealt with togeth-

er, inasmuch as Skillern has not shown how

he was harmed by the impaneling of these

jurors. Although Skillern exhausted his

peremptory challenges, the trial court gave

an extra one without request, and this ex-

tra strike remained unused. Skillern has

not taken the steps prerequisite to a show-

ing of harm. Payton v. State, Tex.Cr.App.,

572 S.W.2d 677.

[8] Skillern makes the further conten-

tion that the trial court improperly restrict-

ed his cross-examination of venireperson

Bracht. In Emanus v. State, Tex.Cr.App.,

526 S.W.2d 806, the Court discussed the

situation in which counsel's voir dire exami-

nation has been limited as to one prospec-

tive juror only. It was stated:

“The test for ascertaining harm in such

cases is whether the trial judge’s limita-

tion of the voir cire examination amount-

ed to an abuse of discretion, thus depriv

609 SOUTH WESTERN REPORTER, 2d SERIES

ing appellant of a valuable — (cita-

~ tions omitted.)”

It was also observed that in such cases:

“The fact ... that appellant did not

exercise all his peremptory challenges, is

relevant ... and mitigates the harmful-

ness of ony error.”

ss the, kaso do See teed

discretion. The prospective juror stated she

could render an impartial verdict.. The pro- —

posed questions were cumulative of those

already asked and answered. Moreover, ap-

pellant Skillern did not exercise all his per-

emptory challenges. Error, if any, was

harmless. Emanus, supra. Skillern’s sixth,

tenth, and twelfth grounds of error are’ ;

overruled.

{9} Skillern’s eighth said: of ‘error 4

questions the action of the trial court “in.

advising prospective juror Ollie Gray, im- ©”

plicitly, that this defendant may have had a ~

prior felony record.” The record reflects .

that objection to the remark was not made

at the first opportunity, and no reason for *

delay has been shown. Therefore, nothing

is preserved for review. Garcia v. State,

Tex.Cr.App., 573 S.W.2d 12. Moreover, our

reading of the record convinces us that the —

court’s remark was not improper. This

ground of error is overruled. 4,

(10] Sanne’s thirteenth ground of error

contests the denial of his challenge for

cause to venireman Harold D. Fields. In

view of the fact that appellant expressly

accepted the juror and that Skillern exer-

cised a peremptory challenge against this

venireman, the contention now made is

without merit. This sae: of « error is

overruled. 4 a

EVIDENCE ISSUES ~

Sanne’s tenth ground of error and Skil-

iern’s fourteenth ground of error challenge

the admissibility of evidence obtained as the

result of an arrest and search, which appel-

lants contend were unlawful because made

without a warrant. “A short account of the

facts surrounding the arrest and search will

be given first.

a cE es a

SANNE v. STATE

Cite as, Tex.Cr.Abp., 609 S.W.24 762

Hector Sanchez, then a narcotics agent

with the Department of Public Safety, tes-

tified he reccived a telephone call at his

home in Harlingen at approximately 10:45

p. m. on October 23, 1974, from agent Den-

nis Vickery. Vickery requested Sanchez to

go out and look for a white-over-orange

Camaro vehicle bearing a certain license

number. Sanchez also learned from Vick-

ery that the deceased, an undercover nar-

cotics agent, had been seen leaving in this

vehicle from a motel in Beeville with two

_ persons, one of whom was driving the Ca-

maro. Vickery told Sanchez to look around

Gary Jackson’s house in San Benito, be-

cause the narcotics that the deceased was to

purchase supposedly belonged to Jackson.

Sanchez picked up Tom Daniel, his partner,

and Sergeant Chris Trevino of the Harlin- -

gen Police Department and drove to the

area indicated by Vickery. At about 12:05

a. m., after driving in the Harlingen and

San Benito areas, Sanchez spotted the vehi-

cle parked at a 7-11 convenience store in

Harlingen. He and Trevino kept the Cama-

ro under surveillance while Daniel stationed

himself in his car at a short distance. Tre-

vino called the Department of Public Safety

dispatcher and learned that the Camaro

was on a stolen list. When the Camaro

drove away from the store and south on

Highway 77, Sanchez and Trevino preceded

it and Daniel followed immediately behind

it. After proceeding a few miles in this

manner, Sanchez stopped the Camaro,

which was occupied by appellants. When

asked whether he was carrying a weapon,

Skillern pointed to his belt. A pistol, later

identified as having belonged to deceased,

‘ was found and the two ie were

placed under arrest.

(11-13) Both appellants assert that the

officers acted unlawfully in failing to pro-

cure a warrant before stopping, arresting,

and searching them. Probable cause to

stop and detain the occupants of the auto-

mobile arose when the officers learned that

the automobile was stolen. Since the offi-

4. The record does not support Skillern’s con-

tention that there was a general exploratory

search of the vehicle. Assuming such did take

A-10

expert testimony.

Tex. 771

cers were faced with a moving vehicle re-

ported as stolen, it was not necessary to

procure a warrant before taking action.

Unlike the situation presented in McDole v.

State, Tex.Cr.App., 579 S.W.2d 7, relied

upon by Sanne, the facts in the instant case ; ya

show that a valid exception to the warrant- ©"

requirement did develop immediately prior |.

to the arrest and search. Arrest was also‘ -

authorized when Skillern was found in po ..- 4

session of a pistol. All evidence obtained as « .*_ &

a result of the arrest was admissible.‘

Moreover, appellant Sanne lacked standing —

to challenge the adrnission of the gun, a-

ring, and money which were taken from the-._

possession ‘of Skillern. Wilder v, State, -

Tex.Cr.App., 583 S.W.2d 349." ; These :

grounds of error are overruled. ~*~ ies apie

(14] In Sanne’s fourteenth ground of ers

ror he argues reversible error was commit-

ted when the trial court failed to strike the

testimony of the State's ballistics expert, .

Fred Rymer, when it became apparent that -

he could not express an opinion respecting —

$~57, the .38 revolver introduced. We need’

not reach the merits of this ground. Testi- =;

fying in his own behalf, Sanne admitted he - -

shot the deceased with a .88 revolver ~.

obtained from Red Andrews. This admis- —

sion would be sufficient to render harmless

any error committed in admission of the

‘Moreover, Andrews:

identified S—57 as the pistol he obtained for ..

Sanne and Skillern. Coupled with Sanne’s’

admission, Andrews’ testimony constituted

a positive identification of S-57 as the mur-

der weapon. This ground of error is over-

ruled. j

{15} In Sanne's eleventh ground of error

and Skillern’s sixteenth ground of error,

complaint is made of the admission of testi- °

mony by Eva Gonzales that the Camaro in

which appellants were riding when arrested —

was stolen from her home in Austin. At

another point in the trial, in the presence of ©

the jury, testimony that the car was repoprt-

ed stolen was given without objection. Any

complaint as to the admission of Gonzales’

35 Tee RAE

“ue

ote" * ~

des © : =e °

tt errs spgeerae

) A 4 4 ier 6 P

ee ee eee ee

oe ee ee oe

place, no evidence recovered as a result thereof

was admitted at the trial. e-,

- i. om

o @

77Z Tex.

testimony was waived. Crocker v. State,

Tex.Cr.App., 573 S.W.2d 190. .

[16] Skillern’s sixteenth ground of error

also urges error in the admission of testimo-

ny by Ernest “Red” Andrews bearing on

the theft of the Camaro, and on the acquisi-

tion of a 38 Smith and Wesson revolver,

S-57, identified as the murder weapon. He

also challenges the admission of testimony

of appellant Sanne regarding other drug

transactions in which Skillern was implicat-

ed. No objection was made to any of this -

testimony. Any complaint is therefore

_ waived. These grounds of error are over-

ruled.

