Gardner v. State

ket value in which may the debtor recover equity property. language provides

of a deed of trust which for addi- requirements,

tional although equal im-

port, only relationship affects between Therefore, debtor and creditor. right

hold that actual notice of rein- bring

state after acceleration a law-

suit is comply sufficient to with the re-

quirements University Savings.

The judgment appeals court is judgment

reversed and the of the trial

court affirmed.

Billy GARDNER, Appellant, Conn Texas, Appellee.

The STATE of

No. 69235. Texas, Appeals

Court of Criminal

En Banc.

March 1987.

OPINION CLINTON, Judge.

Appellant was indicted and convicted of murder, offense V.T.C.A. Pe- Code, 19.03(a)(2).1 nal made § findings affirmative issues 37.071(b)(1) (2), V.A.C.C.P., and Art. and punishment pronounced was assessed and accordingly, at death. His is cause now appeal pursuant before us direct to Art. 4.04, 2, V.A.C.C.P.

Sufficiency the Evidence Initially Appellant challenges the suffi- ciency guilt of the evidence to establish his Specifically this offense. he asserts that the evidence fails corroborate the testi- mony witness, accomplice of the Melvin Sanders, 38.14, required by as Art. V.A.C. Appellant C.P.2 does not elaborate point.

Generally the evidence shows that on the 16, 1983, May afternoon of en- appellant tered a backroom the cafeteria at Lake Highlands High and, School Richardson robbing manager, the course of Thel- Row, ma Catherine as she counted the day’s receipts, punc- shot her. The bullet liver, days tured Row’s and later eleven she died.

Melvin Sanders testified that he was Sanders, married in May to Paula who employee 1983 was an cafeteria Highlands High Lake Through School. conversations with his wife Sanders brought learned that the cafeteria in re- ceipts of as as much several dol- thousand Anton, Dallas, Bruce appellant. Feeling a day. lars that he himself was too Wade, Henry Atty. Jeffrey Dist. B. picking well known at the from cafeteria Keck, Dallas, Asst. Dist. Atty., Robert Hut- work, up his approached wife Sanders tash, Atty., Austin, State’s for State. appellant possibili- several times about the

ty “robbing place.” Sanders testi- fied: Omitting 38.14, parts, alleg-

1. its formal the indictment 2. Art. reads: V.A.C.C.P. appellant es did: "A conviction cannot be had the testi- knowingly intentionally "... cause the mony accomplice of an unless corroborated individual, death of Thelma Catherine Row an tending other evidence to connect the de- deceased, by shooting hereinafter called committed; fendant with the offense and the handgun said Thelma Catherine Row merely corroboration is not sufficient and the defendant did cause the death shows the commission of the offense." deceased while the said defendant was in the committing attempting course of to com- robbery mit the offense of of deceasedf.]" [appellant] they bags.” leading

“I told counted The double doors out to the money in right by loading back back shut continually dock slammed door and that all that would be garbage involved the was carried out. Sanders sat in, going showing more them or less with her back these doors. gun serious, had a and was suddenly From behind saw Sanders basically that that would it. gloved holding arm and a man’s hand sure would just hand over the mon- “lightish-blue, revolver. The man awore ey.” grayish-blue grocery work shirt.” A sack Eventually agreed it was dropped on the desk and the man actually robbery commit the demanded, in, money up, “Put fill it the getaway Sanders would drive the car. up,” hurry or effect. words to that He They originally planned commit the of- to them also ordered not to look at him. Row Friday, May 13, fense on the afternoon of began money. to fill the sack with Before dilaudid, they when but could not obtain could finish for she the man reached the substitute, appar- heroin men which both sack, apparently when Row did not ently inject felt it was in necessary to order relinquish it, immediately he shot her at pluck up courage, their scheme the was range. Then close he fled. Monday. postponed following until the On employee Another cafeteria testified that Monday appellant drove the Sanders during she observed the man from behind reconnoitering, school. After some brief offense, course of the that he the wore parked alley by, close Sanders jeans “faded-out blue and a blue work got min- appellant “eight out. In or ten stocking pulled also shirt.” She saw a Sanders, utes” returned and told “She the head. down over back of his up money. I shot didn’t want the They old woman.” in the car. fled Mathews, high the Lester a custodian at school, testified that at two o’clock the The trial court the instructed the afternoon of offense he observed man accomplice Sanders was an as a matter of standing appellant beside he identified appellant law and that it could not convict loading dock doors outside double testimony Sanders’ unless it found through which the killer soon enter testimony case, “other outside of wearing Appellant and then flee. was of the tend- evidence said Melvin Sanders shirt, light paint- blue “jeans, a and white [appellant] ing connect with offense cigarette. cap,” smoking a er’s and was committed[.]” painter’s cap Beneath the Mathews could sufficiency determining stocking. see a testimony the evidence to corroborate Lavone Newsome testified that accomplice, from consid of an we eliminate years, appellant fifteen known for about accomplice’s testimony eration the and ex appel- and that at the time of the offense remaining amine the evidence to ascertain living lant was with a woman named Odes- independently whether it tends to connect Wingfield. p.m. after 3:00 sa Sometime of accused to the of the commission the afternoon of the offense Newsome State, Killough fense. v. 718 S.W.2d 708 Wingfield’s apartment and found went entirely (Tex.Cr.App.1986). Putting aside appellant and Melvin on the floor Sanders testimony accomplice Sanders we bedroom, counting money. of the The following find the evidence. money was in the form “bills and Sanders, day of the On offense Paula present bags change.” Also some were accomplice, training of the wife was carrying money, upon for which New- used cafe- manager become the assistant could see the word some “Richardson”. training, teria. Pursuant she was pretty excit- Appellant and Sanders “were sitting in learning Row’s office how to take (cid:127) ed.” day’s receipts. care of She testified of- money Approximately as the counted it was two months after the zipped appellant arranged through in “some like bank fense an inter- placed bags that mediary pistols, appellant sell of which til the of trial had been two one time offenses, was a felony Charter Arms .357 revolver. includ- convicted of eleven buyer police. immediately contacted ing burglary and seven convictions for one positively The .357 revolver shown aggravated police of a officer. assault weapon. the murder surprisingly, police Not five Dallas officers fifteen to testified that had known for The corroborative need evidence twenty years appellant’s reputation link directly the accused to the offense being (sic) law-abiding peaceful “a citi- guilt. be sufficient itself to establish zen,” Implicit bad. State, Killough supra. v. “It is sufficient throughout stages at both weight combined cumulative appellant trial was the fact that had been incriminating furnished addicted to narcotics entire adult life. non-accomplice witnesses tends to connect accused the commission of the presented Additional evidence was Granger offense. 683 S.W.2d 387 two months after the offense in this cause (Tex.Cr.App.1984).” Romero v. was committed entered conve- Here, S.W.2d 523 (Tex.Cr.App.1986). nience in store Dallas and robbed the clerk appellant seen was outside the cafeteria gunpoint, threatening at to kill him and moments the before offense was committed exclaiming, “Hurry up. I need a fix bad.” wearing clothing similar to that of rob Finally evidence was that in introduced ber, stocking and awith tucked under his 2,1966, early morning of hours October cap. directly This evidence link him does appellant an accomplice commandeered to the commission of the The offense. grocery shotguns store with terror- money bags participation and his in the ized a number of the stockers for several counting change” of “bills on later manager hours until the store arrived to indirectly afternoon of the offense tend him, does, open During appel- connect as this albeit more safe. ordeal somewhat tenuously, his attempted sale of the mur lant of asked one the stockers if fe- weapon Indeed, der two months later. employees arriving male would be to work say cannot that a jury rational could manager implication being before the —the appellant have convicted on the basis of appellant indulge wished to in some evidence, this circumstantial even absent pass form of sexual assault to In time. testimony.3 Sanders’ We hold the ac relieving the course against of himself complice witness was sufficiently corrobo cartons, of drink appellant stack cold uri- cause, rated in this and thus the evidence nated “all over the side of neck [the] was appellant’s guilt. sufficient establish the back of of head” this same Stock- [the] Appellant argues, again also with little er, year boy seventeen old at the time. embellishment, that evidence punishment stage appellant’s long history Given trial was insufficient jury’s to sustain finding drug-induced proven pro affirmative recidivism and his (b)(2) special 37.071, issue supra, under Art. pensity deadly for the use of weapons requires which a determination “whether against per the commission of offenses probability there is a that the defendant in support apparently son of his unshakea would commit criminal acts violence that habit, justified ble was in conclud continuing would constitute a threat so- ing appellant would in probability all consti ciety[.]” continuing tute a Al society. threat though penitentiary three defensive State introduced was adduced reflecting packets early mitigate 1961 un- impact an effort corroborating 3. The evidence tends to connect would be sufficient in cause this even under the State, Fortenberry to those elements the offense which rule in v. 579 S.W.2d 482 murder, viz., distinguish capital (Tex.Cr.App.1979), recently it as a that it abandoned Holla State, intentionally day and in course v. (Tex.Cr.App.1986). committed 709 S.W.2d 194 State, committing robbery. supra. See Thus the Romero evidence,4 foregoing viewing State, all of the evi- lished in Heckert v. 612 S.W.2d 549 light dence in the most favorable to the (Tex.Cr.App.1981), nega held which that a verdict, Fierro v. 706 S.W.2d 310 special tive answer to issue one does not (Tex.Cr.App.1986),we conclude it was suf- appellate finding dictate an of insufficient ficient to finding sustain the affirmative prove evidence to an “intentional” murder 37.071(b)(2). under Art. 19.03(a)(2). under See also Fearance v. (Tex.Cr.App. S.W.2d Dire Voir 1981). appellant’s fifth of error he therefore, certainly appropriate, It is asserts that erroneously trial court indepen- ask venireman whether he can granted the State’s for cause dently weigh the evidence adduced at the against Hooper, venireman Maxine on the stage, guilt probativeness first for its ground that she could not assess answers guilt, special 37.071, again establish then issues later at the supra, under Art. independently finding of a punishment stage that an accused probativeness for its guilty “intentionally” committing special Clearly issues. the venireman who capital Appellant murder. maintains that question affirmatively answers this has no Hooper never demonstrated herself to be against point bias the law. More to the challengeable upon ground, and that finding guilty whether a disqualification predicated upon no “automatically” dictate a result questioning.” more than “inartful the mind of the venireman Ordinarily same evidence tendered at issues, without consideration of evidence guilt stage of a carry trial to brought punishment stage forward at the State’s prove guilt burden to of the sub- trial, of or further consideration of the stantive offense of capital murder will be guilt particularly evidence as it relates punishment stage resubmitted at the as resolution of only upon those issues. For part going proof State’s evidence manifesting inability, once the issue of Indeed, special applica- issues. absent guilt against has been resolved the ac- bility parties, of the law of it will be the cused, guilt to reconsider evidence in the extraordinary case in which evidence suffi- particular issues, special context a has prove cient to an “intentional” murder for venireman demonstrated himself unable ob- 19.03(a)(2) purposes of will not also serve jectively to follow the law. Such a venire- part in in killing whole or to establish the certainly subject man would be to a State’s deliberately was “committed and with the cause, challenge clearly for for this is a expectation reasonable that death ... ... “phase of the law which State 37.071(b)(1), supra. would result.” Art. rely punishment,” entitled to for ... Art. Nevertheless, that are in- these discreet 35.16(b)(3), Nethery V.A.C.C.P. See quiries, to v. independently be considered 686, by jury, firmly one another (Tex.Cr.App. was estab- 692 S.W.2d mitigation Evidence 4. was adduced in doc- divorced his father in order to abate the brutali- appellant’s umenting unhappy 17, life: that a ty; appellant age that had married at but his eight appellant already help child of support worked to died; first wife soon and that with a second family; his that he assumed the blame adopted baby, wife he a but this wife subse- perpetrated by siblings for mischief his older quently disappeared with the child. It was also his because knew alcoholic father would not awaiting appellant shown that while trial him; punish changed just that this condition "accepted ior,” personal Jesus as Lord and [his] Sav- appellant years before younger turned ten old when a during previous and that his stints in the born, appel- brother was after which Department Texas of Corrections he had been right eyes lant do no in the could of his father inmates, worker, helpful to other a hard severely and was beaten on a number of occa- instigated Appellant’s had never trouble. coun- sions; appellant that at about this same time argued appellant’s dangerousness sel future forcibly by injected was with heroin cousin of addiction, purely drug function father, addiction; apparently leading to his clearly proper that incarceration for life was father, appellant’s raped by their sister response, proven in view of his record for docil- which trauma helping was instrumental in ity productivity penitentiary. in the with; cope that his mother had 1985); Phillips yes S.W.2d said to all them. (Tex.Cr.App.1985). 885-86 Q. Under what circumstances? Hooper’s On direct voir Well, dire it was estab- I just said—whether it was lished she had reservations about the deliberately, committed do penalty. death questioning by Under again. however, judge, trial clearly she indicated Then, Q. person once found she could answer issues in the af- murder, capital guilty offense of firmative in the event she believed evi- then, it, I take that that has answered supported finding beyond dence such a questions you. are They those an- doubt, despite reasonable her reservations. yes. right? swered Is challenged Hooper The State never on the A. Yes. inability follow law this Q. bring you wouldn’t have to We respect. challenge The State’s first more evidence would answer before Hooper cause came when indicated she yes. questions those You him find require more than the of a guilty, they yes? are answered single eyewitness to convict an accused of A. Rights [5] murder, even she believed that misunderstanding So there will be no testimony beyond witness’ a reasonable talking here, Again, by doubt. under am about it’s questioning two juror rehabilitated, separate got bring court trials. We have for cause was denied. The evidence in both trials. proceeded by then ques- further may brought first trial that tioning try to show her delibera- But, yes. answers all three those upon special tion issues she would in fact says prove law that we must be influenced her reservations about the beyond a reasonable doubt that penalty, contrary death to her earlier asser- yes. They to be answered aren’t auto- doing tions. But so he inadvertently yes matically simply answered because following stumbled into colloquy: proved beyond have that he is guilty “Q. THE doubt, [BY proved PROSECUTOR] a reasonable that he is Now, there, ... we get guilty capital can ever can murder. We start over prove ever beyond But, again. reasonable doubt is that clear? questions that should be answered procedure. That is Is that clear to yes, you or opposed because are so to you? being case, part of this kind of that it’s A. Yes. going weigh mind, your to and we Q. that How works? there, just just could get couldn’t —we A. Yes. prove you ques- we couldn’t to that those Q. But, us, people some have told that yes? tions should be answered murder, they guilty capital are if AS TO REPETITIVE- [OBJECTION ques- that answers then those three NESS OVERRULED] Now, you type per- tions. are that are, yes A. These There is no sir. you son who that is what believe? questions. doubt in the three Well, yes. A. Q. sorry. I’m I don’t understand what Q. right. All you’re saying, Hooper. Miss amI not clear, making myself apparently. It’s A. the death sentence that is throw- ing you Do me. saying? A. know what I’m But,

