Leopard v. State

634 S.W.2d 799, 1982 Tex. App. LEXIS 4661
CourtCourt of Appeals of Texas
DecidedJune 9, 1982
DocketNos. 2-81-157-CR, 2-81-158-CR
StatusPublished
Cited by4 cases

This text of 634 S.W.2d 799 (Leopard 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
Leopard v. State, 634 S.W.2d 799, 1982 Tex. App. LEXIS 4661 (Tex. Ct. App. 1982).

Opinion

OPINION

HUGHES, Justice.

By two separate indictments Edmond Leon Leopard was charged with driving his vehicle while intoxicated and, while doing so, colliding with a vehicle occupied by two women, causing the two women to be burned and killed. A jury found appellant guilty and assessed his punishment at 10 years confinement and a $5,000.00 fine for having caused the death of Lisa Vineyard; 20 years confinement and a $10,000.00 fine for having caused the death of Karen Goodrich.

We affirm.

Appellant’s sixth ground of error is that the trial court erred in denying appellant’s counsel the right to a full voir dire examination of the jury panel with regard to appellant’s exercising his right not to testify

The trial court had granted a defense motion to prohibit the State from examining the jury panel on the appellant’s right not to testify. During appellant’s voir dire examination his counsel stated to the jury panel, without objection by the State, “in a criminal case the Defendant does not have to testify, and you cannot consider that for any purpose. Does anybody feel like that the State has put on their side of the case, feels like they have to hear the Defendant’s side of the case? Does anybody feel that if the Defendant does not testify, they could not reach a fair verdict?” The jury panel was silent.

[801]*801Later in the voir dire appellant’s counsel again asked the jury panel if any one of them would hold it against the appellant if he did not testify. One juror responded, but it is not clear as to how she responded. No bill of exception is found in the record. The State’s counsel then objected to an inquiry of the juror on two grounds: (1) the granting of the defense motion in limine was mutually binding on the defense as well as the State and (2) the jury had already been questioned in regard to the appellant’s right not to testify. The trial court sustained the State’s objection on the ground that the defense motion in limine had been granted.

It is important that defense counsel had inquired of the veniremen and received no response as to whether any one of them would be unable to render a fair verdict if the appellant did not testify. At that point appellant had freely ascertained the feelings of the veniremen. At the point that the State objected, appellant was making a second inquiry. Duplicitous questions may, within the court’s discretion, be limited to curb the prolixity of voir dire. Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978). Although a venireman did respond the second time the appellant’s right not to testify was inquired about, we have no basis upon which we can determine whether error was committed in regard to that juror. No bill of exception is shown. We do not know what her response was or would have been. We overrule the sixth ground of error.

Appellant’s second ground of error is that the trial court erred in admitting into evidence, over timely objection, blood drawn from appellant and the results of tests conducted thereon, because such evidence was the result of a warrantless search and seizure conducted without appellant’s consent.

It was held in Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977) that, absent consent freely and voluntarily given, a defendant may not be subjected to a blood test under Texas law, search warrant notwithstanding. Of course, the burden is upon the State to show by clear and convincing evidence that the consent was freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.

There is in evidence a consent form bearing appellant’s signature in which it is stated that he voluntarily gave a specimen of blood to the police. The uncontradicted testimony was that appellant said he would take any test. He was thereafter given a consent form which was read to him and which he was given an opportunity to read. The consent form was also explained to him. He signed the form with no indication that he did not want to do so.

A Dr. Biggers drew appellant’s blood. He testified that he asked appellant if it was alright for him to take blood and appellant said it was. Dr. Biggers drew enough blood for the police to have a sample and had begun to draw a sample for the hospital when appellant said that enough blood had been taken. When appellant said this, no more blood was taken. It is the first sample which was admitted into evidence.

We hold that when the first blood sample was taken, it was taken with appellant’s consent freely and voluntarily given. We overrule the second ground of error.

Appellant’s third and fourth grounds of error are that the trial court erred in rendering judgments of conviction in both causes of action because there was insufficient evidence to prove the identities of the deceased victims as Karen Goodrich and Lisa Vineyard.

The charred bodies of the deceased victims were found in a 1966 Mustang bearing the Texas license number “GTP 289”. The father of Karen Goodrich, Paul Goodrich, had a passenger car bearing the license number “GTP 289” registered in his name. He testified that this passenger car was a 1966 Mustang and Karen Goodrich was the primary driver of the car on the date of the accident. Mr. Goodrich last saw his daughter alive on the date of the accident. She was leaving to go to Lisa Vineyard’s sister’s house for dinner when he saw her last. She left in the 1966 Mustang.

[802]*802Cathy Campbell, a friend of the two decedents, testified that she last saw the two decedents on the date of the accident. Her testimony was that the two decedents left her house in Karen Goodrich’s Mustang at 9:45 p. m. on the date of the accident. The two were on their way to Lisa Vineyard’s sister’s house. Ms. Campbell testified that Lisa Vineyard’s sister lived in “The Colony”.

Officer Michael Carroll testified that the accident occurred near “The Colony”. He arrived at the scene of the accident “somewhere between 10:30 and 10:45”, after the accident had occurred.

A funeral director, Bill Dalton, testified that he went to the scene of the accident and took the victims from there to the funeral home for identification. He removed articles of jewelry from one of the bodies. His testimony was that the victims were so charred that he could not determine their sex until he studied them at the funeral home.

Mr. Goodrich was able to identify the jewelry removed from one of the bodies as belonging to his daughter because she had always worn that jewelry. He had given her the rings himself.

A justice of the peace performed an inquest. He testified that a police officer had given him two partially burned driver’s licenses. Those driver’s licenses belonged to Karen Goodrich and Lisa Vineyard.

No one has seen or heard from Karen Goodrich or Lisa Vineyard since the date of the accident.

We hold that the evidence, circumstantial in nature, was sufficient to exclude every reasonable hypothesis other than that the two decedents were Karen Goodrich and Lisa Vineyard. We overrule the third and fourth grounds of error.

Appellant’s fifth ground of error is that the trial court erred in allowing allegedly prejudicial jury argument by the prosecution which contained harmful matter outside the record.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kenneth Johnson v. State
Court of Appeals of Texas, 2021
Sullivan v. State
678 S.W.2d 162 (Court of Appeals of Texas, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
634 S.W.2d 799, 1982 Tex. App. LEXIS 4661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leopard-v-state-texapp-1982.