{17} In his twelfth ground of error

Sanne contends the trial court improperly

admitted testimony of Bill Jonas because it

,. implicated Sanne in an extraneous offense.

Jonas’ testimony established that a certain

phone number at an address in San Benito

was registered to Gary Jackson. The testi-

mony did not, either expressly or by impli-

cation, show an extraneous offense. This

ground of error is overruled.

(18). Skillern’s seventeenth ground of er-

ror challenges the admission of sixteen dif-

ferent exhibits offered by the State. He

alleges that the admission of these had a

“cumulative” prejudicial effect. This

ground of error is multifarious and presents

nothing for review. Art. 40.0%9), V.A.C.

C.P. We have, nevertheless, examined the

various contentions raised within the single

ground of error and have satisfied ourselves

that none presents reversible error. This

ground of error is overruled.

[19,20] The eighteenth ground of error

set out in Skillern’s brief is addressed to the

admission of testimony by Cruz Sanchez

‘concerning appellant Sanne’s reputation for

truth and veracity. The prosecutor elicited

the following testimony from the witness:

“Q. (By Mr. Butts): Sergeant San-

chez, would you tell the jury whether you

know the general reputation for truth

and veracity, in the community where he

5. We note the form of the last question asked

was correct. Parasco v. State, 168 Tex.Cr.R.

89, 323 S.W.2d 257.

A-11

———— eee

609 SOUTH WESTERN REPORTER, 2d SERIES

is best known, of Mr. Charles Victor

Sanne? :

“A. Yes, sir.

'“Q. Is that reputation good or is it

bad? » vit

“A. Bad. eae: bile

“Q. Sergeant Sanchez, is that reputa-

tion such as would entitle Mr. Sanne to

be believed under oath?”

At this point, and before the last question

was answered, objections to Sanchez's testi-

mony were voiced. After some discussion

and voir dire of Sanchez by-the attorneys

representing both appellants, the trial court

instructed the jury not to consider the last

question, but overruled the motion to strike

the entire testimony. ‘Even if it would be -

timely to object to the testimony after the

witness answered that Sanne’s reputation

was bad, Clapp v. Engledow, 72 Tex. 252, 10

S.W. 462 (1888), no objection was made

until the next question® was-asked. The

objection, therefore, was not urged at the

earliest opportunity and nothing is present-

ed for review. Moreover, cross-examina-

tion and voir dire of the witness revealed a

basis for his testimony sufficient to qualify

him. Any objection based on the remote-

ness of the time at which the witness be-

came acquainted with Sanne’s reputation

would go the weight, not the admissibility,

of the testimony. Brown v. Perez, 89 Tex.

282, 34 S.W. 725; 62 Tex.Jur.2d, Sec. 288 at

276. This ground of error is overruled.

PUNISHMENT PHASE ISSUES —

[21] Appellant Skillern’s fourth ground

of error raises the contention that it was

error to overrule his motion to quash the

indictment and his special plea in bar which

challenge the constitutionality of Article

37.071, V.A.C.C.P., because the second pun-

ishment issue “fails to afford the jury chan-

neled and defined guidance and instruction

as to what conduct or other factors may be

appropriately considered by them” in deter-

mining whether defendant will probably

commit criminal acts of violence that would

— SANNE v. STATE

Cite as, Tex.Cr.App., 608 S.W.24 762

constitute a continuing threat to society.

This Court has already resolved this issue

against appellant in Jurek v. State, Tex.Cr.

App., 522 S.W.2d 934, affirmed 428 U.S.

262, 96 S.Ct. 2950, 49 L.Ed.2d 929. The

fourth ground of error is overruled.

In his twentieth ground of error Skillern’

complains of the admission, at the punish- ~

ment phase, of the indictment alleging mur-

- der with malice of his brother, and of testi-

mony by Ernest “Red” Andrews, that he

was with Skillern and Sanne when they

joked about having buried Skillern’s broth-

er under a concrete patio and that Skillern

said he should have killed his brother's wife .

instead of his brother because she was the

uglier of the two. Andrews also testified

he made a trip to Houston with Skillern and

Sanne for the purpose, which was never

carried out, of burglarizing a house. An-

drews related that when it was discovered

that the “old man” was at home, Skillern

said they would “just have to take care of”

him. Skillern argues that all these matters

exceeded the scopé of “prior criminal rec-

ord” under Art. 37.07, Sec. 3(a), V.A.C.C.P.

We disagree.

‘ [22] The contention that the indictment

alleging murder with malice should not

have been admitted because the conviction

was for murder without malice was answer-

ed squarely against Skillern in Fairris v.

State, Tex.Cr.App., 515 S.W.2d 921. ° -

[23,24] The evidence of joking conver-

sations and the abortive burglary plans was

admissible under Art. 37.071(a), V.A.C.C.P.

The trial wourt has wide discretion in admit-

ting or excluding evidence at the punish-

ment phase of a capital murder trial. Ham-

mett v. State, Tex.Cr.App., 578 S.W.2d 699,

709 and cases cited; Art. 37.071(a), V.A.C.

C.P. (“evidence may be presented as to any

matter that the court deems relevant to

sentence”). In Wilder v. State, 583 S.W.2d

349, 361, this Court addressed the issue of

admission at the punishment stage of a

capital murder trial of statements by the

defendants that they participated in a simi-

lar extraneous offense. It was held:

_“The statements introduced below were

relevant to the jury's determination of all

A-12

three questions under Article 37.071, su-

pra. They shed light on both deliberate-

ness and appellants’ future criminal tend-

encies.” (Emphasis added.)

In Jurek v. State, “‘Tex.Cr.App., 522 S.W.2d os,

934, 989-940, the Court stated: © * "4

“In determining the likelihood that the —

defendant would be a continuing threat

to society, the jury could consider wheth-

er the defendant had a significant crimi-: ©.

’ nal record. It could consider the range ©

and ry of his prior criminal conduct +

" (Emphasis added.)

Ant ta Jurck +. Texas, 428 U.S. 262, 96.”

S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Su-

preme Court of the United States discussed ., ...’

the jury questions under Article 37.071, “and “

significantly stated: nN OAM gee

{ “What is essential is that the jury have; © *:.

before it all possible relevant information. ..

about the individual defendant whose: z mae

fate it must determine.” . od ae aed

In the case at bar, the evidence of the ~~.

joking conversation was relevant, as were *

the statements in Wilder, on all three pun- - _

ishment issues. The same is true of the “ ’

evidence of Skillern and Sanne’s abortive- —

plan to burglarize a Houston home, particu--;

larly the mention of readiness to kill if.

_necessary to carry out their plan. See also ;

Garcia v. State, Tex.Cr.App., 581 S.W.2d

168, 178-179. The evidence was properly .

admitted and this ground of error is over-.

ruled. Pe ae Coe

(25) In his fifteenth ground of error

Skillern strenuously urges that the trial

court erred in admitting the testimony of

Dr. Joseph C. Rupp during the punishment —

phase of the trial because Rupp was shown *

to be incompetent to render an opinion on | 4

the second punishment issue, Article 37.071, _

V.A.C.C.P. We agree that Rupp, a practic-

ing forensic pathologist, was not shown to”

be qualified to render an expert opinion

_ under a hypothetical fact situation based on:

evidence introduced, that “there is a proba-

bility that the defendant would commit:

criminal acts of violence that would consti-

tute a continuing threat to society.” The

trial court could not properly have found, as

oe eee ee cement eee a, 2 - -

774 Tex.

was-required before qualifying Dr. Rupp as

an expert witness, that he “had such skill,

knowledge or experience” about human be-

havior “that it was probable his opinion

would be of assistance to the jury in mak-

ing a factual determination of whether

there was a probability that appellant

would commit criminal acts of violence and

be a continuing threat to society in the .

future.” Battie v. State, Tex.Cr.App., 551

S.W.2d 401, 407. Nor does the record re-

flect that Dr. Rupp had sufficient, if any,

firsthand familiarity with Skillern’s person-

Ri history to qualify him to express a lay

witness opinion that Skillern would be a

continuing threat to society. Cf. Esquivel

v. State, Tex.Cr.App., 595 S.W.2d 517 (not

error to allow former assistant district at-

torney and district attorney to express opin-

ion with regard to probability of future acts .

of violence by defendant, based on knowl-

edge of defendant’s rape conviction and

subsequent criminal history). The witness

was not qualified to express his opinion that

Skillern would be a mers threat to

society. -

[26} Although it was error to allow Dr.

