# Petition — DOYLE E. SKILLERN v. TEXAS (No. 80-6322) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1852%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text _. 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. —— $$$ POY ETE RRM Me ee ere ere RL eae al edie aiiit hae teaieiaiios aninaaiantaeaiemnionaier 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: 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). —) 4 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 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. ° 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° ~ 3 8 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. . u 3 ad ieee e "+e et 4 , 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. . 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 + ‘ 2 ‘ 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 a3 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, ‘ ' d 4 t ? ‘ 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 Pu So Peck ae Sm0 — vr en rm 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 3 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’ ch op 35 Tee RAE “ue ote" * ~ des © : =e ° tt errs spgeerae ) A 4 4 ier 6 P ee ee eee ee 4 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 LK oe eee ee cement eee a, 2 - - ee . 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 ee ‘ 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 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 trial. At the pre-trial hearing, counsel tes-. © -° 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; 926. Absent a showing of how he was. ©“ - prejudiced by the fact that counsel had only.’ -. © 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 + . “ 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 ——; 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--* .- _the context of noncapital cases. See Her- ©. 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 make sense only if a defendant were per- © 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, - oP 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 . . .~ 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.) I 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 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 I EX PARTE: DOYLE SKILLERN I NO. I 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° a5 > : : : j 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 J UX PARTE: DOYLE SKILLERN J NO. T 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 then proceed to decide under the instructions in Paragraph 8 of this charge, whether he is guilty of the lesser included offense of murder. 243 re APPENDIX D IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS NO. 78-772 DOYLE E. SKILLERN, § APPEAL FROM THE 36TH DISTRICT Appellant § § vs. § COURT OF ARANSAS COUNTY § THE STATE OF TEXAS, § Appellee § TRIAL COURT NO. 1280-2 TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS: NATURE OF THE CASE Appellant, Doyle Edward Skillern, was convicted of the offense of Capital Murder in the District Court of Aransas County, 36th Judicial District of Texas, on March 30, 1978, pursuant to jury verdict, and on March 31, 1978, pursuant the verdict of jury, his punishment was assessed at death. Trial of this case commenced on March 13, 1978 and was completed with the verdict of the jury on punishment on March 31, 1978. Following the Court's overruling of an Amended Motion for New Trial, Appellant and Co-Appellant, Charles Victor Sanne were shoes sentenced to death at high noon on Friday, May 19, 1978. On the trial of this cause, as well as on this appeal, Appellant has been represented by the undersigned Court- Appointed Counsel, and no one else. FIRST GROUND OF ERROR THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR CONTINUANCE AS ORIGINALLY URGED AT PRE- TRIAL HEARING HELD ON MARCH 8, 1978, AND AS RE-URGED ON MARCH 13, 1978, PRIOR TO. COMMENCEMENT OF VOIR DIRE EXAMINATION OF THE SPECIAL VENIRE, AND AS RE- URGED ON MARCH 21, 1978, FOLLOWING SELECTION OF THE JURY, COMPELLING THIS DEFENDANT TO BE PUT TO TRIAL UPON A CHARGE OF CAPITAL MURDER BY AND THROUGH COURT-APPOINTED COUNSEL TWENTY-TWO DAYS FOLLOWING APPOINTMENT OF SUCH COURT-APPOINTED COUNSEL. (Amended Motion for New Trial, 5, 14, 47). Appellant recognizes that his Motion for Continuance is ‘ addressed to the sound discretion of the Trial Court. Reed vs. State, 244 S.W.2d 821 (1952), Article 19.01, CCP, and that good cause must be demonstrated therefor. It was, and the Trial Court abused that discretion in denying the requested continuance. Significantly, and perhaps uniquely, the state did not object to Appellant's Motion for Continuance or to that of his Co-Defendant, Sanne, (SF-44). That was the First Motion for Continuance and was heard by the Court on March 8, 1978, only five days prior to the commencement of the trial as originally set by