*1 FARRIS, Troy Appellant, Dale Texas, Appellee.
The STATE
No. 69659. Texas, Appeals of
Court of Criminal
En Banc. 28, 1990.
Nov. Sept. 1991.
Rehearing Denied *3 he murdered
capital murder because Carl Jr., officer, Rosenbalm, peace Ro- while discharge acting in the lawful senbalm was duty County as a Tarrant of an official V.T.C.A., Penal Code Deputy Sheriff. See 19.03(a)(1). After the answered § affirmative, in the submitted issues V.A.C.C.P., 37.071, see Art. Ap- appellant the death sentence.
assessed peal is automatic. See Art. to this Court 37.071(h), V.A.C.C.P., Tex.R.App.Proc., *4 40(b)(1). Finding appel- Rule no merit error, points affirm.1 lant’s twelve error, chal- In his first lenges sufficiency of the evidence Nation, testimony of corroborate the Vance 38.14, accomplice See Art. witness. on the The record reflects that V.A.C.C.P. night of on an isolated December Deputy County, stretch of road Tarrant County of the Tarrant Carl Rosenbalm Department and killed Sheriff’s was shot (cid:127) appellant. eyewitnesses There were no crime, individuals, although to the two Louder, Nation and Charles who tes- Vance trial, evidently appellant’s tified at were present was shot and when Rosenbalm According testimony at killed. to Nation’s trial, arranged from his he had to drive to meet residence Wichita Falls drug illegal for an transac- Fort Worth tion, amphet- exchange marihuana for amine. Nation and Louder arrived When prearranged point, appel- at a rendezvous parked on already lant there. Louder was Ware, Strickland, Logan Michael Jack V. roadway, short dis- the shoulder of the Worth, appellant. Fort pickup directly appellant’s tance behind Curry, Atty., Tim Dist. Mar- C. Chris vehicle, truck. Nation then exited his shall, Richards, David L. Michael Parrish got appellant’s inside of ve- walked to and Montague, Attys., and David Asst. Dist. hicle, completed drug they their where Worth, Huttash, Atty., Fort State’s Robert separated, their they deal. Before had Austin, for the State. meeting interrupted by Rosenbalm’s was Nation testified appearance on the scene. rejoin leaving appellant to that as he was Louder, approach he noticed the head OPINION top police patrol car its a marked MILLER, Judge. flashing. Suddenly, the driver of the lights car, as Rosen- patrol who was identified Appellant convicted of the of balm, across the centerline drove fense of murder which was elevated points. points not address these additional of error in a therefore do 1. also raises two (Tex.Cr. Scarbrough pro supplemental Appellant has no S.W.2d se brief. App.1989). right hybrid representation, and we absolute road, over, facing wrong di- stopped on the other circumstances indicate that Ro- rection, At adjacent appellant’s vehicle. his flashlight senbalm was struck with own time, panicked. Nation and Louder before he was killed. testified that the radio Nation lying paved Rosenbalm was found loudly, playing so vehicle was partial- roadway parked, where his car was shining spot light patrol car’s and the ly open, beneath the still side driver’s door. face, directly so he could neither in his revolver, sunglasses, His service broken happened next between see nor hear what sets of handcuffs were scattered Putting Rosenbalm. his ve- upof at a distance feet where gear, directly Louder drove it for- hicle in body Investigators his was found. later time, appellant’s By this vehicle had ward. pieces glass discovered on the hood of and, left scene drove already Louder patrol appeared car come through place it had been where opinion sunglasses. from his broken In the past car, he parked, directly patrol witness, these expert of one circumstances lying noticed Rosenbalm motionless on protracted more consistent with a were ground. thought Louder and Nation both struggle having than with Rosenbalm’s at first that Louder had driven vehicle Otherwise, he fallen was shot. where *5 over Rosenbalm. body position relative of the officer’s According Nation, appellant ad- later by of his were as described vehicle shooting Appellant mitted to Rosenbalm. testimony of Nation and Daniels. brother-in-law, Jimmy confessed to his Overall, the crime scene was well Daniels, a policeman. that he had shot preserved. Local and officers residents appellant told Daniels testified at trial that department from the soon Sheriff's arrived drug him about the deal about Investigators Ro- force. discovered that Rosenbalm on the scene. appearance of possession of senbalm himself mari- was how, on to after Daniels went describe his huana at the time of death. Whether vehicle, had his Rosen- Nation returned to possession Rosenbalm was in unlawful patrol de- got balm out of his vehicle and not, however, conclusively the marihuana At going manded to know what was on. This circumstance led shown the record. Daniels, according point, among to considerable dissension officers several at Rosenbalm a fired shots with scene, finally resulting disap- in the at Magnum away. pistol .357 and then drove evidence, including certain pearance of mirror, Through his rear view Daniels saw patrol found in marihuana Rosenbalm’s Rosenbalm on his hands and knees next interior, car, photographs vehicle’s car, did learn later patrol his but until plaster of certain casts taken tire of a had died as a result that Rosenbalm Eventually, least tracks in the area. at one Dan- gunshot also told wound. County captain from the Sheriff’s Tarrant disposed he iels that had Prince, indicted Department, Johnny was by throwing pier from a into weapon activity in alleged criminal connection Lake. Marine testify events. When called with these Rosen- evidence also established that trial, Prince the Fifth.” at “took proof wearing a bullet vest at balm was investigation of case Subsequent was slugs struck time of his death. Two .357 Long the kill- largely inconclusive. after stopped by the body, only but one was his appellant had become the focus ing, when through left travelled his vest. other investigation, police Daniels took offi- arm, pit, perforated his arm entered appellant had fired a cers to an area where killing lungs, him within his heart and both Magnum shots from his .357 number of Although the ex- a minutes. medical few year earlier. The officers pistol about fatal aminer testified shot slugs from tree trunk. more, several recovered of three feet or from a distance fired bullets, however, were shown These expert forensic testimony of another rifling marks from those on might have different suggests that the shot least body. range. taken from Rosenbalm’s More- the bullets fired at much closer been
495
However,
State,
937,
(Tex.Cr.
rifling
Mays
because the
characteris-
v.
weapon
susceptible
State,
930,
App.1986);
tics of a
to some
v.
