*1 task, jury’s avoiding findings clarifying the forestalling questions, immaterial
conflicting findings. See McDonald & 22:30(a).
CaRlson, Tex.Civ.PRAC (albeit erro once submitted question, lien controlling question neously), was to it case. An affirmative answer this favor, and Mayflower’s case in resolved the liability all other theories of advanced The condi this case became immaterial. prevented conflicting tioning language findings Mayflower had a lien on the Mayflower
lighting and that converted reasons, lighting. disagree For these we that the con Mayflower’s with contention improper condi question contained version object or tioning to which BML had to appellate right waive its relief. Mayflower’s Accordingly, we overrule rehearing. motion GLAUSER, Appellant, William Walton
v. Texas, Appellee. The STATE of 01-98-00891-CR, Nos. 01-98-00892-CR. Texas, Appeals
Court of (1st Dist.). Houston 5,Oct. 2000. Discretionary Review Refused
May 2001. *3 Houston, DeGuerin, appellant.
Mike Guarino, Hunter Ben- Michael J. Joel nett, Galveston, for State. O’CONNOR,
Panel consists Justices HEDGES, and PRICE.* FURTHER MOTION
OPINION ON AND FOR REHEARING FOR EN BANC REHEARING PRICE, Justice. appel- opinion affirming issued an
We Ap- on March 2000. lant’s convictions re- a motion for pellant’s counsel filed per in a curiam hearing which we denied 18, 2000. O’Con- opinion May Justice dissenting opinion on motion nor filed a rehearing. 16, 2000, fur- appellant filed a On June rehearing and for rehear- ther motion for denied. These motions are ing en banc. * Justice, Houston, Price, participating by assignment. former The Honorable Frank C. Appeals, First District of Texas at Court of
However, previous withdraw our opin- appellant passed we of Ciaccio when him. Ci- opinion. ions and issue the following stopped help. accio called 911 and Glauser, Appellant, William Walton morning That same Robert Meier and jury convicted charges two his wife were south on Interstate intoxication manslaughter. See TexPenal County. 45 Galveston Meier driv- punish- 49.08. The assessed Code ing pickup per 65 miles hour years imprisonment ment at four in each ap- center lane when he noticed vehicle error, points case. In nine proaching from behind. The vehicle challenges legal sufficiency and factual changed signaling lanes without and went evidence, complains of the of the fol- around in the left Meier lane so close that lowing trial errors: the trial court’s over- *4 thought Meier car going the was to hit ruling objection to the State’s voir him. Meier estimated the speed vehicle’s dire; the trial court’s denial of two of per to be over 100 miles hour because “it cause; appellant’s challenges the passed like was standing [him] [he] still.” jury arguments guilt pun- State’s on and Meier, passed After it the vehicle returned ishment; and the trial court’s submission lane, again signaling. to the center without to the special the issue on the use vehicle, than the speeding Other Meier deadly weapon. of a affirm. We no straight highway. saw other cars on the to a About a mile mile and a half down the THE FACTS highway, “explosion, Meier saw an a ball of 14, 1996, Saturday, On December 18- pulled stopped flame.” He over and to year-old year Faul Au- Jason and 15 old render assistance. spent tumn evening Alford with friends Walker, Thayer, Kenneth and Paul John in Galveston. Between 2:00 and 3:00 a.m. Pinkston northbound on were Interstate morning, the next Faul borrowed Amanda an morning. As crossed over- Hyundai Nixon’s 1988 to take Alford home. pass, they explosion saw the on the south Neither Faul nor Alford had been drink- highway stopped side of the and also ing. help. jumped Walker over the median and During early hours of De- morning highway. checking saw Faul on the After 15, 1996, Ciaccio, cember traveling Donald body pulse, proceeded Faul’s for a he to- passengers Gary with Dan Johnson and Hyundai. ward the Robinson, was south on Interstate on, Hyundai, headlights 45 north of Almeda mall. A black Honda Nixon’s its still Accord, fire, appeared going which to be 100 to on was the front and Alford Walker, hour, Meier, Johnson, per passed and Pink- 120 miles their vehicle. seat. They parked from unsuccessfully later saw the same Honda tried to free her ston car, jammed and the shoulder of the road and a man urinat- the door was but ing trapped. beside it. Ciaccio had his cruise con- The men legs Alford’s were drivers, hour, per asking any- trol set on 67 miles and when he down other flagged Marque factory extinguisher drove the La outlet had a fire or a chain to one stores, passed pull open. begged the Honda him in the Alford them to again the door right speed put pour lane. estimated its at out the fire and water on her. Ciaccio They yards over 100 miles an hour. About 150 screamed that she was hot. She south, get Ciaccio saw the Honda run into the her out of the car or were able car. Hyundai. extinguish engulfed back of the Other than the the fire which Hyundai, there were no other cars front She died at the scene.
