Gardner v. State

195 clearly record a whole established that “ from’ GARDNER, Appellant, the defendant’s statement ‘resulted David Allen ’ agents ‘practice a calculated which all present ‘reasonably the State knew Texas, Appellee. The STATE of response’ an likely incriminating evoke (emphasis origi- from him.” at 734 Id. No. 68856. nal) Innis, (quoting Rhode Island v. Texas, Appeals of of Criminal Court U.S. 100 S.Ct. 64 L.Ed.2d 297 En Banc. (1980)). April find, however, that the We McCrory misplaced, reliance on is since easily distinguishable

that case is from In McCrory, psychiatrist,

instant case. Holbrook, affirmatively

Dr. John T.

requested by personnel law enforcement

speak to the defendant. The interview

the defendant Dr. Holbrook was ob- agents through

served law enforcement way mirror. one (Tex.

In Paez

Cr.App.1984),this held safe- that the

guards interrogation attendant to custodial play

do not come into person unless the

whom the statements acting are made is agent pursuant of law enforcement to a practice.

police case,

In the instant the record clear

ly Moody Reyes shows that never informed why Moody

or Clarke wanted the

placed in Clarke’s cell. Clarke was never question report

asked or to anyone. discoveries Under cir these

cumstances, we find that Clarke was not

acting as agent per of law enforcement

sonnel appel conversations with the Hence, 38.22, supra,

lant. Article did not

preclude the admission of the appellant’s

oral custodial admission made Clarke

and overheard Parker. Point error

two overruled.

Having appellant’s points considered the error, finding

of error and no reversible judgment

affirm the trial court. J.,

CLINTON, concurs result. Strickland, Worth, V. ap-

Jack Fort pellant. Smith, Atty. Carney,

Mac Dist. and Dan Atty., Weatherford, Asst. Dist. Robert Huttash, Austin, Atty., State’s for the State.

OPINION McCORMICK, Judge. appeal

This from a conviction capital murder. Punishment was assessed at death. August 26, year

On two fourteen runaways, Rocky Crecy old Allen and Kan- Reynolds, hitchhiking di along Kae highway interstate near Weatherford. Apellant, driving by, stopped who was picked teenagers up. Appellant drove pair eventually down the interstate and gravel pulled turned down a road. He off bridge the road beside a told the teen- agers get out the car. The trio walked down embankment. There the Crecy numerous times stabbed Reynolds and left him He there. took near location Lake Weatherford where he times, her numerous hit her in stabbed head with a rock her. abandoned Meanwhile, Crecy had his way made to a Help farmhouse. was summoned Dr. including Clay and he discussed Griffith of hospital. was taken to a Dr. Grigson He survived his Dallas and of Dallas.1 James Reynolds wounds. died her from wounds. One of these occurred in the conversations 29, 1980, August Todd, On judge’s was arrest- with chambers the dis- arrest, attorney ed. After his judge present, led officers to trict and the trial Reynolds’ body. Appellant charged which time the was informed that killing Reynolds psychiatric going the course of a examination was to be kidnapping. requested. error, points 22,1980,