Ware
use,
change
State,
it is not certain that a
(Tex.Cr.App.1972);
and Shaw v.
weapon
different
was in fact used to kill
(1921)
89 Tex.Cr.R.
229 S.W.
Rosenbalm.
(on
submission).
original
ap
We find that
pellant’s
guilt
provided
admission of
alone
Finally,
expert
divers trained in un-
him,
sufficient evidence to convict
since
investigation
systematically
derwater
guilt by
admissions of
the defendant need
searched Marina Lake for six hours each
only
corpus
be corroborated as to the
de-
where,
days
two consecutive
the area
lecti of the crime. See
Daniels,
according
had thrown
Self
(Tex.Cr.App.1974).
S.W.2d
Also
weapon,
they
the murder
but
were unable
see Streetman v.
[a] testimony accomplice of an unless cor- presume ferences must if it does not —even tending roborated other evidence appear affirmatively in the record—that connect the defendant with the offense any the fact conflicts trier of resolved such committed; and the corroboration is not prosecution, in and must defer favor merely sufficient if it the shows commis- to that resolution.” U.S. at sion of the offense. principle S.Ct. at 2793. This is true not only regarding given weight the to be evi We think it is clear from the evidence sum- trial, regarding credi dence at but also testimony marized above Nations’s Sifting bility of the witnesses. the truth sufficiently was corroborated the admis- plainly jury’s province such matters is appellant sions that made to his brother-in- justice. system under our of criminal law, Daniels, Jimmy who we find was not accomplice Rosenbalm, an to the murder of verdict, proved by jury, as its obvi- jury’s guilty to sustain the verdict. beyond ously believed a reasonable doubt Daniels, testimony of Nation and in this is law State that a testimony least insofar as such established may defendant’s confession be sufficient appellant’s culpability charged for the of- accomplice, long proof an corroborate so as fense. Because this Court’s own estima- depend upon of the confession does not no testimony accomplice. credibility In the tion of these witnesses’ forms case, present evidentiary review, part we find that it does not. See of its we decide appears in context as “the said Clark only whether such was sufficient then (Our appel- emphasis.) a The latter to convince rational factfinder of Rosebalm."2 believed, obviously guilt. misspelling testi- is so a of the former Clearly, lant’s counsel, appellant’s argues mony of Nation Daniels was more than that even as he adequate Accordingly, pleading purpose. for such that variance exists between “Rosebalm”, proof, first is marks but not point of error overruled. and the “Rosenbalm”, brief, in his with sic which error, In his fifth indicates to us that he realizes that prove evidence is insufficient to asserts the person meant in instances. same is both dis Rosenbalm was the lawful Ap Nevertheless, charge duty under settled case of an official when killed. law, pronunciation spelling pellant’s is based on the fact rather than is contention pa resolving issue. A variance key marihuana was found Rosenbalm’s Y.T.C.A., proof allegation 19.- of a name trol car. Penal Code between § 03(a)(1), prose impugn validity judgment of a under which was will cuted, long the names sound defines the offense of of conviction so include, difficulty of murder alike or the attentive ear finds only the elements pronounced. V.T.C.A., 19.- distinguishing out Penal Code them when set § 02(a)(1), “... 597- Flanagan also that the accused but (on rehearing). If a peace acting (Tex.Cr.App.1981) murders a officer who spellings duty question arises discharge whether the lawful official sonans, peace thus it is an issue of fact for and who the knows idem [accused] in (Our jury. patently Unless the two are emphasis.) officer.” alike, capable being a failure to sounded rational We find the evidence that a request jury of the issue for submission have that Rosen- trier fact could found will, therefore, any defeat consideration balm, evidently duty, while on investi appeal. Martin v. claim of a variance suspicious He gating a circumstance. (Tex.Cr.App.1976). driving patrol in uniform and an official cause, flashing. lights In the instant its overhead vehicle with ques- circumstances, request held failed to issue similar Under *7 we are support pronunciation, tion of and because the evidence sufficient a rational was, indeed, names are in- dis not convinced that two inference that the officer alike, the vari- duty. capable being pronounced of charging official See Moreno 295, spelling fatal con- State, (Tex.Cr.App. ant 721 S.W.2d 301 1986). point sixth of Consequently, reach conclusion here. his We the same viction. ; of mari overruled. legality possession of the error is such determination irrelevant to huana error, appellant eighth point In of Appellant’s point facts. fifth under these is insufficient to maintains evidence of error is overruled. “deliberately” he acted within show that 37.071(b)(1), six, meaning of Art. point appellant In of error number Y.A.C.C.P., person provides that a which the evidence was insufficient contends may not be convicted his conviction because Rosenbalm’s sustain jury finds spelled sentenced to death unless proved as in the trial was name that the conduct of the defendant alleged the indict- that “... than how was other com- fact, however, of the deceased was caused the death In the indictment ment. ex- deliberately and reasonable spellings of name. mitted alleges different two deceased or Rosenbalm," pectation oc- that the death of the “Clark spelling, The first indictment, second another would twice in result[.]” curs balm, said Clark alleged part that Jr. with a firearm and the in relevant 2. The indictment Rosebalm, peace Jr. was then and there did: acting discharge in the lawful knowingly officer who was intentionally there "then and individual, duty defendant and who the of an official Rosen- death of an Clark cause the Jr., peace by shooting was a Clark Rosen- knew balm the said 1” officer!