THE I I you Q. COURT: think do. I weighty prob- understand. It’s a record, need to it for state because I why asking lem. I you That’s earli- put your don’t want words mouth. if you er the death sentence would affect deliberating in this questions? You these case. Would it? A. said were Q. Yes ma’am. IA. don’t know. [PROSECUTOR] emphasis supplied 5. All unless otherwise indi- cated.

Q. Okay. But, so you that it would be and then decide ques- whether the clear, you if yes find the tion was or not? guilty defendant capital murder, then, you would Well, automat- A. I up my wouldn’t make mind ically questions it, answer those three yes until I I’m heard sure. already

because proven it's been you. Q. sorry. I’m Is right? up A. I my said I wouldn’t make mind Well, A. right. it, they says until I deliberately, heard but it it says again, will it he do unreasonable. Q. yes, Does that mean that have But, Q. you’re saying not you already proven you been you just automatically yes proved answer them if we questions yes, that instead of it doing guilty? automatically, you would listen to what Well, I going then where am to be? present? either side had death, One would be and then if I believe yes. A. Oh him— Q. In determines what the answers [sic] Q. emotionally trying Is this you, questions to the should be? ma’am? A. Yes. just trying No. I’m to be honest. DEFENSE We submit [BY COUNSEL]: appreciate I I your understand. And your qualified, she is Honor.” honesty and in this. Apparently, candor point, At perceiving inconsistency, I just being am clear on this. am the trial again court intervened and once going put time, one it to more attempted explain the trial would just as clear separate can. Two place take phases, the first two to deter- phases, you that, understand of a trial. innocence, second, guilt mine and the guilt phase There is the and there ais verdict, assuming guilty to determine penalty phase. Is that clear? resolution punish- issues what A. Yes. Judging ment to impose. Hooper’s Q. Now, just ask pointblank, will responses, confused is far from clear if person guilty find this of the of- explanation. that she understood the It is capital murder, fense of prov- we have thus difficult to determine what she meant en beyond a reasonable doubt replying judge’s subsequent when guilty, questions he is are those inquiry: penalty phase, separate phase, right “THE All just COURT: .... let’s already yes you? answered say you guilty have found the defendant A. Yes. go murder. Here we Q. Judge, Okay_ ju- submit the trial, punishment second phase, ror.” questions those three are submitted you. you Okay? Would answer those spite acknowledgements of her to the questions, any or one of yes just them understood that she that in the you because found had the defendant capital proceeding the bifurcated State has guilty, just because evidence caused proving the burden of affirmative answers you guilty? to find him special apart issues its burden of Well, THE they WITNESS: would all be offense, proof guilt as to of the substantive you guilty. because found him transpired subsequently seems what to be- Okay, THE any COURT: without further genuinely lie the notion that she did: evidence that would be sufficient you “Q. DEFENSE Are [BY COUNSEL] questions yes. to answer those Is that Hooper, ques- you saying, that the Miss correct? yes, you or that already tions are would THE Yes.” WITNESS: testimony, you or have to hear more making up your automatically are On prosecutor again redirect the had Hoo- but, it, you per mind would listen to affirm that guilty about verdict of special already anything present side had to issues “are yes.” that either answered Sensing Hooper truly compre- By point did not this the venireman had received hend posed by explanation yet the nature of of how the questions the clearest operates, and she af- prosecutor, proceeding the court and bifurcated defense counsel began firmed that she would “listen to” evi- his cross voir as dire follows: presented punishment phase dence “Q. Hooper, wrong Miss may I “automatically” spe- and would not answer about mixup you say- what the is. Are nothing affirmatively more cial issues ing response prosecutor’s] to [the guilty, hearing than verdict without questions you wouldn’t even come to unsatisfied, however, the trial more. Still those questions you three unless again explaining interposed, court first one person guilty found the of capital mur- procedural capi- more time the scheme in a words, you der? In other wouldn’t be case, tal and that issues are not questions called toon answer the three presented guilty unless a verdict re- you person guilty unless had found a turned, continuing question and then capital murder.” following vein: This seemed to come a revelation to require “THE you COURT: Would either Hooper: in, bring any side to more or right? “A. Is that You wouldn’t be you questions yes would answer those called on— you part based on what heard the first Q. you guilty. Unless found him trial, no matter evidence is A. I didn’t know that. later, you yes would just be- Q. you you Do understand that? him guilty, you cause found would that, questions? do all three those that, yes.” A. I didn’t know I THE WITNESS: didn’t know there was explanation, After further following ex- parts. I they two didn’t know would change place: took bring more— then, right, “A. All the ques- what was could, They might they THE COURT: or tion? But, is, point not. both sides are Q. You pro- understand there is two asking you question. ceedings, if you find the defendant THE WITNESS: I Would listen guilty. you If guilty, find him not we all would not listen? go home. question THE COURT: The both sides Right. is, you you telling are asking are me that Q If guilty find him of capital mur- finding guilty defendant would be der, then, those three enough to answer all three of presented jury. questions yes anything those without Okay. except support further the evidence to Would listen to the verdict, guilty and if that were the from either of answering both sides in case, yes all answer them questions? those three anything without further? yes. A. Well THE WITNESS: don’t know. didn’t bring know more. Q. So, just it’s not automatically be- Well, THE they came COURT: could. you had found defendant guilty capital you murder that could THE Why WITNESS: would after well, say, anything don’t need to hear all that? else. I can questions these Well, THE COURT: the State has the right now. proving burden answers be- those yond No. a reasonable doubt. THE they already WITNESS: think You would listen other presented by would.” either or both sides before

answering questions? those three Thus, Hooper appears venireman to have A. Right.” continuing a inability demonstrated to fath-

684 om, seemingly even after grasping proving for the carried its burden of affirmative special first time how operate issues special beyond answers to issues a reason- capital procedure, why bifurcated doubt, fur- reasonably able the trial court could ther evidence would required ever be Hooper be- have concluded that indicated a be- yond guilt that sufficient to establish be- lief that evidence sufficient establish yond a reasonable special doubt to answer capital “intentional” murder under 19.- § issues affirmatively. Finally the trial court 03(a)(2), supra, invariably suffice asked the venireman: also to establish affirmative answers to

