Starks v. State

776 S.W.2d 808, 1989 Tex. App. LEXIS 2499, 1989 WL 115773
CourtCourt of Appeals of Texas
DecidedSeptember 7, 1989
DocketNo. 2-88-068-CR
StatusPublished
Cited by7 cases

This text of 776 S.W.2d 808 (Starks 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
Starks v. State, 776 S.W.2d 808, 1989 Tex. App. LEXIS 2499, 1989 WL 115773 (Tex. Ct. App. 1989).

Opinion

OPINION

HILL, Justice.

Reginald Wayne Starks appeals his conviction by a jury of the offense of capital murder. Since the jury gave a negative answer when asked if Starks would constitute a continuing threat to society, the trial court, as required by law, sentenced Starks to life imprisonment in the Texas Department of Corrections. Starks contends in fourteen points of error that the trial court erred: (1) in overruling his challenges to the array; (2) in overruling his application for a writ of attachment to attach absent jurors; (3) in overruling his challenges for cause of various members of the venire; (4) in sustaining a challenge for cause brought by the State; (5) in not permitting him to offer into evidence an exculpatory statement taken by the police after his arrest; and (6) in failing to instruct the jury on the law of involuntary manslaughter.

[810]*810Starks shot and killed Denise Allen in the course of a robbery.

We affirm, because we find that the trial court did not err: (1) in overruling Starks’ challenge to the array, because the evidence presented in support of Starks’ challenge would not support a finding that the officer summoning the jury had willfully summoned jurors with a view to securing a conviction; (2) in overruling Starks’ application for a writ of attachment for absent jurors, because Starks failed to show that due to the court’s failure to grant the writ that he was required to take a juror that was objectionable within the meaning of the term in this context; (3) in overruling Starks’ challenges for cause and in sustaining the State’s challenge for cause of prospective jurors, because the rulings of the court were within its discretion; (4) in not permitting Starks to offer into evidence an exculpatory statement taken from him by the police after his arrest, because when an accused does not take the stand, self-serving statements are not admissible where they are merely contradictory to some act or declaration first offered by the prosecution; and (5) in not instructing the jury on the law of involuntary manslaughter, because there was no evidence that if Starks were guilty at all he was only guilty of the offense of involuntary manslaughter.

Starks urges in point of error number one that the trial court erred in overruling his challenges to the array.

Starks’ jury was selected from jurors summoned to appear in the afternoon. On the morning of the day the jurors were to appear, certain unknown persons, who were not government workers, handed out certain pamphlets which informed the potential jury members of the doctrine of nullification, the right of a jury to acquit a criminal defendant in disregard of the court’s instructions. Although there is no indication that these pamphlets were handed out to those appearing for service in the afternoon, there were apparently some left in the jury room and read by the potential jurors.

The record also reflects that a number of the prospective jurors were allowed by the appropriate judge to transfer their service to a later time without there being any notation made as to the reason for the transfer.

“Each party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction or acquittal....” TEX. CODE CRIM. PROC.ANN. art. 35.07 (Vernon 1989). Since the evidence presented in support of the grounds raised by Starks in his motion to challenge the array would not support a finding that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction, we overrule point of error number one.

Starks contends in point of error number two that the trial court erred in overruling his application for a writ of attachment to attach those who did not respond to the jury summons. In order for the denial of an attachment to constitute reversible error, the defendant must establish that an injury occurred due to the trial court’s failure to grant his request for the attachments. Jackson v. State, 745 S.W.2d 4, 17 (Tex.Crim.App.1988).

Prior to the beginning of jury selection, Starks moved to attach thirty prospective jurors who were called for duty, who did not show up, and who had not received any excuse from jury service. The trial court overruled the motion. Starks insists that he was injured because he exhausted his peremptory strikes and was forced to take an objectionable juror, a Ms. Bryson.

The Texas Court of Criminal Appeals has held that in determining whether a defendant has been harmed by the trial court’s failure to issue attachments for absent jurors, the term “objectionable juror” means “one against whom such cause for challenge exists as would likely affect his competency or his impartiality in the trial.” Stephenson v. State, 494 S.W.2d 900, 906 (Tex.Crim.App.1973). We must look to see if some cause, such as the formation of opinion or prejudice, might be a ground of challenge that would tend to show that the juror was not absolutely fair and impartial. [811]*811Prewitt v. State, 145 Tex.Crim. 202, 167 S.W.2d 194, 197 (1943). We have examined the voir dire of Ms. Bryson and find that it shows that she was not an objectionable juror within the meaning of the term as used in this context.

In his brief, Starks contends that Ms. Bryson was objectionable because she stated that it would be difficult for her to consider probation, and that she would have problems in not considering the applicability of parole to any sentence. We understand Ms. Bryson’s testimony to be that it would be difficult to consider probation in a case like this, but that she would give it earnest consideration. With respect to parole, she indicated that she knew about it, but that she could follow the court’s instruction not to consider parole. We do not agree with the statement in Starks’ brief that Ms. Bryson stated that she would have problems not considering the applicability of parole to any sentence. Her testimony was exactly to the contrary. We overrule point of error number two.

Starks asserts in point of error number thirteen that the trial court erred in not permitting him to offer an exculpatory statement that he made to the police. In a written statement which he gave to the police after he was arrested, Starks stated:

I walked up to the passenger’s side when they got stopped and I used the barrel of the gun and was tapping on the glass to try to get them to open the door. Then I busted the glass and they started driving and they bumped into the car and the gun just went off. The door hit the gun as they were pulling off and the gun accidently [sic] went off and I just stopped because I didn’t mean to shoot anybody.

We find that the statement was not admissible, for the reasons stated in the case of Singletary v. State, 509 S.W.2d 572, 576-77 (Tex.Crim.App.1974). At trial, counsel for Starks argued that the statement was admissible as being necessary to explain or contradict acts or declarations first offered by the State. Starks did not take the stand.

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Cite This Page — Counsel Stack

Bluebook (online)
776 S.W.2d 808, 1989 Tex. App. LEXIS 2499, 1989 WL 115773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starks-v-state-texapp-1989.