the Court on the appointment of the undersigned attorney for this Appellant on February 20, at which time were heard all of numerous pre-trial motions filed by this Appellant and Appellant Sanne. Skillern's counsel, as did Sanne's, took the stand under oath to testify concerning the reasons why they deemed a Continuance necessary in order to represent effectively their respective clients (SF-34-47). _ The entirety of Volume 2 of the Statement of Facts is referred to for a particular description of the nature and character —————— ns ee ee . wore ee - ee of the pre-trial motions filed and to the summary treatment of them by the Court, including the summary denial of Motions to Suppress Evidence without benefit of an evidentiary hearing. (SF-116-125). Preparation for trial in a case of this magnitude required at a minimum, the study of the record of the former trial herein conducted in George West, Live Oak County, consisting of 15 volumes and several thousand pages, before counsel could make an informed and sensible determination of how to conduct the defense of this case, and by reason of the Court's having set all pre-trial motions for hearing on March 8, five deve prior to the commencement of trial, even the matter of legitimate discovery of the State's evidence, and other matters encompassed in Defendant's Motion for Discovery, had to be delayed until the following day, and not in Rockport, Aransas County, but in Sinton, in the office of the District Attorney. Twenty-two days were not enough, five days following hearing of pre-trial motions were not enough, and four days following the first opportunity to see the State's evidence that was made available was certainly not enough. Appellant refers to and incorporates herein the matters sworn to in his motion f.¢c continuance, alludes to his separate and distinct motion for the appointment of additional counsel in this regard, and says that the Court's denial of his motion for continuance was the effective denial of the effective assistance of counsel, and abuse of discretion D-3 under the totality of the circumstances in this case that requires reversal and the remanding of this case for a new trial. SECOND GROUND OF ERROR THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR APPOINTMENT OF ADDITIONAL COUNSEL, DENYING THIS DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL (Amended Motion for New Trial, 4). Defendant, incorporates herein each and all of the matters set forth under First Ground of Error and would show that the Court's denial of his Motion to Require the Appointment of Additional Counsel in the person of Douglas Tinker, a member of the bar of Corpus Christi, and being one in the same person who was appointed to defend, and who did defend this Defendant in the first trial hereof in Live Oak County, constituted a denial of this sistiadant's right to the assistance of counsel to the effective assistance of counsel, and to the assistance of chosen counsel, whether chosen by himself or by the Court, in violation of the Sixth Amendment to the United States Constitution. Harling vs. United States, Court of Appeals, District of Columbia, June 21, 1978. No prejudice need be shown, nor must Defendant show that newly appointed counsel, as of February 20, 1978, performed ineptly, or not at all, or otherwise. There is no evidence of record to demonstrate that Douglas Tinker was ever relieved of his appointment and continuing representation of this Defendant, this Defendant's Motion speaks for itself in demonstrating . his efforts to secure the continued representation of Mr. Tinker, his “chosen counsel", the denial of which is an abridgment of a constitutional right requiring reversal of this case. See also United States vs. Watson, 496, F.2d 1125 (1973). Attached hereto as Exhibit A is this Defendant's Writ of Mandamus filed in this Court in Appeal No. 55,337 together with this Defendant's Application for Temporary Re- straining Order and Injuction filed in the United States District Court, Southern District of Texas, Corpus Christi Division, all seeking relief in the form of the continuation of representation by the said Douglas Tinker of this Defendant, to no avail. Morover, in the circumstances set forth under First Ground of Error above, and recognizing that Mr. Tinker had, in preparation for the trial of this case on the first occasion, approximately two months within which to prepare, as opposed to the undersigned counsel's; twenty-two days (if we count every day as an effective day, which cannot be, see first ground of error above) then certianly the denial of the appointment of additional counsel in the person of Mr. Tinker, or at least the appointment of someone as additional counsel, was a deprivation of this Defendant's constitutional right to the assistance and effective assistance of counsel. Such denial requires reversal and a new trial of this case. THI"D GROUND