497 cause, legislature appellant, has not defined the the fact that unlike Na Louder, “deliberately,” attempt and this has de term Court tion and did not to drive statutory Deputy clined to do so as a matter of away when Rosenbalm exited his See, example, construction. James v. car, patrol but instead waited for Rosen- State, 84, (Tex.Cr. 772 S.W.2d 102 n. 17 approach shooting balm to on foot before Thus, App.1989). assessing the suffi range, provides him at blank some ciency prove a “deliberate” evidence appel for a rational conclusion that basis act, obliged jury we are to afford the his mind to kill up lant made Rosenbalm certain measure of latitude in its under shooting. also prior to the actual See Liv standing long of the term. as the evi So State, 311, (Tex. ingston v. 339 adequate dence is more than mere show least, Cr.App.1987). At consistent with death, ly objective a “conscious to cause” law, analogous unwilling case V.T.C.A., 6.03(a), Penal Code it will be § rationally hold that a could not sufficient for an affirmative answer to the thought Appellant’s point so. of error appel first issue if it shows eight number is overruled. lant’s act was as that term is “deliberate” error, appel his ninth In commonly understood. See Rector v. lant claims the evidence is insufficient to State, (Tex.Cr.App. probability show “... [he] 1986),(held, “deliberately” is to be commit criminal acts of violence that would acceptation understood in its usual com society[,]” continuing constitute a threat to language, mon it need not be defined in the 37.071(b)(2), by Art. required V.A.C.C.P. jury charge); Fearance v. punishment The record reflects that at the (on (Tex.Cr.App.1981) S.W.2d re trial, phase of the the State adduced evi (held, hearing), “deliberately” means some through Bobby dence thing “intentionally,” different at Davis, acquaintance appel a former least in something the sense that it means lant’s, unlawfully once shot more). review, purposes evidentiary For a cow. Davis also testified that on another understanding we believe that the common occasion, moment, spur appel “deliberately” of the term in a mur wantonly and killed a lant shot buffalo “something der context is more than inten Refuge. the Lake Worth Wildlife Davis tional, premeditation, less ... than [but] further testified that he once witnessed [representing] ... a conscious decision— justification or attack without greater than mere will—to cause the death young cause males. struck of the victim.” Nichols v. both victims a number of times with his (Tex.Cr.App.1988). S.W.2d There though armed nor fore, fists even neither were against it is this standard that we offered resistance. Davis stated that determine whether evidence is suffi *8 spite plea mercy of for from one of the a part cient to conduct on establish deliberate men, young appellant beat that individual’s appellant. expanded his knees with a hammer. Davis case, Frequently, in a murder de testimony to include another instance of liberation, deliberately, or to act is evi appellant’s part, on violent conduct when kill, degree by planning denced some of appellant upset a motorist became with by lying by prior as in wait or discussion of repeatedly he chased and fired at whom held, however, the crime. We have also with a rifle. finding the evidence sufficient for a Daniels, ante, Jimmy see recounted deliberately the murder was committed years showing past from the several events even when the murder occurred rather in appellant consistently aggressive to be i.e., spontaneously, evidence will be held in- dealings his others. These events with long so as it is sufficient established savage beating indi- cluded the of another preparation kill the accused evinced a teenager, appellant was a arming deadly in vidual when still himself advance with a appel- a number of incidents in which weapon. E.g., 717 S.W.2d and Carter v. a (Tex.Cr.App.1986). In lant threatened his schoolmates with 66-68 the instant cause, Jimmy appellant the lives of Dan- Daniels also testified that threatened knife. “Jeff,” iels, ante; heavy methamphetamine, user see someone named for was a he, wife”; daily, “messing it his veins and that his “a DA injecting into around with something” of income for appellant, Hinkley probably derived his sole source named drugs him, selling to other individuals. prosecuting people and “some named Rosenbalm,” referring to Ro- apparently he further how Daniels described appears relatives. It to us that senbalm’s appellant another car and fired had chased Elisher, having in twice been incarcerated sharp- pulled its driver had because charged penitentiary currently ly Evidently appellant’s in front of truck. aggravated three assault on counts instructions, Daniels, appellant’s dis- on a a jailer, must have seemed to charged shotgun a into three blasts from Elisher, since, according likely hit man car both ve- the rear of the other while bail appellant offered make Elisher’s moving high speed. hicles a rate were at $20,000to all of aforemen- pay him kill shots at the Appellant also fired several The record does not tioned individuals. rifle, hit other vehicle from his but failed to anything reflect that occurred to effectuate moving target. plan. appellant’s murderous Daniels continued to reiterate describing two addition- violent behavior Unquestionably, one believes the place al The first took when Elisher, appellant incidents. of Daniels upset with his brother’s appellant became given young is man much to violence. girlfriend argu- had in an because she been appellant has While the record reflects that Appellant repeated- ment with his brother. convicted of a criminal never before been ly girlfriend at with a fired his brother’s offense, except juve as a nor even arrested a car chase in which she shotgun after nile, penchant find his for the use we wrecked her vehicle. Daniels was also life-threatening weapons to resolve the appel- present at incident when the second alarming. problems of his least serious or three” shots from a .44 lant fired “two reading of this far as we can tell from So pistol Magnum driver of another record, juvenile our our nor adult neither response to the driver hav- motor vehicle systems yet in this correctional State have finger.” ing “shot [him] given opportunity appel been reform But, lant’s criminal behavior. Perkins, Aubrey juvenile probation of- legislature re do understand County, Montgomery testified that ficer reserved for quire penalty that the death high friends he and were adju only those individuals who have been ap- in 1980 Perkins testified that school. juvenile delinquents or have been dicated his, Perkins’, pellant knife to throat held a adults, penitentiary incarcerated our questioning him for minutes several while find evidence constrained to we are relationship of a sexual be- about rumors finding here sufficient appellant’s girlfriend. tween Perkins society. continuing threat August would be a He also testified that Rougeau driving his an occasion when Perkins was practice, (Tex.Cr.App.1987). appellant drove brother to football alongside and told him to Perkins’ vehicle Shocking offense circumstances *9 over," “pull if he did with the threat that killing, itself, habit- attitude about a casual not, into run his truck Per- would unadjudicat- illegal drugs, prior use of ual complied but drove kins’ vehicle. Perkins prop- and against people ed acts violence seeing appellant slide away quickly after to held this Court erty have all been the side of his truck and passenger toward dangerous- of future constitute evidence Perkins under the seat. stick arm E.g., ness. Anderson appellant. successfully evade managed to (Tex.Cr.App.1986); Santana 633-634 (Tex.Cr.App.1986); Elisher, appellant’s v. S.W.2d
