*1 materially alter the condition of the mecha-
nism, thereby destroying his best evidence of Eugene BIGBY, Appellant, James the forces and fractures involved in the acci- 167(l)(g) (“testing dent. See Tex.R.Civ.P. or examination shall not extend to destruction Texas, Appellee. The STATE of
or material alteration of an without article notice, hearing, prior approval by No. 71234. court”). According to the affidavit of GM’s controvert, expert, Gay which did not Appeals Court of Criminal of Texas. cleaning SEM exam degreasing involves Nov. of the mechanism creating and then acetate replicas, which would be viewed with the expert
SEM. The swore no fracture damaged destroyed,
surfaces would be examination,
and that without the SEM GM examination,
would be limited to a visual
which part would reveal whether the
defective or damage. the extent of
In the absence of evidence that the tests materially destroy
would alter or the mecha-
nism, the trial court abused its discretion
refusing permit toGM conduct the SEM An appeal
examination. circum- under these inadequate. Denying
stances would be GM very part
access to Gay claims injury effectively
caused his denies GM a opportunity
reasonable develop the merits Packer,
of its defense. See Walker v. (Tex.1992) (“a denial of dis-
covery going party’s to the heart of a case appellate remedy render inade-
quate”).
Therefore, pursuant to Rule 122 of the Procedure, Appellate
Texas Rules of without
hearing argument, majority oral conditionally grants
Court the writ of manda- permit
mus and directs the trial court to
SEM examination. The writ will issue if
the trial court refuses to act in accord with opinion.
866
868
father and Ms infant son. Tex.Penal Code. 19.03(a)(6) (West 1990). § Ann. affirmatively special answered the submitted issues, and court appel- sentenced lant to death. Tex.Code art. Crim.Proc.Ann. 37.071(b) (West 1990). Appeal to this court is automatic. art. Tex.Code Crim.Proc.Ann. 37.071(h) (West 1990). We will affirm. I. SUFFICIENCY THE OF INSANITY DEFENSE the first jury’s rejection msamty contends the of Ms against defense at trial so great weight preponderance the evidence unjust. to manifestly At trial a criminal prove defendant has the burden Ms insam ty and, by preponderance of the evidence case, appellant tMs mounted a considerable insamty Tex.Penal defense. Code Ann. 8.01(a) 2.04(d); § § Meraz v. (Tex.Crim.App.1990). argues State tMs Court does not have power conduct factual review of this nature, alternative, and in the evi against great dence is not weight so preponderance manifestly unjust. so as to be
A. JURISDICTION begm jurisdictional We with the State’s Richards, Logan Ware, David L. Michael argument. In support argument of its Worth, appellant. Fort for State, State v. cites to White 591 S.W.2d (Tеx.Crim.App.1979), heavily case re- Tim Curry, Atty., Dist. and Charles M. Meraz, upon by lied supra. this Court Mayfield, & Attys., Mallín Robert Asst. Dist. White the asked our re- Court to Worth, Huttash, Atty., Fort Robert State’s Austin, jury’s view competency finding set to the State. finding
aside
if
we concluded it was
against
weight
great
preponderance
rejectmg
of
the evidence. In
explicitly
invitation we
stated that we did not
OPINION
power
questions
have the
review
to
of fact as
MEYERS, Judge.
White,
appeals
the then courts of civil
could.
Our
we
855.1
conclusion that
Appellant
guilty
capital
was found
of
mur-
12, 1991,
on March
power
questions
der
the murder of a
lacked the
to review such
(en
Interestingly,
opinion
appears
(Tex.Crim.App.1978)
in White
to
872 appeal
An
process
origin,
harmony
pursuance
is a
of civil
In
and in
of
law
with
this
entirely,
subjecting
removes a cause
import
construction
the
given
of
thus
to
the fact as well as the law to a
jurisdiction,
review and
appellate
the terms
of our
all
retrial. A
process
writ of error is a
of
subsequent
expressly
constitutions have
common
origin,
nothing
law
and removes
given
jurisdiction
Supreme
to
Court
of
the
for
the
re-examination but
law.
appel-
criminal as
as civil cases
well
as an
tribunal,
late
and statutes have been
(Tex.1841).
Bailey
Haddy,
v.
decision said court conclusive” questions made is presup- upon clause their action such questions, fact the seems already final, subject by this possesses the and not review pose that the court This is to conduct factual review. court. power “ap- by meaning historical of the
buttressed
sys-
Essentially, in
at 70.
the civil
44 S.W.
jurisdiction.”
pellate
be conducted
tem factual review
appellate court.
the direct
system
In the civil
after the 1891 amend-
mеnts,
appeal-
in
losing party
the
a civil suit
given
this
was created and
In 1891
Court
appeals.
the
of civil
This
first to
court
ed
“appellate jurisdiction” over criminal
final
right.
appeal
a direct
and matter of
was
Const,
(1891
V, §
art.
law matters. Tex.
appeals
“appel-
the court of civil
had
Because
Amendment).
years
ninety
this Court
For
jurisdiction”
appeal, the
to consider the
late
appellate
in
criminal
court
was the exclusive
party
or
complaining
could seek a factual
again
was
Texas.
1980 the Constitution
of
of civil
legal review his case.
court
appeals
of
changing the courts
civil
amended
court,
power
had
appeals, like the trial
the
giving
appeals
of
and
those
to the courts
jury.
finding by
the
set aside
factual
jurisdiction
criminal
matters.
over
law
courts
Choate,
Any
91 Tex.
S.W. at 69.4
by
appeals
the court of civil
determination
Supreme
and
the
Court
the Courts
While
concerning questions of fact
final and
were
Appeals
consistently held that
of Civil
had
Supreme
binding
the Texas
Court.
jurisdiction”
grant
“appellate
general
the
of
Questions
by
court
Ibid.
of law decided
the
review
appellate
the direct
court to
allowed
appeals
appealed
of civil
could be
via a writ
fact,
Court had wavered
questions
our
However,
Supreme
of error to the
Court.
through the
1970’s and
1980’s. See
the late
appeals
the court’s of
determination of
civil
State,
851;
v.
v.
591 S.W.2d
Combs
White
question
fact was
on the
final because
(Tex.Crim.App.1982),
874 State, did White misconstrue the “factu-
Not
Villareal v.
675,
140 Tex.Crim.
146
clause,
406,
conclusivity”
(1941);
al
Franklin v.
but it
S.W.2d
409 - 410
recog-
failed to
State,
636, 183
573,
147 Tex.Crim.
nize
S.W.2d
574
jurisprudence
considerable
by this Court
State,
(1944);
Lozano v.
229,
154 Tex.Crim.
predecessors
and our
jurisdic-
with criminal
226
Parker
(Tex.Crim.App.1950);
S.W.2d 118
tion
continually
which had
recognized the
State,
v.
875 persuasion and the burden of upon the the facts. of evidence a both law and case Meraz, insanity. defense of Therefore, his affirmative 851 White v. 591 S.W.2d begin with a brief overruled, at 150. We 785 S.W.2d (Tex.Crim.App.1979) expressly facts the case. narrative of the any by on that our Court and reliance case misplaced. Meraz was Trekell, friend, Mike Appellant killed son, Jay- friend’s sixteen month-old and his power questions Our review son, p.m. December after 6:00 on sometime v. prior fact was well established White 23, appellant was 26th 1987. On December 851, amending the by 591 S.W.2d County. a Tarrant apprehended at motel in creating appel a two-tiered constitution appellant’s where- Acting on information of system, late the Framers of our Constitution abouts, police dispatched a S.W.A.T. limit factual again evinced desire to have negotiator to the mоtel. team and By appellate the direct courts. review to Ansley, ap- Detective contacted negotiator, appellate making the direct courts’ determi appellant’s room. through the door of pellant final, questions of the Fram nations of fact door, and Eventually, appellant cracked the permitting single factual ers intention of Appellant detec- spoke. said to the the two any has In case been accorded. review tive, you.” guilty I am so do “I know capacity appellate our as a direct court heard Ansley, if he had Detective unsure capital cases which defendant receives repeat correctly, appellant to asked death, ability we sentence of retain our further Appellant After the statement. did. pow factually review a criminal cause. This and was negotiations, appellant surrendered jurisdiction” er “appellate is inherent our arrest, Subsequent appel- to his arrested. any corresponding constitu and the lack of confessed: lant Smith, Republic Dallam tional restriction. v. past 14 months I have felt for the (Tex.1841);
407,
Bishop v.