OF ERROR THE TRIAL COURT ERRED IN DENYING DEFENDANT's MOTION TO QUASH THE INDICTMENT (NO. 19) BECAUSE SUCH INDICTMENT TOGETHER WITH ALL OTHER RELEVENT AND MATERIAL RECORDS FAILED TO DISCLOSE AFFIRMA- TIVELY THAT SAID INDICTMENT WAS PRESENTED SUBSEQUENT TO THE DATE OF THE ALLEGED OFFENSE. (Amended Motion D-5 APPENDIX E ai tbe 19 the officer's concomitant right to perform a frisk or pat search for weapons can in no wise permit a general exploratory search of the vehicle, as was done in this case. It was purely officer Sanchez' hunch that Randel might well occupy the vehicle. It is also clear from his testimony that the “weapon found on Defendant Skillern's person formed no basis for the subsequent ‘search or the arrest, for it was not a until the following morning that he recalled and communicated to another agent his having seen 4 similar. weapon in possession ’ of agent Randel at some time in the past in Portland. There -having been time to obtain a warrant, during the enugaksanoe by three ebthecce in two vehicles, officer Sanchez having abandoned any basis in the reportedly stolen character of a vehicle as a reason for his stopping same, and having no more than an inarticulate hunch based upon agent Vickery's communication to him for such stop, the subsequent arrest and all evidence obtained as a result thereof were clearly inadmissible. Wong Sun vs. U.S.-, 371 U.S. 471. . FIFTEENTH GROUND OF ERROR | ‘ (HE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE OVER THIS DEFENDANT'S OBJECTION, THE TESTIMONY OF DOCTOR JOSEPH C. RUPP IN ITS ENTIRETY DURING THE PUNISHMENT PHASE OF THIS TRIAL BECAUSE DOCTOR RUPP WAS SHOWN 70 BE INCOMPETENT TO RENDER THE OPINION TESTIMONY THAT HE DID, AND SUCH TESTIMONY INVADED THE PROVINCE OF THE JURY. (Amended Motion for New friai, No. 101). Although qualified during the guilt or innocence stage of this trial as a forensic pathologist and having testified —— a i Se ee ea ae ee eae a ie. (ge al 20 that he has been a professiénal pathologist since approximately 1961, engaging solely and exclusively in that specialty, nonetheless some opinions rendered by Doctor Rupp during the guilt or innocence stage of the trial (S.F. 1692-1742) would appear strained, namely, anyone's ability to render an opinion after the fact of the actions of the decedent prior to his death, nonetheless those opinions were admitted in evidence. | However, during the punishment phase of this trial, Doctor Rupp testified (S.F. 2816-2850), in sum, that he possessed no professional degrees or experience in the fields of psychiatry or psychology. The trial court denied this Defendant the right to Counsel and the right to cross~ examination of this witness in attempting to question him regarding his qualifications to engage in the practice of psychiatry _and indeed assumed the role of the prosecutor in this instance, the witness’ repeated remarks being only that he was liscenced to practice medicine and surgery in the State of Texas. 2 In order to authorize the use by the’ prosecution of Doctor Rupp's testimony concerning the predictability of future human behavior, it was necessary that the trial court determine that behavior patterns of this Defendant "are so related to some scientific profession as to- be beyond the knowledge of the average layman;" and that Doctor Rupp had such skill, knowledge or experience in the field of psychiatry that it was probable his opinion would be of assistance to Sit aie IS as ve i, Sk Nong > a ied ' ” : 21 ‘the jury in making a factual determination of whether there was a probability that Skillern would commit criminal acts of violence and be a continuing threat to society in the future. Battie vs. State, 551 S.W.24 401. Thus, the trial court would have to conclude based upon common knowledge, and implicitly, that there being no evidence of any type of examination of this Defendant, psychiatric or otherwise by any medical—practitioner, that this Defendant's behavior patterns were beyond the knowledge of layman, and that Doctor Rupp’s knowledge and experience in the field of predictability of future human behavior would assist the jury. The record is ‘silent. It contains no evidence. whatsoever upon which anyone could find that Doctor Rupp posséssed such qualifications. Patently, cutting up dead bodies, weighing brains and livers, and examining tissues under a microscope during a professional career of almost 20 years, dges not, in the common knowledge of anyone, qualify one to predict, without benefit of any examination of the Defendant, future human behavior. Indeed, the General Practitioner referred to by Doctor Rupp as commonly treating ee problems of patients, would clearly be more qualified than Doctor Rupp in that regard. If the entire field of psychiatric expertise be questioned concerning the validity of such an ability to predict future dangerousness, 30 Baylor Law Review 35, 55 Texas Law Review 