Campbell v. State

742 S.W.2d 759, 1987 Tex. App. LEXIS 9222, 1987 WL 35000
CourtCourt of Appeals of Texas
DecidedNovember 25, 1987
DocketNo. 4-84-00420-CR
StatusPublished
Cited by1 cases

This text of 742 S.W.2d 759 (Campbell v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. State, 742 S.W.2d 759, 1987 Tex. App. LEXIS 9222, 1987 WL 35000 (Tex. Ct. App. 1987).

Opinions

OPINION

DIAL, Justice.

Appellant was found guilty of the offense of capital murder of Emory Brantley, Jr. The jury answered the first special issue in the negative, and the trial court then assessed punishment at confinement for life.

In his first point of error, appellant asserts that the trial court erred in excusing venireman, Albert C. Garza, Simply because Garza voiced general objections to the death penalty, or conscientious or religious scruples against its infliction.

Appellant’s reliance upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) as his primary authority in support of the point of error is misplaced. The decision in Witherspoon v. Illinois, supra, is not applicable in the instant case because here appellant received a life sentence. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Additionally, we find that even if Witherspoon v. Illinois, supra, were applicable, Garza was properly excluded by the trial court. A complete review of the examination of Garza reveals that if he were selected as a juror in a capital case and [761]*761that case reached the punishment phase, he would violate his oath, to render a true verdict, in order to insure that the death penalty would not be assessed. No error on the part of the trial court has been shown. The first point of error is overruled.

Appellant’s second point of error complains that the trial court erred in requiring appellant to register an objection for cause to a prospective juror prior to the State being required to accept or challenge a juror.

Prior to trial, appellant filed a motion styled “Defendant’s Request to Utilize Peremptory Challenge Following Examination of the Entire Venire.” In this motion, appellant contended that a defendant in a non-capital case could make a more sensible exercise of peremptory challenges after examination of the entire panel and was not bound by TEX.CODE CRIM.PROC. ANN. art. 35.13 (Vernon Supp.1987). According to appellant, the application of art. 35.13, supra, to a defendant in a capital case constituted a violation of the defendant’s right to equal protection under both the U.S. and Texas constitutions. Appellant asked the court to permit the utilization of his peremptory challenges following the qualification of the entire panel. The trial court granted appellant’s motion.

On the second day of individual voir dire, appellant informed the court that he “... would like to invoke the first paragraph of 35.13 Code of Criminal Procedure with regard to selection of jurors in a Capital case.” Following a discussion, the trial court denied appellant’s request, noting specifically that it was because the court had granted the motion to qualify forty-two prospective jurors and then to permit the exercises of peremptory challenges. Generally, a defendant may not create reversible error by his own manipulation. Beasley v. State, 634 S.W.2d 320, 321 (Tex.Crim.App.1982). Having requested that art. 35.-13 not be applied to the jury selection process in this case and the trial court granting appellant’s request prior to the initiation of jury selection, appellant cannot now claim error in the trial court’s refusal of his request on the second day of jury selection that art. 35.13 be made applicable to the remainder of the jury selection proceedings. Any error the trial court may have committed by not following art. 35.13 was invited by appellant’s written motion requesting such action and appellant cannot now complain of the very error he invited. Cf. Ex parte Guerrero, 521 S.W.2d 613 (Tex.Crim.App.1975).

Additionally, appellant has not shown he was forced to take an objectionable juror and since punishment was assessed at confinement for life, we fail to perceive, and appellant has not demonstrated, any harm. The second point of error is overruled.

In order to resolve appellant’s points of error three through six, a brief summary of the evidence is necessary.

Keith Richardson testified that he was in the company of appellant, Leon Jackson and Zeb Thompson during the late-night hours of June 8, 1983, and the eariy-mcrn-ing hours of June 9, 1983. These four went in appellant’s car to a location on the south side of San Antonio off Military Drive. They parked the car at a car wash near some apartments. Although the original purpose of the trip was to “score some weed,” appellant said that they would burglarize the home if no one was there. Appellant got out of the car and walked to the apartments. Richardson subsequently observed appellant coming with another individual from the apartment area. Richardson said that appellant introduced this individual to the others, but he, Richardson, walked off because he did not want to meet him. This other individual left after a few minutes, and Richardson, appellant, Jackson, and Thompson got back into the car and left. Richardson testified that they all agreed to get back together in the morning, return to the same place, and burglarize it because no one would be home at that time. Richardson further testified that he stayed home and did not meet with the others in the morning as previously planned.

Billy Yarborough testified that he shared apartment No. 1,119 Saipan in San Antonio with Kenneth Martin and Emory Brantley, [762]*762Jr. on June 9, 1983. According to Yarbor-ough, appellant appeared at the apartment door at approximately 2:00 a.m., June 9, 1983, and asked for Brantley. Yarborough told appellant that Brantley was asleep, but appellant stated that he was having car trouble and wanted Brantley to give him a ride home. He told appellant that Brantley did not have a car but that he would awaken him. Yarborough told Brantley that one of his friends was outside, and Brantley got up. Yarborough then went back to bed. Yarborough said that when he got up for work that morning and left the apartment at approximately 7:30 a.m., Brantley was in his own bedroom and appeared to be still sleeping.

Glyne Holder testified that he, Glenn Miller, and Kenneth Martin went to the apartment shared by Martin, Yarborough, and Brantley, on June 9,1983, at approximately 7:30 or 8:00 that evening. The apartment was situated very close to a car wash. As they entered the apartment, they noticed things were missing. They told Martin to call the police. While Martin was gone, Holder and Miller walked through the apartment to see what was missing. When they went into Billy Yarborough’s bedroom, they saw that two televisions and some stereo equipment were missing. They then discovered the body of Emory Brantley, Jr. in the bedroom closet. Miller checked for a pulse and found none.

Kenneth Martin testified that when he, Glenn Miller, and Glyne Holder reached the apartment, he discovered that the door was unlocked. Martin testified that the door was normally locked whether they were there or not.

Both Martin and Yarborough testified as to the various items taken from the apartment including such items as televisions and stereo equipment with large speakers. They both stated that neither appellant nor any one else had their permission to enter the apartment or remove anything from there on June 9, 1983.

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Cite This Page — Counsel Stack

Bluebook (online)
742 S.W.2d 759, 1987 Tex. App. LEXIS 9222, 1987 WL 35000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-state-texapp-1987.