“THE gets special that, COURT: That us back to issues. It is true once she where talking we are say- finally proce- about. You’re seemed to understand the ing dure, if guilty found the Hooper willingness defendant indicated to “lis- an offense based on the evidence might ten to” further evidence that heard, when found him guilty presented punishment phase. at the She murder, the evidence which would however, point, failed even at this to under- support guilty support verdict would stand the reason further evidence would yes questions, answer to those three necessary guilt ever be once was estab- you’re saying? that- what beyond Clearly lished a reasonable doubt. THE proper WITNESS: think so. trial court had a standard for exclusion in mind when he sustained the THE right. COURT: All You wouldn’t challenge, though ques- even his last two more, did, fine, if you have to hear if but tions were insufficient in themselves to de- didn’t, you wouldn’t have to to an- Hooper termine whether met that standard. questions yes. swer those Is that cor- Finding adequate basis the record to rect? support the trial court’s conclusion that THE WITNESS: Yes.” Hooper would not be able to reconsider point At this the State’s guilt independently purposes sustained. issues, resolving special we hold that it positing questions the last two in this was not error to sustain the State’s chal- colloquy final undoubtedly the trial court lenge ground for cause. This of error is intended Hooper to ascertain whether overruled. invariably “automatically” an- special swer affirmatively upon issues ren- ground In his of error number six dering guilty Unfortunately verdict. appellant asserts trial court questions ambiguous. Hooper When curtailing abused its discretion counsel’s confirmed that “the evidence which would questioning during line of dire of voir support guilty support verdict would [a] concerning venireman Linda Kirklin issues, yes answer to those three” difference, understanding any, necessarily she did not demonstrate a bias between a murder committed “intentional against the This law. Court has said re- 19.03(a)(2), ly,” supra, and one committed peatedly may sup- that the same evidence “deliberately and ex reasonable token, port By Hooper the same did both. pectation that the death of the deceased or necessarily prove herself excludable result,” 37.071, (b)(1), another would Art. by affirming for cause that she “would not supra. Ordinarily we would be constrained punish- have to” hear more evidence at the to hold that this of error is con stage [special ment in order “to answer State, trolled Chambers v. 568 S.W.2d yes,” any given capital case since issues] (Tex.Cr.App.1978) 313 progeny, and its Es Hooper’s may answers well be true. (Tex.Cr. quivel S.W.2d more questions to these are no determina- App.1980) and Milton v. 599 S.W.2d questions themselves. tive than are the (Tex.Cr.App.1980). In these cases the

Nonetheless, immediately given the Court has held that it is not an abuse of the preceding thought by prohibit question trial court’s discretion to statement that she ing which, proving up capi regarding of veniremen the substantive offense terms having definition, “already statutory tal have no murder the State would” are left to of another would understanding death of the deceased juror’s the based com- result, question that you answer meaning usage, long as would mon and at least so words, to the it boils down yes? In other prohibition imposed is in the interest of all of question without lengthy short form of reasonably limiting already definitions, indi- if that an you found capital procedure. dire the facts of voir On intentionally killed case, however, knowingly and any find that vidual the instant we being, you answer another human would might interest the trial court have had automatically? yes one limiting clearly outweighed question number voir dire was appellant’s right interrogate by me, venire- proven to without even A. If it’s Kirklin, only to counsel to man not enable doubt. reasonable intelligently peremptory chal- exercise the Q. Beyond a reasonable doubt. lenge, laying a but also with a view to Beyond a reasonable doubt. A. predicate proper for cause. for a clarify Q. can Okay. Let’s see we hold court abused its Thus we that trial found, you If this a little bit. discretion. trial, stage of the guilt or innocence intentionally examination ve- person knowingly

On direct and Kirklin indicated she was “for” another human be- nireman caused the death of got punishment penalty. ing, you She further indicated the death when you question num- penalty appropriate stage the death to be and asked she felt one, of the De- takes the the conduct case in which “someone ber whether that caused the death of person purpose,” but fendant life of another deliberately and deceased was committed informed on direct and cross voir dire when expectation that a reasonable killing with that for a to constitute or another would death of the deceased murder it must be committed the course result, automatically you perpetrating one of certain enumerated question yes? felonies, agreed she could follow the she respect. Yes, in this Bifurcated trial and law A. sir.” operation special punishment issues reiterated, with the question was then her, im- explained to and it was were hypothesis that the State would additional pressed upon her that she must answer punishment present no evidence at special objectively, “opin- issues without again she stage. Asked whether emotion, depend- simply “yes ion” or or no one “automatically” answer issue ing told on what the facts She was are[.]” affirmatively, replied, Kirklin “I don’t think prove “premed- the State would have to so, it.” no. I would have to think about killing. “pre-planning” in the itation” Kirklin Again question posed, but expressed confusion. Once more defense During cross voir dire defense counsel counsel ventured: statutory defini- read to the venireman proven “Q. has ... “knowing,” [The State] see tions of “intentional” and intentionally killed knowingly has 6.03(a) (b), Code, Penal af- V.T.C.A. They proven that. someone. have following exchange tran- ter which the guilty? A. And he is spired: Q. guilty, is correct. That he “Q. you If find that an individual ... exactly right. That’s intentionally caused knowingly or has being in human Now, guilty, of another then you the death find him after committing another enumerat- get punishment phase, course we into here, two-stage in es- felony, da-da-da-da-da— have a ed sence. Right. Right. automatically answer Q. you Would guilty. If guilty of the De- Find him or not the conduct whether guilty, find him then come back the death fendant that caused Okay? deliberately punishment hear evidence. deceased committed guilty him Knowing found that the expectation reasonable knowingly intentionally killing and I intentionally some- murder. caused body, you automatically would answer by shooting his death him with hand- yes question one, number did gun committing while in the course deliberately it and with a ex- reasonable robbery. have ques- You answered that pectation that death would result? guilty. tion. You found me think, A. ‘automatically,’ Your word I is Now, merely you because done have throwing guess what is I I me. would that, you automatically going say are say yes, evidence, have to all with deliberately I acted and a reason- intentionally knowingly and doing expectation able that he died? Or will did, there, what he and the evidence is you wait and hear the evidence and see mind, my and it’s in and I weighed have proof can come from the State sides, both I say yes. you show that I acted awith reasonable Q. Okay. expectation he die I him when shot A. ‘automatically’ That is what throws deliberately. me. you Do I saying? see what am Q. Well, is, asking what I you am Yes, A. sir. right, ‘automatically’ are is word Q. you Do see difference there? zeroing we are in on. Yes, A. sir. You already have heard evidence that he knowingly intentionally did it. ^{[*] [*] [*] [*] [*] [*]} beyond You believe that a reasonable Q. you question Can see how that could Right? doubt. You him guilty. found be answered even if no the state didn’t (Positive). A. Uh-huh bring you any further For evidence? Q. Now, go Okay. to the second instance, goI where and rob [cocoun- stage of you the trial. Would automati- sel], leg. I him you and shoot in the Do cally question find the answer number you see how can although find that yes? one may have deliberately shot him in the A. Yes.” leg, I expecta- didn’t have a reasonable tion that he die when I Do shot him? juncture challenged At this Kirk- you question see how can an- lin for cause on the that she was swered no? “unable to return indepen- a verdict on an finding question Yes, dent now, number one.” yes. A. I do questioning portunity to rehabilitate you going to look and see if the evidence you said think is answer that “Q. going found ... asking automatically, Now, continued somebody somebody guilty, just question yes was then what you merely as [defense counsel] is without follows: Kirklin, guilty, afforded no, thought, are and the because because or are op- [defense counsel] tant that State Q. Q. ^[******] question yes, merely— Now, Yes. Now, had found the Defendant brings do you let me you no further see phrased phrase automatically why it’s it. Even if evidence, very exactly guilty impor- is there? I think is if the evidence is there to we used. ^[******] Yes, . Let sir. goI me go and rob back [prosecutor’s my example telling prove us it. answer that first capital murder, A. No. throwing me A. No Q. Any question * * * ‘Automatically’ about it.” question yes? about it you automatically now? get Appellant’s He money doesn’t cause then cocounsel]. refused, enough. request ques- for me further intentionally fast leg. point shoot him the injury His to his tion the venireman on the same leg guilty objected causes death. I am Appellant first denied. then of mur- premature ques- “the constitute the offense termination of which could [his] grounds tioning juror’s Code, on the that Penal either der under V.T.C.A. predicated answers were on some inaccu- (3);6 19.02(a)(2)or or under 19.- even § § by rate statements of the prosecu- law may 02(a)(1),supra, [the show a inasmuch as Indeed! tor].” “knowing” killing. shooting of a But the order, e.g., in robbery leg victim in the positing In Kirklin hypothetical of apprehension, if an shooting prevent his cocounsel in of even intention- the course committing robbery act, prosecutor not render al and deliberate would this cause is that defined in V.T.C.A. Penal perpetrated “deliberately cally” killing, result. At intentional and deliberate act is not an intentional venireman that to a cial issue illustrate the intended ical does not done with would not would result.” It sonable er he was Code, would amount guish an “intentional” from a “deliberate” apparently trying to commits murder as defined under Section “(a) A person commits 19.02(a)(1)of this code and: ting ping, burglary, (2) capital the murder ^[*] dictate an affirmative operative theory hypothetical or 19.03(a)(2),which reads: expectation or one. simply trying murder. Thus it necessarily attempting expressly person ^[*] attempting embrace expectation killing Unfortunately finding rate, to an intentional is ^[*] intentionally commits would not “automati- robbery, aggravated what is clear intended to illustrate that facts an point. constitute a to commit course quite ^[*] and with capital to show that death accused an offense ... death ... utterly answer which clear wheth- ^[*] murder hypothet- show guilty commit- the rea- amount kidnap- fails to always killing killing would distin- if ^[*] spe- an her. At this lenge” proach to only reasonable standing, thus: cided to “withdraw prematurely would hypothetical does not show been “committed substantive offense of has would result.” It therefore could not have cally serve to rehabilitate a venireman who show that serve to demonstrate to the venireman an example murder at all. murder, because on actor the death A Yes. “Q questioning stated response been be susceptible “automatically” were Ms. issue number one in and allowed regarded answer “intentional” of the deceased. expectation Kirklin, that a wearing terminated, point appellant determine “capital” of the venireman had been actor yes? Thus, to a appellant’s objection deliberately and as the most direct very briefly, guilty its ruling on conviction intentionally cause but murder that striped dress, it cannot Kirklin’s under- face it does capital verdict on would not tried what can trial court her to ... death In affirmative. to recross the chal- fact, “capital” if I said with the possibly murder answer caused capital might have logi- not ap- ... de- Q your striped, your If said dress is