Rupp to express his opinion as to the second

punishment issue, our examination of the

record in its entirety leads us to conclude

that the error was harmless beyond a rea-

sonable doubt. In making this determina-

tion, the question answered is whether

there is a- reasonable possibility that the

evidence complained of might have contrib-

uted to the verdict. See Harrington v. Cali-

fornia, 395 U.S. 250, 89 S.Ct. 1726, 2

L.Ed.2d 284 (1969); Chapman v. California,

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967); Cunningham v. State, Tex.Cr.App.,

500 S.W.2d 820. We must look to the facts

and circumstances of each case. Ex parte

Flores, Tex.Cr.App., 537 S.W.2d 458.

Apart from Dr. Rupp’s improper testimo-

ny, the evidence introduced at the punish-

ment stage showed that appellant Skillern

had been convicted in 1972 of murder with-

out malice for the shooting of his brother

and of passing a forged instrument. The

testimony of “Red” Andrews with regard to

_ the joking attitude taken by Skillern to-

—A-13

’ rey?

609 SOUTH WESTERN REPORTER, 2d SERIES

ward the murder, as well as Andrews’ testi-

Aare

‘

mony concerning the plans to burglarize a ;

house in Houston and to kill if: necessary,

has already been summarized.

guilt-innocence stage, appellant Sanne testi-

At the:

fied he, Andrews, and Skillern had partici-

pated in a fifty een marihuans deal, in”

the Valley.

The facts of the eaten hcl are also <

relevant in the assessment whether the im- -

» proper testimony of Dr. Rupp resulted: in:

harm. At the guilt stage, Dr. Rupp testi--

fied that his general impression from view- .

_ ing the scene was that the deceased had.

been taken unawares by someone who fired

multiple shots from his right side. He stat-

ed that “there is an element of over-kill —

when you empty a revolver into the side of

a victim.” At the punishment phase, Rupp ~

noted it was his impression that the de- —

ceased was suddenly shot without any

chance for him to defend himself. Addi-

tionally, it should be noted that after shoot-

ing the deceased the appellants returned to

the motel room where they had met him

other things, money that had been issued to

» and took his wallet which contained, among’

him by the State. It was also established - —

that a diamond ring belonging to the de-

ceased was taken from the possession of

Skillern. Further, at the time the appel-

* Jants were arrested a pistol later identified

as belonging to deceased was taken from

Skillern.

On the basis of the iii summary of

the evidence, which we believe was abun-

dant in demonstrating appellant Skillern’s

antisocial personality, it is our conclusion

that “the minds of an average jury would -

not have found the State's case [on the

second punishment issue) \ess persuasive”

had Dr. Rupp’s opinion testimony not been .

admitted. See Cunningham, supra. The

admission of this testimony was harmless

error. This ground of error is overruled.

. [27] The sufficiency of the evidence to

submit the second punishment issue and the

trial court’s failure to define the terms

“probability” and “criminal acts of vio-

lence,” used in the submission of that issue,

are the subjects of Skillern’s twenty-second

—

Rae of pa Baa

conviction and the co-defendant has a

SANNE v.

STATE Tex. 775

Cite as, Tex.Cr.App., 609 S.W.24 762

ground of error. Our discussion of the last

_ issue makes it clear that the evidence

presented at the punishment phase, togeth-

er with the evidence presented at the guilt

phase, was sufficient to support the jury’s

verdict on the second punishment issue. In

King v. State, Tex.Cr.App., 553 S.W.2d 105,

it was held that the trial court need not

provide special definitions for the terms

“deliberately,” “probability,” “criminal acts

of violence,” or “continuing threat to socie-

ty.” This ground of error is overruled.

[28] In his twenty-first ground of error,

Skillern argues there was no evidence to

support submission of the first and third

punishment issues in his case because Sanne

did the shooting. It is established that the

law of parties applies to these punishment

issues in a capital murder case, Smith v.

State, Tex.Cr.App., 540 S.W.2d 693. This

ground of error is overruled.

’ Skillern's nineteenth ground of error

presents ten separately numbered conten-

tions pertaining to the jury charge given by

the trial court. This ground of error, which

is multifarious, is not in compliance with

Article 40.099), V.A.C.C.P. and presents

nothing for review. Moreover, none of the

various complaints have any merit. This-

ground of error is overruled.

OTHER ISSUES

(29) Sanne’s fifth ground of error chal-

lenges the trial court’s refusal to grant his

pre-trial motion for severance. He argues

he did not have any prior felony convictions

_ admissible against him and that the co-de-

‘ fendant Skillern did. Therefore, he con-°-

tends, the mandatory provisions of Article

36.09, V.A.C.C.P., were violated when the

severance was not granted. We disagree.

In Robinson v. State, 449 S.W.2d 239, this

Court wrote:

“As we interpret Article 36.09, supra,

the mandatory ground for severance that

one defendant has ‘a previous admissible

conviction’ against him is applicable only

where one defendant has no prior crimi-

nal record or at least no prior admissible

prior conviction or convictions which are

Seat

admissible. At either stage of the bifur-

cated trial, if the defendants all have

prior admissible convictions, the ground

for severance must be based on the fact -

that ‘a joint trial would be prejudicial’ as

’ a result thereof, i. e., the nature of the. a3 ;

prior convictions against one defendant, - -~”

the large number of such convictions ad-" -

missible against one defendant as com- sy

pared to those admissible against the oth-- . |

_er defendant, etc. Such ground for'sev-

erance, however, is addressed to the

rt.

sound discretion of the trial judge.”""" “ *

In the present case the State stipulated to

co-defendant Skillern’s prior convictions. —

Although it was alleged that the probation- -

ary period of Sanne’s prior conviction had _

expired, no evidence was offered in support

of this allegation. Thus, Sanne’s prior con-:__ a

viction was admissible at either stage of the”

trial. Articles 37.07, Sec. 3(a), 37.071, and .

38.29, V.A.C.C.P. A severance was’ not’

mandatory. Further, no evidence was wit

fered to show how Sanne would be preju-",

diced by a joint trial with his co-defendant...

Absent supporting evidence, no abuse of.

discretion could have occurred in overruling’

the motion. Ransonette v. State, Tex.Cr. o

App., 550 S.W.2d 36, 41; Robinson v. State,”

supra. - This ground of error is overruled..

[30] Appellant Sanne’s sixth ground of

error complains of the trial court's failure.

to grant his motion for severance at the end .

of the guilt stage and before evidence on’

the punishment phase was heard. This con--

tention is without merit for two reasons.

