Appellant's Motion for Rehearing Denied January 18, 1978.
Appeal is taken from a conviction for voluntary manslaughter. Punishment was assessed by the jury at 15 years.
The sufficiency of the evidence is not challenged, therefore a brief statement of the facts will suffice. Ted Spurgeon, Deputy Sheriff of Freestone County, testified that on September 27, 1974, the appellant walked into the sheriff's office with a bloody and broken .22 rifle in his hands and stated: "I need some help. I think I killed a man." Appellant then took Spurgeon and others to a dirt road where the body of Cicero Watts was found lying next to his pickup truck with his head "smashed in." The appellant testified that the deceased and appellant's wife had been "messing around." Appellant testified that on three separate occasions over the years he had told the deceased to leave his wife alone. Appellant testified that on September 27, 1974, he had followed the tracks of his wife's car onto the secluded road where the killing occurred. Upon arrival, he found the deceased and his wife together in the deceased's truck. Appellant took his rifle from the car and walked toward the truck and yelled: Hold it. Nobody run." Appellant then fired the rifle two or three times in the air. Mrs. McIlveen jumped from the truck and ran across a field. Appellant testified the deceased jumped from the truck and was reaching in for his shotgun. Appellant then opened fire, after which he "rushed in" and beat the deceased with the butt of his rifle.
The appellant first complains that the jury was allowed to separate on three occasions during its deliberations without the personal consent of the appellant.
The record reflects that on July 23, 1975, the jury began its deliberation on guilt or innocence at 4:45 p. m. At 7:30 p. m., the jury sent out a note asking if they could go to eat. The jury was brought into open court and the following took place:
The appellant was never asked for and never gave his personal permission for the separation.
The jury resumed its deliberations at 8:15 p. m. and worked until 9:35 p. m., when they were recessed and allowed to separate for the night. Once again appellant's attorney gave his consent, but the appellant said nothing.
The jury started deliberating at 9:00 a. m. the next morning, July 24, 1975. At 9:45 they returned a verdict finding the appellant guilty of voluntary manslaughter.
The court finished reading the charge on punishment to the jury at 11:45 a. m., and the jury indicated they would like to eat before they started their deliberations. The court, without seeking the consent of the appellant or his attorney, permitted the jury to separate for lunch. The jury returned at 1:15 p. m. and began their deliberations on punishment.
Article 35.23, V.A.C.C.P., provides, in pertinent part:
In Rhynes v. State, 479 S.W.2d 70, Tex. Cr.App., this Court said: "the record should show that appellant personally consented to the jury separation" after the charge of the court had been read and argument concluded at the guilt stage of the trial.
In Goodall v. State, 501 S.W.2d 342, 343, Tex.Cr.App., this Court said:
Appellant is complaining about the separations for dinner on the 23rd and for lunch on the 24th.
In an effort to rebut the presumption, the State elicited testimony from 11 of the 12 jurors that they had in no way violated the court's instructions regarding not discussing the case during the two separations in question. The appellant stipulated that if the twelfth juror were called, she would have testified that she too followed all of the court's instructions regarding separation.
The appellant argues that this is not sufficient to rebut the presumption. He urges that it is an "absurdity" to "assume that a juror would admit before the Trial Court that he had" violated the court's instructions.
It is well established that issues of fact as to jury misconduct raised at a hearing on motion for new trial are for the determination of the trial judge. See
The trial judge heard all of the witnesses and was free to believe or disbelieve any or all of them. No abuse of discretion is shown in the instant case where the court's finding is based on the unrefuted testimony of all of the jurors that they had not violated the instructions.
The appellant next contends that the trial court erred when it overruled his motion for a new trial based on three specific instances of improper jury conduct.
The first instance of alleged improper conduct involves statements by various jurors concerning what portion of any sentence they returned the appellant would have to serve. While there is some discrepancy in the testimony of the jurors, it appears that the following assertions were made: (1) that if the jury gave appellant two years he would be out in one year; (2) that if the jury gave appellant ten years he would be free in eighteen months; and (3) that if the jury gave appellant fifteen years he would be free in seven years.