43
410-411
against
conspiring
has
Mike
been
[Trekell]
(1875); accord,
390,
Cropper v. Cat
Tex.
400
concerning a
trying to
me and
discredit me
Co.,
646,
erpillar
648
Tractor
Lay.
I had
against
I have
Frito
lawsuit
Co,
(Tex.1988);
715
Pool v. Ford Motor
him
thinking
getting
been
about
back
629,
(Tex.1986); Traylor v.
my mind
and it
on
for a while
has been
(Tex.1973);
944,
Goulding, 497 S.W.2d
I
my
it was
mind when
when I—and
Estate,
King’s
re
Tex.
night.
house
Mike
came to his
While
(1951);
A.P.
Choate
San Antonio &
him,
fixing the steaks I went over
was
(1898);
Ry.,
Bailey
91 Tex.
S.W. 69
thing I
I
with
next
knew shot Mike
and the
(Tex.1841). Therefore,
Haddy,
gun and didn’t know I was him. B. FACTUAL REVIEW why, Mike after I shot I don’t know but conducting review of a factual refriger- cellophane from the I took somе defense, standard proper affirmative Jayson’s room. I and went into ator is, considering all for review whether after Jayson’s cellophane wrapped the around relevant to affirma the evidence I then filled and suffocated him. head insanity, judgment is so tive defense of “the Jayson face up placed water and sink with against great weight preponderance him there. just I left into the water. down manifestly un so as to the evidence my Meraz, into
just.”
got
At trial
where. After to the motel room devise was block for a sleep. I couldn’t took a lot of medication telephone. Despite all the modular evidence trying sleep myself. I to force on was paranoia, appellant’s appel- father believed kept thinking disturbed and about Iwhat right lant knew the difference between baby. had done to the It bothered me a wrong. regret killing baby I lot. but not the appellant’s compen- Both of civil worker’s thought police other. I would come in attorneys sation testified at trial. His first apartment and shoot me. attorney appellant’s fi- withdrew because disagreement by parties There is no appellant’s nancial demands and because appellant suffering trial that was from de- investigation desired increased role concerning employer,
lusion his former Frito Appellant had informed this attor- the case. Lay, compensation and its worker’s insur- ney Frito-Lay people following had him. company. ance The nature and effects of Appellant’s attorney second had also been apрellant this delusion and whether knew his by appellant of informed his beliefs cer- wrong on conduct Christmas was were con- him, Frito-Lay people following tain were tested issues in the trial. trying through him poison the emission of In appellant began working for the poisonous green gas, recording his Lay Company. Frito in the He assisted attorney’s During repre- conversations. delivery maintenance of their fleet of trucks. appellant, appellant sentation of rammed his year job injured appellant After a on the his car into the automobile of one of the insur- incapacitating back. Because of the effects following investigators ance who had been injury, compensa- he filed a worker’s charges him. Criminal mischief were filed Lay. tion claim with Frito This claim even- basis, against appellant plead and he tually erupted into a lawsuit between the guilty. Appellant’s compensation worker’s parties. attorney filed a motion for new trial to set Appellant convinced that Frito plea appellant became aside that on the basis that Lay compensation and its worker’s insurance competent plea was not when he entered the company conspiring against pre- him were guilty. a few instances in his any Appellant vent on his claim. years attorney, an collec.tion seventeen as had he gathered enough believed that he had data thought incompetent or a client was insane company compa- on the insurance to have the necessary pleadings. and filed the Texas, ny suspended operating in from psychiatric There was considerable evi- result, company pre- aas the insurance was psy- dence introduced at trial. Five different pared him to “take out.” The number of professionals during chiatric testified the tri- “conspirators” grew slowly evеntually includ- concerning appellant’s past present al ing family some close friends and members. Appellant’s psychiatric mental condition. theory insanity The defensive was that began in treatment 1986 when he first was protect Trekell himself killed Jr., psychiatrist, Eudaly, referred to a Dr. conspirators. from these doctor, Septem- medical Dr. his Saifee. progressed As time after his accident so 1986, appellant was admitted for se- ber appellant’s paranoia. Appellant did informed depression psychiatric to the floor of vere worker, father, postal that the his former Joseph Hospital. was the first of Saint This conspirators trying to kill him infus- were appellant’s separate hospitalizations for three conditioning ing through the air vent of his psychiatric prior to the commission of care poisonous “green gas.” He apartment also today. at issue the crime apartment told his father that his was diagnosed electronically Joseph appellant “bugged,” or monitored. His At St. was contrary. appel- having a schizoaffective This di- fied to the Each said disorder.6 agnosis suffering was ruled out sec- from disease or after a severe lant hospitalization. Appellant ond was released he could not know defect such that did October, Eudaly and Dr. continued wrong. also had conduct was The State appellant every four meet with three to Coons, ap- expert, Dr. testified that who *13 seeing Dr. Appellant began also weeks. legally pellant was sane. Much of the “battle a week. Koechel once concerning disputes involved experts” prescription drugs of certain and wheth- Appellant July was of 1987 admitted er, testified, halluci- appellant’s as Dr. Coons Hospital. Bend He there until Oak remained amphet- in fact result of nations were mid-October of 1987. There was some evi- history Appellant past had a amine abuse. his departure prema- at trial that was dence abuse, amphetamine although the extent of appellant’s have ture and been due to of this abuse was uncertain. improve- and lack of insurance not his mental ment.7 appellant’s experts of testi- While several appellant could not know fied that not or did 1987, appellant was re- December wrong, testify was did his conduct several under- Joseph admitted Saint where he illegal. his appellant that knew conduct was therapy. took a series of electro-shock This supported by appellant’s first This is also testified, therapy, Dr. type Eudaly was Ansley appre- statements to Detective at his employed when medical treatment has failed. stated, Appellant I am hension. “I know appellant’s time after final Some third and you.” guilty so do an un- and This evinces treatment, appellant electro-shock left derstanding by appellant his that he knew hospital returned to his home. He illegal, hospital conduct was whether or not he be- phoned nursing inform longer would staff that he no treatment. lieved it to be or have characterized needed informed, Eudaly When so Dr. “wrong.” indicated as appellant’s premature,
he believed exit was however, day he decided to if wait a to see C. LAW OF INSANITY change appellant would his mind. The next day Eudaly appellant Dr. Section 8.01 of the Penal Code spoke over the phone concerning appellant’s provides status. After for the of insani affirmative defense Eudaly appel- their discussion Dr. dismissed ty: hospital’s