In his first appel- September seven On the district attor- challenges ney lant the psychi- copy admission of sent Todd of a proposed motion testimony Clay atric of Dr. psychiatric Griffith order for examination and punishment phase Appel- sign agree- the trial. asked him to it if he was lant suppress testimony attorney filed motion to Todd ment. informed district concerning the psychiatric although oppose examination. A that he would not such an examination, hearing jury’s pres- formally was held outside the he did not want to appellant’s join motion. trial ence on The in the for reason motion the that appellant’s during might might motion preclude any attorney denied and the who be punishment phase appointed appellant the Dr. represent of trial Griffith to in the fu- percent obtaining testified that he was one hundred ture by from further examination again. kill appellant psychiatrist choosing. certain that would a his or her of own specifically hearing asked When at the on Sep- The record that on shows or about appellant's suppress if he motion to was 2, 1980, shortly appellant’s tember after agreement request with the State’s for a but arrest for offense before indict- examination, psychiatric replied Todd as ment, peace justice appointed a of the follows: attorney by the of to repre- name Ed Todd staff, Attorney’s “Both the District appellant. immediately began sent Todd myself, felt like a well there was need investigating talking the case and after for this. When talk about terms to appellant’s with mother he came the agreement, of an I would consider appellant that be conclusion should exam- up all of loose that the ends were tied by psychiatrist, psychologist ined a a and enough say agreement; to had an we but perhaps neurologist. even a On several certainly, all felt like there was a days over the next he dis- occasions few a psychiatric need for examination.” possibility cussed the of such an examina- attorney’s attorney the At time tion with members of district that the district informed encompassed going go he staff. These conversations Todd that to ahead and defense, request possibility insanity psychiatric Sep- a examination. On 29, 1980, appellant might pursuant by in- to a motion Todd’s belief that tember appellant’s signed to the trial court an order competent stand trial and for Dr. During appellant at least one of to be examined Grif- suicidal tendencies. Grigson.2 fith Dr. a several names were and Todd received these conversations motion, During hearing encompass competency, insanity appellant’s 1. on nation dangerousness. Dr. spoke and future At the conclusion of Todd testified that he with Griffith conversation, September telephone their Griffith felt that Todd was on or about 1980. Todd agreement appellant. should twenty-five he examine minute conversa- testified tion concerned Dr. Griffith’s credentials. Todd specify 2. Neither the motion nor the order also testified that he did remember indicat- agreeing any psychiatric ing for the evaluation. The mo- to Dr. Griffith that he was to reasons "appoint merely requests psychiatric the Court to Dr. testified that tion examination. Griffith Griffith, Grigson Psychia- Clay concerning Dr. spoke he with the content of a James P. Todd trists, psychological psy- full psychiatric further testi- to conduct a examination. Griffith - of the said David Allen Griffith chiatric examination fied that Todd then informed about merely might question provides “It that: want to Gardner." order certain areas that about, example appel- is David Allen appellant therefore ordered that the said for alcohol psychological psy- Gardner submit to said Griffith testified lant’s suicidal tendencies. and that said examina- that the exami- chiatric examinations and Todd discussed fact copy Sep- supra, of this order around 10 on a.m. case. Article the statute deal- immediately tember 1980. He called ing incompetency pro- stand trial to County the Parker Jail and informed pertinent part: vides already left for Dallas. (a) “Sec. The issue the defend- Appellant was examined for two hours incompetency ant’s to stand trial shall be evening during September 30 at the determined advance of trial County jail by Dallas Drs. Griffith and merits if the court determines there is Grigson. that, Griffith testified before the support finding incompe- to evidence began, rights tency to stand trial on its own motion or him, including Judge read to the fact that written motion defendant or Hopkins undergo had ordered him prior filed set counsel date psychiatric examination. The asserting on the merits was told that final report would be sent incompetent is defendant to stand trial. outlining findings to the court the doctors’ “(b) If trial evidence regarding appellant’s competency stand brought defendant’s is incompetency sanity trial and his the time of the the attention of the court from Appellant any- offense. was also told that source, the hearing court must conduct a thing against he said could be used him presence out deter- could used him at some later date mine whether or not there evidence to right the courtroom. Thus he had a support finding incompetency remain silent consult with his stand trial. attorney about the When examination. the (a) any “Sec. 3. At time the issue of appellant doctors asked any ques- if incompetency the defendant’s stand regarding rights, replied tions his raised, may, trial is the court on its own he understood proceed them and wished to defendant, by motion or motion the with examination. counsel, or prosecuting attorney, Appellant was indicted offense appoint experts experienced disinterested capital 13, on murder November qualified in mental health or mental Thereafter, 17, 1980, on November Jack retardation examine the defendant appointed Strickland was appel- defend regard competency with to his to stand place lant in of Todd. On December to testify any hearing trial and at trial or 1980, Strickland, appellant, on behalf of added)? (Emphasis on this issue.” filed a motion for psychiatric another ex- again appellant’s amination determine Appellant maintains that Section competency to stand trial. This motion 46.02, supra, provides 2 of Article that such date, granted. On that same Strick- only of a defendant can gave land also notice written of his inten- if the defendant occur files a motion to present insanity tion to the defense of if competency determine before trial or 23, 1981, January trial.3 On Strickland court on its own motion determines there is psychological filed motion a a examina- finding support incompe evidence to appellant again purpose tion of for the tency. disagree appellant’s We asser determining appellant’s competency. The reading tion. Our the statute indicates granted Jury court also this motion. selec- legal de supra, that Section covers the 27,1981. began January tion in this case termination of the issue of may This en competency to stand trial. In point appellant his first of error con- source, compass hearing any from evidence tends the trial court violated Article V.A.C.C.P., ex 46.02, including psychiatric psychological or by ordering psychiatric 2, however, no amination. Section does examination where written motion re- experts to con govern appointment questing such an examination had been appellant prior Appointment of by filed to the trial of this duct such an examination. Grigson urged at trial. tions conducted Dr. James P. 3. This defense was never Clay Dr. Griffith.” 46.02, point supra. This 3. violation of Article experts is covered Section such issue is raised by the of error is overruled. Clearly, time the appoint may any party court or the court Article 46.- Next contends that the defendant. experts to examine 03, V.A.C.C.P., the court violated when are or- psychiatric examinations fact that to examine appointed Grigson and Griffith does not constitute dered a court intention to a notice of before determination that an issue as to the de- had been filed. insanity offer an defense competency exists. Johnson fendant’s pertinent supra, provides Article (Tex.Cr.App. 564 S.W.2d part that: 1978) Only (Opinion Rehearing). when (a) planning A defendant “Sec. 2. requirements of 2 are met is the Sec. insanity defense offer evidence of propriety “to judge required measure the his intention to offer shall file a notice of present impaneling to determine the court and the such evidence with competency to stand trial.” Sisco attorney: prosecuting (Tex.Cr.App.1980). 599 S.W.2d (1) days prior to the date at least 10 case, request for such a instant trial; set for the case is by appellant filed nor determination was (2) hearing pretrial if court sets a apparently feel that did the trial court 10-day period, the defend- before support finding there was evidence hearing; give ant shall notice at However, trial. incompetency to stand information available to upon (3) based the issue of raises the defendant examination, we find prior to the trial court trial before incompetency to stand ap- properly acted the trial court at the same 10-day period, he shall Grigson to exam- pointing Drs. Griffith offer notice of his intention to time file is over- This of error appellant.4 ine insanity defense. evidence of the ruled. (a) If notice of intention “Sec. 3. filed under insanity defense is raise error, appel point of In his second article, may, the court of this Section 46.02, supra, was argues Article lant de- by or motion on its own motion allowed the judge the trial violated when fendant, counsel, prosecuting or the appellant of psychiatric examination experts appoint disinterested attorney, was filed or place when no order take qualified in mental experienced and motion was by the court and no signed to examine and mental retardation health court before papers of the entered in the regard insanity to the the defendant The record of the examination. the date testify at trial and to thereto defense psychi the order for the clearly shows that issue.” hearing on this signed by the trial examination was atric above, was the trial court 1980, As noted day be September one judge on 46.02, supra, to under Article authorized The State’s the examination occurred. fore Because examination. psychiatric order a order were accompanying motion and the properly or was however, psychiatric examination until records not filed in the court 46.02, supra, there Article 46.02, supra, dered under 18, 1981. Article February requirements of if the need to determine signing no regarding the provision contains Further 46.03, met. supra, were Article Specifically, there orders. filing of such Article more, any error under find that provides that before which provision is no when, on Decem conducted, supra, waived was psychiatric timely filed his notice appellant ber such examination providing for the order insanity defense. to use the of intention We find no records. filed in the court competency to stand trial put into issue Smith's 1 of Supreme noted in footnote The