Elijah who was then And Streetman, at 137. cellmate, ap- that and County testified Tarrant in are, according to the awaiting all pellant, jail while case, she would refuse to return appellant’s personali- averred that not characteristic opposition circumstances ty guilty and behavior. Under verdict because of her these, yet held the following as we have not capital punishment, such ex- to an- insufficient for an affirmative evidence change place took between her and defense issue, de- to the second swer counsel: Appellant’s here. ninth cline to do so Q. right. your feeling All Does of error is overruled. know, penalty and, you the death about — two, appellant consequences of error yes In answers number what committed judge that the trial your feeling contends would be—Is about sustaining error State’s reversible feel penalty you such that do not death venireperson to challenge for cause Janice office you that could fulfill the oath of excerpt portions We Morrison Goodson. and answer you that would to take dire to illus- voir examination 1, 2, Goodson’s questions if 3 were those and/or contention, beginning with appellant’s trate given you, you to be that could by the questions propounded to Goodson questions fairly truly answer those attorney. prosecuting honestly just your requires as oath Q. your ques- I notice answer to you? you enough that kind tionnaire were only you A. I can tell I would do that us in response fill out for to the follow- deliberately I my That would not best. ing question, with reference to the death do otherwise. following penalty which state- re- Apparently not content that these your best feel- represent ments would sponses dispositive, judge the trial were one, 3 and ings, you circle circled No. attorneys with called a conference both your signature page or with on the next time, they After a returned his chambers. later, any I pages could never under voir dire to the courtroom resumed return as- circumstances a verdict which Goodson, examination your penalty. sessed the death Is that as covering ground much the same counsel opinion? Suddenly, interposed: Goodson before. Yes, that’s way A. I feel. asking strong- if I feel A. You are me Q. beg your pardon? I enough penalty ly about death feel, way yes. A. That’s the I no, I guilty going say, am I think he Q. presume you op- I then that are get the guilty is not so he doesn’t he posed capital punishment? I asking You me if penalty? death I am. A. Yes do that? Q. repeat I question And will one Yes, Q. ma’am. at the That would be time and this important more for stage, yes, first ma’am. you, record in this case. Could under deliberately I ... A. would any juror circumstances as a in a crimi- Q. you automatical- Just as would not case, penal- vote to the death nal return guilty keep somebody ly vote ty? penalty death getting the A. No. oath, I contrary to your would be chal- juncture, prosecutor At this your you answer understood earlier lenged the trial Goodson. Before automatically these no to wouldn’t vote ruled, given counsel getting keep somebody from questions to to then opportunity explain Goodson also penalty because that the death phase procedure penalty under which the I contrary your Have oath. would be capital murder case is conducted of a I your answer? If have— misstated Texas, including the manner in which No, I like what A. that’s sound [sic] *10 special questions to three are submitted said. flowing legal consequences
jury, and the answers, content with negative or an- Still not Goodson’s from either affirmative the same questions. judge himself then recast these After Goodson the trial swers to Q. you my Did did following you an- or answer question and received the ago you op- a question while that were swers. punishment? posed to pun- Q. jury not assess ... [The does] Yes, I am. A. cases, type as it is done other ishment Q. Is your final answer? they are to those three but asked answer no, I I like I no I or and think A. feel have choice. questions yes either mean, I I to am told that have come— talking to you have surmised coun- I I am that have to come to this yes, told you yes if sel each side that vote to for I to to the and jury and have listen facts to you have assess and/or will voted then I to if I listen to these facts have you, in a penalty. Now could death if I he is personally say guilty believe case, warranted, do proper if the facts my responsibility_ not. That’s that? Q. telling you you have to Nobody I I to. A: I could. wouldn’t want anything. That’s the reason we have do to, I wouldn’t want but would. legal Nobody is system this we have. your it violate THE COURT: Would you anything. to about tell do yes proper case conscience vote chosen, If I if I have to come A. am proper and the evidence. I have choice. jury then don’t a Yes, it A: would. certainly choice. Q. You do have a challenged again, prosecutor Once get a You vote. jury. ability Goodson's serve Well, I say guilty. A. can the man is again, pro- And counsel for once dealing ways I there is other believe pounded questions purpose to her for the guilty person being than with whether, determining spite of her penalty. death penalty, she could opposition to the death In you All Let Q. right. me ask this: guilty evi- a verdict of should the render provides that Texas the law the State of answered, just dence warrant it. Goodson a to return in some cases consistently throughout her did voir she law, there that’s our and verdict death dire examination: agree with. lot of that I don’t is a laws in that I would not want to be ... law, agree you And don’t with badly position. very I hate to be would asking you If will you. all are that’s we I feel like I position, but don’t us, you go tell can home. just law do otherwise than what the could so, I saying me for