1343, including recognition of the plain , fact that empirical studies have demonstrated that such opinions are not accurate, how much less credible can be the 22 opinions of a professional pathologist. There was simply no basis, either in common knowledge, or in evidence, upon which the trial Court could find Doctor Rupp qualified to render such opinion testimony. Its prejudicial effect was incalculable. Smith vs. Estelle, 445 F. Supp. 647 (U.S. District Court, Dallas, 1977) condemned, at least, the surprise element. The admission of incompetent expert testimony concerning the crucial special issue no. 2 ina Capital Murder case, special no. 1 and 3 having. in effect been already determined by the guilt or innocence phase of the trial, cannot be said to be harmless, particularly when it came from the same mouth that rendered opinion testinony concerning the "deliberateness" in effect on the guilt or innocence stage. SIXTEENTH GROUND OF ERROR THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE TESTIMONY OF EVA GONZALES OF AN EXTRANEOUS CRI- MINAL TRANSACTION AS WELL AS THE TESTIMONY OF ERNEST M. ."RED" ANDREWS IN THAT REGARD AND CONCERNING A 38 CALIBER SMITH AND WESSON REVOLVER. (Amended Motion _ for New Trial, No. 58, and 78). The testimony of Miss Gonzales (S.F. 1999-2013) and that of Ernest M. "Red" Andrews (S.F. 2431-2459) effectively informed the jury that Miss Gonzales' automobile had been reported atoles by her, following her having loaned it to the Defendants on at least one occasion, that Red Andrews had been with the Defendants when a key was made with which to operate the Camaro vehicle belonging to Eva Gonzales, and the obtaining by these Defendants of a 38 caliber Smith & Wesson revolver (States Exhibit No. 57) and this Defendant's APPENDIX F 35 conduct of another, respecting mere association by a person on trial with another, mere knowledge of the commission of a crime standing alone, and mere possession by one of property belonging to another standing alone, and mere presence of this Defendant at the scene ef a crime. Each and all of the foregoing errors by the Court. in “its charge, both of omission and commission, were prejudicial to this Defendant's eight to be tried upon the charge made by the indictment, and the legally competent evidence introduced in support of such charge, in accordance with article 36.14, Code of Criminal Procedure. TWENTIETH GROUND OF ERROR THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE, OVER THIS DEFENDANT'S OBJECTION, STATE'S EXHIBIT 74, THE INDICTMENT ALLEGING MURDER WITH MALICE AFORETHOUGHT OF ONE MILTON SKILLERN, DURING THE PUNISHMENT PHASE OF THE TRIAL, AND LIKEWISE IN ADMITTING THE TESTIMONY OF ERNEST M. "RED" ANDREWS DURING THE PUNISHMENT PHASE OF THE TRIAL. (Amended Motion for New Trial, Nos. 95, 97 & 98). Article 37.07 and 37.071, Code of Criminal Procedure, govern, and permit the introduction in evidence, respectively, of the Defendant's prior criminal record and "any matter that the Court deems relevent to sentence." As to prior criminal record, the term is specially defined in Section 3(a) of Article 37.07 to mean “a final conviction in a court of record.” Defendant did not object to the admissability of the judgment and sentence that followed the indictment which is State's Exhibit 74, for they demonstrated the final conviction of this Defendant for the offense of murder without malice, but it is submitted that the term "conviction" ates aca — = CO — . ern 36 as used in Arttete-37.07 means simply what it says and excludes from consideration by the jury that with which the Defendant was charged, the universal rule being that an indictment is no evidence of guilt. To allow in evidence the indictment for murder with malice aforethought was to inform the jury and permit it to consider to: somé ‘extent details of an offense charged, but of which the Defendant “was not finally convicted. Notwithstanding this Court's opinion in Knox v. State, 487 S.W.2d 322, to the effect that the pleadings, including indictment, complaint and infor- mation are admissible in demonstrating an accused's “prior criminal record", it is submitted that such "holding” was dicta, wholly unnecessary to the determination made in that case. The testimony of Ernest M. “Red" Andrews during the punishment phase respecting joking conversations concerning / this Defendant's brother's body, the pooring of concrete over it, and comments respecting such deceased brother's wife, were likewise incompetent, beyond the purview of “prior criminal record", and were introduced solely to show ‘ details of such prior offense, and equally as prejudicial was Mr. Andrew's testimony concerning the trip made by this Defendant, Co-Defendant Sanne and Mr. Andrews to Houston, permitting the jury to infer and speculate upon something that never occurred (other than a drive to Houston) and to speculate on extraneous cpamemnaned