U.S. Smith, The sanity of the offense. U.S. at the time opinion Estelle v. or his their (1981) appropriateness that the ruling 68 L.Ed.2d on the 101 S.Ct. made no had been in that case psychiatric evaluation judge’s order. the trial though had not defense counsel even ordered Appellant’s point of error is aforethought, third over- the State of Texas an- ruled. penal- nounced that it would seek death ty. judge informally Thereafter a district error, In his appellant fourth prosecutor arrange ordered the a psychi- argues Sixth Amendment Grigson atric examination of Dr. Smith right to counsel was appel- violated when purpose determining for the Smith’s Grigson lant was examined Griffith and competency to being without stand trial. The evidence given attorney. notice to his was controverted as whether defense Initially we appellant note that has prior counsel was notified examina- preserved not Appel issue review. Grigson tion that going to examine suppress lant filed a motion to the testimo Grigson Smith. determined that Smith was ny concerning psychiatric examination. competent stand trial and notified the Although appellant based his motion to finding of the letter. This suppress Amendment, on the Sixth the em papers letter was filed with the court’s phasis urged was different than the Supreme the case. The its Court noted in emphasis arguing ap which he is now opinion advising that besides peal. the trial court The crux of the motion was that appellant attorney competency, Smith’s given report termed notice of the requesting sociopath,” motion exami Smith “severe but it con- nation, present tained no more specific reference any hearing regarding psy motion dangerousness. Smith’s future Smith was thus, chiatric examination and tried and During punish- convicted. opportunity had no to be heard on the phase, Grigson ment the State called subject of such examination. At the hearing stand. At a held pres- outside the hearing on appellant’s suppress, motion to jury, Grigson ence testified that he no mention was made the Sixth Amend permission had not obtained from Smith's ment. When Dr. Griffith testified at trial attorney Grigson to examine him. concerning appellant’s dangerous future testified predicted before the ness, appellant’s only objection was that Smith would commit further violent acts testimony province invaded The jury future. then answered the jury. On appeal, appellant argues that his punishment questions three affirmatively Amendment Sixth to counsel was vio and the trial court sentenced Smith attorney lated because his was not notified death. psychiatric examination. Because Supreme Court found that since appellant’s objection neither at trial nor his already Smith been indicted and suppress comports motion to with the error attorney presented appointed represent him appeal, error, to that he any, on is not State, preserved. Vanderbilt a v. had Sixth Amendment the 629 to assist- (Tex.Cr.App.1981); S.W.2d 721 Green submitting ance of counsel before State, v. 682 S.W.2d (Tex.Cr.App. 294 pretrial psychiatric The interview. Su- 1984). preme found that Court Smith’s Sixth rights Amendment were violated: Even if error had been properly pre- served, we appellant’s counsel, find that however, contentions “Defense no- were not Appellant argues have merit. that the psychiatric tified advance that the ex- appellant’s informal discussions between encompass amination would the issue attorney, prosecutors the and the trial dangerousness, their client’s future and judge do adequate not suffice as notice. respondent was denied the assistance Smith, He relies on Estelle v. 451 U.S. attorneys making significant (1981), 101 68 S.Ct. L.Ed.2d 359 to decision of whether submit to the ex- State, Mays v. 653 (Tex.Cr.App. S.W.2d 30 psychia- amination and to end what 1983). findings employed”. trist’s could 451 Smith, 470-71, Estelle v. (foot- In supra, after Smith U.S. at 101 S.Ct. at 1876 omitted). had been indicted for murder malice note argues appeal on Mays against Appellant him. A similar occurred v. situation State, capital “anything murder case. he said supra, another that the statement that conducting a judge Mays, after trial for him” operated could be used motion, ordered hearing on the State’s and thus constitutes reversible inducement Mays undergo psychiatric to au- Appellant cites three cases as error. Grigson purpose for the of deter- Dr. thority proposition: Unsell v. mining his to stand trial and competency State, (1898); 330, 45 39 Crim. S.W. At sanity at the time of the offense.5 539, 141 McCain v. Tex.Crim.R. Mays’ no time was counsel informed that (1949); and Burton v. encompass going the examination was It is (Tex.Crim.App.1974). 505 S.W.2d 811 At dangerousness. the issue of future note, however, that those important trial, phase Grigson tes- punishment proposition also that cases stand for an “incurable and Mays tified that was made timely proper objection must be equat- sociopath. This untreatable” McCain, this preserve error. In in order testimony prediction of future ed this original Court reversed the conviction dangerousness and found that Estelle finding improper after that submission had been violated because Smith warnings given appellant before notice to defense counsel. lack of rehearing, con- However on (cid:127)confessed. distinguishable The instant case notwithstanding the affirmed viction was Mays in from both Estelle Smith warnings improper because the defendant agree was in full appellant’s attorney objection at proper had failed to make psychiat was a need for a ment that there trial. ric Furthermore the record examination. should not shows that after he decided he case failed the instant request join in a motion with the State Dr. timely objection. Prior to make a examination, clearly ing such an State jury, a hear testimony Griffith’s before the request they him would informed sup motion to ing appellant’s was held on ing to order the examination. the court press testimony. Neither psychiatric shows that at least one of The record also suppress nor appellant’s written motion to concerning the need for a these discussions objections articulated his verbal occurred front psychiatric examination argument he is hearing encompass the judge attorney appellant’s tes making appeal. When Griffith now going approve was knew that following oc jury, tified before psychiatric examination. any request for a curred: attorney giv appellant’s We find rights what “Q. Would tell psychi adequate notice that a en more than referring to? you are be conducted. going atric exam all, did inform “A. Yes. first of Furthermore, clearly reflects the record defendant, already he knew which attorney was told one of appellant's for, coming for a that —what he was prior examining month doctors almost examination; that this was psychiatric encompass that it would to the examination by Judge Hopkins. ordered depri dangerousness. We find no future Amendment Sixth report vation him that a We informed rights. stating to the Court have be sent findings he so far whether our error, appellant point of In his seventh he, trial, whether competent to stand warnings given to him complains that the at or insane opinion, in our was sane inadequate were psychiatrists offense; in alleged that the time of the rights were vio- Fifth Amendment thus his Texas, confi- is no there the State above, Griffith testi- Dr. lated. As noted he anything so dentiality appellant was warned that at fied him, against might say could be used used anything he said could be either sanity. competency Mays raised both the issue of 203 or could be used for him some later Gauldin v. preserved. at no error is 411, date the courtroom. 683 (Tex.Cr.App.1984). 413 me, “MR. STRICKLAND: Excuse Your Addressing argu the merits I Honor. didn’t hear the last testimo- premises ment find that his ny. grounds. contentions on Fifth Amendment However, by appellant “THE COURT: If the cases cited repeat deal statutes, again, please, two Texas Article V.A. Doctor. The last state- (1925), successor, ment. C.C.P. its Article 38.- 22, V.A.C.C.P. We have found no cases “THE WITNESS: Part of the confiden- say warning which that a such as was tiality Texas, is that is there given in the violates Miranda case instant confidentiality (sic). Arizona, 384 U.S. 86 S.Ct. 16 Therefore, anything person that a (1966), infringes L.Ed.2d on a de says against could possibly used them rights. fendant’s Fifth Amendment at some future date in the courtroom States, Green v. United or could 386 F.2d be used for them at some (10th Cir.1967), complaint They appraised Judge time. are was made that given the warnings defendants were says per- Porter’s rule which that a improper they only in that any stated that son— statements made the defendants could “MR. STRICKLAND: Objection, Your court, specifically used without in- Honor, as to what some other Court’s forming the defendants that the state- ruling germane is. It is not as to what “against ments could be used them.” The regard some other Court has ruled in rejecting court in the defendants’ conten- interjects matter that issues responded: tions from other cases into this case. contention, “This as well as others made Honor, “MR. Your I SMITH: think he is vein, in similar is not well taken qualified, necessary and it is under the Coyote this court said v. United law to inform for the record in this States, 380 F.2d Cir. [10th all warnings case of the that were 1967]: given. ‘Surely Miranda is not a ritual of “THE COURT: your objection, Overrule words to recited rote according Counsel. to didactic niceties. What Miranda you. “MR. SMITH: Thank require meaningful does is advice to “MR. STRICKLAND: Please note our unlettered and unlearned lan- Judge. exception, guage comprehend can which he “BY MR. SMITH: knowingly on which can act. We “Q. Continue, Doctor. indulge will not semantical debates be- “A. ruling That under this that he had tween counsel over particular right silent, in- to remain he was words used to inform an individual of formed had a to talk with rights. The crucial test is whether this, his attorney about he had which used, the words the context consid- done. ering age, background and intelli- gence being interroga- any- “We then asked him if individual there was ted, clear, impart thing rights. to be clarified about understandable these ’’ warning rights.’ all of his no, “He said that he did understand F.2d at 956-957. them, go and that he wished to ahead with the examination.” We Appellant’s find no error. seventh of error overruled. Defense counsel some time voiced an later objection error, that these improper eighth point warn- In his ings argued argues they operat- but he never denying that the court erred in change ed as an appel- inducement. Because of motion of venue. The test to be timely objection, applied by lant’s failure to voice determining the trial court in 204 The a is whether outside influences mere fact that fifteen of the