but A. Pardon says I have do. I times that said so for several agree it. follow law? You don’t Q. you Would your violate oath office? wouldn’t judge sustained point, the trial At this appellant’s challenge for cause over not, no. State’s I would A. left the court- After Goodson objection. token, Q. By the same second room, Lane, defense Bill one your you not violate oath stage as to attorneys, for the record testified way or automatically vote one anoth- during her dire voir Goodson’s demeanor your again, you er? Here would base did Lane asserted Goodson examination. on the facts? answers tears, fairly calm into not break Yes, I A. will. collected, responses gave quick satisfied, prosecutor next Still questions posed to her. aggressive tack. took somewhat more very similar this cause avers Goodson, Q. really, Mrs. down (Tex.Cr. Roeder serious business we’d here about reversed App.1985), wherein this Court opinion is just your like to know what the erroneous murder conviction for trying I’m to find out. that’s what prospective juror exclusion also Pier challenge for See I I State’s cause. willing to do what can. A. I am (Tex.Cr.App. son v. perfectly.... understand
501 prospec challenge for cause to the 1980). State’s prospective juror Roeder ju prospective examine the mandatory penalty juror, tive we although the stated that Fearance, deliberations, 771 testimony she ror’s as a whole. affect her of death would 500, cited therein. special at and cases issues affirmative- S.W.2d could answer proved beyond if its case a ly the State summarizing dire exam In her voir reversing In Roeder’s reasonable doubt. established, ination, find Goodson via we conviction, princi- this Court reaffirmed questionnaire and later juror her form ple prospective juror that a is not excluda- examination, she could not im Texas, 448 ble for cause under Adams v. pose penalty any under circum the death 38, 2521, 581 100 S.Ct. 65 L.Ed.2d U.S. stances. also stated that she would She (1980), penalty death merely because the find “not “deliberately” his or her deliber- would affect or influence guilty” opposition her to the because of parte Hughes, 728 ations. See also Ex more issue penalty. death On the critical (Tex.Cr.App.1987). S.W.2d 372 questions punishment, Art. of the three at however, 37.071(b), Goodson vacillated. challenge ruling In on this for State, questioning by Pursuant de prospective juror, judge a the trial cause to counsel, judge, fense and the trial Goodson prospective must determine whether the stated, among things, op other she was juror’s penalty views as to the death would posed capital punishment any under cir per prevent substantially impair or cumstances, that she could answer affirma juror in formance of his duties as a accord tively issues the facts war given by ance with the instructions ranted, that it would violate her con but juror. court and the oath taken yes on the issues “in the science vote State, 701, DeBlanc v. 799 717 S.W.2d proper proper and the case evidence”. (Tex.Cr.App.1990),and cases therein. cited responsibilities Goodson understood her State, 229, See also v. 774 McGee S.W.2d her juror and said she would not violate (Tex.Cr.App.1989). There is no re oath, agree did not but she also stated she quirement prospective juror’s that a bias or if she were selected as a with the law and prejudice proven be with unmistakable clar juror no choice but to fol she would have DeBlanc, 717; McGee, ity. 799 S.W.2d at it. low 235, citing at Wainwright S.W.2d facts, Witt, 844, of these we U.S. 105 S.Ct. On basis (1985). say judge L.Ed.2d 841 the trial his dis This Court accords cannot abused judge’s ruling regard great granting challenge trial the State’s cretion given judge’s venireperson deference that the Goodson. When trial deter for cause to prospective juror presented prospective juror mination that a with a who has would be law, prevented conflicting feelings regarding the substantially impaired or oath, punishment, the obeying following juror’s his oath and his instruc unique position to deter largely upon tions is based determinations feelings same would venireperson’s credibility and de mine whether those impair prevent substantially the venire- meanor. Fearance v. person’s performance juror. as a Accord (Tex.Cr.App.1988); 501-502 Nichols v. judge’s ruling in (Tex.Cr.App. ingly, we defer to the trial instance, 1988). sec To determine whether the trial overrule granting his discretion in ond of error.3 judge abused recognized major- dissenting opinion approved performance. in the We also 3. The asserts we prospective solely ity opinion her that the mere fact that Goodson’s exclusion on account of feelings dissenting juror re- opposition penalty. be "influenced” her to the death See will recog- garding penalty opinion p. contrary, death does not in and 509. On the cause, challengeable feelings opposition nor that her itself make her nized the affect impairment” per- capital punishment does it constitute a "substantial would have on her juror juror’s performance of her duties. Goodson’s formance of her duties as a and deferred judge’s implicit finding dire evidences that her to the trial that Good- entire voir regarding penalty feelings substantially impair feelings the death went be- such son’s *12 Q. you imagine Appellant point of error I can’t do that. Can raises another ruling capital complaining judge’s any type dur- of murder case— error, ing In his third voir dire. Oh, guilty? proven A. if he was reversibly judge claims the trial Q. Yes, sir, phase of after the second challenge sustaining erred in the State’s the trial. to venireman Dow. for cause thing any A. just I can’t think gave disqualifying initially Dow concedes right now. feelings cap- regarding his toward answers Q. Knowing yes that both answers argues punishment4, ital but he his counsel except no discretion Judge will leave this through Dow subsequently rehabilitated to sentence this Defendant death? excerpt questioning. his We relevant any. A. I can’t think of just portions Dow’s dire ex- exemplary voir Q. any You can’t think of whatsoev- amination: er? State) Q. imagine (by you Can right if A. Not now. Just it involves any which set of circumstances under or, like, my me one of the members of you return that would could a verdict family I be but then wouldn’t able be death? result in jury, would I? really A. I know. There would don’t Q. That’s correct. possibility might always a where he be you sent the man to the be innocent probably A. And that would be penalty, death so ... If right I only thing could think now. (sic) my in and killed all somebody come exchange, prosecu- After initial I then it was my kids and wife and knew our explain tor went on to them— scheme, sentencing specifically the 37.071(b)(1) Art.