3H Neu- Appellant was to his Hon- and several locations. standing next blood fibers approached. when outside the da Accord Walker concluded Faul was bauer appellant. smell impact alcohol on of the severe Hyundai Walker at because Appellant happened, asked what legs. a reasonable to his It is damage somebody. him he that, told had hit Walker at im- from the evidence inference response Appellant’s “they was that Hyun- disabled pact, pushing Faul was stopped highway.” in the middle steering Alford from the dai while appellant say Pinkston heard he did not driver’s side. or any lights see flashers. collected bulbs from light Neubauer Trooper Department Safety Public crime and submitted them to the Hyundai
Wayne dispatched Neubauer was to the Spence David the bulbs lab. tested at 2:52 a.m. and a.m. scene arrived at 2:55 bulb of two-filament discovered par- Marque Department, The La Fire light rear indicat- right brake/running amedics, County the Galveston Sheriffs burning ed that one of filaments was Department, and the Police Marque La impact. Department already had arrived. Neu- Appellant was taken ambulance Faul, body, later as bauer saw identified Neu- Sealy Hospital in Galveston. John *5 in middle lane of 45. A red the Interstate County bauer directed Galveston Sheriffs was on was Hyundai Appellant fire. a sam- Deputy Donald to collect Wheelus his Neu- standing beside Honda. He told ple appellant’s of blood. Wheelus went was bauer that he and that “those driving, in the hospital appellant the and located just stopped stupid people in the road with room. himself emergency He identified lights no on.” He that he had also said appellant Ap- rights. and advised of his hour, only 45 going been miles an and of his pellant having sample consented to a put he on his brakes to miss and tried Siurko, Cindy registered a blood drawn. strong them. Neubauer a odor of smelled room, in working emergency nurse the on beverage appellant’s alcoholic breath. sample. the alcohol on drew She smelled Neubauer, According appellant swayed left, appellant’s breath. Si- After Wheelus as he and speech stood slurred his when appellant of the say urko heard to one In spoke. opinion, appel- he Neubauer’s ed, nurses, nurse “I’m aren’t I?” The f— lant was intoxicated. meant, he appellant what he and asked impact, At found Neubauer “Well, said, I and drinking have been no skid marks on the to indicate highway more day couple off all and had a appellant applied had his brakes be- drinks before accident.” fore the collision. testified that Neubauer sample took blood to Neu- Wheelus in appellant’s Honda was a that situation Department delivered bauer who it to deadly weapon. opinion, Neubauer’s Safety super- of Public crime lab. The lab person traveling 67 hour in the miles an visor, Haby, sample Lou and tested the same lane as at this disabled vehicle alcohol grams found it contained 0.21 have seen vehi- location would the disabled per one hundred milliliters of blood. stop. in time to well lit cle The area was factory from the by lights Marque La The Chief Medical Examiner Galves- just mall north scene outlet of the burn Korndorfer, per- Dr. County, ton William freeway by lights. and street autopsies on of Faul and formed the bodies the numerous right front side the Honda sus- Alford. He determined that his injuries had human to Faul were consistent with significant damage tained and having pedestrian been a stru'ck by an 15, 1996, 3:00 a.m. on December and wit- automobile traveling at a high rate of nessed the collision. He testified that he speed. body burned, Alford’s was badly lane, was in the center and that about 250 legs pelvis broken, her and and the yards ahead of him were several other large blood pelvis vessels in the were torn. cars. left, He saw a car move to the then There was no soot in her mouth or lungs, another car hit the back of the car that that, indicating although she suffered from caught fire. The car that was struck did flames, the heat and she bled to death taillights. have He any did not see internally breathing