such motion seventy-seven potential jurors affecting community’s of were ex opin the climate they cused because held established conclu inherently defendant are so ion as a guilt appellant sions as of does not resulting suspect probability that of inability and of itself demonstrate the of requires procedural unfairness suitable impartial jury. tried be State, v. Nethery safeguards. 692 S.W.2d where substantial other cases a number State, v. (Tex.Cr.App.1985); Banks 686 643 they of stated dire that veniremen on voir Demou- (Tex.Cr.App.1983); 129 S.W.2d opinions guilt, held the defendant’s State, v. (Tex.Cr. chette 591 S.W.2d 488 preju this Court has held that identifiable appeal App.1979). prevail To on in a situa State, dice was not shown. Adami v. 524 presented tion where the trial court was 72); (18 of (Tex.Cr.App.1975) S.W.2d 693 evidence, a conflicting defendant must with State, (Tex.Cr. Taylor 420 S.W.2d 601 its show that the trial court abused discre (39 112); Handy App.1967) of 139 State, (Tex. tion. Eckert v. S.W.2d (45 (1940) 138 S.W.2d 541 of Tex.Cr.R. Cr.App.1981). Furthermore, 99). we note that all twelve argues Appellant that extensive news jurors of in the instant case testified offense, coverage the time of at the at strictly try he or she would the case that arrest, in appellant’s of the few weeks time during the the evidence introduced trial. during immediately trial and before ask a be To criminal defendant tried of dire of time the voir examination community a untouched the news deny him a prejudicial was so as to day is to in this media be unrealistic The shows that at the fair trial. record time. As we stated in Morris v. hearing motion three local (Tex.Cr.App.1973): S.W.2d 768 attorneys testified that could not operate do “Our courts cannot and not of a fair trial because the surround- obtain people deal in a vacuum. Courts ing publicity. opinion This was controvert- newsworthy. To and crimes which are witnesses, of was by five one whom ed jurors a had require trial who never by appellant. Also introduced were called highly publicized heard of a crime published newspaper articles number of impractical impossible. Certain- the offense and trial and a series about ly, jurors it was never intended concerning the offense and trial scripts did from those who to be selected had the news- which broadcast been keep up newspapers or with current read of a local radio station. At con- casts through media. se- other Jurors events hearing the careful clusion group, if there are lected from such a ruling hold judge announced would enough group, would not to be called through voir dire examina- abeyance representative. To hold otherwise potential jurors. After com- tion perpetrator hold that the would be to pletion of the dire publicized crime such as very highly juror, trial court fifty-ninth prospective gover- president, of a the assassination denying appellant’s it was announced that widely person could nor or known change of venue. motion never be tried.” brief, appellant artfully crafted In an whole, Viewing the record taken as a argues the voir dire when note of discretion. We find no abuse his motion conclusively shows that examination, whole end the voir dire at the points He granted. should have been remaining peremptory one appellant seventy-sev- fifteen out of the fact that nor challenge. not contend does He does enough had heard questioned examina en individuals the entire voir dire our review of publicity of the case from either forced to take an pretrial tion show that testimony ap juror. with other objectionable media conversations the news fair trial Par opinions pellant not obtain a conclusive could people to have formed County directly contradicted ker guilt appellant. about 205 testimony presented by State objection and in- This V.A.C.C.P. was overruled. appellant’s deed even one of error, own points ap- wit- In his ninth tenth and of Furthermore, nesses. the trial occurred pellant contends that his Sixth Amendment some five months after the of commission and Fourteenth Amendment to fair although the offense flurry of media impartial trial was violated the read- attention occurred at the of time the of- ing jurors it this oath since caused the fense and arrest and in the seriously take less their deliberations on prior trial, weeks there had been punishment they and thus im- were not coverage little or no the offense pressed with the poten- seriousness of the intervening Finally, time. newspaper consequences appellant. tial for the He concerning ap- radio accounts the case Texas, supra, relies on Adams v. as author- pear accurate, to be objec- informative and ity. tive, inflammatory prejudicial. or Mur- argument This same was made Florida, phy v. 2031, 794, 421 U.S. 95 S.Ct. State, White v. (Tex.Cr. 610 S.W.2d 504 (1975). 44 L.Ed.2d 589 We find no error. App.1981). opinion Because we believe the State, Eckert v. v. Demouchette supra; in that case correctly answers the conten State, supra; Bell v. 582 S.W.2d 800 by appellant, tion quote raised exten (Tex.Cr.App.1979); Freeman v. sively therefrom: (Tex.Cr.App.1977). S.W.2d 287 Compare: “Appellant now cites Adams v. Texas Maxwell, Sheppard 333, 384 U.S. omitted], support as the sole [citation 1507, (1966); 5.Ct. 16 L.Ed.2d 600 Rideau Surpris- contention now advanced. Louisiana, 373 U.S. 83 S.Ct. however, ingly, he does not attack the (1963). 10 L.Ed.2d 663 This error single prospective juror exclusion of is overruled. of the inability because venireman’s beginning The record shows that at the questions posed answer the by our stat- voir dire poten- examination of each ute. juror, judge prelim- tial the trial made some “Instead, record, appel- as we view the inary part remarks. As of these remarks lant assumes the invalidity of Sec. would read the oath contained 12.31(b) automatically destroyed in- V.T.C.A., Code, 12.31(b)6 Penal Section tegrity jury to the extent that once any ask if individual there were selection, jury was used in the no ver- why reasons or he she could not take the imposing penalty dict the death can jury. oath seated on the Defense coun- persuaded stand. We are not objection prac- sel made continual to this Texas, supra, Adams v. leads to such a response objection, tice. to counsel’s Indeed, the Adams Court did result. court assured counsel that he 12.31(b) not declare Sec. to be unconstitu- decision Adams v. knew that under the Instead, tional. it held it was Texas, 448 U.S. 100 S.Ct. application which offend- statute (1980), L.Ed.2d 581 that he could dis- ed Witherspoon doctrine. qualify on solely someone the basis of their specifically: “The Court held refusal to take the oath and no “ could, doing consistently ‘The intentions of State with so. Indeed the record Witherspoon, 12,31(b) juror disqualified reflects that use to exclude on § seated, prospective jurors cap- this basis. After the whose views again jurors punishment had the swear to the ital are such as to make 12.31(b) obey Section oath. Defense counsel or them unable follow the law 12.31(b) again objected practice to this in that the their oaths. But the use of § grounds comply jurors oath did not Article to exclude broader V.T.C.A., Code, 12.31(b) pro- ny. prospective juror disqualified Penal Section A shall serving juror vides: as a from unless states under "(b) mandatory jurors penalty Prospective oath that the of death shall informed imprisonment imprisonment for that a sentence of life life will not affect his delib- death mandatory capital on conviction of a felo- erations on issue of fact." acknowledges Court’s rul- opinions concerning Appellant on the this based their ing 762, (448 609 776 impermissible.’ Sanne v. penalty death (Tex.Cr.App.1980), wherein we held that 38, 2528, at 65 L.Ed.2d U.S. 100 S.Ct. attorney appointment the of a second is not 592) at However, capital in a case. he mandated opinion concluded that majority “The be- urges holding adopt us to the of Keenan Texas present cause ‘in the case has 424, Court, Superior 31 Cal.3d Cal. 12.31(b)’ jurors to exclude applied § 489, (1982). Keenan, Rptr. 640 P.2d subject to Witherspoon exclusion under Supreme the held that California standards, penalty the death could not be there is: Appellant does upheld. not even make constitutionally “a mandated distinc- complaint, attempt much to this less penalties, tion death and other between application the of the statute.” show requires apply the court trial [that] 508. 610 S.W.2d at adequacy a than to higher standard bare See 665 S.W.2d 762 also Griffin request a defendant’s for additional (Tex.Cr.App.1983). We find no merit to appears If a second at- counsel. and appellant’s contention. His ninth tenth may important torney lend assistance points error are overruled. preparing presenting for trial the error, appellant point of In his eleventh case, favorably the court should rule his Sixth and Fourteenth Amend- claims Indeed, request. general, under a the the rights were violated when ment showing need, certainly genuine and attorney a appoint refused to second pervasive as those in circumstances 2, September in his defense. On aid case, by attorney offered the in this a arrest, 1980, shortly lo- after a presumption a second attor- arises that Jr., Todd, attorney, E. cal Edward required.” Cal.Rptr. ney is represent appellant. initially appointed to 495, 640 P.2d at 19, 1980, due Thereafter November alleg- he Appellant eight lists factors which case, complexity V. Strick- the of the Jack genuine for a second es show a need appointed to re- land of Fort Worth was attorney apply and ask that we existed place appel- Todd. On December presumption adopted the California requesting appoint- lant filed a motion eight factors include: court. attorney due to the fact ment of second (1) single attorney appointed represented by two that the State would be county, from out of experienced highly qualified and counsel (2) early just court date was set two trial, capital trial of both the hence, months attempted charges murder and the murder (3) problems of simulta- the inherent lengthy extremely probably would guilt/innocence preparation neous time-consuming ap- failure and also the trial, punishment phases of the deny him point additional counsel would (4) legal complexity factual equal subject protection under law issues, economics,” since he him to a “trial visibility (5) high of the case necessi- hire counsel ability lacked the additional change tating preparation of a of ven- funding for trial. The the State’s match hearing, motion and ue request tell but did trial court denied (6) pre-trial necessity for numerous although he would not Strickland that motions, appointment and commit make a formal (7) for an denial of a motion investi- fees, attorney’s funds for additional State gator, and anyone have he allow Strickland (8) punishment involved. severity him counsel table that sit with at the 16, 1981, Although adopt decline to January the court we wanted. On Queen California attorney presumption embraced appointed local Nolan Court, agree certainly concerning Supreme the voir consult with Strickland dis- carefully exercise its trial court should panel. dire of the acting upon request explained cretion an accused’s purpose He then her the capital in a additional counsel murder dire examination and told her of However, reading case. of Article possibility being sequestered if she V.A.C.C.P., provides appointment which picked for jury. Through should be defendants, indigent of counsel for shows questioning further determined she Legislature that the did not see fit to draw had read considerable amount about the capital distinction between defendants in commission of the in least offense two cases versus noncapital defendants in V.T.C.A., newspapers. He then read the important cases. This is to in of note view Code, 12.31(b) Penal to Section oath her Legislature fact that the did see fit to any if and asked there were reason she catego- draw distinctions between the two take replied could not the oath. She procedural ries of cases other areas. she did not feel she some- could sentence 35.15(a), 35.17(2) Articles V.A. prospec- one to death. As with the other C.C.P. jurors, judge tive the trial then turned Ad- dison over the State for its voir dire any argu As far as constitutional began examination. The State its examina- ment, it appears that a defendant is enti by asking tion Addison she whether reasonably tled to effective assistance of guilt formed a conclusion as to the or inno- counsel and no more. Therefore we hold appellant cence of the of as result that constitutional error occurs a result newspaper. information she had read in the of appoint the failure to additional counsel “Q. Addison, only Ms. I you if accused want to did not receive the ask reasonably questions few you effective assistance of about what counsel and the Judge just discussing which entitled have been under Sixth con- cerning and Fourteenth Amendments. Sanne v. of you some the facts that State, supra; Aranda v. case, about and just know this I need (Tex.App. Antonio, 1982, inquire all, first or whether not as —San petition). things you’ve result told Judge you about this case that The record in the instant case shows that about, you’ve know whether estab- represented by a skilled and your any lished in mind conclusion as experienced attorney. criminal Counsel guilt to the or innocence the Defend- aggressive was an and able advocate charged ant with the crime in this case. throughout proceedings. Appellant Yes, “A. I I think have. has failed to show did not receive “Q. Okay. effective assistance of you specific? counsel. Thus we Could be more see, find that the trial court did not abuse its You this is an you area where denying discretion specific be, motion you need to be as can point additional counsel. This error and I understand that —I understand overruled. there, you’re saying you what but specific, can more then it would be points his twelfth and thirteenth helpful. appellant argues error that reversible error words, “A. In other do I think there is a improperly occurred when the trial court guilty or a guilty— intervened in the voir dire examination of prospective juror Yes, Floyce “Q. I permitted by Addison viola- ma’am. am not 35.17, V.A.C.C.P., tion of Article you when ask way you law to which feel. I trial court refused allow permitted by am to inquire law as to voir dire examination of Addison. you whether or not have formed an opinion guilt about the innocence prior turning The record shows that prior Defendant a criminal case Addison over for voir dire examination hearing any evidence. parties, prac- the trial as was No, “A. really. tice, engaged preliminary in some remarks. “Q. He first introduced Addison to the your attor- You haven’t established neys, reporter. mind, words, defendant and the court in other conclusion as guilt or innocence opinion of this De- as to guilt innocence