ps: based upon Mr. Andrew's ’ own interpretation and opinion of the commerts made by ee ae APPENDIX G for New Trial, 11). FOURTH GROUND OF ERROR THE TRIAL COURT ERRED IN DENYING DEFENDANT'S . MOTION TO QUASH INDICTMENT (NO. 20) AND IN DENYING DEFENDANT'S SPECIAL PLEA IN PAR (NO. 3) BECAUSE THE CAPITAL MURDER STATUTE OF THE STATE OF TEXAS, AS ADMINISTERED AND CONSTRUED BY THIS couRT, IS UNCONSTITUTIONAL UNDER THE 8TH AND 14TH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. (Amended Motion for New Trial, 3, 11, and 12). The proscription of Furman vs. Georgia and Branch vs. Texas, 408 U.S. 238 (1972) holding constitutionally defective the former Capital Murder Statute of this state, by reason of the unbridled and unfettered discretion afforded the jury in assessing the Death Penalty, has not in fact been cured by the present Capital Murder Statute, Article 19.03 of the ‘penal Code and the complementing sections of the Code of Criminal Procedure, Section 37.071 and the three special issues that must be answered by the jury, because such special issues, particularly special issue number 2, demanding as it does that the jury, without the benefit of any definition or special instructions, make a finding concerning the predictability and probability of future human behavior regarding undefined criminal acts of violence that would make him a continuing threat to society, fails to afford the jury channelled and defined guidance and instruction as to what conduct or other factors may be appropriately considered by them. This is so, notwithstanding the opinion of the | United States Supreme Court in Jurek vs. Texas, 428 U.S. 262 (1976), finding the Texas Death Penalty Statute and Procedure, on its face, not violative of the 8th and 14th amendments to the Constitution of the United States, and implicitly holding that explanatory definitions and instructions would be required to guide the jury in making determinations regarding future dangerousness of the Defendant, or the liklihood of his being a continuing threat to society, reference being made here as well to the simultaneous decisions of the United States Supreme Court in upholding the consti- tutionality of the grossly similar, but vastly different, statutes of the states of Georgia and Florida. Gre vs. Georgia, 428 U.S. 153. (1976), Proffitt vs. Florida, 428 U.S. 242 (1976). The vagueness and unfettered discretion and lack of guidance born of the submission of special issue no. 2, containing as it does the undefined requirement that the jury find a "probability" remains, as does the constitution- al infirmity of the entire procedure. Such constitutional infirmity of the Texas Capital Murder Statute and complementing provisions of the Code of Criminal Procedure require that such statutes be held unconstitutional_as violative of this Defendant's rights under the 8th and 14th Amendments to the Constitution of the United States. FIFTH GROUND OF ERROR THE TRIAL COURT ERRED IN COMPELLING THIS DEFENDANT TO EXERCISE HIS PEREMPTORY CHALLENGES, DURING VOIR DIRE EXAMINATION OF THE JURY IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 35.13, CODE OF CRIMINAL PROCEDURE, AND IN DENYING TO THIS DEFENDANT THE RIGHTS WHICH ANY DEFENDANT IN A NON-CAPITAL FELONY CASE WOULD HAVE TO SELECT A PANEL OF JURORS, NOT OTHERWISE DISQUALIFIED BY APPENDIX H NS ‘ IN THE DISTRICT COURT OF ARANSAS COUNTY 36TH JUDICIAL DISTRICT OF TEXAS THE STATE OF TEXAS vs ( NO. 1280-2 DOYLE EDWARD SKiLLERN ( ‘-- MOTION FOR CONTINUANCE TO THE HONORABLE JUDGE OF SAID COURT: | Comes now DOYLE EDWARD SKILLERN, Defendant in the above numbered and styled cause and files this Motion for Continuance and in support thereof would show the Court the following: | ie | Defendant is represented in this case by David B. Connery, Jr., a duly licensed and practicing member of the State Bar of Texas and is the only attorney representing this Defendant, pursuant to Defendant's affidavit of indigency and appointment by this Court at approximately 10:35 A.M. on February 20, 1978, which-was the first opportunity for this Defendant and said Court appointed counsel to confer, and at which time the Court likewise set this case for trial on March 13, 1978, twenty- two (22) days from the time of appointment of counsel. II. | es This Honorable Court first made available to Defendant's counsel, by written order to the Clerk, Volumes IX through XIII of the Statement of Facts in the trial heretofore had in this cause in Live Oak County, the, entire Statement of Facts consist- ing of Volumes I through XIV, on February 15, 1978 and subsequently by order obtained by Defendant's attorney this Court authorized re- lease of all of the Statement of Facts, Volumes I through xty, by order dated February 23, 1978. In this regard, Defendant would show that duplicate Statement of Facts were made, but that the . responsible officials have lost or cannot find the