The second alleged instance of misconduct involves the statement by one or more jurors that if they could not reach a verdict at the guilt or innocence phase of the trial the appellant would walk out of the courthouse a free man.
The third alleged instance of misconduct involves the following two statements by one of the members of the jury: (1) "If we can make an example of this defendant, it will help to stop crime in the community and make a safer place in the community in which to rear our children"; and (2) "This case is like Watergate on the television, we haven't heard all of the facts."
The State concedes that these statements, or statements similar to them, were in fact made during the jury's deliberation, but asserts that they are not such as will require reversal of this case.
Article 40.03, V.A.C.C.P., provides, in pertinent part:
Some of our decisions have treated statements of jurors regarding the possible effects of parole laws as the receipt of other evidence, Spriggs v. State, 160 Tex.Cr.R. 188, 268 S.W.2d 191, while others have regarded it as jury misconduct, Mays v. State, 167 Tex.Cr.R. 339, 320 S.W.2d 13. In Heredia v. State, 528 S.W.2d 847, 852, Tex.Cr. App., this Court said: "We hold that either principle may apply, depending upon the facts of the case."
In Heredia v. State, supra, we stated that:
The assertions made do not square with the provisions of Art. 42.12, Sec. 15(a), V.A. C.C.P., which makes a prisoner eligible for parole only after he has served "one-third of the maximum sentence imposed." Even if the parole law had been correctly stated as being one-third of the sentence, it is "palpably erroneous" to assume the defendant will be discharged at that time. See footnote # 4, Sweed v. State, 538 S.W.2d 119, Tex.Cr.App.; Art. 42.12, Section 15(c), V.A.C.C.P.
The same reasoning applies to the statement that if the jury could not reach a verdict the appellant would walk out of the courtroom a free man. This is an inaccurate statement of the law. Article 36.33, V.A.C.C.P., specifically provides that when a jury has been discharged for failure to agree on a verdict, "the cause may be again tried at the same or another term."
The statement of the juror that, "This case is like Watergate on the television, we haven't heard all of the facts," also amounted to the receipt of other evidence. This statement was an invitation to the jury to consider these "facts."
The juror's statement about making an example of the appellant to help make the community safe from crime presents no reversible error. See Henderson v. State, 163 Tex.Cr.R. 573, 295 S.W.2d 215.
There were three distinct instances where the jury received other evidence. The issue now becomes one of whether this error is such that the judgment must be reversed. The standard which this Court has established for reversal requires the other evidence to have been "detrimental to appellant" before the case must be reversed. Heredia v. State, supra; Marquez v. State, 172 Tex.Cr.R. 363, 356 S.W.2d 797; Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816.
In the instant case, the evidence is not sufficient to show that any juror relied on or was influenced by the comments in the jury room to the appellant's detriment. The most direct testimony about the effect of the statements concerning possible parole came from juror Wanda Glazner at the hearing on the motion for a new trial:
While this testimony showed that the jury assessed fifteen years, it does not reveal that the statement was the cause of the assessment. In fact, Glazner specifically testified that this was part of a discussion and that "no one still knew the law." We have reviewed the record of the hearing on the motion for a new trial and do not find any juror who testified that his or her vote was changed as a result of the discussion.
In relation to the statement regarding a hung jury, we do not find any indication that there was any reliance on it to the detriment of the appellant. No juror indicated that they had in any way considered the statement in deciding how to vote at the guilt stage of the trial or that they had changed their vote as a result of the statement.
The record does not indicate that there was any discussion of the remark that this case was like Watergate and that the jury did not know all of the facts. No juror testified that this statement had any effect on him or her.
We are unable to say that the trial judge abused his discretion in overruling the appellant's motion for a new trial. The instant case is distinguished from Sweed v. State, 538 S.W.2d 119, Tex.Cr.App., by the fact that in Sweed a juror specifically testified that he had increased his vote on punishment from fifteen to twenty years because of statements by another juror about juvenile parole laws. In the instant case there is no such evidence of any reliance to the detriment of the appellant. No reversible error is shown.