lant from the care. (a) prosecu- It is an affirmative defense to that, tion at of the conduct time that month appellant Later killed his actor, changed, as a result of severe friend Trekell and infant son. Dr. Trekell’s defect, Eudaly disease or did not knоw that appellant testified that mental did not “suf- wrong. fer from a severe mental disease or defect his conduct was could not such that he tell or did not know medical; insanity strictly The issue of not wrong.” his conduct was legal consid- it also invokes both and ethical witnesses, Appellant’s expert three erations. See Graham v. other (en Griffith, banc); Finn, Grigson, all testi- (Tex.Crim.App.1978) doctors 948-949 Eudaly Eudaly, generally pre- 6. Dr. testified disor- that “schizoaffective Dr. Prolixin was designate a "term that is a condi- psychotic specifi- der" is used to symptoms scribed to treat Primarily tion which has some mixed features. cally schizophrenia. This was the reason category of it’s in the emotional disturbance such hospi- drug prescribed upon appellant’s first depression, but it's to indicate that also used Eudaly Dr. talization. this instance probably thinking there is some dis- element of prescribed for the Prolixin use as booster present turbance associated with their condi- drugs pre- anti-depressant been had also which tion." at the When was arrested scribed. possession prescription was in of nine hotel he concerning testimony 7. There was considerable including Prolixin. medications Prolixin, prescribed drug, at Bend. Several Oak testified, including experts health of the mental Taylor v. right 468-469 lant knew the difference between (Tex.App. pet. wrong multiple he [1st Dist] when committed the mur- — Houston granted). deciding sanity ders. This evidence of is also but- ultimate issue by appellant’s tressed own statements sanity, only join can the non-medical at Appellant arrest the motel. informed components that must be considered in de the officer that guilty. he knew he was Graham, ciding the ultimate issue. question There is no evi- sanity 949. Otherwise the issue dence of his delusions was extensive. How- would hospitals be decided and not the ever, question this does not resolve the “Ultimately courtrooms. Ibid. the issue of appеllant’s “legal” sanity. jury’s deter- insanity at the excusing time the offense sanity mination of the fact issue of does not responsibility criminal province lies in the appear undisputed to be resolved or to one jury, credibility as to the *14 spectrum, end of the nor does that determi- weight evidence, witnesses and the of the but appear beyond nation to be the realm of also as to the limits of the defense itself.” Graham, jury. discretion afforded to the See Id., However, at preclude 952. this does not at 852. jury’s a factual review of the determination. Graham, As this Court stated expert Several testified witnesses many The limits of defenses are left to the appellant illegal, knew his conduct was how jury. usually expressed Such limits are ever, experts appellant these contended that jury terms that application leave to the the did not “morally” wrong. know the act was readily susceptible of norms that are not to words, appellant In other believed that re reduction to a concise factual formula. gardless society’s of illegal views about this jury The participates this sense in de- understanding illegal, act and his it was un termining the law as well as the facts. permissible. der his “moral” code it was Many defenses exhibit this characteristic upon appellant’s morality This focus is mis through incorporation the placed. question insanity a standard of should fo cus on “reasonable belief.” Ac- whether defendant understood the [cites omitted.] quality nature and cording of his action and whether scope to the standard and the ought it-was an act issue, he to do. Zimmerman v. degree the the of discretion accorded 85 Tex.Cr.R. 215 S.W. jury resolving undisput- the issue on (1919) (on rehearing). By accepting and ac vary. ed facts will Before such a decision knowledging “illegal” by his action was socie appeal, be overturned on the fact standards, tal he understood that others be undisputed issue must be resolved “wrong.” lieved his conduct was spectrum, one end of the fact determination must be found to lie outside Therefore, upon our review we do not be- jury the realm of discretion accorded the preponderates lieve the evidence to such an standard, applicable under the be it “rea- appellant jury’s extent favor of that the belief,” firmness,” sonable “reasonable implicit finding against great was so cause,” “likely to or some other. weight preponderance of the evidence manifestly unjust. Appellant’s it was at n. 3. point first of error is overruled.
In the instant cause both the State produced experts and the defense medical II. DIRE VOIR concerning appellant’s sanity who testified Appel time he committed the crime. through fourth seventh appel- points complains lant’s father testified that he believed he the trial court argument Appellant’s expert’s conforming requirements and his testimo- his conduct to the ny present stronger (1974). defense under the old in- § the law. Tex.Penal Code Ann. 8.01 sanity defense. Prior to 1983 it was defense August this defense was eliminated in a crime if a defendant knew his conduct was of 1983. "wrong,” incapable but nevertheless he was completion Upon him of voir dire eleventh refusing permit to see the erred in deciding veniremember both jury panel prior entire whether juror appellant passed the jury demand a shuffle. See Tex.Code Crim. juror, presence Outside the
Proc.Ann. art. 35.11. After
venire was State.
the State ac-
impaneled, appellant
requested
trial court
whether
filed motion to have
potential juror.
accept-
jury
cepted the
The State
individuals included in the
absent
Appellant’s
challenged
counsel then
prior
list
to his determination of
ed.
trial
and seated
At this
right
for cause.
whether would exercise his
to a
the veniremember
he
court,
motion was
discussion ensued between
shuffle. This
denied
prosecution,
attorneys.
the defense
court.
eventually
number eleven was
Veniremember
accepted by
appellant and
State.
the absent
were
both
Because
individuals
jury, appel
eligible
to serve
Prior to
of veniremember
the examination
untimely.
request
lant’s
35.01 of
Article
discussion be-
twelve
after considerable
pro
of Criminal
Texas Code
Procedure
attorneys
judge, the
tween the
and the
trial
summoning
potential jurors.
vides for the
challenges in future
court ruled that the
voir
provides specifically
article
individu
proceed
dire would
as follows: State’s chal-
als who are absent:
*15
cause,
lenge
challenge
for
for
person
pres-
A
is summoned
who
but not
cause,
challenge,
ap-
peremptory
State’s
ent, may upon
appearance,
Appellant’s
pellant’s peremptory challenge.
before
jury
qualifi-
tried as to
qualified,
be
his
objected, specifically
trial counsel
comment-
juror
impaneled as a
unless
cations and
proce-
ing
ruling
this
the selection
violated
be
challenged, but no cause shall
unreason-
35.13, supra.
dure set forth in Article
ably delayed on account of his absence.
requires
Appellant’s
point of error
eighth
(empha-
art.
Tex.Code Crim.Proc.Ann.
35.01
first time
interpret
that we now
for the
added).
request
Appellant’s
sis
occurred af-
for
meaning
“Passing
of
Juror
Chal
qualifications
ter the court tried the
of those
of
lenge” provision
the Texas Code Crimi
of
Therefore,
present.
the absent
individuals
35.13, supra.
nal
Art.
“When
Procedure.
jurors.
were
to serve as
not entitled
Be-
legisla
attempting to
collective
[the]
discern
eligi-
cause those absent individuals
not
were
statute],
or
we
purpose [of
tive intent
nec
serve,
ble to
the court did not
its
abuse
essarily focus
attention on the literal text
our
overruling appellant’s
in
request
discretion
to
attempt
question
in
statute
jury
have those individuals included in the
fair, objective meaning discern the
that
list for
35.11
purposes of article
of the code.
Boykin
text at the
of its enactment.”
time
Appellant’s
through seventh
points
fourth
State,
(Tex.Crim.App.
818
785
S.W.2d
error
overruled.
are
1991).
exception has been noted
One
rule,
is,
such a
general
that
that where
read
eighth
his
com-
that
ing
result
could
would lead to an absurd
by
plains
requiring
court erred
intended,
possibly
we will not
not
have been
challenges
counsel
for cause in a
to exercise
Ibid.;
Faulk v.
favor such
construction.
contrary Article 35.13
manner
of the Tex-
State,
(Tex.Crim.App.
630
Article
Code of Criminal Procedure.