fendant? Defendant? (Venireman her “A. Addison nods head Yes, I ADDISON: Yes. “VENIREMAN negative.) in the do. speak need “THE You out COURT: opin- As a result of that “THE COURT: loud. ion, at a you arrived conclusion have No, sir. ADDISON: “VENIREMAN your verdict if that would influence Smith) “Q. (By Mr. Your is no answer juror in this were selected as to that? case?” No. “A. Yes. objected to At defense counsel “Q. any opinion Do as to the you have injecting itself into the trial court guilt or innocence of this Defendant trial court noted dire examination. The this case? just attempting help Addison it was Well, no, I don’t.” “A. being of her. asked understand what interrupted the trial court At this instructed the State to The trial then attempt- prosecutor’s the examination continue with its voir dire examination. clarify get her answers: ed to Addison to asked Addison her conclu- The State then I Mr. Smith “THE think what COURT: guilt to defendant’s would sions as the saying you gave a detailed is rather — reaching a in the influence her in verdict read, you had and his account of what affirmative, replied in the case. When she go the fact that as a questions towards the for passed Addison to defense State that, having you read have result of The trial court then further examination. opinion about the case and formed an stated: as whether or about this Defendant to I that if I under- “THE COURT: believe offense for which not he committed the you correctly, stand the law unless charged as a result of hav- he stands Strickland, objection have some Mr. something about it? ing read been result of the answers that have Well, yes, I ADDISON: “VENIREMAN Dire be im- given, further Voir would have. proper. I not sure if “THE Let me—I’m COURT: is I think it im- “MR. STRICKLAND: has, Ms. you anyone this or Addi- told only thing I can Judge, and the proper, wrong an- There son. ask leave of the Court to do that do is morning. swers this State ob- see whether or I ADDISON: see. “VENIREMAN jects.” words, you In other “THE COURT: something way try don’t to answer en- conference at bench Thereafter you you somebody that think wants sued: it. answer you IDo understand “THE COURT: I ADDISON: see. “VENIREMAN Dire? to take her Voir would want just out of You answer