sexual assault or arson ...” yes? ways be It’s two Clearly, guilty found the offense question, right, the exact asking same provision murder an under this ac- your striped about whether dress is or specifically cused must have intended Right? not. death posed by of his victim. The scenario Yes, certainly presented facts A sir. provisions 6. These read: course of and in furtherance of the commis- "(a) attempt, flight person A sion or or in immediate commits an offense he: ****** attempt, the commission or attempts he commits or (2) clearly dangerous bodily injury intends commit an act to cause serious clearly dangerous commits an act life that causes the death of human life human that causes the death of an individual.” individual: (3) attempts felony, commits or to commit a voluntary manslaughter, other than Q essence, asking you, Thereupon I am What the trial court venire- excused the of knowing Kirklin, know definition and following exchange man and the you know the of definition intentional. occurred: Right? Honor, Your “[DEFENSE COUNSEL]: (Positive). A Uh-huh purposes, object for record we would to Q I Okay. asking you What am does is having preemptory the Defense to use deliberately expec- and with a reasonable challenge 1, on Juror No. Ms. Kirk- [sic] result, tation aof does that mean the lin, grounds for that we were afforded thing?” same dire, incomplete an voir and will re- we following point objection At this the and this if objection new and when we ex- dialogue ensued: preemptory challenges, haust our [sic] and we will further ask the Court for I object will to that

“[PROSECUTOR]: preemptory challenges. additional being improper qualify as an to attempt [sic] juror the on her of definition the terms Well, THE I note COURT: the Court sentencing issue number one. recognizes the objection juror the be- objection. THE COURT: Sustain excused, course, ing being overruled. juror things Ask that the be I point want to out several for [PROSECUTOR]: disregard question. instructed purposes record and also make clear, all, it that first the Court with- disregard THE COURT: Please the last ruling challenge question. drew it’s on the [sic] matter, cause that and that was resub- Honor, Your [DEFENSE COUNSEL]: Court, mitted to the Court was object ruling we would to the Court’s challenge for not advised that the cause prosecutor’s] objection, the basis [the Defense, by still asserted grounds prematurely on the termi preemptory Defense exercised a ability juror nates our this are, challenge. about not definitions but [sic] about whether if her definition deliber recognize your complaint expectation ateness and with reasonable appropriate given were not time or exactly of results is as the same know appropriate questions allowed ask ingly and intentionally.[7] on the actual voir dire. Even if the objection THE COURT: The remains regarding Court is in error whether or sustained. challenge properly not cause was sorry, I’m your ruling asserted time [DEFENSE COUNSEL]: a second after the ruling. Honor. understand Court, don’t been withdrawn original questions upon prosecutor] objected. THE COURT: Court notes [The challenge objection which the first for cause sustained made. asking my against juror phrased by You are me to withdraw rul- made this as ing. asking Counsel, incorporating You me to reconsider the Defense my ruling objection your ques- on this intentionally definitions and knowing- tion? ly question. in the Yes, sir. [DEFENSE COUNSEL]: In the opinion entirely Court’s it’s im- my THE COURT: I will not reconsider possible person Spe- could answer ruling. objec- It remains the same. His penalty cial Issue No. death case regard to your question tion in that having person found intentionally, still sustained. knowingly causing the death of another individual, Then, just evidence as to [DEFENSE COUNSEL]: ought except or not there be grounds on the enumerat- whether evi- ed, type of crime preemptorily and we would chal- dence about involved [sic] lenge juror.” Spe- case can meaning understanding 7. Counsel for both the State were man’s of the of "deliber- apparently authority legally of the view that were ate.” We know of no in statute or prevented inquiring from ever as to a venire- caselaw to substantiate this notion. Smith, Powell, 2, supra; case. continuing cial Issue No. about the cable more, Mathis [v. society supra; without and based 167 Tex.Cr.R. threat reasoning, (1959)] if is in er- on that the Court at 632....” 322 S.W.2d ror, for cause was attempt appellant’s Unquestionably, on that preserved, it’s overruled and with a reason- ascertain if “deliberate basis.” result,” of a certain meant expectation able previous disposition As our thing” defini- to Kirklin “the same as and a demonstrates, State, ground gave her of “intentional” was a tion he for- tiori, accused, may successfully chal an By indicating cross proper inquiry.8 lenge cause is un for the venireman who “automatically” voir that she would dire guilt reconsider in the able to evidence one, affirmatively respond special issue particular special context of Cer issues. suscep- already proven Kirklin had herself distin tainly the venireman who cannot challenge cause, tible for at least ab- to a guish between an “intentional” and a “de or some of sent rehabilitation clarification killing will diffi liberate” have substantial response. As we have demonstrated State, v. regard. Heckert culty in this See ante, forth- genuine no rehabilitation was However, supra. having failed to reassert coming. Although was able challenge exercising for his cause before Kirklin “see” that make an affirmative peremptory challenge venireman “au- issue one would not answer Kirklin, appellant posits now of “in- tomatically” finding follow from a of deprivation error in terms of the intelli murder, of her tentional” the basis gent peremptory challenge. of his use insight only was flawed. The reason- new point, thing appellant to do at able for State, 641, v. Smith 703 at 643 S.W.2d exercising purposes intelligently for a (Tex.Cr.App.1985),it was observed: or, challenge, indeed, peremptory reestab- A trial court’s decision voir to restrict cause, for lishing predicate challenge a for may only dire be reviewed to determine straight go to the heart was to whether restriction an constituted perceive matter. A venireman who fails to State, Smith [v. abuse discretion. 513 a between “de- difference “intentional” and 823 (Tex.Cr.App.1974) S.W.2d The test ]. certainly problems liberate will have ...” reviewing a trial court’s restriction of reconsidering guilt stage for its was recently voir dire ‘If the reaffirmed: special issues, or for probativeness toward proper, question is denied matter, considering any new evidence prevents intelligent perempto use of the punishment presented phase with at and harm is shown.’ Powell ry degree requisite impartiality. State, 631 (Tex.Cr.App. S.W.2d 169 [v. State, 170, 1982)] quoting at Mathis [v. Judging pronouncement, its final from 576 835 (Tex.Cr.App.1979) S.W.2d at ] mind apparently the trial was of a court Smith, Therefore, also supra. 837. See “entirely impossible” it is discretion, an abuse of a defend show a juror would fail to discern reasonable question ant must demonstrate that the statutory terms. difference between sought proper. to ask If the hardly position a That is tenable view proper question was and the defendant at least four current fact that members it, prevented asking from then harm submitting of this would favor a Court presumed is because the could defendant requested instruction in- which would intelligently peremptory exercise his alia, inter jurors, struct that “the word challenges information without meaning has a ‘deliberately’ different from gained an answer. ‘intentionally’ the word distinct from proper previously A if it seeks to in the word was defined State, juror’s Williams v. appli- charge....” a views 674 discover on an issue 19.03(a)(2), might distinguish pro- 8. That Kirklin not be cution since under under this able "knowing” killing from one “deliber- vision must be "inten- committed the murder committed ately prose- tionally." is more or ...” less immaterial 690 315, offieer,

S.W.2d n. (Tex.Cr.App.1984). against ap- 6 evinced a bias Stevens State, 636, See also Penry v. 691 S.W.2d pellant. (Clinton, J., 657 (Tex.Cr.App.1985) concur- State, 950, supra, In Hernandez v. ring); Russell v. S.W.2d testified didn’t venireman Abel she believe (Clinton, J., (Tex.Cr.App.1983) dissenting). police officer “would tell a falsehood We hold that the trial court abused his [ujnder any from the witness stand ... disallowing ques- appellant’s discretion circumstances.” This Court held that such tion. response “effectively demonstrated bias Having error, however, per- found defendant, and, against” the apparently in harm, notwithstanding

ceive no the lan- view of the fact that most of the material guage supra, set forth Smith officers, police witnesses were abuse of only appel- ante. Kirklin is the venireman overruling discretion was found in the chal- prevented ques- lant claims lenge find cause. We no such abuse of tioning regard. recognize in While in discretion the instant case. that he denied opportunity intelli- police Stevens was a former reserve offi- gently peremptory challenge to exercise his years experience. cer of fifteen cross On her, against he opportu- does not assert his give voir dire he indicated that he “would nity peremptory challenge to exercise testimony po- more credence to” the of a against any juror during process other witness,” liceman than “a civilian and similarly of individual voir dire was im- police “would be more inclined to believe a paired. At the he time that exercised his officer than ... other witnesses.” The peremptory challenge ap- fifteenth and last questioning continued: pellant requested perempto- five additional “Q. Now, you have been out there with ries, citing challenge without for cause police those officers for all of those part erroneously on his that had been de- years. you police Do a feel if offi- any specific nied or peremptory challenge testified, took the cer witness stand and premature had been forced to use due to you give would more credence to of questioning. termination The trial court you the officer said than would granted him two. Under these circum- type another of witness? stances, any appellant harm rendered by only police A. thing, officer having peremptory to exercise a unintelli- gets usually from information some- gently against Kirklin was nullified.9 else, way one and that’s the it’s written Therefore, appellant’s ground of error But, down. if he at is the scene is number six overruled. crime, then, I would take officers— In his appellant fourth error Q. Word? against asserts that his for cause Right. A. venireman erroneously Buford Stevens was Relying upon State, denied. Q. words, police Hernandez In v. other a officer witness, words, (Tex.Cr.App.1978), S.W.2d 947 a fact were other it, following appellant argues situation, cases of a observer witness a indicating always that, that he regard would “lean to- he testified with and oth- believing police ward” differently, a ers testified you’re saying State, 641, plained prevented posing 9. In Smith v. proper S.W.2d Powell v. he was from State, cases, supra, supra, the two Mathis both question during the individual voir dire of (Tex.Cr. Campbell and in 685 S.W.2d 23 separate Again, twelve venireman. that event App.1985), prevented the defendant was harm would evident. The Smith Court posing proper question pan jury to the entire however, "duplicitous,” found the to be el, single simply a not venireman. In that event and thus ruled no there was error in the first right it is clear that encroachment disallowing instance in it. I, representation of counsel under Art. 10 of contrast, By in this case error infected the Constitution, Mathis, the Texas see 322 S.W.2d single voir dire of but a venireman. Because process has infected the entire peremptories, was awarded additional selection. The harm is manifest. In Smith v. the infection was cured. 823, the 513 S.W.2d defendant com- that, se, ing experience person than you police another per would believe or situation. kind of similar officer? the same you saying? Is what I hear Right. A. Q. Any your Right. doubt in that? A. mind about No, A. sir. Q. But, juror, you to be a wouldn’t fair Q. automatically somebody say just And that would be he is a because because on, police going got has a blue uniform I’m officer? everything says, or most of it believe Well, fair, usually A. he is honest A. ny? A. A. would tell Q. lice officers? Q. Q. working ^[*] And And Yes, Do That’s Right. Sure, Right. that’s a sir. ^[*] sure do. high believe that have duty truth experience you regard ^[*] police high regard regardless? ^[*] for their testimo- be. officers? police ^[*] have officers ^[*] po- you would listen to them first and then because you you want to believe? listen to going decide how same. Q. it a fair statement telling you fact hear or not he was anything That’s situation. about them they automatically it before much what they right. the truth about a else. You telling have testify. are a Is that You would have to police believe them weigh decided whether say you’re fair statement? other officer, truth are it all the particular words, want telling or not that just Q. any type More so than other wit- officer, A. I lean towards the if would ness? things the officer to testified certain a Yes, A. sir.” way, up certain and someone else come On challenged this note and it a If way. they Stevens said different scene, The cause. State was then allowed wasn’t at officer and the proceed, scene, go as follows: I with wasn’t at would officers.”