duplicate Statement of Facts, and that it is, first, absolutely mandatory that Defendant's counsel have access to the, entire record of the former trial for review, and that the absence of the duplicate has made it mandatory, that Defendant's counsel and counsel for Defen- dant's co-indictee, Charles Victor Sanne, share the single Statement of Facts and that by reason of prior commitments it was mandatory that counsel for Mr. Sanne have the Statement of Facts for review during the week of February 20 through February 26 inasmuch as Mr. Lee was absent from this County during the entire week of February 27 through March 3, so that Defendant's counsel could not obtain access to important parts of the Statement of Facts until approxi- mately 6:00 P.M. on Sunday, February 26, excepting some portions on a piecemeal basis. | III. This Court, by order dated February 22, 1978, set the date for all pre-trial hearings in this matter for March 8, 1978, at 10:30 A.M., and required each defendant to file all motions, pleadings and exceptions and all preliminary matters not later than February 27, 1978, which order was subsequently extended as to this Defendant, but nonetheless in the circumstances herein related De- fendant's attorney has had insufficient time to review properly the record of former trial and prepare adequately all necessary pre~ trial matters. IV. During the former trial hereof, the State of Texas called in excess of 50 witnesses, none of whom reside in Aransas County and most of them reside at considerable distance from Aransas County. Defendant has filed motions to require the current addresses and oc- cupations of such witnesses as the State intends to call and adequate preparation of this case for trial requires that Defendant's counsel contact and interview such witnesses. V. Defendant has filed various pre-trial motions for dis- covery, production of evidence and examination thereof, appoint- ment of an investigator and expert witness or witnesses, all of which the Court has set for hearing on March 8, 1978, just five days prior to the date set for trial, and even assuming that Defendant be granted all of such discovery and relief as is prayed for in such motions, there will remain insufficient time forthe State's attorney to produce such matters and for Defendant's coun- sel to purse workable and effective discovery and thereafter pre- pare adequately for the trial of this cause by March 13, 1978, and for Defendant to be put to trial in the circumstances herein re- lated is and will amount to a denial to Defendant of the effective assistance of counsel. | | VI. ' Even assuming that Defendant's attorney had no other commitments and could devote the entire time from the date of | appointment on February 20, 1978 until the date of trial, twenty- two (22) days is an insufficient time within which such attorney can prepare adequately to defend a capital murder case. VII. The testimony of a material witness in this case, Ernest M. ("Red") Andrews is material to this Defendant's defenses. This Defendant's counsel during the former trial, or counsel for Defen- dant's co-indictee, subpoenaed Mr. Andrews, and a Writ of Attach- ment was issued but unserved. It is necessary that Defendant have an opportunity to interview such witness, determine the advisability of taking his deposition, or securing his attendance upon the trial hereof. There is no reasonable expectation that the attendance of such witness can be had before this case goes to trial. Defendant expects material facts to be proved by said witness relating to a telephone conversation on the day prior to the alleged offense set -j- forth in the indictment herein, and it is necessary to verify such evidence and for Defendant to have the opportunity to in- terview such witness and obtai n his deposition if necessary oF secure his attendance on the trial hearing. This motion is not made for the purposes of delay, but so that justice may be done, following Defendant's counsel's hav- murder case. appropriate discovery, ing an adequate opportunity to obtain and pursue all necessary and secure the attendance of all necessary wit- nesses, and otherwise prepare adequately for the trial of a capital i "WHEREFORE, premises considered, Defendant prays that this cause be continued to a mit Defendant an adequate op THE STATE OF TEXAS COUNTY OF ARANSAS as such is fully capable, authorized, of said Defendant for all purposes, day certain during this term that will per- portunity to prepare for trial. Respectfully submitted, E: ’ endant tpl Bmp . ’ JRe A 312 North Live Oak Post Office Box 876 Rockport, Texas 78382 (512) 729-0303 Attorney for Defendant DAVID B. CONNERY, JR., Counsel for Defendant, who upon oath deposes and says that he is counsel of record for the Defendant herein and competent and qualified to make this affidavit; that he executed the same for, and on behalf and further states