“THE COURT: Yes, sir. “MR. STRICKLAND: might your and mind tell way heart objects? the State COURT: Unless “THE feel it and way you about you and Honor, Your at this CARNEY: “MR. qualm you no one will have time, a Chal- would enter the State Now, thought that that I about that. ju- lenge prospective for to this Cause later, your first and answer provisions of Article 35.- ror under your answer. seemed not to be further Voir Dire that no 16 and ask Yeah. ADDISON: “VENIREMAN because the be conducted I Now, feel—do you do “THE COURT: quite clearly— status a result you say that as understand believe, I based “THE COURT: read, you are you of what have Challenge for given, answers morning, seated here this proper. would Cause your mind some have established course, cretion, “MR. STRICKLAND: Of I ac- him as competent admit to serve knowledge says what the statute in an court, If the such case. its discre- ordinary case object and would not tion, impartial, is not satisfied he is having Dire, opportunity Voir (em- juror discharged; shall be ...” given but gave fact that she ambi- added) phasis ambiguous valent answers or answers Regarding contention and further due to the fact question he should have been able Court, once answers had been received prospective juror, we find that the stat in response questions, to the State’s unmistakably procedure ute is clear on the interjected into itself Dire, Voir I to be followed. object prospective juror would Once being to not I everyone entitled take her. think has opinion guilt indicated that his as to me, has except shot at her verdict, innocence will ques affect all reasons, I those object, but I tioning juror must cease and the must ruling.” understand the Court’s discharged. We find the prop court acted The court then excused erly refusing Addison cause. the instant case allow Thereafter again defense counsel reit- defense counsel dire Addison on this objection erated his manner which point. the voir dire examination of Addison had brief, The cases cited in his been conducted and read into the record a White v. (Tex.Cr. 629 S.W.2d 701 questions number of posed would have Rougeau App.1981) the prospective juror had he been al- (Tex.Cr.App.1982), inappli S.W.2d 739 are lowed to examine her. point they cable to this in that deal with trial, 35.16(a), At the time of Article V.A. giving opportunity the defense an to reha C.C.P., provided pertinent part that a juror prospective bilitate a after individ challenge for cause by could be made ei- ual indicated inability impose has ther the or the State defense for the follow- penalty. death These cases do not deal ing reason: with the situation covered by Article 35.- hearsay, otherwise, “9. That from or 16(a)(9),supra, are inapplica and therefore there is established the mind of the ble to the case bar. juror a guilt such as conclusion to the or of innocence the defendant as would in- As argues noted above also fluence him in his finding action in a improperly that the court acted violation verdict. To ascertain whether this cause 35.17(2) by of intervening Article in the exists, of challenge juror shall first complet- dire examination after it had whether, be asked opinion, in his ed preliminary its remarks and had turned so conclusion established will influence prospective juror over to the State for he answers in the his verdict. If affirm- questioning. provides supra, Article ative, discharged, he shall be without pertinent part that: interrogation by party either