“Q. Okay. I you take that would part your listen—or of the reason that then advised that Stevens believing police of a officer is because of says got you judge every “the law have training experience, their and their their standard, by the witness same and that ability something look actually again you’re going means that have to they relate to someone else what did self-discipline, you exercise some see?” observe, where people other don’t have Asked he self whether could exercise such training that or experience. Is that cor- discipline feelings and set aside his that a rect? Is that a fair statement? police truth, always officer would tell the Yes, sir. A. judge just individually “and them after Q. things they you testify[,]” replied, And that’s one of the Stevens “I think about, would so.” want know whether or ten-year

not this was a or veteran a On recross Stevens was who asked Is that rookie. a fair statement? police would believe between officer and Right. A. citizen, an ordinary knowing anything “not ^[******] else,” in the event they gave conflicting testimony. Q. is, you saying I think I hear What just “A. I would have hear both sides you police believe officer because of it make a decision on it. training, qualifications, their their relate, ability Q. right. you their give observe All Would more likely things police testimony more to observe and see credence to the officer’s correctly you relate it of that train- than would because the witness? possibility. witness, A. There is say, ordinary given Like I but conflicting had testimony: would have to both hear sides evidence. your What would be COURT]: “[THE over lenge for cause At this supposedly has Tell me THE WITNESS: information go down the line could I would lean toward the officer.” “THE way.” tion, She can’t hear derstood that’s ny would people officer took the them, then, might But, worked a reserve dence earlier had understood what Q. questioning: along than ^[******] Do Yes, Well, you point appellant the best because guess give and because COURT: Mr. why. police sir. with it. I would police more credence to his testimo- what still feel that them, you be correct, I officers because lean you nodding your stand you his Well, sir, weigh officer for 15 are, persuaded But, and not the trial you towards have worked with reasserted his chal- did have ability, Stevens, laywitness. correct disprove it, well, you then if a if both know the would have to down someone way? testified, you had told me everybody said the officer. the officer court and sides, but, the other informa- you to, you earlier. years. if police head. confi- and I I un- took type said else his redirect that his deference was not much questioning. he The officer ly tory own ,hear THE WITNESS: THE telling you hear doubt? make THE ness, just get THE COURT: just cause both sides of little lean your THE words position those witnesses as one indicated any unfailing honesty would believe part trial cause Would personal knowledge training my Though at that COURT: In “regardless,” he made it clear on WITNESS: position the whole WITNESS: would up court then overruled the fact situation. He is of all with and refused to allow further your you well, I like [sic] he would has toward and the truth point, point? — it, I respect Stevens policemen is. mouth. Well, you experience. thoroughly which story. other Well, sir, think there would Right.” what is testimony from both sides and beyond listen were a one of initially indicated don’t want to police against words, you You tell he so much as his don’t know that their your just perceived investigated. after He a reasonable credibility witness. just officer, and of a them investiga challenge repeated position? me so have to I heard weigh a wit- police other, what abe put be- on To Argument was then to the court. testimony any given made trial “both sides” of the Appellant argued subject Stevens issue. That he would “lean toward” the that, challenge testimony officer, opposed “all as police because he had shown of the things being equal, give laywitness, only he would more to a reflected defer testimony police credence to a officer’s ence to what he the officer’s assumed layperson’s superior powers at than he would to a testimo- of observation—not all ny[.]” responded weighing The State invalid that Stevens consideration witness, upon waiting reliability “predicated provided answers had been hearing assumption. Indi- what the evidence is.” record bears out the Once the cating yet managed was not sure he understood court to free him of trial then him position, judge preconceptions hypo Stevens’ asked whether the about give up preconceptions policeman thetical the “correct infor mation,” degree training experience of “thoroughly investigated” or had case, hypothetical police officer assume Stevens affirmed that he would perspective only officer had had the as an credibility same determine witness after hearing story.” get injection, recita- “the As our either State would whole know, other, know, you injec- tion presented you of the at shows, to de- thing. little evidence critical tion termining guilt, only the appellant’s Q. Okay. being I’m probably real reputation punish- usual rote this, you if but do remember clear ment, police was elicited from officers yes, all questions three this cause. Under these circumstances we judge do? does the find no abuse of discretion under Hernan- Repeat that, part the first of that hence, supra, dez v. error. no me for before asked Repeat quite get his third of error three. didn’t —I sustaining part. maintains the trial court erred in against State’s cause ve- Q. facts, me tell Let how it nireman Fears. chal- Elsenia The State If questions all three are an- works. lenged inability Fears the basis of “on yes, penalty. death One or more swered thus properly understand and follow the no, sentence; right? life answered Let 35.16(a)(5),V.A.C.C.P., Citing law.” Art. you. questions me ask If all three are challenge. the trial court sustained the yes, judge answered what does do? Appellant now asserts the voir dire of Well, say him, give he would —I Fears did not demonstrate “such men- ... just give him life.” tal defect as to render unfit for [her] again prosecutor The informed her that service,” and therefore the trial court affirmative answers to the three in excluding abused its discretion her. sentence, dictate issues would a death but Fears’ relatively voir dire was brief. She again being result asked the of three initially expressed an aversion to the death answers, “yes” replied, Fears “Life.” penalty: just agree me I “Within couldn’t explained prosecutor Once more the way way up. with it no whatever it come the result would Then: be death. just right. wouldn’t feel I wouldn’t—I “Q. going I’m to ask all three myself.” couldn’t live with She affirmed questions yes, what does answered that she could not “be in verdict involved judge do? which would result the death of fellow just to— A. He sentences him being.” human then brief- what? To ly explained the difference between death, you sentences him like A. He to jury function of the in assessing punish- said. prior simply ment to and that of Q. any question that clear? Is Is there answering special issues under present equal yes that? Three death. about capital sentencing Along way scheme. Yes, I think A. that’s clear. Fears was asked what the affirm- result of Now, Q. you let me ask this. What ative all special answers to three issues happens questions if one of an- be, responded, would she which "... swered no? give they still him In would death.” Well, case, effort to in opposi- ascertain whether Fears’ A. that would have to penalty there, tion to the impair death would make a decision the testi- review is, ability special brief, objectively, mony answer issues and make or whatever it be, questioning you continued decision that which would know, person in being follows: the interest of a found, you to do it know—we have over “Q. Okay. you, as I So understand you again, know.” shows, doesn’t matter what the evidence you ques- could never answer those three again prosecutor explained Yet to her yes yes, yes, tions because it would re- One, it; did he there are trials. do “[t]wo in happen? sult what? What would two, doing get does he for it.” She what say way A. I or determining one the other. Wheth- that in was told “what does he say it,” er I get doing would continue to death or she be called would —He special innocence, answer issues the second “tri- guilt would be to determine al.” guilt beyond and that if was found a rea- doubt,

“Q. Now, jury proceed sonable would then way that decision is made the questions. Again answers three If to resolution of issues. all she yes, are equals ‘yes’ three answered that three was informed three answers death, equals death, one or no’s more life. would result in verdict of while a negative question response any one A. Uh-huh. a life would mandate sentence. The trial Q. questions Those you, front of Ms. court continued: Fears, why you don’t look at them for just They’re “Q. Now, wordy. Okay. question a minute. kind I want to you reading them, Do have problems you already you ask that’s asked of been Ms. Fears? your be but want to clear about under- standing, you if person that had found a A. No. guilty in case you murder Q. Okay. questions were submitted those three A. Uh-huh. you beyond believed reasonable Q. you ques- Do see none of how those ques- doubt that the answer to the first tions asked whether the defendant lives yes, tion should be and that answer or dies? question yes, to the second should be A. Uh-huh. that answer the third Q. you Do see how all can three be yes, should be what sentence would the yes or answered no? judge give have to the defendant in that A. Uh-huh. trying trip you up, situation? I’m not Q. Remembering what we talked about just want you to know what understand ago, you a moment me ask let because I be the case. know it’s kind of hard understand. give A. Just me a minute. law, hard understanding have a time Q. Yes, ma’am. lawyer. and I’m a I know it’s awful hard case, they give would him people to understand the law who penalty. death haven’t studied it. But if all three Now, questions Q. fact, those yes, are answered the first Okay. time—in is the result? does What the defendant the first times same ques- several get all questions if three are answered you, tion was asked of it was asked of yes? know, you differently, a little you like Well, yes, yes, here, yes, where have person— case he’s, questions. you know, explained three It was found guilty, case, weigh— just either would but thought indicated it meant No, Forget ma’am. about—Just get Now, you a life sentence. tell yes, what is the You yes, result? penalty, you just me it’s the death yes. get? What does he guessing something you or is that know get just get A. He would would —he straight to be the You up case? can be life, in prison.” life Nobody’s trying trip you with us. up. to At challenged this time the State the ve- just I if you just want to know were on the basis noted ante. Appel- nireman guessing at the answer should be opportunity lant’s the counsel refused my question or is that what know himself, question Fears simply but stated: to be the answer. gave “I just wrong think because she one said think that’s the answer. disqualify doesn’t her as far as sure, said I I’m think. not but I think being object being will to her ex- —We your question the answer to it is. ruling challenge, cused.” Before on the —that my question You think the answer to questioned court trial Fears himself. is that the result would be death? carefully explained It to her that the jury first of in capital function a case A. Uh-huh.