1980).
provides,
35.13
succinctly that
juror
in
Article
capital
A
in a
case which the state
35.13 states
accep-
passed
“be
for
has
it known it will seek the death
veniremember shall
made
to the state and then
penalty,
qualified,
challenge
tance or
first
held
be
shall be
jurors
Challenges to
are
passed
to the
acceptance
challenge
for
or
first to
defendant.
It
for cause.”
seems
peremptory
either
or
state and then to
defendant. Chal-
that
lenges
jurors
apparent,
legislature
intended
defen-
peremptory
are either
or
cause could
made
challenges
dant’s
for
cause.
non-application
application
after the State has made its decision to ac- The
cept
particular
a veniremember.
In this instance the
harmless error rule has been of
statutory language
logical
evokes no other
concern to
Marin v.
this Court of late. See
State,
interpretation.
(Tex.Crim.App.1993)
(violation
legislative prophylactic proce
selecting jury
capital
The manner of
concerning
days
dural rule
number of
regulated by
ease is
Article 35.20 of the
preparation
speculative
for trial was too
to be
part,
Texas Code of Criminal Procedure.
rule);
considered
harmless error
Meek v.
provides
the article
State,
(Tex.Crim.App.1993)
This of Article 35.13 is nei- general, The harmless error rule in Indeed, explanation ther novel nor new. 81(b)(2) particular, in not Rule was de- previously recognized by the Honorable signed hypothetical of for the retrial defec- 1965, Judge shortly in John Onion after the litigation appellate criminal tive the Special statute was enacted. Com- Speculation possible the ef- courts. about 35.13, mentary to Article of the Texas Code ignoring procedural prophylactic fect of Procedure, Presiding Judge of Criminal On- rules, disregarding let essential fea- alone ion wrote that adversary process, always a tures of the is application perverse inappropriate of support Article 35.20 would seem to Indeed, it is the harmless error doctrine. provisions of Article 35.13 which would precisely many of these de- because rules permit to demand that defense fine, aggregate, tolerably what is accept challenge State for cause each system criminal fair trial under our
juror before the defense exercises its chal- justice disregard that their must necessari- lenges peremptorily. for cause or ly out- undermine the confidence (Vernon 1989). Therefore, Otherwise, the trial court may eventu- come of trial. we objection overruling appellant’s denying erred ally come to believe that an ac- the order of voir dire. is cused even the assistance of counsel harmless whenever the would almost Having thus found the court fell into any him certainly have convicted event. harm anal- we must next consider whether a 81(b)(2) reason, error doc- ysis For this the harmless should be considered under Rule broadly Appellate Procedure. trine is consistent with a rule- of the Texas Rules Nothing opinion contemplates prevent- continuing need for needless and time consum- in this making challenge ing party either from ing voir dire. moment, eliminating the cause at an earlier thus
881 challenge for cause remained governed system adjudication only that the State’s when peremptory chal- very first and the defendant’s not threaten to undermine the does distinctly lenged precepts specify fair was last.10 which operation system. precepts These challenges would have The reversal of fundamental rules of due
include
jurors.
This
no effeсt
the selection
law,
process
prophy-
due course of
but
ability
challenge
so because the State’s
designed,
procedure
lactic
in most
rules of
persons for cause is broader and en-
venire
impose
Legislature,
cases
a uni-
ability to
compasses
chal-
the defendant’s
requirement
form
where the fairness of a
may
lenge
potential juror.
A defendant
is too uncertain.
flexible rule
for the
challenge
exercise a
for cause
reasons
35.16(c)
harm existed. The order of chal- L.Ed.2d 1379 Chambers *17 lenges (Tex.Crim.App.1978), challenge should have been State’s for 313 overruled S.W.2d cause, State, grounds, peremptory challenge, Grijalva other 614 State’s Defen- cause, 420, challenge (Tex.Crim.App.1981). dant’s for Be- Defendant’s S.W.2d 425 peremptory challenge. challenge In cause this the or- cause the State’s tor encom- ease challenges challenge, der of there passes occurred as could follows: State’s defendant’s cause, challenge challenge possible forcing for Defendant’s be no harm defendant cause, prior peremptory challenge for for cause to challenge, State’s to exercise its challenge. peremptory challenge. peremptory Defendant’s Essen- the State’s Accord- tially peremptory ingly, the order of the State’s we the trial court erred in over- hold challenge challenge ruling concerning defendant’s motion and the defendant’s note, however, challenges, cause do order of and that error was were reversed. We responses Clearly advantage juror being to influenced there is the defendant from making challenge peremptory his after the State. Capital others. defendants do not have to ex- State, In this Court Janecka v. noted: against particular peremptory a ercise a strike 35.13, supra, It is obvious that Art. on its face the State has first decided venireman until practice capital Thus, and in is beneficial to defen- if the State and the whether to do so. ways dant in that the other relevant statutes venireman, given defendant do not want non-capital felony are not beneficial to defen- cause, the he cannot excluded for defendant capital dants. A murder defendant examines saving peremptory one of his will benefit individually veniremen in isolation. challenges. generally This more allows for detailed evalua- 1987). 813, (Tex.Crim.App. 739 S.W.2d 834 prevents potential tion a venireman and 882 81(b)(2). Tex.R.App.P.
harmless. Appel- reviewing In ruling, the court’s eighth point lant’s of error is overruled. Spark’s we look at entire voir dire examina
tion to
support
determine whether there is
In
ninth and tenth
ruling.
for the court’s
Satterwhite v.
error,
points
argues
he
the trial
412,
858
(Tex.Crim.App.),
cert.
—
requiring appellant’s
court’s error in
chal
denied,
-,
455,
U.S.
114 S.Ct.
lenge
precede
per
for cause to
the State’s
(1993);
Moody
L.Ed.2d 387
emptory challenge violated both the Texas
875,
(Tex.Crim.App.),
cert. de
Constitution,
I,
10,
—
Article
Section
and the
nied,
-,
119,
U.S.
S.Ct.
Sixth Amendment of the United States Con
(1992).
great
L.Ed.2d 75
We afford
defer
stitution, respectively. Appellant’s argument
ence to the court’s decision because
is
“[i]t
designed
provide
that the statute is
to
him
judge
the trial
opportunity
who has the
advantage
with a tactical
advantage
and that
demeanor,
view each venireman’s
evaluate
deprived.
has
previously
been
As has been
and,
credibility
ultimately,
his
who is
mentioned,
advantage
there is no tactical
position
pass
challenges
better
on the
forcing appellant to exercise his causal chal
Satterwhite,
presented.”
cause
858 S.W.2d
lenge prior to
peremptory
the State’s
chal
ruling
415. This
will not be disturbed
lenge.
eight, supra.
See Point of error
Ad
showing
absent a
anof
abuse of discretion.
ditionally, appellant furnishes this Court with
Ibid.;
Williams v.
explanation
argument
support
no
denied,
(Tex.Crim.App.1988), cert.
493 U.S.
argument.
appellant present any
Nor does
(1989).