further case, In capital felony “2. the court or the court. If nega- he answers in the propound panel shall of entire tive, he shall be further examined prospective jurors questions concerning formed, how his conclusion and principles, applicable to the case action; extent to which it will affect his trial, doubt, of reasonable burden and, appears if it to have been formed proof, by grand return of indictment reading accounts, newspaper from com- innocence, jury, presumption opin- and munications, reports statements or or Then, ion. or on demand of State hearsay, juror mere rumor and if the defendant, either is to examine entitled able, notwithstanding states that feels juror individually each on voir dire and opinion, impartial such render ver- apart may entire panel, from the and evidence, upon dict the law and the court, question juror princi- he is further impartial satisfied that verdict, may, ples propounded will render such in its dis- the court.” murder; and that Appellant argues guilty him that since the found would, provision you statute makes no for examination said that you prospective juror of a the trial court give quote, have to the consideration. points beyond questioning regarding initial saying that? you Do remember law, any by the further examination trial “A. Yes. We dis court constitutes reversible error. “Q. Okay. part that answer agree. literally, Read the statute does not you say, ‘I that concerns me where prohibit questioning by trial additional give it consideration.’ would have to prohibi we infer do not such me what you tell kind of Could Court, tion. In countless cases before this mean that? judges seen the intervene in we have Well, anybody seems that just “A. Usually such inter voir dire examinations. proved to commit that’s—has been purposes of clarifi vention is warranted serious, something it seems like a implicit expedition cation have thing just person serious ly approved practice time and time —for any punishment— just not have State, again. Enriquez v. 429 S.W.2d (Tex.Cr.App.1968). See also: Anderson v. “Q. Uh-huh. (Tex.Cr.App.1982). 633 S.W.2d I guess “A. —and that’s what I—that’s Only court’s comments when trial I I else how feel. don’t know how just reasonably voir dire are calculated bene you. answer prejudice fit the defendant’s the State occur. Price error rights will reversible (Tex.App. Corpus 626 S.W.2d — fact, is, question “Q. Does Christi, find no petition). such We you’d probation a case which Appellant’s error in the instant case. intentionally person killed found points of error are twelfth and thirteenth being you have another human —do overruled. against granting of feeling some error, appellant con- In his final probation in that instance? impermissibly re- the trial court

