Ex Parte Brown

773 S.W.2d 332

Tex. Crim. App.

1989

Check Treatment

Ex parte Robert Sammy BROWN

No. 70700

Court of Criminal Appeals of Texas, En Banc.

June 21, 1989

772 S.W.2d 332

During the State‘s examination of prospective juror Guzman, she stated that she could read but not very well since the extent of her education went no further then the fourth grade. In regards to the juror questionnaire, Guzman stated that there were words that she did not understand, she did not know how to explain the answers she wished to express, that she “did not know how to put it.” Guzman testified she could write but could not spell some of the words in the answers she wanted to put down so she would just leave those questions blank.

Guzman further testified specifically as to the charge that would be given in this case that if it contained “big words” then she would not be able to read and understand the charge. When asked about the three special punishment questions she stated she could read and understand some of them but did not understand the rest. She could not pronounce nor did she know what the word “deliberate” meant or what was the import of that part of the second question regarding “continuing threat to society“, although she could read at least the first part of the question. She further stated that she did not know what it meant to “do something deliberately” that she had never seen the word until she saw the charge. Veniremember Guzman further testified that although she could read the instructions, it might however take her as many as five readings before she would be able to answer one question. She stated she would probably still not understand the questions and therefore would have to have somebody explain their meaning to her. Before ruling upon the State‘s challenge for cause pursuant to Articles 35.16(a)(11), (b)(1), (3), the court asked Guzman the following question:

“The Court: In talking about intentional, let me read this to you. A person acts intentionally or with intent with respect to the nature of his conduct or to a result of his conduct when it is his conscious desire to engage in the conduct or cause the result. Do you know what that means?

“Veniremember Guzman: No, sir.”

The court then sustained the State‘s challenge for cause on all grounds raised over appellant‘s objections.

The record more than adequately reflects that Guzman, having obtained only a fourth grade education, could not satisfy the statutory requirement of having the ability to read and write. It is clear that she did possess rudimentary grammatical skills, however, these in and of themselves, will not satisfy the statutory requirement.

Hernandez v. State, 506 S.W.2d 884 (Tex. Cr.App.1974). Given the fact that the trial court found Guzman‘s abilities to be in question, we find from the record sufficient evidence which supports the trial court‘s decision and therefore, the trial court did not abuse its discretion in sustaining the State‘s challenge for cause under Article 35.16(a)(11), V.A.C.C.P. Appellant‘s third point of error is overruled.

We, therefore, affirm appellant‘s conviction and sentence of death.

CLINTON, J., finds the majority is creating a new unsupported rule for reviewing exercise of discretion and therefore joins only the judgment of the Court.

TEAGUE, J., dissents.

DUNCAN, J., not participating.

Martha K. Pontureri, Huntsville, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall and Cindy Singleton, Asst. Dist. Attys., Fort Worth, Robert Huttash, State‘s Atty., Austin, for the State.

OPINION

W.C. DAVIS, Judge.

This is an application for writ of habeas corpus which was submitted to this Court pursuant to the provisions of Article 11.07, V.A.C.C.P.

Applicant was charged with the offense of attempted murder under V.T.C.A., Penal Code, § 15.01(a). Pursuant to a plea bargain agreement, applicant pled guilty to the charge and was sentenced by the court to four (4) years in the Texas Department of Corrections. The trial court also entered an affirmative finding regarding the use of a deadly weapon under Art. 42.12, § 3g(a)(2), V.A.C.C.P. There was no direct appeal.

In his application, applicant contends he was not given sufficient notice of the State‘s intent to seek a deadly weapon finding under

Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987). We disagree.

Ex parte Beck, 769 S.W.2d 525 (Tex. Cr.App.1989), we held that “any allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, ‘in the manner of its use ... capable of causing’ (since it did cause) death.” (footnote omitted) (emphasis in original). More recently, in , we recognized that the , supra, holding applies with equal force in an attempted capital murder case. There, the allegation that “appellant did ‘attempt to cause the death’ by use of a named weapon, necessarily includes an allegation that the named weapon or instrument was, in the manner of its intended use, capable of causing death.” We held in , that such an allegation is sufficient to provide adequate notice that the nature of the weapon alleged in the indictment is an issue to litigate at trial.

In the instant case, the felony information alleges that applicant “did then and there intentionally, with the specific intent to commit the offense of murder of (complainant), do an act, to wit: stab her with a knife....” The information, although worded in different fashion than in

Eason, supra, put applicant on notice that he was charged with the attempted murder of the complainant through his (then) alleged conduct of stabbing her with a knife. Here, the language “specific intent to commit ... murder ... with a knife” necessarily includes an allegation that the weapon named in the information, a knife, was in the manner of its intended use, capable of causing death. . Such an allegation provided sufficient notice to applicant that the nature of the weapon alleged in the information would be an issue to litigate at trial. .

The relief requested is denied.

TEAGUE, Judge, dissenting.

Although I continue to believe that

Ex parte Beck, 769 S.W.2d 525 (Tex.Cr.App. 1989), was wrongly decided by this Court, and will vote to expressly overrule it if and when the opportunity presents itself, what concerns me in this cause, given what a majority of this Court has written and held in , and , regarding this Court‘s jurisdiction to decide issues raised in post-conviction applications for the writ of habeas corpus that are filed pursuant to Art. 11.07, V.A.C.C.P., is how Robert Sammy Brown, henceforth applicant, is able to present the contention that he was not given sufficient notice of the State‘s intent to seek a deadly weapon pursuant to Art. 11.07 when he has not shown why he could not have raised this issue on direct appeal. Also see . Under and , isn‘t applicant using the post-conviction writ process to avoid the direct appeal process?

I believe that the majority opinion owes an explanation to the bench and bar of this State why under

Banks and , also see , applicant can raise the issue he presents pursuant to the provisions of Art. 11.07. Because it fails to do so, I respectfully dissent.