110 S.Ct.
rationale to how this rule rises to constitutional dimensions. See Tex. Appellant correctly points out that 74(f). Therefore, R.App.Proe. appellant’s Sparks distinguish indicated that he could points ninth and tenth of error are overruled. between the terms. a review of the entire Sparks ap record indicates that error, point appel the eleventh peared equivocate response ques argues lant the trial granting court erred in tioning subject. on the рoint fact at one challenge the State’s for cause of venire- Sparks indicated that an intentional action Sparks. challenged member "Whenthe State encompassed and was than broader deliber Sparks grounds upon it advanced numerous ate action. In our examination of the entire challenge. which the to base such causal dire, voir we do not believe the trial court granted challenge The court the State’s be in sustaining abused its discretion the State’s cause the veniremember was unable to dis challenge. Appellant’s eleventh of er tinguish “deliberately” between the terms ror is overruled. “intentionally” and because the venire- member would proof “[reverse] the burden of In his twelfth and thirteenth give and not a fair consideration of the insan points appellant alleges *18 ity appellant’s defense.” Much of brief ob improperly challenge court overruled his for jects ability to the challenge State’s cause to veniremembers Ledbetter and Blei. Sparks opposition on the basis of his to the However, appellant preserve has failed to insanity defense. because the appellant error. After exercised his fifteenth court did not in granting abuse its discretion peremptory challenge, granted the trial court challenge upon Sparks’ the State’s based ina request peremptory his for two additional bility sufficiently distinguish between the challenges. challenge Neither was used. In “deliberately” “intentionally,” terms we preserve order to error for a trial court’s ruling. need not further examine the court’s cause, challenge denial of a defense for distinguish A veniremember who cannot be must be demonstrated on the record that the killing tween a “deliberate” and “intentional” subject challenge specific is defendant asserted a clear and chal Nethеry for cause. State, 691; lenge clearly articulating grounds v. 692 S.W.2d at for cause Tex.Code Crim. 35.16(b)(3). therefor, Proc.Ann. peremptory art. that he used chai-
883 State, 630, (Tex.Crim.App. 632 521 lenge juror, peremptory that all his v. S.W.2d on 1975) (evidence context flight, in the of exhausted, of request challenges were his as evidence denied, bail-jumping, may be construed that an strikes is additional 870, State, guilt); 506 S.W.2d 873 Hodge of v. objectionable juror the sat on ease. Harris (on rehearing). (Tex.Crim.App.1974) To State, 568, (Tex.Crim.App. 581 v. 790 S.W.2d relevancy under such excluded State, have evidence 760, 1989); 766-767 Felder v. S.W.2d (T to the challenges, shifts defen State, the burden Payton ex.Crim.App.1988); v. affirmatively escape dant to show 677, (Tex.Crim.App.1978). flight directly to some other trans connected By exercising his two additional chal not not connected action and further that it was lenges, his appellant failed exhaust all Wockenfuss, trial. with the offense at failed challenges preserve peremptory 632; Hodge, at 873. 506 S.W.2d propriety the trial complain error to of of challenges his cause. ruling court’s appellant concedes that While
Appellant’s points and thirteenth twelfth admissible, argues flight generally he error are overruled. insanity the issue of because defense was However, appel guilt was not contested. III. TRIAL ERROR not relieve the lant’s affirmative defense does error, point appellant In the second all proving from State its burden the trial court erred admit- beyond Appel contends that doubt. elements reasonable ting attempted escape of his from clearly evidence attempted escape lant’s had relevance prior to the conclusion of the charged courtroom of the crime as it guilt guilt phase the trial. See Tex.R.Crim. during guilt phase of was committed 404(b). presence 404(b). Evid. Outside the trial. second Tex.R.Crim.Evid. guilt phase conclusion of the near the point of error is overruled. trial, appellant gun somehow secured judge’s bench. He located behind his third chambers,
proceeded judge’s into the aimed argues that if this evidence were some even gun judge, at the him that relevant, informed prejudicial how deemed effect they leaving together. judge were trial outweighed any substantially of the evidence leapt grabbed weap- the desk and across probative Tex.R.Crim.Evid. 403. value. See bailiff, help finally on. of a With the who had an court reviews a trial appellate When arrived, attorney and an assistant district it should court’s decision on this basis they appellant. and subdued disarmed ruling if the is “within a reverse court disagreement.” Mont
reasonable zone of (Tex. flight escape 372, Evidence is gomery v. 810 S.W.2d (on as a circumstance from rehearing). admissible which Crim.App.1990) guilt may inference of be drawn. Foster 845, (Tex.Crim.App.1989), 779 S.W.2d reviewing the court’s decision denied, 494 U.S. 110 S.Ct. rt. strength proponent’s look to we
ce
(1990);
little to contest his
These factors tend
do,
hands of
community
like we
but
to favor the exclusion of extraneous offenses
you
what do
want me to do?
that are not
insanity
admitted to rebut the
[DEFENSE
I think
COUNSEL:]
what
defense.11
we must also look to
part
is,
having
of the concern
he is
difficul-
compelling
probative
how
the evidence of
ty sitting
through
flight
proceedings
here
concerning
at
consequence.
a fact of
point, Judge,
I
Montgomery,
basically
and told him
any At time the issue defendant’s incompetent. appellant evidence that raisеd, incompetency to trial is stand judge Appellant’s with the trial conversations may, court own motion or motion its understanding pro complete indicate defendant, counsel, prosecut- or the his statements, ceedings. while ad Appellant’s ing attorney, experts appoint disinterested mittedly affidavit strange, and counsels’ experienced qualified mental health not have do not indicate that did or mental to examine the de- retardation ability to with his present consult “sufficient competency regard with to his fendant lawyer degree of rational with a reasonable testify any trial and trial or stand fac understanding” or “a rational as well as hearing on this issue. understanding proceedings tual appellant’s request. court The trial denied art. Crim.Proc.Ann. against him.” Tex.Code 46.02, 1(a). Accordingly, § court did appoint a disin decision deny appellant’s its discretion abuse expert to with terested examine defendant point of er Appellant’s motion. fourteenth competency to his or stand regard her ror overruled. trial trial is left to sound discretion error, appellant point of Leyva v. In the fifteenth court. by failing to argues trial court erred (Tex.Crim.App.1977). That decision is re- that the *21 jury instruct opening the State’s his cross-examination of Grace Kehler —Tre- statement was not evidence. At the conclu- surviving spouse kell’s and the infant’s moth- opening sion of the appel- State’s statement Specifically er. he contends “the trial court requested jury lant the court instruct preventing erred in defense counsel from opening that the statement was not evidence. questioning specific [Kehler] about the alle- request. trial ap- court denied his On gations against in she made her lawsuit vari- peal, appellant contends the State mislead appellant ous doctors who nu- treated jury by indicating arguments that certain hоspitals appellant merous where was treat- However, actually were facts. even if it is prior killings.” ed to the Kehler had filed a proper in jury some instances to instruct the negligence civil in alleged suit which it was manner, necessary this not hospital, employees, its and the doc- ease. negligent discharging appellant. tors were appellant argued questions At trial con- jury We do not believe the could cerning the civil suit were relevant for two believing have been mislead into that those purposes show a motive or and to bias actually statements were evidence. The —to prior ap- show a inconsistent statement. On statement, began opening State its “Ladies peal, his contention is couched in terms of gentlemen, present you the State will limiting the trial court’s error in his cross grisly evidence in this case that will tell tale multiple examination of opening murder.” The Kehler. continued discussing “chapters” story the three to the “epilogue” being
and its the trial. Appellant’s objections The State trial were they informed the of what would “hear” 612 of based Rule the Criminal Rules of story. told and who would tell the (a) While provides Evidence.12 Section for the ex a, appellant is able to locate two statements concerning prior amination of witness the record in which the State did not state inconsistent statement. state show,” “the evidence will we do believe by ment must made In be her. this instance from a review of the entire record Kehler, pleadings signed by were not but jury was misled or that the trial court abused therefore, by attorney, they rather her overruling its discretion re prior are not her inconsistent statements quest Appellant’s for the instruction. fif meaning within the of the rule.13 point teenth of error is overruled. Appellant’s ground