First, the motion was not timely urged. *

Robinson, supra. Second, we have already |

reached a result favorable to appellant with

respect to his double jeopardy claim ad-

dressed to punishment. This ground of er-

ror, therefore, need not be considered. See

Marini v. State, Tex. re. 593 ava

709. pete Po 0d,

{31] Skillern’s thirteenth seid y er--

ror presents his contentions with regard to

the trial court's failure to grant his motion’

for severance. No evidence was offered in

“support of the motion, either at the pre-tri-

al stage or when it was reurged prior to the

“ Ir

- <

SPSS VERT VST

cniichaadiices :

SOMES US

sat *.

OO Fie ts eh we eee terete 3.7

et ee

te,

e “Ss. 4%

776 Tex.

testimony of co-defendant Sanne. The fail-

ure to present evidence in support of the

motion is reason enough to sustain the trial

court's action. Robinson, supra. At the

time the: motion was presented and refused

there was no showing that the trial court

was apprised of the allegedly inconsistent

defenses. The contention as to this aspect

of the motion for severance is without sup-

port in the record, See Calverly v. State,

Tex.CrApp., 511 S.W.2d 60; Bolding v.

State, Tex.Cr.App., 493 S.W.2d 186. Skil-

lern’s. thirteenth ground of error is over-

ruled.

(32] In Sanne’s ninth ground of error it

is asserted that the trial court abused its

discretion in failing to grant his pre-trial

motions for continuance for a two-week

period in order to prepare for trial. The

effect of the trial court's action, Sanne con-

tends, was to deny him the effective assist-

ance of counsel. We are not convinced that

error has been shown.

Sanne’s basic contention is that the time

from the date counsel was appointed, Feb-

ruary 20, to the date the trial commenced,

March 13, was insufficient in view of the

complexity and gravity of the case. At a

pre-trial hearing held on March 8, the trial

court authorized the maximum amount of

five hundred dollars allowed by statute for

investigative expenses. See Article 26.-

OS(1Xd), V.A.C.C.P. Appellant argues,

however, that there was not enough time

between the pre-trial hearing and the com-

mencement of trial in which to procure the

services of an investigator or ballistics ex-

pert. However, Sanne has not shown by

bill of exception or motion for new trial

what testimony would have been obtained

from such investiyator or expert. As to

this contention, nothing is preserved for.

review.§

Additionally, Sanne’s counsel places em- -

phasis on the fact that this was his first -

capital murder trial and that he was de-

6 Sanne’s brief and supplemental brief also

make reference to counsel's lack of opportunity

to file a motion to set aside a former conviction

when the period of probation had expired and

to investigate the background of the deceased

- *. eee Uk Or ae * «9?

609 SOUTH WESTERN REPORTER, 2d SERIES

prived of an essential opportunity to famil-

_ larize himself with the record in the first

tified he had read the statement’ of facts .

. from the first trial, but that he felt he also.

needed to read the voir dire examination of

prospective jurors. This testimony demon-

strates that. counsel did discharge his bur-

den of acquainting himself with the facts of

the case. Cf. Flores v. State, Tex.Cr.App.,'-- >.

576 S.W.2d 632. On the basis of the record

before’ us, we cannot say that appellant

Sanne was denied effective assistance of .

counsel. The claim is not, as it must be in

order to be meritorious, firmly founded... .

Faz v. State, Tex.Cr.App., 510 S.W.2d 922;

twenty-two days to prepare his defense, we

cannot agree that the trial court abused its:

discretion in overruling Sanne’s motion for

continuance. See and compare Davis v.:

State, Tex.Cr.App., 513 S.W.2d 928; Hicks

v. State, Tex.Cr.App., 508 S.W.2d 400;

Coleman v. State, Tex.Cr.App., 481 S.W.2d

872. Sanne’s ninth ground of error is over--.

ruled. ;

The failure to grant a motion for continu-

ance is the subject of Skillern’s first ground - -

of error. Like Sanne, he focuses upon the

short time given to prepare his defense and

his lack of familiarity with the record of the

first trial as the chief factors authorizing

the continuance. He did not, however, of-

fer proof of facts which the denial of his’ j

motion prevented him from discovering and

proving, nor did he at any time state with

specificity how any lack of familiarity with

the record in the first trial adversely affect-

ed his handling of the instant prosecution.

Skillern's claim that assistance of counsel

was rendered ineffective by failing to grant

the continuance is not firmly founded or

supported by the record. See Faz, supra.

Skillern’s first ground of error is overruled.

[33,34] In his third ground of error,

Sanne urges reversible error was committed

as to his propensity to violence and use of .

alcohol, Neither of these matters was men-

tioned in his motion for continuance or at the

hearing thereon, and therefore are not reflected

in the record on appeal. a: me

A-15 /

SANNE v. STATE

>»)

“Tex. 777

Cite as, Tex.Cr.App., 609 S.W.24 762

when the trial court refused to grant his

pre-trial motion for the appointment of ad-

ditional counsel. Initially, we emphasize

that appellant has failed to demonstrate

that he was harmed by the trial court’s

ruling. Moreover, his reliance upon the

“category of cases” principle set forth in

United States v. Watson, 496 F.2d 1125 (4th

Cir. 1973) and adopted by this Court in

Batten v. State, Tex.Cr.App.,' 533 S.W.2d

788, is misplaced. As the State’s brief suc-

cinetly notes, application of the “category

of cases” theory presupposes the existence

of a statutory provision addressed to the

issue in question. Thus, in Batten it was

held that when a prosecution is brought in

Texas under the capital murder statutes,

the defendant is entitled to all the proce-

dural guarantees, including fifteen peremp-

tory challenges of prospective jurors as pro-

vided by Article 35.15, V.A.C.C.P., whether

or not the State “seeks” the death penalty.

In contrast, Article 26.04, V.A.C.C.P., the

statute which provides for the appointment

of counsel for the indigent defendant,

leaves ize number of appointed counsel to

the discretion of the trial court and does not

distinguish hetween capital and non-capital

cases. Thus, the “category of cases” princi-

ple is not applicable since there is no man.

datory provision for the appointment of ad-

ditional counsel in a capital case. Absent a

showing of harm, it cannot be said that the

trial court abused its discretion in refusing

appellant's request. See generally, Henry

v. State, Tex Cr.App., 433 S.W.2d 430. This

ground of error is overruled.

Skillern’s complaint regarding the trial

court's failure to appoint additional counsel

is embodied in his second ground of error.

As we have stated in passing on Sanne’s

claim, a defendant does not have an abso-

lute right to the appointment of more than

one attorney. In his motion addressed to

this matter, Skillern sought the appoint-

ment of Douglas Tinker, who represented _

him in the first trial of this case. In Ochoa

v. State, Tex.Cr.App., 492 S.W.2d 576, the

defendant had filed a motion requesting

that two named persons be permitted sto

assist his two court-appointed counsel. In

holding the defendant's claim that kis

court-appointed counsel were ineffective to

be without merit, it was stated:

“We have examined the record and

find that the [appointed] counsel ... ac-

tively participated in-the trial, closely

cross-examined the witnesses, and

presented appellant’s defense. There is

an absence of any aavteg they were

" ineffective.” w-

In the present case, there ia no showing

that Skillern did not receive adequate rep-

resentation of counsel as the result of fail-

ure to appoint, or re-appoint, Douglas Tink- .

er or to appoint any other additional coun-

_ sel. - Skiterw’s cosas grunt of exwr-is :

overruled.