695 process a going ability participate to to her in THE COURT: The Court’s challenge might imposition on the sustain the basis result in of the death 3516, 4,[10]basically prevent Section because penalty, whether views her “would [sic] prospective the Court believes that substantially impair performance concepts juror fully grasp not does in juror duties as a accordance [her] which have first to be involved oath[,]” instructions and Wain [her] [her] grasped before either side could test Witt, 412, 424, 105 U.S. wright v. 469 S.Ct. person’s feelings penalty the death about 850, 841, 844, (1985), 83 L.Ed.2d 849 was a findings guilt, and how that bears on Specifically, left it unanswered. doubt reasonable and the answers to not Fears’ determined whether questions. penalty likely aversion death going I’m sure sub- not who’s be inject “conscious distortion or bias” into sustaining by served this chal- spe her deliberations 37.071 Art. circumstances, lenge, under the but simply cial issues. unable to Fears stated, grounds for the I’ve so Court comprehend what would be her duties as a rules. juror in with her instructions accordance Appellant argues no de- now “mental prevent oath. her Thus State was fect” is face of voir apparent Fears’ testing qualifications ed from under Quoting Unabridged dire. Webster’s New standard enunciated Adams and Dictionary (1983), Deluxe Second Edition significant that, given We find Witt. argues showing there was no of a defect opportunity, appellant attempt did person markedly which “renders sub- prove e.g., demonstrating by, otherwise intellectually, normal range in the from ambigu that Fears’ confusion was due to idiocy moronity.” Citing federal case- questioning by ous and trial selecting law dealing with standards for court. Under the the trial circumstances court, jury panels in implicitly federal court did not abuse its discretion in sustain argues that exclusion of veniremen on the ing challenge. the State’s low, “markedly basis of but not subnor- mal” intelligence, violates Constitution- We thereby do not appar hold that right al under the Sixth Amendment to a ently intelligence low is perse jury composed of taken members 35.16(a)(5). Rather, under Art. fair cross community.11 section We we hold that a inability venireman’s to com refuse, however, indulge in any inquiry prehend the juror limited function of a precise into the clinical nomenclature to be punishment phase capital of a may case assigned may to venireman before he constitute “such ... mental 35.16(a)(5). defect ... as excluded for cause under Art. render him unfit for service. ...” jurors The State is entitled who case “will consider and decide impartially conscientiously the facts Motions Mistrial apply charged the law as the court.” Texas, 38, 45, Appellant’s grounds five next error Adams U.S. 100 S.Ct. 2521, 581, 2526, (1980). L.Ed.2d involve asserted error the denial of his expressed objections While Fears reservations as motions for mistrial after to cer- began (a)(4) September up days Voir dire this cause as it had read until nineteen 10. September year, 1 of 1983. As Art. began. before 35.16(a)(4), supra, only was amended to include provision challengeable the that a venireman be Butera, Appellant 11. cites United States v. 420 insane;” for cause "he is that the if venireman 1970); (CA1 F.2d 564 States United v. have, alia, may inter defect" a "mental became Henderson, (CA7 1962); 298 522 Rabinow F.2d ground (5). See for under subsection States, (CA5 1966); v. United 366 F.2d 34 itz 1983, 619, 134, 2, Leg., p. Acts Sept. 68th ch. eff. § Dioguardi, F.Supp. United States v. 361 954 1, We find 1983. it inconceivable the Allen, (SDNY 1973); United States v. 588 F.2d however, insane, court found venireman Fears (CA5 Kline, 1979); 1100 United States v. 221 ground and assume instead that the for (D.Minn.1963). F.Supp. 776 was, indeed, exclusion "mental defect” under 696 arguments by ously penitentiary.

tain or to the evidence the State been In the sustained, and jury were the instructed to presenting course of defensive ap- evidence disregard objectionable Appel- the matter. pellant questioned recalled Sanders prejudice lant that in each the asserts case briefly concerning appellant’s him physical susceptible by simple was not to “cure” condition and around the at time of the instruction. Specifically, offense. Sanders testified days in after the offense the was majority In the of cases in which vast appellant problems had committed stomach in, argument made or is comes keeping food and had trouble down. On deliberately inadvertently, which has no State, by crossexamination the the any follow- in relevance to material issue the case ing potential ensued: and carries with it some definite accused, prejudice for to the this Court has “Q. ever complain Did the defendant upon appellate relied to an amounts by problems about stomach caused presumption that an instruction to dis ulcers? regard obeyed by the evidence will be the I don’t remember or recall the cause. * * * Practice, jury. Ray, See 1 R. Texas Law time He—The I offered to take him (3rd 1980); Thompson Evidence, v. 29 ed. hospital, it the that time came out State, (Tex.Cr.App.1981). 612 S.W.2d 925 history that he had had a of stomach puts In its faith in essence this Court the problems. instruction, upon jury’s ability, consciously did he tell about What that? recognize potential prejudice, the for me when he He told that even was in consciously then the prejudice, to discount penitentiary, that he had stomach any, Thus say its deliberations. problems.” deriving unresponsive the harm from the Appellant immediately objected, and the tri- been This has “cured.” is true responded by instructing jury al court “except appears extreme cases where disregard appellant When clearly that the answer. ... calculated jury jury mistrial inflame the minds of the and is of moved for a was excused. suggest impossi hearing objection such a character as to After a brief was bility withdrawing impression pro sustained, denied, motion mistrial E.g., Campos v. duced on their minds.” box, upon reentering ju- State, 424, (Tex.Cr.App. 589 S.W.2d 428 disregard again rors were instructed 1979). given Whether case fits the ex last answer.

ception depend, course, or the rule will State, v. Williams Relying on 643 upon particular its facts. appellant (Tex.Cr.App.1982), S.W.2d 136 ar- gues the trial court’s instructions to

In dis- appellant error seven regard insufficient in this failing were cause to asserts the trial court erred prejudice grant engendered by remove the requested motion for Sand- mistrial af witness, Sanders, accomplice gratui nonresponsive appellant’s ter the ers’ reference to tously fact, guilt previous penitentiary.12 por sojourn alluded to the at the We trial, previ- disagree. tion of State, supra, 12. argues v. has come that the made Williams under lant reference in the in- was appeals. stant cause both incurable and some in the harmful. criticism courts See holding the State, 381, panel harm was cured (Tex.App.— Waldo v. 705 S.W.2d 388 349, relied Ulmer v. 106 Tex.Cr.R. J., 1986) (Cadena, dissenting). San Antonio (1927), 292 S.W. Salinas prosecution Williams involved the of- (1943). 175 S.W.2d Tex.Cr.R. In Ulmer fense of unauthorized use of a motor A vehicle. rape the defendant was on trial for the of his panel Court found that the facts of daughter. At trial another defendant’s unsolicited case an reference defend- daughters testify, unresponsive- allowed to penitentiary ant's earlier in the stint not an ly, peniten- both that father had been to the susceptible error to cure an instruction from tiary, illegitimate and that had fathered her Nevertheless, panel the court. found the baby. opinion On its face the does not indicate beyond error doubt, to be harmless a reasonable given jury, whether but it instruction Appel- affirmed and thus the conviction. appears judge simply the trial allowed

697 appellant peniten- objection- been the An “a That had to this was violation tiary undoubtedly ruling,” was and presumably inadmissible the Court’s on the mo- prejudicial testimony, having no relevance limine, sustained, an tion in was instruction guilt stage at any issue the of trial. given, and a motion for mistrial denied. A However, fact, unembellished, that'bare time asked: short later the inflammatory was so not as undermine “Q. Let ask time Okay. me at [the efficacy the of the trial court’s instruction appellant complained prob- of stomach disregard State, it. See 642 Davis tell us com- whether or the lems] 510, S.W.2d (Tex.Cr.App.1982). plaint coupled was with the fact he said that it was caused withdrawal As crossexamination Sanders using from not dilaudid? continued, prosecutor began the a line of suggested No, questioning appellant’s which he never You said that himself. problems know, symp stomach were withdrawal having never he said that ‘I’m dependency toms from his withdrawal,” dilaudid. trouble because I’m hearing At on appellant’s an earlier motion that, anything like no.” in limine the trial court had ruled that the Again, objection interposed an was and sus- only appel evidence would as to allow tained, instructed, jury the appel- was and drug guilt stage lant’s use at the of trial lant’s motion for mistrial denied. testimony would be that he Sanders ground eight In error con- injected day offense, dilaudid on the tends that these motions for mistrial should tried to it the preceding had obtain However, granted. have been we note that Friday, robbery when originally was colloquys short time after the oc- above prosecutor apparently scheduled. The be curred, Sanders testify, was allowed to questioning appel lieved of Sanders about objection, appel- without to the effect that problems lant’s opened stomach had “regular lant was a user” of dilaudid. For door hoped prove to evidence of what he reason, State, this see Woolls v. was its cause: 455, 470 (Tex.Cr.App.1983), S.W.2d as well “Q. These times complaining he was previous as those stated ill, being about had the Defend- error, any we hold that harm from the drugs ant used at those times? prosecutor’s questions was cured. complaints A. The were more at times using

when he drugs wasn’t were when Ground of error nine involves fail complaining. was grant ure motion for made mistrial Q. Okay. complaining Would he be during argument be- final State’s guilt cause he was withdrawing stage. Gholston, from or At trial Officer Jim any?” hadn’t had investigator a homicide with the Dallas Po- Nevertheless, objection. both statements over jury. did court not instruct the This Court held admitting agreeing Court observed error in that in with the defendant late, both statements "is one that cannot be cured. instruction would come too court State, Haygood v. opinion 104 Tex.Cr.R. 284 S.W. manifested that the harm was [(1926)].’’ simply incurable. The Court deferred (not, Ulmer, Hagood Haygood) judgment appeal. miscited in presented vastly Clearly Haygood a situation different from that neither Ulmer nor dictate a finding of ’Williamsor the instant case. There the de- of incurable harm in this cause. In again charged rape, objection fendant also each case the was overruled. each testimony was allowed that also defendant had case the extraneous matter —a sexual offense attempted complainant's against intercourse with complainant’s committed sister— judge directly sister. The trial admitted the went the heart of the. offense for impression under mistaken the witness which the defendant stood That trial. in Ulmer complainant. When he went make the made time reference was to the defendant’s charge assumption penitentiary only compounded he discovered his mistaken the harm al proposed jury disregard ready to instruct evident. testimony. objected supra, distinguished earlier The defendant Salinas v. (Tex.Cr. that the harm had been done and to instruct Richardson v. 624 S.W.2d 912 compound, App.1981). at so late a date would rather The distinctions noted there are Accepting argument, equally applicable than cure it. the trial to this cause. Department, sustained, lice “bolstering” testified to he made A objection a deal was jury with and the disregard Sanders obtain Sus- was instructed to to information. pecting the statement. Motion for was robbery that “inside” mistrial the was an overruled, prosecutor the after which re- job, and that Sanders had a hand sumed: because employee, his wife was a cafeteria “Well, applied pressure just rephrase say