In the second sixteenth improperly admissibility contends the trial court limited or examination was that the interest, witness, part 12. Rule 612 of the Rule of Criminal Evidence on the of such and be- provides: concerning, fore further cross-examination or of, may extrinsic evidence such bias or interest (a) Examining concerning prior witness incon- allowed, supporting be the circumstances such examining sistent statement. a witness statement, claim or the details of such includ- concerning prior inconsistent statement where, ing the contents and when and to him, written, made whether oral or made, whom must be made known to the wit- concerning, before further cross-examination ness, given oppor- and the witness must be of, or extrinsic evidence such statement tunity explain deny or to such circumstances allowed, the witness must be told the contents written, writing or statement. If need not place of such statement and the time and time, request be shown to him at that but made, person to whom it was and must be opposing shall be shown to counsel. same opportunity explain deny afforded an or unequivocally If the admits witness such bias written, writing such statement. If need interest, extrinsic evidence shall not be ad- time, not be shown to him at that but on party permitted present mitted. A shall be request opposing the same shall be shown to rebutting any impeaching evidence evidence unequivocally counsel. If the witness admits party’s grounds one statement, of said witnesses on having made such extrinsic evi- bias or interest. dence same shall not be admitted. This provision apply par- does not to admissions of 801(e)(2). Additionally, that there the trial court held ty-opponent as defined in Rule (b) Examining concerning was no inconsistent statement made Ms. Keh- bias or in- witness examination, During impeaching by proof terest. ler. her Ms. Kehler testi- witness showing circumstances or statements bias or fied as follows: *22 Appellant’s proof her to bill a bias or motive for be attributed her. documents showed аdmitting 612(b), pleadings the limited to testifying. su- was See Tex.Crim.R.Evid. not indi- record. The record does into the to pra. permitted appellant The trial court specif- she knew or believed the cate whether up by jury before that “prove question the or at- negligent alleged whether her ic acts has, fact, asking in a suit for dam- she filed prove do torney could them. We believed he mentally ages that he ill. on basis was nevertheless, recognize, that the documents would, any pecuni- And that of course show testimony.14 for her show a motive or bias do any might that be ary interest and bias there permitted appellant properly trial court than somewhat available other what would be of the and the inquire into the basis suit to brief, any com- appellant in event.” In his not pecuniary in that suit. do interest We permitted that he that in plains was to show believe, though, the trial abused that court “had, separate pleadings, three Kehler objec- overruling appellant’s in discretion its length, speci- great extended indicated with limiting Keh- his cross examination of tion ficity negligent acts she had been believed permitting appellant into not to delve ler [by] providers committed mental health care civil suit. the intricate details Kehler’s appellant; improper in the treatment Appellant’s point of error is over- sixteenth alleged to be proximate treatment she ruled. cause of victim’s death.” previously separate appel- indicated three In the seventeenth signed by complains court in not pleadings were not and cannot lant erred her Well, Koechel, you pital, Joseph Hospital, Q: [appellant] believe that is men- Saint Dr. John ill, tally you? don't Eudaly; and Dr. is that correct? things, A: I believe a lot of not one Yes, and that's it is. A: of them. you plain- Q: And have sued in that case as a Q: You that? don’t believe individually tiff both and on of the еs- behalf A: No. Kehler, Jayson your tates Mike Trekell and Q: any You don’t believe he suffered from son; is that correct? kind of mental illness at all? A: A: Yes. Well, he’s sick. Q; is, essentially, The nature of the suit what limine, jury to Pursuant a motion in was action; right? wrongful we call a death is that concerning excused discussion Kehler’s Ms. right. A: That sounds negligence against hospitals civil suit And, basically, Q: the claim in the suit is that Appellant sought was doctors discussed. to in- hospital, Joseph Hospital Oakbend Saint original subsequent plead- troduce the and two Eudaly, Joseph Hospital, Dr. Harold and Dr. ings purpose in the civil case. of the admis- Koechel, negligent were all in their failure to was to sion show the witnesses or motive for bias perceive [appel- (her treat the mental illness of case), testifying, financial interest in the civil lant,] right? that secondly, is impeachment purposes, “be- position petition cause she A: Yes. submit[ted] in the further, position your that is with the she is Q: inconsistent that is And claim that lawsuit that, on [took] the witness stand.” The court ruled they knowing negligent were by that there inconsistent was no statement made illness, on the of his he was dan- based extent permitted appellant witness. to The court possible gerous danger create a could "prove up question before that she son; right? your your husband and is that fact, has, asking damage filed a suit They supposed professionals, be A: were would, mentally basis that he ill. was And they? aren’t course, any pecuniary show interest and bias you’ve Q: that’s the That's true. And claim might that there other than some- what would them; against made in the civil suit is that any Appellant what be available in event.” re- right? quested "go further be able into the he Yeah, yes. A: negligence has basis for claim of that she against hospi- made each of doctors and the anything, civil it would 14. If this suit shows tals.” The court ruled that was not be to indicate that Kehler's bias or motive would suit, permitted body gо into the of the mentally testify that he in fact ill. While appellant objected. finding jury’s appellant’s case that he criminal presence jury, In the Kehler testi- Ms. criminally dispositive would not be insane fied: suit, greatly posi- her civil would enhance her Kehler, you Q: plaintiff Mrs. are the in a civil tion in that suit. currently pending suit that is district court in a County against here in Tarrant Oakbend Hos- admitting into upon hearsay, objected Exhibit 48 evidence. based Exhibit the State 48 was a testifying motion for new trial filed Mr. Obeidin state of Obeidin, appellant’s compensation witness, worker’s During mind. voir dire attorney, in appellant’s following exchange criminal mischief occurred between the guilty Appellant plead ease. to criminal mis- State and Obeidin: allegedly ramming chief for Frito-Lay in- *23 Q: you any personal knowledge Do have vestigator’s automobile. Obeidin filed the of talking this criminal offense? We are grounds motion on for new trial the that about involving the criminal mischief case appellant competent give plea was not to ramming investigator’s the ear. fully and that he did not understand the Gary, A: what I know about it was from terms of doing and conditions what he was in reading report, the of the offense and then pleading guilty. objected The State to the majority my opinion the as of to his mental hearsay grounds admission of this on motion state at from the time came the doctors’ and relevancy grounds. Because the written proven up records that I in had the work- hearsay, statement was inadmissible we need compensation er’s ease. argument not appellant’s address that the document was relevant. Tex.R.Crim.Evid. Q: Any opinion you have about that 402. hearsay reports based on from doctors and report you from some offense “ statement, ‘Hearsay’ is a other may have we can’t cross and that examine than one made the declarant while testi here; right? is that hearing, fied a the trial or offered evidence to A: At the time of the offense? prove the truth of matter asserted.” 801(d). A in Tex.R.Crim.Evid. statement Q: Any opinion you have about his condi- expression. cludes written verbal Tex. tion at the time of offense. 801(a)(1). R.Crim.Evid. The motion for new A: That is correct. by appellant trial prove appel was offered to compensation attorney lant’s objected any worker’s be The to State answer to the appellant competent previous lieved not question regarding appellant’s when he men- plead charge to the mischief in criminal No tal condition of the at the time misdemeanor Additionally vember of objection, 1987. as is indicated offense. The court sustained the eighteenth error, in point post, of admonishing the witness at- underlying assumption to, the motion torney your questions for new “Limit and answers trial, appellant personal knowledge witness, Obeidin believed was in of upon personal sane was not please.” based knowl edge, upon opinion rather it was based of agree appellant lay We with correctly others. The trial court sustained may testify opinion witness to his that an objection to its Ap State’s admission.15 legally individual is insane. Fuller v.