(35) Appellant Skillern’s third ground of

error urges, without supporting argument

-or citation of authority, that the trial court

erred in denying his motion to quash the

‘ indictment because the indictment failed to .

disclose affirmatively that it was presented ~

subsequent to the date of the alleged of-

fense. The.indictment alleges that the of-

fense was committed “anterior to the”

presentment of this indictment, ...” This

was sufficient to meet the requirement of:

Article 21.02(6), V.A.C.C.P. This one of.

error is overruled. F

[36] Skillern’s twenty-third, and final .

ground of error raises the allegation that he -

was denied his right of cross-examination

and his right to effective assistance of coun-

sel on numerous occasions throughout the

trial when the trial court assumed the role

of the prosecution. We have reviewed the

record and have not discovered any conduct

that would merit serious discussion.

As reformed to punishment-by confine-

ment for life, the judgment in cause no. -

63,254, Sanne’s appeal is affirmed. The

judgment in cause no. 63,255, Skillern’s ap-

peal, ie affirmed. 4

CLINTON, J., not participating.

PHILLIPS, Judge, dissenting.”

An examination of this record Se

several reversible errors. The

treatment of these grounds of error is whol-

A-16_. — -— _-—__.

ES $e SESE + <n ae

* F778 Tex.

ly inadequate. For the reasons that follow,

I dissent to the affirmance of these convic-

tions.

During the punishment phase of the trial,

the state presented expert testimony on the

' issue of future dangerousness, The state

elicited this testimony not from a psychia-

trist or a psychologist, but from the pathol-

ogist who performed the autopsy on the

. deceased. In response to a hypothetical

question, the pathologist expressed his opin-

ion to a “reasonable medical certainty” that

Doyle Skillern would constitute a continu-

ing threat to society.

Skillern contends that the admission of

this evidence, over his objection, was revers-

ible error. The majority concedes that the

trial court erred in permitting the patholo-~

gist to render an expert medical opinion on

the second punishment issue. The majority

concludes, however, that this error was

harmless beyond a reasonable doubt.

In evaluating the majority's conclusion, it

must be kept in mind that a jury's determi-

nation on the second punishment issue is

qualitatively different from its determina-

tion on the guilt-or-innocence issue. Pre-

dicting future dangerousness is far less pre-

cise than resolving the issue of guilt or:

innocence. With this crucial difference in

mind, let us now consider the type of evi-

dence whose admission the majority deems

harmless error. :

It is widely recognized that many lay

persons show an inordinate amount of def-

erence to members of the medical profes-

sion. Consequently, prosecutors go to great

lengths to obtain psychiatric testimony on

the second punishment issue. They obvi-

ously believe that such testimony signifi-

cantly influences a jury’s punishment delib-

erations.

The only distinction between this testimo-

* ny that prosecutors find so valuable and the

testimony in the instant case is that here

the testimony was given by a pathologist

rather than a psychiatrist. However, the

circumstances under which the pathologist

testified suggest that this distinction was

A-17

- ome 5, ~ “+

>. “ a” »

of . - be a .

* ad .

609 SOUTH WESTERN REPORTER, 2d SERIES

largely lost on the members of the jury.

When defense counsel objected on the

ground that the pathologist did not have ,

the training and experience to ‘render an

expert medical opinion on the second pun- -

ishment issue, the trial court made the fol-

lowing comment in the presence of the: .

jury: : ;

THE COURT: There is no question but

what the jury makes the decision but this

witness is a medical doctor and I believe °

_ that the testimony shows that he has

studied human behavior, had experience

with it, and is giving this testimony to aid |

the jury, if it does. Overruled. (empha-

sis added.) Ses

This statement was an expression of the

trial court's opinion that the pathologist's

training and experience in the field of hu- e

man behavior qualified him to render an .

expert medical opinion on the issue of fu- _.:

ture dangerousness. As such, it constituted —

& comment on the weight of the evidence,

in violation of Article 38.05, V.A.C.C.P.

This comment enhanced the pathologist's

standing in the eyes of the jury, thereby

compounding the court's error in admitting ~

his testimony. Moreover, the court permit-

ted the pathologist to express his opinion in

terms of a “reasonable medical certainty.”

Expert medical testimony on. the second

punishment issue can have a significant im-

pact on a jury's punishment deliberations.

In holding that the admission of such testi-

mony was harmless error, the majority nec-

essarily concludes beyond a reasonable

doubt that the pathologist's testim ny could

not have influenced even one of the 12

jurors to vote “yes” rather than “no” on the

second punishment issue. Even viewed in

its most favorable light, the majority's posi-

tion is untenable.

At trial it was undisputed that Sanne, not

Skiilern, shot the deceased. Notwithstand-

‘ ing Skillern's prior conviction for murder

without malice, jurors reasonably could

have answered “no” to the second punish-

ment issue. Jurors have supplied a nega-

tive answer to this issue in cases far more

egregious than the present one. See D.

SANNE v. STATE

Tex. 179

Cite as, Tex.Cr.App., 608 S.W.2d 762

Crump & G. Jacobs, Capital Murder (1977)

(the cases of John Stiles Griffin and Ber-

nardino Sierra are cogent examples).

The majority's assertion that the patholo-

gist’s testimony could not have changed the

vote of even one juror is a bold departure

from reason. It simply cannot be concluded

with the required degree of certainty that

the admission of this evidence failed to con-

tribute to the jury’s assessment of the

death penalty. The majority errs in hold-

ing this error harmless.

Il.

Both Skillern and Sanne contend that the

trial court committed reversible error in

overruling their motions for a continuance.

They submit that the court gave defense

counsel insufficient time to prepare for tri- .

al. In separate grounds of error, they com-

plain of the court’s refusal to appoint a

second defense attorney. The basic thrust

of both claims, according to appellants, is

that the trial court’s actions denied them

effective assistance of counsel. Under the

facts of this case the two claims are func-

tionally inseparable, and for that reason ey

will treat them together.

The record reflects that the trial court

appointed one defense attorney to represent

each appellant and set their cases for trial

on March 13, 1978. This date was 21 days

after the appointment of counsel. On three

1. That trial resulted in convictions that were ~

reversed on appeal. See Skillern v. State, 559

S.W.2d 828 (Tex.Cr.App.1977). The record

from that trial consists of 14 volumes and ap-

proximately 4,000 pages.

2. Skillern's attorney testified that it was neces-

sary for Sunne’s attorney to have the statement

of facts during the week of February 20-26

because the following week Sanne's attomey

had prior commitments.

3. Skillern’s attorney testified that he had insuf-

ficient time to review the statement of facts.

He added that such a review was necessary for

proper trial preparation. Sanne's attorney tes-

tified that he had no time to read the parts of

the statement of facts that concerned the argu-

ment of the preliminary motions and the exam-

ination of prospective jurors. He explained

that a review of the voir dire was necessary

because this was his first capital murder case. -

oe ne tee ee eee ——<— = ——_——-

separate occasions the defense atternige

asked for a continuance because they need-

ed more time to prepare for trial. On cach

occasion they specifically stated to the court

their reasons for needing more time. In

spite of the compelling nature of defense. se

counsel’s reasons, the court ee =

requests for a continuance. § -

One reason given by the defense attor-

neys was that they needed more time “to

fully read and digest the voluminous record

of the [prior] trial,” at which appellants

were represented by other counsel! The

attorneys pointed out that only one copy of.

that record was available, which they had

to share.? The attorneys also told the court

that sufficient time to review the record

from the prior trial was essential to their. mth

providing effective representation. 1

The record reflects that the. trial court.

gave defense counsel insufficient time to.

familiarize themselves with the statement.

of facts from the prior trial.? The value of-

from a prior proceeding has been recog-

nized by the Supreme Court. See Britt v.

North Carolina, 404 U.S. 226, 92 S.Ct. 431,.

30 L.Ed.2d 400 (1971). Where a defendant’

is indigent, the failure to furnish a free—

transcription generally is reversible error.