issues under submitted served on a civil venireman Dow had Since (2), with the and the voir dire continued judge explained the jury, the trial then questioning Dow. State still procedure in a criminal trial which Q. you you jury. is The trial Do think could follow that case submitted to questions 1 yes questioned and 2 the venireman: judge law and answer then up knowing sentence there death Q. Court) (by the Now a criminal result? would differently, case it’s handled a little bit
A.
I don’t know.
substantially differently, in that we are
charge of
going
have a trial on the
Q.
just
you
about it for
Would
think
you
Why did
mark No.
murder.
minute?
your jury
information sheet?
why
A. That’s
I answered No.
[on
said,
maybe
always
A. Like I
juror questionnaire
there
form].
a doubt.
Q.
any
of cir-
you imagine
set
Can
you
an-
ask
this:
Q.
right.
you
which
All
Let me
cumstances under
in criminal
juror
swer
to both 1 and
there?
serve as a
yes
you
Could
capital punishment was
case where
really
A.
know.
I don’t
involved?
me,
Q.
you
please, just
try for
Would
possibly
A.
I
could.
try
imagine a set
circumstances
1 and 2?
you
where
could answer number
Q.
asking you, why you
I am
What
always
doubt
be a
circum-
think that there would
you
do
mean
A. What
there
case where
in a serious criminal
example.
stances? Give me
Goodson,
venireperson
see
of error
4. Like
influencing
yond merely
delibera-
her in her-
juror
phases
guilt
punishment
supra,
indicated on
tions at the
number 2
Dow
Moreover,
dissenting opinion
faults
questionnaire
trial.
could never under
form that he
relying
majority opinion
on Hernan-
for not
as-
any
verdict which
return a
circumstances
(Tex.Cr.App.1988),
A. No. case. tioning parties, “why from all Dow asked Q. your Then it would affect verdict? ques- hinges particular on that one so much Right. A. De- juror information tion form]”. [on challenged Dow for cause after State explained severity fense counsel this last answer. upon con- possible penalty conviction and began questioning Defense counsel then as follows: cluded his voir dire examination explained extensively the Dow. Counsel attitude, think, Q. you given your Do special procedure issue cases and (sic) give openmindness and the fair- procedure trial how that differs from civil you you to have that ness that want procedure. acknowledged Dow either your deci- could the law and base follow juror on the evi- case bases verdict the evidence? sion than the of the an- dence rather outcome A. True. agreed issues and that the swers Q. right. your That’s oath All what juror’s required as much. The exami- oath you to do. requires nation continued: counsel) Q. (by Okay. defense Now Right. A.
what the here is the situation. We have you know from evidence closed such-and-such. or the second answer these you the sort of or whether facts mind and you stage questions at the first whether or not I are, am based said, no, I I am person you going solely upon the had going who could to answer don’t you think kind of got to to do stage care open case because dence. let the agree A. True. Q. [******] mind, You with chips fall where The most certainly listen that? you haven’t heard to the State’s case you can’t can they may; pre-judge do is keep do you evi- way. this certain prospective submitted the Defense counsel grant- qualified, but the trial juror A. I think that’s what it was. answered, challenge. ed the State’s question I the third one [on asking during for a continuance
In this of error re grand completed cases cited in the second until such time as lies the same investigation received all support of error his contention that its and counsel relating to the and ex- excusing venireman information nature the trial court erred Although alleged agreed of Prince’s criminal behavior. Dow. Dow with defense tent 5, 1986, appellant filed another unfair for him to March counsel that would be On continuance, copies preconceived come into case with the motion attached, asserting guilty Prince’s indictments idea that the defendant was *14 or, illegal exculpa- penalty, the death on the con that Prince’s acts were deserved to his tory6, for him to as such were material trary, improper it would be defense, invoke his disregard oath as a and that Prince would the evidence and his right against self-incrimination if called to questioning do not find this reha juror, we Appellant requested the previous “disqualifying testify an at trial.7 bilitated Dow’s he excerpted until such time that could swers”. We have Dow’s voir continuance length clearly investigate “newly discov- testimony adequately at it dire because defense, evidence”, feelings regarding prepare his capital his ered shows that his substantially impair, if ensure him the of constitutional punishment would benefit 6, hearing rights. his After a held March totally prevent, performance of brief not 1986, specifically judge re- juror. hold the trial wherein also duties as a We of granting quested copy transcription of the the did not discretion abuse his challenge grand jury testimony, judge the trial over- for Point of error State’s cause. finding for ruled the motion continuance number three is overruled. parties counsel had known the that defense error, point In of his fourth alleged offense for some in this involved overruling the trial court erred in contends time, no evidence had surfaced new previ- his motions for continuance. As we except Prince did or did not for whether facts, ously noted the discussion of in the evidence of marihuana vic- conceal supra 4, p. Johnny at Officer Prince see possession already that counsel tim’s 28, 1986, for al- February indicted on was issue, investigator working on that had an activity in connection leged criminal take substantial and that voir dire would investigation of this offense. Prince (implying that defense amount of time perjury, for Penal Code 37.