pellant’s
seventeenth
of error is over
(Tex.Crim.App.1968);
tice at 4 The rule objected, contending that doc- Appellant testify A not to a matter witness appel- the time opinion tor’s was limited to unless is introduced sufficient to evidence discharged. During his lant examina- was support finding personal has a that he tion, I Eudaly that “At time Dr. testified knowledge of the matter. Evidence to him to him or in De- last tаlked examined prove knowledge may, but personal need (sic), my opinion he had cember 1986 of not, testimony of the of the witness consist right distinguish from capacity subject is the provi- himself. This rule days wrong.” passed Eleven between 703, opinion relating sions of Rule testi- charged. and the crime doctor’s release mony by expert witnesses. jury proper, argument To be case, opinion In this it was Obeidin’s that generally be a of the evi must summation competent appellant plea not to enter was a dence, from evi opinion, deductions to the His reasonable misdemeanor offense. however, any dence, not argument opposing was based observa- of answers to by him, tions rather on the was based counsel, pleas for law enforcement. opinion is ad- of others. Such evidence not (Tex.Crim.App.), 875, Moody lay opinion testimony. missible as There- — U.S. -, denied, t. cer fore, the court did not abuse its discre- trial (1992). 119, 121 prose L.Ed.2d 75 S.Ct. his requiring tion Obeidin to limit testimo- specific nor incor argument cutor’s was not Appellant’s ny knowledge.” to his “personal argue that the prosecutor did not rect. The eighteenth of error overruled. point is appellant that was not insane doctor testified December, only during the whole month ERROR
IV. JURY CHARGE that not insane in month he was nineteenth, twentieth, Technically, this was correct twenty- December. In the error, testimony. points Appel first contends the the doctor’s summation of failing jury trial court erred to inform the twenty-second point is overruled. lant’s finding appellant not consequences twenty-third appel- legis- guilty insanity. This is reason charge during pun- complains the court’s lant prohibition. Crim.Proc.Ann. lative Tex.Code “deliberately.” improperly defined ishment 1(e). Appellant argues § this fail- art. 46.03 acknowledges such instrue- Appellant that no deprived appellant of his constitutional ure however, necessary, argues tion any argument, appellant that he Without asks this given where such a longstanding definition is that defini- to reassess Court our stare de- tion required should be correct. The Court instructed has cisis which such a defini that, tion. We are not so inclined. See Lewis v. 560, State, 815 (Tex.Crim.App.1991), “Deliberately” as used herein is a term of denied, rt. U.S. S.Ct. ce usage, linguistic common but it is not the 1296, 117 (1992), L.Ed.2d 519 and cases cited equivalent of intentional as in the used twenty-fourth point therein. of error is
guilt/innocenee phase of the
Deliber-
trial.
overruled.
ately is more than intent but it
less than
premeditation. Rather,
is a
deliberate
twenty-fifth
twenty-sixth points
In his
involving thought pro-
conscious decision
error, appellant complains
the trial court
cess which
embraces more than mere
overruling
request
separate
erred
for a
engage
will to
conduct and activates the
special
mitigation
issue concerning
and intentional act. To find deliberateness
satisfy
the “nullification” instruction did not
there must be moment of deliberation
Penry
Lynaugh,
the commands of
and a
part
determination on the
U.S.
109 S.Ct.
decision. WHITE, Judge, concurring. agree appel with the We State that resolving appellant’s eighth point In of er- lant to a not entitled definition of “delib ror, majority the the trial court holds erred erately,” in and that this case the definition the order which it conducted voir dire. given apprise was sufficient to the cause, In the instant the trial court decided the terms “intentional” and “deliberate” are both sides would make a decision on whether distinct and See different. Fearance (with challenge a for to veniremember cause 577, (Tex.Crim.App.1980), first), deciding before the State either side denied, cert. 454 U.S. S.Ct. would decide whether to exercise one of its (1981). twenty-third point L.Ed.2d 215 His (with peremptory challenges again the State of error is overruled. first). majority deciding finds this deci- twenty-fourth point appel- the not with comport sion did TEX.CODE argues majori- lant trial court the erred over- CRIM.PROC.ANN. Art. 35.13. The ruling requested “probabili- ty interprets capital his definition of Art. 35.13 mean in a ty” charge during punishment. accept the court’s the State choose to case must 3(e) (Effective 1993). August generally § 16. See Tex.Code art. Crim.Proc.Ann. 37.0711 decision to challenge a that a defendant’s or veniremember the extent veniremember only after the for comes peremptory challenge with its chal- cause for cause or one of challenges cause and lenges used both for before defendant or counsel State has juror. they challenge prospective on a peremptories must whether will the decide one of their for cause with veniremember majority’s decision will lead I believe result, As a peremptory challenges. ma- possibly could not “an result absurd jority the trial court’s decision was holds 879; Boy at Op., have intended.” been error. In the voir individual kin v. majority trials, holds that capital murder State dire of most court’s “error” was harmless and overrules venireperson voir dire takes on individual appellant’s eighth point of I concur in challenges error. argues for before a defendant eighth to overrule the they during decision voir arise dire. cause as majori- agree I do error. But with usually permit Trial courts rehabilitation 85.13, ty’s interpretation Art. nor I ruling do making on a before defense that the trial court erred in establish- believe challenge waits for cause. The State State ing procedure dire the voir which chose to peremptories whether to use on its decision follow in the instant case. venireper- is until voir dire concluded. passed is a defendant who follows son then decision, majority supporting its individual pattern as State: same Presiding able call former requests venireperson voir dire of Commentary Judge to Art. Onion’s Practice arise, they with the challenges cause majority misinterpreted 35.13. I believe the rehabilitate, usually being permitted to State Commentary Practice the stat- both the waiting until the end of the individ and then ute. peremptory chal ual voir dire exercise par lenge. voir After individual dire *26 requires Art. that the 35.13 concluded, venireperson if a ties has been deciding precede state the in wheth defense challenged successfully for cause was not accept challenge venireperson. er to or a defense, might the trial court the State or explains challenges The the statute at question venireperson its own discre the peremptory either for I believe or cause. passed venireperson will then be tion. The in disjunctive phrasing the use of the they wish at to see if tо to the the end State gives the courts to statute trial the discretion challenge venireper- peremptory a on the use permit challenges the exercise of for cause son, if he a must decide before defendant moving any to use of both sides before procedure has the will. This been usual This, peremptory challenges. and not the capital murder in voir dire followed “fair, interpretation, objec is majority’s the judge on this cases I have reviewed a meaning tive of that text” in Art. 35.13. Court. (Tex. Boykin 818 S.W.2d at 785 defense, State, as as the often
Cr.App.1991).
well
The
urges challenges
during
cause
the course
for
soon as the
individual voir dire as
of their
complied
trial
with Art.
court
venireperson
the cause
raise
answers
required
any
it
the
to assert
35.13when
state
challenge
they
not
for
so that
will
need-
the
challenges for cause before
lessly
dire.
time on that individual voir
waste
then,
their chal
after both sides finished
whether to
often does not decide
State
cause,
pres
to
lenges
required the state
for
has
until after a defendant
peremptory
use a
challenges
peremptory
appel
before
ent its
a venire-
voir dire of
his individual
finished
present any
lant
to decide whether to
had
is
for the reason that
statute,
person. This
done
challenges. Neither the
peremptory
the venire-
voir dire of
during the individual
Commentary, support
the
Practice
the
defense, venireperson might
by the
person
majority’s
that a defendant
enti
decision
something
give
reason
say
that will
the State
challenges,
on all
tled
have the last word
to
peremptory
to
challenge
objection,
use a
on that
...
venire-
Over defense counsel’s
person.
capital
typical
Within this
judge
voir dire
trial
groups
dismissed one of twelve
process,
majority's
today
venirepersons prior
decision
will
of ten
individual
produce chaos.
voir
that group,
dire of
based
mistaken belief that he had violated the
me,
is clearly
To
absurd
us to inter-
V.AC.C.P.,
37.071(g)
dictates of Article
pret
require
Art.