Id. The corollary of appellants’ right to .

have the statement of facts from the sche

trial is that their attorneys must be given

The majority attaches great significance to

the testimony of Sanne’s attorney that he had —

the opportunity to read the testimony the

witnesses from the prior trial. This position ,

ignores the value of other parts of the state-

ment of facts. To render effective assistance of

the law unique to capital cases. By denying

him this opportunity, the trial court

Sanne's right to effective assistance of counsel.

a odes = coe

Dc he BA

Poe gee we ees eee

ee ape ae ee eee

: .

780 Tex.

enough time to read and familiarize them-

selves with it. By refusing to grant a con-

tinuance to allow defense counsel sufficient

time to study the record, the trial court

denied appellants effective assistance of

counsel.

The defense attorneys also sought a con-

tinuance because they needed time to inter-

view the key witnesses. Counsel pointed

out that at the prior trial the state called

more than 50 witnesses, none of whom lived

anywhere near Rockport.‘ The attorneys

stated to the court that interviewing some

of these witnesses was absolutely essential

to their providing effective assistance of

counsel. .

In response, the court suggested that

reading the record of the prior trial was an

adequate substitute for interviewing wit-

nesses. Defense counsel were quick to

point out the inadequacies of this approach.

First, they had too little time to fully ac-

’ quaint themselves with the record. Second, .

they were unable to evaluate the credibility

of the witnesses by reading the record.

Third, their reading of the record raised

humerous questions that could be resolved

only by interviewing witnesses. Moreover,

the record of the second trial reflects that

the state called critical witnesses who did

not testify at the first trial. .

After jury selection had been completed

but before the evidentiary phase of the trial

had begun,-the trial court told defense

counsel that they would be given an oppor-

tunity to interview the state’s witnesses

before they took the stand. However, the

record reflects that because of the trial

process defense counsel were able to inter-

view only a few of the state's witnesses.

In Flores v. State, 576 S.W.2d 632 (Tex.

Cr.App.1978), this Court held that “an at-

torney must acquaint himself ... with ...

the facts of a case before he can render

4 Venue of appeilants’ cases was changed from

Live Oak County to Aransas County.

% Sanne filed a pretrial motion of former jeop-

ardy concerning the death penalty because at

his prior triai the jury answered the second

Punishment issue in the negative. The trial

court overruled this motion, thereby subjecting

A-19 ~—

609 SOUTH WESTERN REPORTER, 2d SERIES

. we — ete

. eo.*:2

reasonably effective assistance of counsel.”

Writing for the Court, Presiding Judge On-

ion set forth the factors to be considered in

determining the size of defense counsel's °

burden to become acquainted with the ”

facts: :

sae The size of the burden on the coun- _

sel to acquaint himself with the facts will -

vary of course depending upon the com-

plexities of the case, the plea to be en- :

tered by the accused, the punishment that

may be assessed, and other such factors

Id. at 634. See Callaway

S.W.2d 440, 445 (Tex.Cr.App. 1980).

When the factors enunciated in Flores -

are applied in the present case, it is clear’ ‘.’

that the defense attorneys had an enormous

burden to acquaint themselves with the

facts. Both appellants pleaded not guilty, . -.

and both were subject to the death penal- ~

ty.’ There was the usual complexity in a

capital case of selecting a jury in accord-

ance with Witherspoon v. Illinois,‘ and V.T.

C.A.Penal Code, § 12.31(b). Compare Ad-.‘.

ams v. Texas, —- US. ——,.100 S.Ct

2521, 65 L.Ed.2d 581 (1980) with Moore v.

State, 542 S.W.2d 664 (Tex.Cr.App. 1976).

v. State, 594 -

”-.

In addition, for a variety of reasons appel- .

lants’ cases were unusually complex: (1) - -

the voluminous record from the prior trial; -

(2) none of the state's witnesses lived in the —

county where the second trial was held; (3)

the joint trial; (4) the unusually large num- -

ber’ of witnesses called by the state; {5) the .

disputed issue involving ballistics; and (6) er,

the expert medical testimony presented by

the state on all three punishment issues,

Discharging the burden to become ac-

quainted with the facts is not strictly as

armchair pastime. Usually it requires that.

witnesses be interviewed and the facts oth-

erwise investigated. Although studying the

record from a prior trial is critical, it is not

6 391 U.S. 510, 88 S.Ct. 1770, 20 LEd2d 776

(1968). ;

eet bso Sane eons

‘this burden.

SANNE v. STATE

id Tex.

Cite as, Tex.Cr.Appe 609 S.W.24 762

an adequate substitute for independently

investigating the facts. Unless counsel con-

ducts an independent investigation, there is

_ no way of knowing whether counsel at the

prior trial adequately investigated the case.

In spite of the enormous burden on the

defense attorneys to acquaint themselves

with the facts, the majority concludes that

counsel discharged this burden merely by

. reading the testimony of the witnesses from

the prior trial. I cannot agree that such

minimal preparation discharged this bur-

den, nor can I associate myself with such a -

cavalier attitude toward an accused's con- .

stitutional right to effective assistance of —

counsel.

In the present case the record clearly

shows that the trial court gave defense

counsel insufficient time to interview wit-

nesses and otherwise investigate the facts.

This situation was not remedied by the

court’s authorization of $500 for investiga-

tion and expert testimony. The record also

shows that, notwithstanding the defense at-

torneys’ diligence, they had insufficient

_ time to obtain the services of either an

investigator or a ballistic expert.’ In light

of the enormous burden on defense counsel

to acquaint themselves with the facts, the

. conclusion is inescapable that the trial court

gave them insufficient time to discharge

As a result, appellants were

denied effective assistance of counsel, and

the court's refusal to grant a continuance

constituted an abuse of discretion.

In the alternative, given the 2] days al-

lowed for trial preparation, the trial court

abused its discretion in overruling appel-

lants’ motions for appointment of a second

defense attorney. Had the court granted

this motion, the 21 days might have been

enough time for two defense attorneys to

render cffective assistance of counsel. Al-

though I do not advocate a rule requiring

the appointment of two defense attorneys

in all capital cases, the complexity of such

cases strongly suggests that appointing two

attorneys almost always would be the bet-

ter practice. This is especially true where,

7. The defense attorneys told the court that they

needed to obtain the services of a ballistic ex-

pert. RO Oe ae er

_A-20_

‘as here, at least one attorney had never

before tried a capital case.

In three grounds of error, Skillern | con-

tends that the trial court erred in overrul- =: |:

ing his challenges for causé to three pro-.

disposes of these grounds on the theory that~.

_Skillern failed to show how ‘the trial court's .. - ;

rulings harmed him. The.majority'’s treat- >;

781 °

ment of these contentions is as follows: =~

. The three grounds can be dealt with ~~

together, inasmuch as Skillern has now -

shown how he was harmed by the impan-

trial court gave an extra one without

eling of these jurors. Although Skillern |

exhausted his peremptory challenges, the ~

request, and this extra strike remained - -

unused. Skillern has not taken the steps.

prerequisite to a showing of harm. Pay-

ton v. State, Tex.Cr.App., 572 S.W.2d 677.

Peremptory challenges are exercised dif-' “~~”

. : .

+o 2 os cee tro sels gers os

ferently in capital cases than in noncapital’~ —

lenges are made after all prospective jurors

have been questioned. See Arts. 35.25 & -~-

35.26, V.A.C.C.P.; Fuller v. State, 409

S.W.2d 866 (Tex.Cr.App.1966). In capital

cases, however, such challenges are exer- “oh

cised at the time a prospective juror is .-

examined. See Arts. 35.13, 35.17, & 35.20, -

V.A.C.C.P.; Fuller, supra. In spite of this *

critical difference, the majority applies toa -.

capital case a harmless error rule devised in.

cases. In noncapital cases peremptory chal--* .-

nandez v. State, 563 S.W.2d 947 (Tex.Cr. °

App.1978). The majority does so, without -..

discussion or analysis, even though the ap-

plication of this rule bo 7 cases is

illogical.