- was indicted § investigate ample had time to counsel fabricating 02, tampering phys- with or alleged activity). The tri- Prince’s criminal evidence, 37.09.5 On the ical Penal Code § judge ruling on the motion for al withheld circumstances, appellant of these basis pending dire. mistrial voir 1986, filed, 24, February a motion for on that the Appellant contends in his brief first motion for continu- mistrial and his requested in,'denying his ance, grounds trial court erred incorporating therein the mistrial, “as the crime and fur- continuance until such time in the motion for raised pending per- indictments for in- officer’s inter alia alleging Prince would scene ther fabricating for privilege jury and official misconduct his Fifth Amendment voke Appellant ar- testify resolved.”8 if called to evidence were against self-incrimination point error five. of of number charge to an affidavit 6. See discussion perjury related 5.The 1986, stating January on which Prince made defense, by the as a witness 7. Prince was called baggie in the he had found a of marihuana testify by invoking refuse to and he did in fact he "flushed". This affidavit victim’s coat which right against self-incrimi- his Fifth Amendment evidence at trial and read was admitted into nation. statement, jury. Prince later recanted this Rogers, pre- according argues appellant Celeste an investi- has failed to witness 8. State Attorney’s County gator point because his District error for review for Tarrant serve this contention on of Office, (that February appeal the cause be contin- testified at trial that who office, attorney's the indictments Prince the resolution of ued until against in the district Prince) the contention baggie of which he differs from produced the marihuana (that the motions continuance previously flushed. The second raised in stated he had had an until defense counsel cause be continued charge against out of this incident. Prince arose fundamentally for failure gues exculpatory was defective Prince’s Specifi- of murder. “very allege heart of the crime it went to argues elevating plain capital murder portion cally, appellant the indictment of person named alleged because murder” because not indictment, alleging acting portion in lawful first showed the victim 19.02(a)(1),is he Penal discharge duty of an official murder under Code § “Rosenbalm”, named person time possession was in marihuana at the whereas supra (See portion the indict- aggravating of his death. discussion in the 1, su- point error five we over- is “Rosebalm”. See footnote number where ment pra. argu- reurges same ruled same contention in the context legal he ad- challenge sufficiency to the of the evi- authorities which ment and error, supra dence.) in his sixth State counters the vanced denying ap- did In error we pp. his discretion in 496-497. the sixth abuse pellant’s spelling fatal to motions for continuance because held the variant was not *15 not this was the in we were appellant’s same evidence admitted before conviction that jury through Prince’s the of Rosenbalm affidavit and Celeste that names “convinced Rogers’ being pro- testimony regarding incapable his recanta- of and Rosebalm tion, Supra Al- p. has to this 497. failed show nounced alike.” misspelled to that is though evidence was material his case and the victim’s surname indictment, by pro- he the to it is in the prejudiced inability the third time used indict- duce does not cause the misspelling it. the allege of the fail to an element ment to reviewing the After the record and Penal Code capital offense of murder under motion, ruling agree judge’s trial we Thus, appel- 19.03(a)(1). we overrule § with noted the State’s contention. As we point seventh of error. lant’s point in of our discussion fifth error, of the of mari evidence the victim’s error, point appel his tenth of In appel did possession preclude huana not reversibly the trial court lant contends committing capital lant murder and give refusing jury to a defini by erred the was, Also, therefore, exculpatory. not al in “deliberately” as used tion of the term claimed Amend though Prince the Fifth Art. 37.- punishment issue. the first stand, ment when called the witness objected to 071(b)(1). Appellant only regarding possession the evidence victim’s any jury in the lack of such instruction the of the nevertheless came marihuana overruled, re charge, but also which was light, alleged up Prince’s of as did cover instruction, quested specific which Thus, this find information. we the term “deliber denied. He submits that by of the prejudiced was not the failure par acquired ately” now a technical has grant his for continu trial court to motions spe meaning context of within the ticular facts, hold, accordingly ance on these one and Y.T.C.A. Govt.Code cial issue judge did not his discre that the trial abuse 311.011(b) to de requires trial court the § con denying appellant’s tion motions for in repeatedly This has fine the term.9 Court of error Appellant’s point fourth tinuance. “deliberately” that, the term held is overruled. statute, is to by the term be is not defined and, usage error, ap light of point understood common
In the seventh
therefore,
jury
in the
need not be defined
the
in this cause
pellant asserts
indictment
case,
to find
investigate
in this
we are hesitant
opportunity
facts of Prince’s
assessed
the
misconduct). Although
alleged
we are inclined
waiver.
instance,
do not be-
find waiver
311.011,
(b)
§of
Common
Subsection
9.
argument
appellate
appellant con-
cause in his
Words,
Usage
provides:
Technical
right
legitimate
Prince would
no
tends
against
acquired
phrases
a tech-
that have
the indictments
Words and
self-incrimination once
legis-
resolved,
meaning,
particular
whether
against
nical or
him had been
otherwise, shall be con-
definition or
each motion for
lative
Fifth Amendment in
raised the
accordingly.
severity of the sentence
strued
Given the
continuance.