Appellant next complains about a series of "have you heard" questions used to impeach witnesses called by the defense to testify to the appellant's good reputation because such questions were "not propounded in good faith." Among the complained of questions were the following: 1. "Have you heard that Lincoln McIlveen drew a pistol on Tim Robinson in Teague?" and 2. "Have you heard that in 1967 Lincoln McIlveen rented a building—rented his building next door to his barber shop knowing it would be used for illegal gambling purposes?"
A witness attesting to the good reputation of the accused may be asked on cross-examination whether he has heard of acts of the accused inconsistent with that good reputation to test the witness' knowledge, if the prosecutor asks the question in good faith believing it has some basis in fact. Sternlight v. State, 540 S.W.2d 704, Tex.Cr.App.; King v. State, 491 S.W.2d 132, Tex.Cr.App.; Gaines v. State, 481 S.W.2d 835, Tex.Cr.App.
At trial the appellant's counsel made no objection on the ground of bad faith to any of the propounded questions. While similar allegations were made in the appellant's motion for a new trial, he did not develop any evidence at the hearing on the motion which would show bad faith on the part of the prosecution. Without any showing of bad faith on the part of the prosecutor in asking the questions, no error is shown.
The appellant next complains that the trial court committed error when it allowed Lucy May Dickson to testify that she had
After the reputation witnesses had been cross-examined, the appellant took the stand and testified as follows on direct examination by his own counsel:
After the defense had closed its evidence, the State called Dickson as a rebuttal witness. She testified that the appellant had, in fact, pulled a gun and threatened to shoot Tim Robinson in 1948.
The only objection that appellant made in the trial court to Dickson's testimony was that it was "too remote." Appellant does not challenge the remoteness of the offense on this appeal, but instead claims it to be an extraneous offense. Where the objection made in the trial court is not the same as that urged on appeal, appellant has not properly preserved the complaint for review. Williams v. State, 549 S.W.2d 183, Tex.Cr.App.; Elizaldi v. State, 519 S.W.2d 881, Tex.Cr.App.
Even if the error were before us, there was no error in the admission of Dickson's testimony. Evidence of specific acts of misconduct by a witness is not generally admissible for impeachment purposes. Hoffman v. State, 514 S.W.2d 248, Tex.Cr. App.; Randolph v. State, 499 S.W.2d 311, Tex.Cr.App. There is an exception to this rule when a witness makes a blanket statement, such as never having been charged or convicted of an offense, or never having been in trouble. Hoffman v. State, supra; Montemayor v. State, 543 S.W.2d 93, 94, Tex.Cr.App.
In Hoffman v. State, supra, the defendant during cross-examination denied that he had had any complaints made against him while he was a park ranger. This Court held that the defendant had opened the door, and that it was not error to elicit evidence about complaints against him which had no relation to the charge in the case.
In Randolph v. State, supra, the defendant, while testifying in his own behalf, made a broad denial that he had ever sold anyone heroin. The State put on witnesses who testified to extraneous sales of heroin by the defendant. This Court held that while we did not necessarily approve of the State's tactics, the defendant had opened the door and it was not error to admit testimony on the other sales of heroin.
In the instant case, the appellant's own counsel elicited the denial from the appellant which opened the door for the State to put on the testimony to prove the extraneous offense. No error is shown.
The appellant next complains of the following questions by the prosecutor:
We first note that the appellant made no objection to the questions when they were asked, and has thus failed to preserve the error. We further note that there is absolutely nothing in the record to substantiate the appellant's claim that the prosecutor did not get the information from Eastman or that the question was asked in bad faith. On such a silent record, bad faith is not shown.
Finally, appellant argues that if none of the errors in his brief alone constitute reversible error, "then an accumulation of the same was reversible error." Appellant thus points to various rulings of the court which we have herein found not to be reversible error. This ground of error is not in compliance with Art. 40.09, Sec. 9, V.A.C.C.P., and will not be reviewed. Love v. State, 533 S.W.2d 6, Tex.Cr.App.
Finding no reversible error, the judgment is affirmed.
Opinion approved by the Court.