Applying this rule to capital cases pea

mitted to exercise unused peremptory chal- |

lenges after all prospective jurors had been

examined. But such a procedure would vio-

late the Code of Criminal! Procedure. See

Arts. 35.13, 35.17, & 35.20, supra; Fuller,

supra. Moreover, in the present case the Hi,

evidence a .38 revolver, and there was a disput- ope

ed issue as to whether this was the murder

weapon.

———e ee

—-

. 782 Tex. 609 SOUTH WESTERN REPORTER, 2d SERIES’

_ trial court twice refused Skillern’s request

that he be allowed to reserve the exercise of

his peremptory challenges until all prospec-

tive jurors had Leen examined.*

‘The errors Skillern alleges could be ren-

dered harmless only if he had been given

: three extra peremptory challenges that he

was entitled to use retrospectively. In-

. Stead, he was given one extra challenge We yee ty

that could be used only prospectively. Con- Judgment reversed and cause remand-. a

meee the majority errs in holding that ed. eee iad” Bg

killern failed to show harm because he did Ne nae toes:

not use his extra peremptory challenge. Dougias, J., dissented. Stamm a

Because of the errors discussed above, ~ McCormick, J., filed concurring opinion ;

dissent to the affirmance of these convic- M denial of state's motion for leave to file -~*

tions. The judgments should be reversed motion for rehearing without written opin-

and the causes remanded, ion. i ey

William C. Parker, J., of aggravated rob- ~

bery, and he appealed. The Court of Crimi-

nal Appeals, Tom G. Davis, J.,"held that

trial court's charge to jury was fundamen-

tally defective, in light of fact that it per-

mitted a conviction on proof different from

that required to prove the allegations of the

indictment. ae fete, ES

- s

- ohe's vs

@ . # ‘-

Tey

. Pe ROBERTS, J., joins in dissent. ; . , ! . cet . : ony T.- iy

: i 1. Criminal Law @=814(1), 1172.6 9 <2 2

. When court's charge authorizes a ‘con: as

Donald Ray MORRIS, Appellant,

viction on theory not alleged in the indict’ -

ment, the charge is fundamentally defective -

and reversal is mandated on direct appeal, =

. " 2. Robbery = 27(6) Pe OER REED i

of be In prosecution on aggravated robbery ee

_The STATE of Texas, Appellee. indictment alleging that defendant placed

No. 62737. complainant in fear of imminent bodily in-. :

“Court of Criminal A ls of T ' jury, trial court's charge authorizing a con-

one Ne “y lire viction if jury found that defendant threat-

ened or placed complainant in fear of immi-. -

fective, in light of fact that it permitted a

conviction on proof different from that re-

quired to prove allegations of the indict- . *

Nov. 12, 1980,

Rehearing Denied Jan. 14, 1981.

Defendant was convicted before the

196th Judicial District Court, Hunt County, ment, ao

8. [Skillern’s attorney): Your Honor, Defendant THE COURT: Well, either accept the juror

Skillern has no challenge for cause and, at this Or reject her.... ,

time, I will reserve my right to exercise any 7 ° > . . .~

peremptory strikes. (Skillern’s attorney}: Your Honor, Defend.’

THE COURT: Reserve it? Either accept ant Skillern offers no additional challenge for

the juror or challenge her peremptorily. cause and again | reserve the right to make

[Skillern’s attorney}: Your Honor, that de- peremptory challenges until such time as—~'

. fies the defendant the right that he has in THE COURT: Make it now.

any non-capital criminal case in this State to (Skillern’s attorney}: Has the Court over-

have impaneled a number of qualified jurors

who are not subject to challenge for cause

and then exercise sensibly and intelligently

the limited number of peremptory strikes

that are available to him. | object to that

procedure and for that reason claim my right

to defer exercising peremptory challenges un-

Ul the panel is completed.

ruled my right to reserve peremptor, chal-

lenges at a time later? Let the record reflect

that I reiterate the same objection that | have

before.

THE COURT: All right. Same ruling...

a be

o soa

RU ev siwete + 4. AS COURT OF CRIMINAL APP.. 18 ae

. * -- AUSTIN, TEXAS |

TEE STATE CF TEXAS

vo... WRIT OF MANDAMUS |

DOYLE EDWAFD SKILLEKN

(CO-DEF2NDANT ) :

ie ame CAUSE No, 1 j

Oe im : “Live Oak County

APPEAL No. 55,337.

Tex. C.C.A. a

Re: APPOINTMFNT OF COUNS#Y,

+ Now comes the Brent, DOYLE EDWARD SKILLFRN, who is not

Sioned student of the law, and prays that the court will acc- —

pt this document--in it's present form as a wWfIT OF MANDAEUS

tay the petitioner also states that the following stabdieced

are true and entertains the court for it's just consideration of

‘the facts. >

Briefly stated, the netitioner, DOYLE FDVAKD SXTLLERN, hes

ancumed, a3 has his counsel, Pouglas Tinker, that this being a

re-trial of the same case that the appointment ‘of counsel still

remains. tir, Tinker's continued representation is desired by the

petitioner because of his experience and knowledge of the law.

M2, Tinker has expressed his willingness to continue his repre-

sentation or be re-appointed by the District Judge. (See attached

_ exhibit.)

In Obbiter, 1974, said, petitioner, )OYLF BDWARD SKILLERN, was

arrésted and charged with a Capital Offense. Petitioner was indi-

. gent’ and during a hearing; in November, 1974, the Honorable Jotn

Oy. Miller appointed counsel for the petitioner, Attorney Douglas

Tinker, Corpus Christi, Texas, was the apnointee.

wn eS ime II

Further, Attorney, Douglas Tinker represented the netitioner,

DOYLE EDWARD SXITLERN, during the entire trial of the above nur- :

bered cause,

IIt

_ Further, upon conviction, Attorney Tinker gave notice of app-

eal‘and did in fact execute the Apnpelants Brief brought before

this court. The case was reversed December 21, 1977, in the Texus

Court of Criminal Appeals.

BT oe ee

re, Sate be

~~ eee ee en ee > an - —_

t % r * K Sa eR =

F IV

On February 11, 1978, during a Change of Veaue henring, }t:eld

in George West, Live Oak County, Texas, the petiiioner, TOYTS

EDWARD SKILLERN, presented exhibit number one (#1) in owen court.

It was marked and placed in the file. The Judge denied the net-

itioner, DOYLE EDWARD SKILLED, to have Attorney Tinker to con-

tinue as his appointed counsel. A change of venue was ordered *o

Aransas County, Texas, which io in the came district.

Now comes. the netitioner, DCY]# ERWARD SKILIFRE, asking that

the court order District Judge vohn Il, Miller, to allow Attorney

Tinker to continue as his counsel or re-2 ppoint him as his counsel

in his forthcoming trial. )

PLAYER’

Wherefore promise considered, petitioner respectfully prays

that the Court accevt this, his WRIT OF MANILAMUS, as such and

intervenes at this time to protect the rights of the petitioner

and further prays that the relief he secks be granted, |

: Respectfully Submitted,

NOYLE EMVARD SKILIERN, being first sworn under oath, presents

that he has subscribed to the above and docs state that the in-

formation therein is true ond correct to the best of his know-

ledge ‘end “belief. 3 | .