35.13
the State to exer-
during
introductory
his
remarks
that
cise its choice whether
peremptorily
chal-
group.
lenge
venireperson
venireper-
before that
Id.,
dissent,
at
I re-
passed
son has
been
even
to the defense for
statutes,
viewed our various voir dire
includ-
majority’s
individual voir dire. The
decision
35.13, and,
ing
Meyers
Judge
today,
art.
like
today will make this ridiculous scenario the
argued
judge’s
the trial
“mistake” violated
dire,
capital
rule in
voir
because it will violate
import
the clear
of those statutes. Rous-
right
permit-
of a defendant if the State is
seau,
(Baird, J.,
689-690
dis-
any
ted to
challenges
venireper-
exercise
to a
Nevertheless,
senting).
majority,
with-
requested
son after that defendant has
any legal authority,
out citation to
held “the
challenge
first
venireperson.
cause of that
trial court
did
abuse its discretion
This
type
is the essential
of absurd result
dismissing
group
and ... no error is
spoke
Boykin
that we
of in
v. State.
Id.,
presented.”
676. At
S.W.2d at
join
I disagree
majori-
with and do not
time, I
grant
stated: “Such a broad
of discre-
ty’s
recognize
failure to
trial court
tionary authority improperly permits the tri-
legal
acted within its
discretion when it con-
judge
al
legislative provisions
to override our
comported
ducted voir dire
manner
Id.,
concerning
jury.”
the selection of a
with Art. 35.13.
“By
today,
S.W.2d at 689.
its actions
majority
permits
judge
...
plurality
appellant’s
Because
overrules
concerning
‘thwart’ our laws
the formation of
eighth
point of
I
judg-
concur
its
jury.
...
comply
Failure to
with our
ment to affirm
conviction. With
subject
selection
is now
statues
discre-
eight,
these comments on
error
I
Id.,
judge.”
tion of the trial
855 S.W.2d at
join
opinion
otherwise
of the Court on 691.
remaining points
of error.
majority opinion
Were it not for the
Rousseau,
join
Meyers
I
Judge
would
*27
McCORMICK, P.J.,
MILLER,
finding error in the instant case.
OVERSTREET,
MALONEY, JJ., join
clear,
judge
as Rousseau made
a
does
trial
this concurrence.
changing,
ignoring,
not err in
or even
the
statutory
concerning
framework
voir dire.1
BAIRD, Judge, concurring.
Rousseau,
Consequently,
We considered
similar issue Rousseau
Article
is derived from
State,
632,
1879;
(Tex.Cr.App.1993).
applica-
v.
893
Commentary
Commentary
Special
juror
quali-
has
held to
tative
been
be
“When
(common
of individual examination
practice
passed
parties, first
he shall be
to the
fied
into stat-
capital cases now written
in certain
defendant,
then
for
to the state and
utes).
challenge.”
acceptance or
correctly
Therefore,
majority
ob
contemplated
“ex-
The
code further
same
is
serves,
of Article 35.13
its construction
venire-person relating, to
of a
amination”
Slip opinion at 18.
nor new.”
novel
“neither
to an-
challenge
cause was not confined
for
court has
recognizes that
trial
This Court
may
be
given,
that “other evidence
swers
voir
“over the course
discretion
broad
challenge.”
support
against the
heard in
of or
State,
examination,”
823
e.g., Earhart v.
dire
Id.,
687;
577;
35.18.
article
O.C.
now Article
Yet,
607,
(Tex.Cr.App.1991).
at 623
S.W.2d
made
the statute
its
peremptory challenge,
without
also has discerned that
it
therefor,
capital
practice
beneficial to
any
goes
face and in
assigning
reason
back
respects not accorded other
571,
inevitably
defendants
which
came from
O.C.
defendants,
of which is that the
Collins,
not the least
English
v.
common law. See Knox
peremptory
have
exercise a
(C.A.5
former “do not
657,
1991), and
928 F.2d
at 660-661
particular venireman until
against a
strike
cases cited therein.
so.”
whether to do
State has
decided
first
statutory
things
order of
remained
State,
813, at 834
v.
Janecka
substantially
same until 1965.* Some
that should
(Tex.Cr.App.1987).
It follows
way
ap
along
time and somewhere
venireperson, in turn the
accept the
the State
side,
parently borrowing from
civil
accept
may
opt to
or exercise
then
defendant
Court
an “examination” of venire-
sanctioned
fairly
challenges. Accordingly, the Court
dire,”
persons “on
voir
their
became
“corruption
per
consistently
resisted
parties may
accepted practice that
seek
through innovative
emptory
practice”
strike
glean
enabling
information
them more intelli
statutorily prescribed
departures from the
perempto
gently
respective
to exercise their
exercising challenges,
either
order
State,
See,
ry challenges.
e.g.,
94
Reich v.
See, e.g.,
peremptorily.
Ibid.
Gri
cause or
449,
(1928), citing
Tex.Cr.R.
* juror statutory qualifiеd, steps such is held he 35.12]. code When The 1925 outlined initial state, capital forming jury, be passed each of which and then to the shall first *28 through the and 1895 per- traced back codes acceptance challenge, defendant, or either for Code, as code the Old summarized or emptory A [35.13]. cause. Article 613 or for follows. challenge assigning peremptory made without is going trial the names of any [35.14]. [Provi- When case is reason therefor. Article jurors [and called seat- challenges the summoned ed], shall be procedure for sions of reasons present [now 35.01]. Article 602 Those proper examination the After omitted]. cause touching questions shall then be sworn to answer challenges delay judge without shall decide all qualifications. on their service and Article [35.21], argument. Article 621 deter- The court shall then hear and [35.02]. See, e.g., 72 Tex.Cr.R. Bizzell excuses, sufficient, if the deems mine court (1914). statutes did not Former S.W. [35.03, juror discharged. the § shall Article 604 be purposes expressly provide for voir dire for 1], exemption claiming [Provisions for challenges, making peremptory as shown but challenging array court then omitted]. The shall developed general inquiries post into such try present proceed qualifications of those statutory entitle- practice would become jurors in the who were summoned serve present code. ment demand under [35.10, prescribed. Article 611-612 mode
For these additional reasons and with such observations, agree I
further imposing regimen
court erred in for voir capital in a
dire case direct contravention legislative mandate of Article 35.13 shall
(qualified juror passed for accep- etc.). challenge
tance But I can not ac-
cept the strained exercise the Court to
justify its saying an error of such fundamen- selecting
tal character and nature
try capital case harmless.
Because this above all Court others should thereby approve
not make excuses for and departures
“innovative” from that which the
Legislature commands in cases where the life stake,
of a citizen is at I respectfully, stoutly
dissent. Roschke, Ming appointed, College
K. court Station, appellant. HERN, Appellant, Robert William Turner, Bill Atty. Glynis Dist. & McDaniel Davis, Kyle Attys., Bryan, & Asst. Rob- Dist. Texas, Appellee. The STATE of Huttash, Austin, Atty., ert State’s for the State. No. 107-94. Texas, Appeals
Court Criminal En Banc. OPINION ON PETITION APPELLANT’S FOR DISCRETIONARY REVIEW Nov. WHITE, Judge. facts, unique
Under a somewhat set of *29 appellant brings jeopardy challenge a double attempt retry the State’s him an pled guilty offense to which he and the validi- ty challenged. of which he has never 10, 1992, July appellant pled guilty On charging him theft of a indictment with