Gholston let me to it and Sanders expe- that Melvin Sanders talked to supply of some the name the killer. actual Ghol- men, rookies, rienced he not and then arranged prosecutors ston Dallas comes down here and tells County a pro- to decline of recommendation knows to be the truth because he knows forgery pending against bation a case lies, neck his is on the line. Sanders, requested County prose- Tarrant Now, you don’t think that doesn’t mean prosecute cutors to pending robbery a something to him?” charge fullest,” there the “to and had a Patently, of credibility determination the of weapons brought charge against him in job factfinder, a is the the witness response pressure federal court. In to this investigators prosecutors. It is thus appellant. Sanders Additionally, identified improper suggest jury exchange apparent im- transactional defer should to another’s assessment of against munity prosecution for the testimony, truthfulness of no matter how murder, agreed testify. Sanders Under- “experienced” may that other be. While standably, major portion appellant’s a creating an inference that wit- a summation jury questions involved is not trustworthy may ness certainly about credibility. Sanders’ the end Toward argued, argue it is jury error to should argument, defense counsel main- simply prosecu- believe witness because tained: investigators do. tors and Cf. Menefee “And if don’t think man will State, (Tex.Cr.App.1981), 614 S.W.2d 167 lie, my tell then I’ve wasted time (It and cases there cited. is error for you anything here. He’ll tell that suits prosecutor vouch personally himself to purposes. He’ll tell Detective Ghol- honesty or truthfulness of his witness- ston anything that will Melvin benefit es.) Sanders. Appellant argues now that because He’ll you people, tell he’ll tell Mr. credibility pivotal Sanders' prosecutor], Banks lead he’ll tell [the cause, determination in this the harm at anybody anything at all benefit that will tending argument the prosecutor’s in Sanders, just Melvin and he’s done error, Again, disagree. curable. While that....” prosecutor’s in remarks were not so In response, responded that prosecutor flammatory jury's as to overcome abili lie, if Sanders’ had wanted to “he would ty consciously disregard them. Further big,” discrepan- pointing have lied out some more, apparently able cies in his not been had “rephrase” question appel suit accounted for. He then continued: lant, objection. as he voiced no holdWe instruction, court’s prose “But Melvin had to come down here subsequent cutor’s restatement of after having passed couple of tests. acceptable in a appel manner He pass scrutiny had to Ghol- Jim lant, cured the harm. years ston experience with his Force, your police the Dallas Police of error ten force. complains of the court’s failure He pass scrutiny Jerry had to grant lodged his motion for mistrial after Banks, officer, the lead counsel in this death police investigated the who had pass case. He scrutiny unadjudicated aggravated robbery of a con people those propounded two before he took the store punish venience at the stage, stand —” ment testified as follows: “Q. you: During Let me ask the State’s final summation the [PROSECUTOR] you get Did a a prosecutor license number from car argued: description and a of a car? “Now, preacher you? what did the tell Yes, A. sir. evidence, You remember what was Q. you Did it, later find out about that car really said. But as I recall he talked and that license number? to him two times. And he said that he sir, Yes, I did. he a confessed that sinner and that he wanted to saved. it Did run down? him, Well, I asked ‘Did he tell that he license number was on a plate shortly ‘No, that was stolen before the this he committed offense?’ robbery didn’t. We didn’t talk about it.’ much —” really Do think if he Appellant’s hearsay objection was sus- jury going tained and the instructed. be truthful man Motion for with that overruled, to, immediately mistrial was he talked that he would have told him officer, said, thereafter everything; asked that he ‘I did it?’ and you go “did out so, and find a car that was sorry happened?’ that ‘I’m responded, stolen?” The officer “I didn’t You know we’ve heard a from the lot I personally find it. received information Defense and we’ve heard lot Thus, objection it.” No followed. courtroom, everything else but we the officer had received information about anybody say they hadn’t heard unspecified “stolen” car around the time truly happened sorrow about robbery despite jury was before the Caty Row. appellant’s prior hearsay Again, objection. To which [DEFENSE COUNSEL]: reason, for this and because the trial object, we’ll Your Honor. That’s com- sufficient, any court’s instruction was ment on the Defendant’s failure testi- harm was obviated. fy- Finally, appellant contends his motion for THE COURT: Sustained. granted mistrial should have been after Ask the [DEFENSE COUNSEL]: testify reference was made his failure to disregard be instructed to that. during argument punishment final at the Disregard THE COURT: state- stage. ment. Among by appellant the witnesses called Honor, Your [DEFENSE COUNSEL]: stage pastor at this were the of the First move for mistrial. Christian of Seagoville, Church Steven THE COURT: Denied. Spencer, T.D.C., former inmate at Well, I believe [PROSECUTOR]: Spencer John visiting Norman. testified to Norman, asked Mr. who came down here appellant several times in the Dallas Coun- and told al- that’s what was —and ty During Spencer’s appel- Jail. first visit my luding argument testify to in — accepted lant as personal Jesus Lord and great person the Defendant about awhat Savior, Pray- recited the “Sinner’s sorry how was to see him together, Spencer er” which described as predicament. in this “an act of contrition.” On crossexamina- way him And asked if he felt that Spencer tion testified denied to case, about the victim this and he told offense, having him committed the instant you that he didn’t.” thought but “said that he he knew who might have.” Relying upon Owen v. 656 S.W.2d 458 (Tex.Cr.App.1983), appellant now ar- to appellant’s Norman testified as gues court’s instruction did not good conduct On while T.D.C. crossex- cure the error. amination he admitted he had “ex Owen, the Court observed: pressed family of” condolences to [his] deceased, V.A.C.C.P., 38.08, explained provides but that “If I “Art. as fol them, would have known I would have.” lows:

‘Any defendant in a criminal action certainly interpreted can be as a comment permitted shall be testify appellant’s in his own on the failure to take the stand therein, remorse, behalf but the personally failure of voice his as in Indeed, testify having defendant to so shall Owen. “every not be excluded against him, thing taken as a else” that circumstance had been “in this heard courtroom,” prosecutor nor shall the same be alluded to or seems to have called for some by commented on counsel in evidence of remorse from a the cause.’ source other than jury those witnesses the prosecutor’s A comment on a defend not, however, had heard. This is a neces testify ant’s failure to offends our both sary prosecutor’s construction of the re State and Federal Constitutions. Nick context, mark. it could have been a State, (Tex.Cr. ens v. 604 101 S.W.2d further, clumsy, albeit appel reference to App.1980); State, Pollard v. 552 S.W.2d up lant’s failure to own to his offense when (Tex.Cr.App.1977). language 475 The of Spencer jail. Regardless visited him in such a comment must either manifest argument whether this proper would be a ly intended, or of such a character that case, State, one in a see Thomas v. jury naturally necessarily 481, 638 (Tex.Cr.App. S.W.2d at 482 n. 3 take it to be a comment on the defend 1982), necessarily it does not imply appel State, ant’s failure testify. v. Griffin lant has to testify failed in his own behalf. 554 688 (Tex.Cr.App.1977); S.W.2d Hicks Id., 485; State, at McMahon v. 582 S.W.2d State, v. 525 (Tex.Cr.App. S.W.2d 177 786, 791-92 (Tex.Cr.App.1978). Alterna 1975). complained If the remark tively, while the relevance of re whatever jury’s called the attention to the absence was, may morse witness Norman have felt only of evidence that best, infinitesimal, at supply, could the conviction nevertheless tried to show State, Myers must be reversed. v. 573 “truly sorry Norman not about what (Tex.Cr.App.1978). S.W.2d 19 happened Caty Row.” It is not incon prohibition against a comment on the jury ceivable understood his reference the defendant’s to testify failure is man go to that earlier testimony, just as the datory and the adverse effect of any prosecutor asserted it did. reference to the accused’s failure to testi To the jury may extent have under- fy is generally by cured an instruc prosecutor’s stood the remarks to be a com- jury. State, tion to the Johnson v. 611 ment on appellant’s testify, failure to (Tex.Cr.App.1981); S.W.2d 649 Over may harm which have resulted was cured State, (Tex.Cr. street v. 470 S.W.2d 653 13 by prompt the trial court’s instruction to App.1971).” disregard. The obscure remark made in the instant grounds These of error are overruled. cause, viz., “we’ve heard a lot from the every- Defense and we’ve heard a lot from Admissibility Prior Convictions thing courtroom, else in this but we hadn’t anybody say heard truly sor- One of penitentiary packets admitted ry happened Caty Row[,]” about what punishment stage contained, at the inter 13. It has also been said that rare, error “[s]uch [as indeed it is not unheard of that an instruc appellant alleges rarely by disregard oblique is cureable here] tion to an [sic] allusion to an ac jury disregard.” Dickin testify an instruction to the may cused’s failure to be found to have State, State, 320, son See, v. (Tex.Cr.App. e.g., 685 S.W.2d 322 Cook v. cured error. 702 S.W.2d Indeed, 1984). that, 597, (Tex.Cr.App.1985) earlier cases have held (Opinion due at 601 38.08, State, mandatory supra, Rehearing); nature of Art. Cannon v. State’s Motion for 664, precursors, subject never and its such Haw (Tex.Cr.App.1985); error 691 S.W.2d at 677 State, See, 65, e.g., v. kins v. cure (Tex.Cr.App. instruction. 660 S.W.2d at 79 Lankford State, 113, State, (1951); 1983); 817, 156 Tex.Cr.R. Davis v. 239 S.W.2d 394 645 S.W.2d at 819 State, 358, State, Wright Minton v. 1983); (Tex.Cr.App. 162 Tex.Cr.R. v. 285 S.W.2d 582 S.W.2d State, (1956); 845, Easterling 760 Thompson (Tex.Cr.App.1979); v. 168 Tex.Cr.R. at 847 v. 219, State, (1959); Branch, 732, 325 S.W.2d 138 2 (Tex.Cr.App. Tex.Pen. S.W.2d 537 at 734-35 395, (2d 1956). 1976); Code Ann. § v. at 414 ed. More 478 S.W.2d at 452 Alvarez that, 1972). (Tex.Cr.App. recent decisions have shown while it is aha, Boyd documents entitled he cites “CERTIFIED contention (Tex.Cr.App.1983). COPY OF JUDGMENT AND SEN- S.W.2d 820 TENCE-JURY WAIVED” three 1962 Boyd involved collateral attack burglary convictions Dis- Criminal punish- conviction used enhancement of trict #3 County. Court of Dallas At a ment found to be void for lack which was hearing prior conducted to commencement written waiver defendant’s punishment stage, appellant objected Collier, right jury parte trial. Ex prior to introduction of these convictions on (Tex.Cr.App.1981) S.W.2d 429 was distin- the basis “that the State Texas has guished in that there it was the State’s sign a failed to waiver of a trial and writing failure to consent defend- judge in the has failed to [those cases] jury ant’s waiver of trial that the except said waiver.” Pursuant his [sic] Collier, object parte the In of attack. Ex appellant introduced, objection for record 434, supra at the Court had held: purposes only, containing three exhibits showing in “that the absence of a of jacket[s]” “the of the contents court may harm a valid conviction not be set D-8161-HIJ, numbers cause D-8162-HIJ by corpus aside habeas or collateral at- correspond- and D-8244-HJ. In his exhibit merely tack because the State failed to ing to cause number appears D-8161-HIJ a sign jury the of consent the waiver a appellant’s right written waiver of a jury required by 1.13, defendant as Article trial, signed by appellant, attorney, the V.A.C.C.P., where the evidence does attorney State, judge for the and the trial agree in show that the State did fact for the # Criminal District Court 3. This such waiver.” 14, 1962, September document is dated the In Boyd holding we refused to extend this same date judgment as the in and sentence in derogation Felton, parte of Ex 590 all burglary three of the convictions. At (Tex.Cr.App.1979). S.W.2d 471 top page the the of are listed all three However, cause numbers. this document significance appellant’s of reliance appear correspond- does not in the exhibits Boyd appel somewhat unclear. If ing to cause D- numbers D-8162-HIJ or complaint present may lant’s be construed 8244-HJ. upon to be an attack D- cause numbers and 8162-HIJ D-8244-HJ for the reason grounds In of error twelve and thirteen papers that in “the do not appellant now asserts that the the[se] trial court cause[s]” trial, contain his jury in written waiver of admitting erred of the convic- grounds of fail for tions in error two reasons. cause numbers and D-8162-HIJ First, ground D-8244-HJ, comport in such does not with two these convic- trial, objection the at signed tions there was “a made which valid waiver jury of in papers “papers” in the these causes do not contain the cause accord- of ing to the black letter of” law Arts. 1.13 written indicia the State’s consent 1.15, approval V.A.C.C.P.14 He and the trial court’s of his contends waiv joint jury Second, jury 1.13, renders er waiver the convic- trial. while Art. “[t]he upon objection.” tion void In support supra, expressly requires ac Emphasis original. him, writing, signed by in papers filed in the 14. 1.13, supra, Art. of the cause reads: before defendant enters his prosecution plea. “The defendant in a criminal Before a who no defendant has attor- felony for capital offense classified as a than ney agree less jury, can waive the the court right, upon entering shall have the appoint attorney represent must him." plea, right by jury waive of trial condi- 1.15, supra, part Art. in relevant reads: tioned, however, that such waiver must be person felony be “No can convicted of person by writing made in open the defendant in in except upon jury duly the verdict aof ren- approval court the consent recorded, felony dered and in unless cases court, attorney representing and the defendant, capital, upon entering less than approval by State. The consent and the court plea, open person has in court in waived his shall be entered of record on the minutes of right jury writing of trial in in accordance approval the court and the consent and of the with Articles 1.13 and 1.14 attorney representing the State shall in

702 writing background cused’s be “made waiver ... tion Defendant’s court,” open require it does not on its face family history mitigation pun- writing papers that this be “filed in ishment.” cause,” as it does the State’s written specific requested. No instruction consent. error his fourteenth

Construing appellant’s grounds to invites Court to “reconsider its decision raise the to at objected issues were Quinones 933, v. S.W.2d State [592 trial, we nevertheless Be find no merit. that, (Tex.Cr.App.1980) 947 and now hold ] cause the record before us does show that timely request, the court must the State in fact consented to his waiver of mitigating instruct to consider evi- jury trial in cause numbers D-8162-HIJ give weight they dence for whatever it in D-8244-HJ, appellant cannot collat answering issues.”16 We de- erally attack these for lack of convictions State, cline invitation. v. See Stewart the papers State’s consent “in written 118, (Tex.Cr.App.1984); 121-22 S.W.2d cause,” attending absent some harm v. 625-26 Johnson S.W.2d Collier, parte supra. those convictions. Ex (Tex.Cr.App.1985); Anderson Aaron, (Tex.Cr. parte Ex 691 S.W.2d 680 (Tex.Cr.App.1985).17 S.W.2d 873-74 App.1985).15 No such harm shown. Furthermore, approval that the trial court’s Motion Trial New for appear does not is of no There is moment. approval ground his of requirement appel no that the final error court’s In him, writing, signed by argues “in in and filed the lant the trial abused its dis court papers of the cause defendant denying before the in for cretion his motion new trial. plea.” enters Story his appellant In motion for prayed his a new (Tex.Cr.App.1981). Appellant S.W.2d 162 ground the verdict is on “that does not assert that court’s now the trial contrary to the law and evidence.” A approval not “entered on the of record hearing was conducted on motion on court,” only requi minutes of the as is the which, 1, 1983, objec November at without 1.13, supra. site of Art. by appellant tion was allowed to pertaining allega to an develop evidence in The trial court this cause did not err in tion, appearing not face of his mo on the admitting evidence of convictions. these tion, newly evidence. of discovered error Grounds of twelve and thirteen are overruled. punishment phase At of trial Sidney State introduced from Jury’s on Instruction Consideration of Walton, clerk, a convenience store that two Mitigating Evidence after judice appel- months the offense sub voicing objections In the trial lant him gunpoint, exclaiming robbed at proposed charge court’s to the at the “he The needed a fix bad.” State punishment stage, appel conclusion of the Walton presented itself evidence that had a registered complaint: following lant theft, pending felony indictment for felony pending object “We would further another theft case before a testified, however, jury’s grand jury. Court directs atten- nowhere Walton 15.Moreover, J., Davis, appears majority concurring opinion it a narrow of in which W.C. McCormick, White, JJ., inclined to joined). the Court is hold that: Campbell and Presumably apply "complaints comply about failure to this rule would to other [the 1.15, provisions supra] by of Articles 1.13 and of forms collateral attack. plea proper who entered his an accused after by cognizable post- Emphasis are not original. admonishments 16. in the for, corpus conviction writ habeas even if supported, factually make re- will not overruling appellant’s ground 17. Even while judgment il- straint under of conviction Court, on error behalf of the the writer adheres legal.” expressed dissenting opinion to views in his in Collier, J., (Clinton, parte supra Ex at con- State, supra Stewart v. at 125-26. Aaron, (Clinton, curring). parte supra Ex at 685 1986). exchange no in This of error is also over- that he had obtained deals testimony. hearing At the at the ruled. it motion for new trial was revealed judgment of the trial court is af- stage punishment had been con- after firmed. inadvertently cluded the discov- pending ered that in addition to the theft TEAGUE, J., concurs result. cases, prior had had two convic- Walton WHITE, J., participating. against him the tions name of “Wat- ONION, Presiding Judge, concurring. prior testifying kins.” When asked been more “any trial whether only concur result reached pending charges, trouble” other than majority. myself disassociate apparently Walton had be- believed was language much of the and some ing charges, asked about other current reasoning Much of used. the discus- However, responded that he had not. opinion majority sion in the is needless and that in con- was shown 1958 Walton was unnecessary proper disposition year suspended victed and served a two error, grounds expresses certain forgery. sentence for the offense of only personal views the writer or (re- 1970 he was convicted of misdemeanor See, minority e.g., of the Court. the dis- felony) year duced from theft and served a cussion whether the trial errone- court County in the Dallas Jail. At the conclu- ously granted the State’s motion, hearing sion of the on the Hooper, prospective ju- cause to Maxine urged no bad faith or deliberate withhold- freely predict ror. that much ing exculpatory of material information unnecessary language will resurface in fu- part of the State. The trial court indi- opinions quotes ture the Court’s cated that he would have excluded Wal- opinion minority in Gardner when the prior ton’s. convictions as too remote to viewpoint again adoption. offered for any bearing present credibility. have already We then we will be told have Ray, See 1 R. Texas Practice: Law renegade claimed Gardner. Evidence, (3rd 1980). 658 at 589 ed. CAMPBELL, J., joins opinion. this Appellant argues despite now convictions, prior remoteness of the two

they would have im- been admissible to

peach testimony, Walton’s inasmuch as operate prevent any jury probation

recommendation either of felony pending against cases him at the 42.12, 3a(a), BARNARD, Jr., time of trial. See Art. Sec. Harold Amos Appellant V.A.C.C.P. Appellant, contends that this greater leverage fact shows the State had Walton, by over pending virtue theft Texas, Appellee. The STATE charges, eye.18 than meets the otherwise No. 68861. accept Even were argument, we to however, hold the incremental Texas, Appeals Court Criminal weight impeach of such evidence to Wal- En Banc. credibility great ton’s was not so as would April 1987. probably bring result, about a different viz., negative finding the issue dangerousness, upon

future trial. new (Tex.Cr.App.

Jones v. S.W.2d 35 Considering prior presently 18. that it was uncontested the State which these convictions could prior him, itself did learn of Walton’s convictions appellant's come back to haunt we find concluded, coupled until after trial was argument disingenuous. here somewhat apparent Walton’s manner obliviousness

Case Details

Case Name: Gardner v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 25, 1987

Citation: 730 S.W.2d 675

Docket Number: 69235

Court Abbreviation: Tex. Crim. App.