§ . — Aho Sh

wee

‘cubseribed and sworn to before me this x” day of TA

ea Cy Tmonth}

My commission expires

FT) pel aa Ay

(conth, day, year)

UNITED STATES DISTRICT COURT -

SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

EX PARTE: DOYLE SKILLERN I NO.

APPLICATION “FOR TEMPORARY ‘RESTRAINING ORDER ‘AND INJUNCTION

Now comes Doyle Skillern, Petitioner in the above cause, and moves

the Court to enjoin and restrain any further proceedings in the case styled

State of Texas vs. Doyle Skillern in cause number 1280-2 now pending in the

36th Distriet-Court of Aransas County, Texas, and, in the alternative, moves

the Court to mandamus the trial judge, the Honorable Judge John Miller, to

allow Petitioner's appointed attorney Douglas Tinker to continue to represent

Petitioner in the trial of his cause, and in support of such motion would

show the Court as follows: | |

1. Petitioner is charged with Capital Murder in an indictment

which was returned by the grand jury in. Live Oak County, Texas. Petitioner

has, on a prior occasion, been tried and convicted of Capital Murder and

received the death penalty. At the trial of this cause, the first time, the

Honorable Judge Miller appointed Douglas Tinker as Petitioner's attorney.

Petitioner was well satisfied with the services of Douglas Tinker and the

said attorney, Douglas Tinker, was permitted by the trial court to appeal

Petitioner's case to the Court of Criminal Appeals. Such case was reversed

by the Court of Criminal Appeals as is reflected by a copy of the Court's

opinion which is here attached as Exhibit One.

.. 2. Subsequent to the reversal of the first trial, Petitioner was

returned to George West, Live Oak County, Texas, and, at the first appearance

in Court, prior to retrial, was informed by the trial court that Petitioner's

attorney, Douglas tinker, would no longer be participating in the case and

that another attorney would be appointed for him. This statement by the Court

was objected to by Petitioner; Petitioner taking the position that the said 4

Douglas Tinker was still his appointed attorncy and that the said Douglas

Tinker was willing to continue as Petitioner's court appointed attorney.

ese Mares

ears

“imine a oe ae enn

A letter from Petitioner's court appointed attorney, Douglas Tinker, was

filed in the trial court wherein such attorney agreed that he was willing

to continue as Petitioner's court appointed attorney; however, the trial

judge, Judge John Miller, refused to contact Douglas Tinker or continue

Douglas Tinker's appointment. A hearing was held iin which a local attorney

was appointed to represent both this Petitioner and his co-defendant for

the purpose of a change of venue hearing; whereupon the Judge transferred

venue in this cause, cause number 1280-2, to Aransas County, Rockport,

| Texas, where Pctitioner is now incarcerated. Subsequent to the transfer

of this cause number 1280-2 to Rockport, Petitioner filed a Writ of Mandamus

with the Court of Criminal Appeals in an effort to get the Court of Criminal

Appeals to mandamus the trial judge into allowing Petitioner's court appointed

attorney, Douglas Tinker, to continue as his appointed attorney. A copy of

the Writ of Mandamus is attached as Exhibit Two for this record.

3. The Court of Criminal Appeals, on February 21, 1978, denied

Petitioner's request as is reflected by the form from the Court of Criminal

Appeals signed by the Administrative Assistant to the Court, Roy Greenwood,

which is here attached as Exhibit Three.

4. Petitioner would submit to the Court that he has now exhausted

his state remedies and that irreparable harm will result if this Court does

not take immediate action concerning Petitioner's request herein made. The

harm is imminent since, as is reflected by Exhibit Four here attached, a

pretrial is to be held on the 8th day of March, 1978, at 10:30 a.m. in this

case and pretrial motions must be filed prior to that date. Secondly, this

case is set for trial on the 13th day of March, 1978; thus, if no action is

taken immediately, Petitioner will be put to trial without his court appointed

attorncy, Douglas Tinker.

5. It is the sincere belief of Petitioner that the sole reason for

appointing another attomey to represent him is to prevent Petitioner from

having the attomey who has done such an excellent job for him in the past

and to prevent the Petitioner from being found not guilty and/or from having

this case reversed again on appeal.

— eS =>s°

6. Petitioner would submit to this Court that the trial court's

action is a denial of effective assistance of counsel and due process as

guaranteed by the Constitution of the United States of America.

WHEREFORE, PREMISES CONSIDERED, Petitioner moves the Court to

imnediately enter an order restraining the pretrial and trial in this

cause until a determination can be made concerning the merits of Petitioner's

request that the trial judge allow Douglas Tinker to continue as Petitioner's

court appointed attorney. No harm will come to the State if this temporary

restraining order is granted since during the appeal of this cause the State, |

by motion for continuance and extention of time, was able to delay the appeal

~ and thus put off a retrial in this cause for well over a ycar.

Respectfully submitted

DOYLE SKILLERN, PETITIONER

Aransas County Jail

Rockport, Texas 78382

CERTIFICATE OF SERVICE

I, Doyle Skillern, hereby certify that a true and correct copy of

the foregoing Application for Temporary Restraining Order and Injunction and

its exhibits have been mailed to Mr. Robert Berg, Assistant United States

Attorney, $21 Starr Street, Corpus Christi, Texas 78401, on this

day of , , 1978.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CORPUS CIRISTT DIVISTON

UX PARTE: DOYLE SKILLERN J NO.

APPLICATION FOR WRIT OF MANDAMUS

Now comes Petitioner and moves this Court to grant a writ of

maxlamus ordering the trial judge, John Miller, in cause number 1280-2

to continue the appointment of Douglas Tinker as Petitioner's trial attorney

and in support of such motion would refer to the Court Petitioner's application

for a restraining order and injunction filed with this petition on this date.

Petitioner would show the Court that the allegations in such motion

support Petitioner's position here that Douglas Tinker should continue as

his attomey.

WHEREPORL, PRLMISUS CONSIDERED, Petitioner moves this Court to

enter its order ordering the District Judge John Miller in Rockport, Aransas

County, Texas, to continue the appointment of Douglas Tinker as Petitioner's

trial attorney.

Respectfully submitted,

DOYLE SKTLEURN, PETTTIONER

Aransas County Jail

Rockport, Texas 78382

CERTIFICATE OF SERVICE

1, Doyle Skillern, hereby certify that a true and correct copy of

the foregoing Application for Writ of Mandamus has been miiled to Mr. Robert

Kerg, Assistant United States Attorney, $21 Starr Street, Corpus Christi,

Texas 74401, on this ae ee ote ee ae aoe $97B.

APPENDIX C

Now. therefore if you find from the evidence beyond a reasonable

doubt that on or about the 23rd day of October, 1974, in the County of

Live Oak and the State of Texas that the defendant Doyle Edward Skillern

was acting as a party within the meaning of the word "party" as the

same is defined in Paragraph 6 of this charge, and that while so

acting, if he was, that the defendant, Charles Victor Sansio did then

and there intentionally cause the death of Patrick Allen Randel by

‘shooting him with a quar if he did, .and that the said Charles Victor

Sanne did then and there intentionally cause the death of the said

Patrick Allen Randel, if he did, in the the course of committing or

attempting to commit robbery as that term has heretofore been defined

to you, then you will find defendant, Doyle Edward Skillern guilty of the

offense of capital murder as charged in the indictment, and so say by

your verdict. You are further instructed that the law of self-defense,

as hereinafter defined, does not apply to this paragraph.

But if you do not so believe, or if you have a reasonable doubt

thereof, you will acquit the defendant, Doyle Edward Skillern, of the

offense of capital murder and will th

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