that the statements herein contained are true and correct. ‘ Ll Attorney for Defendant SUBSCRIBED AND SWORN TO before me by the said DAVID B. CONNERY, JR., Counsel for Defendant, this the “@ day of March, 1978, to certify which witness my hand and seal of office. a E. Beatty Notary Public in and f Aransas County, Texas THE STATE OF TEXAS COUNTY OF ARANSAS Before me, the undersigned authority, personally appeared the Defendant in the above styled and numbered cause, who upon oath deposes and says that he is the Defendant in this cause, that he has read the foregoing Motion for Continuance and that the facts con- : tained therein are true and correct. | . ,» Vetendant SUBSCRIBED AND SWORN TO before me by the said DOYLE “EDWARD SKILLERN, Defendant, this the 3.0 day “of March, 1978. Sho C4 «/ otary ¢ in and for Aransas County, Texas CERTIFICATE OF SERVICE I, the undersigned attorney of record for Defendant DOYLE EDWARD SKILLERN, do hereby certify that a true and correct copy of the foregoing Motion for Continuance was, on this the 2-day of March, 1978, delivered to the District Attorney for the 36th Judi- cial District of Texas by posting same in the U. S. Mail to his address of record, San Patricio County Courthouse, Sinton, Texas. FILED At 231 an MAR 2 1978 NES A. HARDE oun ik Court, Aransas e Nie AM i . T RECEIVED | : MAR 12 1981 enn — 9 Court, US. 80 - 6322 OrriCE OF THE CLERK OTL ED SUPREME COURT, U.S. MAR 10 1981 tavean%ar Ll. , Clerk STATE OF TEXAS l | Newes?2 1 seas, Colt | courey GreeicEs , AFFIDAVIT OF INDIGENCY NOW COMES Douglas Tinker the attorney in the foregoing Petition for Writ of Certiorari and moves the Court under Rule 46 of the Rules of the Court for permission to file the attached petition for certiorari without pre- payment of costs and in support of such motion would show the Court as follows: "IT believe that Doyle Skillern is indigent and is unable to pay the costs of the filing of the attached for the following reasons: 1. Petitioner has been incarcerated since the date of his arrest for this offense on October 23, 1974. Prior to his incarceration, he owned no real nor personal property, had no bank accounts, and was totally without funds to pay his attorney in the trial of this case, either the first trial or the second, 2. Petitioner was appointed an attorney in the State court after a finding by the trial judge that he was in fact indigent under the laws of the State of Texas, 3. Douglas Tinker was appointed by the trial court to represent petitioner on Motion for Rehearing in the Court of Criminal Appeals because of the death of his prior court-appointed attorney and because he was without funds and qualified for an appointed lawyer on appeal in the State court. By this affidavit, petitioner requests that he be permitted to file this petition without the pre-payment of costs. Douglas Tinker, the attorney for petitioner, has mailed to petitioner an affidavitin support of request to pro- ceed in forma pauperis for his signature which will be submit- ted to the Court in the very petitioner." "TI, Douglas Tinker have read the foregoing Affidavit of Indigency and swear that the allegations contained therein are true and correct." SWORN AND SUBSCRIBED TO BEFORE ME on this the 10th day of March, 1981. KY PUBLIC in ang for Jeanne M. Garcia ueces County, Texas Notary Public, In And For Nueces County, Texas STATE OF TEXAS I AFFIDAVIT IN SUPPORT OF REQUEST COUNTY OF WALKER { TO PROCEED IN FORMA PAUPERIS I, DOYLE EDWARD SKILLERN being first duly sworn, depose and say that I am the petitioner in the ahove cntitled case; that in supn- port of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that because of my pov- erty I am unable to pay the costs of said proceeding or to give security therefore; that 1 believe I am entitled to relief. 1 further swear that the responses which I have made to questions and instructions below are true. | 1, Are you presently employed? Yes ( ) No (vw) a. If the answer is "yes," state the amount of your salary or wages per month, and give the name and address of your em- ployer. b. If the answer is “no,” state the date of last employment and the amount of the salary and wages per month which you 200 = received. Feb. 297/ - © pee rant 2. Have you received within the past twelve months any money from any of the following sources? a. Business, profession or form of self-employment? Yes ( ) No.(— b. Rent payments, interest or dividends? Yes ( ) No (») c. Pensions, annuities or life insurance payments? Yes ( ) No (w~) d. Gifts or inheritances? Yes ( ) No (~~) e, . ee Wha the information therein is true and correct. ae EDWARD SKILLERN Subscribed and sworn to before me this /6 day of Meech. 19 &/ . cao authorized to administer an oath 3S. €-ESTeS Comm Ep: 227eS _-. ae oe i AP ee ee eS ee eee ele a tees — --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1852%3A1. Public record. Not legal advice.