State,
is
punishment. Madden v.
charge
you further
that there
other
believe
case,
the
testimony in the
outside of
evi-
citing
(Tex.Cr.App.1990),
tending
said
Nation
dence
Vance
(Tex.Cr.App.1988),
Purtell v.
that
instruction on
wit-
Thompson
sue in
testimony
requirements
ness
satisfies the
(Tex.Cr.App.1984),which stated:
The instruction made clear
Art. 38.14.
(1)
of-
had to find
that the
It is well settled that evidence
...
committed, (2)
fense
had been
itself
is ad-
unadjudicated extraneous offenses
accomplice
testimony
witness Nation’s
punishment stage
at the
of a
missible
trial,
truthful, (3)
testimony
was
Nation’s
capital murder
[citations omitted]
(4)
guilty
charged,
showed
as
settled
corroboration
It is also
that the
case,
testimony
that there was other
in the
38.14,
requirements
supra,
Art.
testimony,
outside Nation’s
that tended to
inapplicable
to the
of accom-
connect
with the offense commit-
of-
plice witnesses
to extraneous
ted,
evidence,
(5) that,
fenses,
punishment stage
of a
all the
trial,
charged
guilty
of the offense
[citation omitted]
beyond
Comparable
a reasonable doubt.
The Court
Thompson,
not or admission BERCHELMANN and expressly concerning participating. accomplice of of an [punishment] proceeding, to evidence someone ... In
11. Elisher stated
wanted
him,
allegedly
against
any
hav-
may
presented
a man
kill a witness
ing
matter that
be
to
wife,
with his
members of
an affair
sub-
deems relevant
sentence. This
court
to
family,
district
and members of the
victim's
shall not be construed to authorize
section
pp.
attorney’s
See also discussion at
office.
any
in viola-
of
evidence secured
introduction
supra.
States or
of the Constitution of the United
tion
of the State of Texas ...
37.071(a)
part:
provides
pertinent
12. Article
TEAGUE,
tiewhite
Judge, dissenting.
279-281
(Tex.Cr.App.1989),
this Court even held
Appellant’s
point of
second
error calls
no
prospective juror who discerns
that a
straightforward application
fairly
of
for
difference between the terms “deliberate”
Hernandez v.
principles
enunciated
qualified
and “intentional” is nevertheless
(Tex.Cr.App.1988).
spite
of
would
jury
for
service
what
Goodson in-
Veniremember Janice Morrison
viewpoint so
challengeable
be a
otherwise
categorically opposed
she was
dicated that
voir
he
dire
during
he
long as
affirms
no
penalty
would under
to
death
Yet
will “follow the law.”
veniremember
it. No effort
impose
circumstances vote
Goodson,
precisely the same
who affirmed
made
defense counsel
determine
cause,
thought by
thing in the
instant
might
be affected
whether her views
vacillating.
simply
This
the Court
be
especially grue-
of
hypothetical
facts
an
will not do.
some, senseless,
shocking
or
murder. Yet
contexts,
personal
in other
a citizen’s
As
throughout voir
dire
ex-
Goodson insisted
or
law ulti-
support
opposition
for
honestly
amination that she would
answer
very
qualifi-
do
mately has
little to with
relating to deliberateness
questions of fact
put
popu-
jury
If
to a
cations for
service.
dangerousness, all to the
and future
best
significant
vote,
part
of
daresay
lar
I
no
ability.
prosecutor
her
made
repeal
or
population
favor the
would
her
Yet these
attempt
opposi-
many
determine
statutes.
whether
amendment
thereby disqualified
prevent
people are
punishment would
or
capital
tion to
Thus,
if a
senator
jury service.
even
state
ability
substantially impair
fairly
her
leg-
actually
in the
representative
voted
accurately to decide the
issues
of insani-
to eliminate the defense
islature
judgment
to the
fact which are entrusted
him
ty,
example,
not hold
for
we would
of a
jurors
phase
the second
at
automatically challengeable
cause in
for
trial,
no
and the trial
made
where the defense
any criminal
finding.
such
per-
might
if his
insanity
Only
be raised.
provides graphic illustra-
This case thus
not or
were such that he could
sonal views
radically
viewpoints
tion of
different
insanity
fairly apply the
law of
venireper-
concerning
qualification
challenge to his
would a
the case
hand
in Texas.
sons
service
properly be sus-
ground
on this
service
evidently be-
prosecutor
in this cause
tained.
inability
impose the death
lieved that
evidently
sight of the
has
lost
This Court
any circumstances automati-
penalty under
equal
principles apply
these
fact that
*18
challenge
to a
cally
venireperson
a
subjects
personal view of
a
force to veniremember’s
attorney,
the
The defense
on
for cause.
might
expect-
penalty. One
the death
hand,
opposition
that such
other
maintained
reading Wainwright
v.
fair
of
ed that a
only
844,
Witt,
disqualifies
potential
juror
412,
when
83
105
469 U.S.
S.Ct.
(1985),
say nothing of
to
to
person
thereby
is
rendered unable
L.Ed.2d 841
such
Texas,
.
38, 100 S.Ct.
in his Adams v.
448 U.S.
substantially impaired
or is
decide
(1980)
and Wither-
2521,
when
lence, equivocation, vacillation question, or the evi-
venireperson in when conflicting ambiguous or
dence