tends that Well, yes, me it would bother a lot. “A. pro- his voir dire examination stricted wouldn’t think that I wouldn’t—I spective juror Kathleen Burrows. It seem fair. be fair. doesn’t would prose- record shows that The Burrows cution’s voir dire examination probation if she could consider as asked right. feeling “Q. your All Is about initially re-

punishment for murder. She necessity for probation and about the sponded that did not think she could she engaged in people that have punishing probation. point At this consider violations—does that criminal law explained the differ- intervened and court predis- you any way to be cause considering granting pro- ence between somebody jail posed putting toward if Burrows When the asked bation. leaving them on the opposed to re- probation, she then she could consider in probation? streets it give have consid- plied that she would to would; Well, guess I yes. I but “A. questioned defense counsel eration. When if I I could was asked earlier believe following oc- probation, the Burrows about accept pos- if I with—or could live curred: I’m, probably sibility probation. of a Burrows, something you “Q. Ms. up here. getting mixed speaking you with Mr. when said no, No, doing fine. “Q. you’re me a little bit of concern caused Smith you such that If the evidence was “A. talking you about the he was when jail put person or— couldn’t just probation and or not whether issue honestly say I could. I’d have to give you would be able you felt that know; to, you just my I wouldn’t want ap- to a Defendant’s consideration fair feelings, if the evi- personal but you when own probation plication sufficient, guess ing considering.

dence was not then I or I think she’s enti- person have would to. in sepa- tled to have them broken down “Q. rate Okay. issues.

“A. And I have would to abide what Judge, “MR. STRICKLAND: I believe given in evidence. ruling effect Court’s “Q. now, All right, you sit here with- inquiry I can make no further in re- knowing any

out facts having or heard gard to the issue— evidence, any you not would want to I’m “THE COURT: That’s not what tell- somebody put put a murderer on —to ing you. probation? At that defense counsel ceased his “A. No. questioning regarding probation. He then explained to Burrows that a defendant did “Q. your feeling Because not about any not have to offer evidence whatsoever wanting put proba- a murderer on in his behalf. When he asked Burrows now, you tion as sit here would it law, thought she replied what of that she take some evidence over and above the although she did think it was a application probation mere to cause law, good she would abide the law. you change your mind? Some evi- Finally, defense counsel asked Burrows Defendant, dence from the for exam- impartial juror. she could a fair be ple, you change your cause mind attorney Burrows told the defense that she put probation?” and to a Defendant on try impartial juror. would a fair and objected The question State to this She stating concluded her remarks lengthy interchange the trial court admon- it would be difficult be fair because of ished defense counsel questions that these the seriousness of the case but she would proper were not in that did they not con- try. When attorney the defense asked her qualifi- cern matters relevant to Burrow’s to elaborate on what would be difficult for juror regarding question cations as of her, objected ground the State on the or consider whether not she could proba- relevancy and the court sustained ob- punishment tion as a for the offense of jection. following then occurred: murder. Defense counsel then continued Judge, “MR. STRICKLAND: is the with his dire examination: cutting me off from inquiry “Q. Now, regard question says when she it would be difficult to evidence, let you me ask whether penalty fair in a death case? you require evidence from you “THE COURT: If have some other regard the Defendant in to that issue questions want to ask— other issue the trial of the “MR. STRICKLAND: I would like to criminal case?” ask— The court intervened and asked defense proper “THE COURT: I don’t think it’s a . explain asking counsel to if he was question. objection I’ve sustained the juror require if she would evidence in order way phrased. it was or to grant consider probation proba- “MR. STRICKLAND: Please note our following tion. Thereafter occurred: exception, Judge. Judge, based on the “BY MR. STRICKLAND rulings, ques- I have no court’s further “Q. you Let me ask whether in crimi- tions.” case, Burrows, ever, you nal Ms. regard probation to the issue of accepted Immediately thereafter the State granting probation con- juror but the exer- Burrows as a defense sidering probation, require some evi- challenge. peremptory cised Defense the Defendant— dence from grant judge counsel asked Now, peremptory an “THE Mr. defense additional strike COURT: Strickland— unduly you’ve in that the trial restricted thrown them both ...— there, grant- dire of Burrows. The now. said either voir examination sus- replied it did not consider court DUNN,

taining question to a as a objection Wayne Appellant, an Kenneth request dire and thus the limitation voir v. peremptory strike would be for an extra Texas, Appellee. The STATE of denied. No. 68948. Appellant argues that the court im- permissibly restricted voir dire exami- Texas, Appeals of Criminal nation in the areas of consideration of an En Banc. probation Bur- eligibility accused’s impartial April ability to a fair and row’s argues of his juror. He limitation ability to dire hindered his challenge cause

intelligently exercise a alternative,

and, peremptory in the chal-

lenge. initially the end of

We note that at pan entire

the voir dire examination

el, remaining peremptory one appellant had ex did not

strike. Inasmuch not peremptory strikes and was

haust objectionable juror, accept

forced to

error was rendered harmless. Sanne (Tex.Cr.App.1980),* (Tex.Cr.

Emanus 526 S.W.2d 806 Furthermore, is clear from

App.1975). not limit trial court did

the record that the proper dire in areas

appellant’s voir clearly told

questioning. Rather limiting counsel that

defense only areas

questioning in these but

sustaining form objections particular find no questions. We

of defense counsel's This judge. the trial

abuse discretion error overruled.

point of judgment is affirmed.

DUNCAN, J., result. concurs J., disposition

CLINTON, dissents to of error because

of the fourth right to assistance

appellant's effective did in that counsel denied of counsel was of when notice adequate receive be conducted.

examination would J.,

TEAGUE, dissents.

Case Details

Case Name: Gardner v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 8, 1987

Citation: 733 S.W.2d 195

Docket Number: 68856

Court Abbreviation: Tex. Crim. App.