Cumbo v. State

760 S.W.2d 251, 1988 Tex. Crim. App. LEXIS 174, 1988 WL 98942
CourtCourt of Criminal Appeals of Texas
DecidedSeptember 27, 1988
Docket69652
StatusPublished
Cited by37 cases

This text of 760 S.W.2d 251 (Cumbo v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cumbo v. State, 760 S.W.2d 251, 1988 Tex. Crim. App. LEXIS 174, 1988 WL 98942 (Tex. 1988).

Opinions

OPINION

ONION, Presiding Judge.

Appellant entered a plea of guilty to the offense of capital murder.1 After the jury returned its guilty verdict and answered affirmatively the three special issues submitted under Article 37.071, V.A.C.C.P., the court imposed the death penalty as required by law. See Article 37.071(e), supra; V.T.C.A., Penal Code, §§ 12.31 and 19.03.

The indictment alleged that appellant on or about September 12, 1985, “while in the course of committing and attempting to commit the robbery of GEORGE NICK VOINIS, hereafter styled the Complainant, intentionally cause[d] the death of the Complainant by cutting and stabbing the Complainant with a screwdriver.”

Appellant does not challenge the sufficiency of the evidence to sustain the conviction2 nor the affirmative answers to the special issues submitted at the penalty stage of trial.

Briefly the record shows that the deceased, George Voinis, owned and operated the Tip Top Lounge in downtown Houston. It was his usual habit to go to the bank between 11:00 and 11:20 a.m. each morning. George Stafford, whose wife, Louise, operated the laundromat next door to the lounge, saw the deceased Voines return [253]*253from the bank with a money bag on the morning of September 12, 1985. As the deceased began to unlock the gate to his lounge Stafford observed a man, whom he identified as appellant, running in the street. The appellant jumped onto the curb and told the deceased “I want that money. Give me the money. I’m going to take it anyway.” Stafford then saw the appellant begin stabbing the deceased with a “shiny object.” He and his wife then ran to the deceased’s aid and began hitting at the appellant. During the struggle Louise Stafford told her husband to get help. When he returned with Michal Matthews from a nearby restaurant the appellant fled the scene. Louise Stafford took the money bag the deceased was still holding and assisted her husband in carrying the deceased into the restaurant.

Matthews observed appellant discard a screwdriver as he was fleeing. He retrieved it and turned it over to the police.

Deputy Sheriff Seawood observed the “scuffle” between the appellant and deceased, and chased appellant as he fled and apprehended him.

Dr. Robert Jordan, assistant medical examiner, performed the autopsy on the deceased and expressed the opinion that the cause of death was due to multiple organ system failure resulting from multiple stab wounds.

Fifteen points of error are advanced on appeal. As a result of errors committed during the voir dire examination of the prospective jurors the conviction must be reversed.

In points of error five through twelve appellant complains in each that the trial court erred in overruling his challenge for cause to a named prospective juror who exhibited an inability to fairly consider the full range of punishment and a predisposition to answer “the punishment issues affirmatively.”

Article 35.16(c)(2), Y.A.C.C.P., provides that a challenge for cause may be made by the defense for the reason that the prospective juror “has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant’s being prosecuted or as a mitigation thereof, or of the punishment therefor.” (Emphasis added.)

A defendant is entitled to be tried by jurors who believe in the full range of punishment authorized by law. Pierce v. State, 604 S.W.2d 185, 187 (Tex.Cr.App.1980); Woodkins v. State, 542 S.W.2d 855, 862 (Tex.Cr.App.1976).

An individual adjudged guilty of capital murder is to be punished by death or life imprisonment. V.T.C.A., Penal Code, § 12.31. The penalty to be assessed is determined by the jury’s answers to the special issues submitted to the jury in a capital murder case under Article 37.071, Y.A.C.C.P.

The record reflects that appellant exhausted his fifteen (15) peremptory challenges allotted him pursuant to Article 35.-15(a), V.A.C.C.P. Thereafter, when appellant’s request for two additional peremptory challenges were denied and prospective juror Ronnie Davis was to be impaneled appellant made clear to the court that Davis was an objectionable juror and “totally unacceptable.” Likewise, the appellant made clear to the court that the two alternatives chosen were also objectionable jurors.

Appellant claims that in each situation where the court overruled his challenge for cause and about which he complains on appeal he preserved for this Court’s review the claimed error. Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978); Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980), cert. den. 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996.

In Hernandez, supra, at 948, this Court quoted from Wolfe v. State, 178 S.W.2d 274, 281 (Tex.Cr.App.1944) (Opinion on Rehearing):

“... in the trial of a criminal case where an accused has been wrongfully deprived of peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a fur[254]*254ther juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror. In further words, we think the accused should only be required to exercise a peremptory challenge on the objectionable juror and not a challenge for cause, nor show grounds for a challenge for cause, nor to show why such juror was objectionable to him.”

Thus, if a challenge for cause to a certain prospective juror is improperly overruled by the trial court and the defense is required to unnecessarily use a peremptory challenge, and later is forced to accept on the jury an objectionable juror because he was deprived of a peremptory challenge, and he has exhausted all his statutorily assigned peremptory challenges the reversible error is normally reflected unless the court grants an additional peremptory challenge. See Turner v. State, 671 S.W.2d 679, 680 (Tex.Cr.App.1984).

Needless to say that the appellant in the instant case preserved error in each situation claimed if the court improperly overruled his challenge or challenges for cause.

Points of error number seven presents the question of whether the trial court improperly observed the challenge for cause to prospective juror Darrow Craig Enderli.

At the outset Enderli told the court he had no conscientious scruples against the infliction of death as a proper penalty in a proper case, and that he could be a fair and impartial juror to the State and the appellant alike.

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Cite This Page — Counsel Stack

Bluebook (online)
760 S.W.2d 251, 1988 Tex. Crim. App. LEXIS 174, 1988 WL 98942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cumbo-v-state-texcrimapp-1988.