before any smoke. lights brake before the Snyder collision. injuries Alford’s were consistent with her stopped, Hyundai and then the having been seated a car that was burning. There nothing he could do struck from behind another automobile girl inside. approached He traveling high speed. at a rate of Toxicol- black car and recognized appellant. Sny- ogy performed tests on both Faul and der did not appellant believe was intoxicat- Alford were negative for alcohol and ed. drugs. Appellant’s father testified that when he Trooper Senior Kevin Bryce of the De- a.m., at hospital arrived appel- 5:00 partment Safety of Public was asked to lant appear did not to be An- intoxicated. assist with accident reconstruction. He gie Reckling and Robert Whilden testified and Neubauer took measurements of the that, on night question, they had using scene surveying instrument. He dinner a restaurant appellant with determined that the Honda traveled 331 parents, appear did not impact, feet after and that Hyundai to be intoxicated when he left at 12:30 a.m. pavement traveled 158 feet on and 31 feet *6 James, engineer Mike an and accident grass. the He calculated that if the expert, reconstruction testified for appel- Hyundai stopped was or at moving only lant that in opinion, his only right the front hour, per one mile and if all four wheels of wheel impact. of the Honda locked at Us- the Honda locked at impact, speed the of ing post-impact this factor and the dis- the Honda at impact 111 per was miles by Bryce, tances recorded James calculat- hour. If two wheels of the Honda locked speed ed that the impact of the Honda at impact, impact speed its was 95 to 96 was 80 per miles hour. Based on the per miles hour. Assuming braking no or by measurements taken during Neubauer locking of the . impact, Honda’s wheels after scene, his investigation initial at the James impact its speed was 90 per to 91 miles impact speed calculated the Honda’s 77at scenario, hour. The likely most according per miles hour.1 Bryce, to only was that the front wheels of the Honda impact, locked at and this was collapse.
because of metal explained He LEGAL SUFFICIENCY OF post-impact skid marks ended near THE EVIDENCE Honda, the front wheels of the and there one, point In appellant of error chal- were none from the rear wheels. lenges legal sufficiency of the evidence defense, support For the his appellant, Specifically, friend of convictions. he Snyder, Ned driving testified that he was challenges Ap- the evidence of causation. south on pellant Interstate 45 between 2:00 argues prove and did not evidence According 1. point to measurements Neubauer impact, appellant's took of and Honda was night, Hyundai was 184 point impact. feet from the 298 feet from the of
313 By limit his night speed was 65. caused of Faul and when the that he the deaths admission, had drink- appellant own been “by Alford reason of intoxication.” day couple and of ing on and off all had a The Law A. A the accident. blood more drinks before con- appellant’s blood alcohol test revealed manslaughter statute The intoxication 0.21, more than tent to be twice pertinent part: provides, Pe- intoxication amount that defines (a) A if the person commits an offense lit area that well with nal Code.3In an person: obstructions, appellant, without no visible (1) in pub- operates a motor vehicle brakes, hit his Faul and applying ever ...; place, lic and had Hyundai, which back of the disabled (2) and of intoxicated reason on. headlights taillight its and at least one that intoxication causes death opinion, In the officer’s some- investigating of another accident or mistake. of his and one full command mental 49.08(a). TexPenal Code miles an physical faculties while 67 evaluating legal In a claim of insufficien- stop able and hour would have been evidence, cy of the we follow usual avoid the disabled vehicle. hitting Virginia, v. standard review. Jackson properly concern- jury charged 2781, 307, 2789, 319, 61 443 U.S. 99 S.Ct. causation, there was evi- ing sufficient State, (1979); L.Ed.2d 560 v. McDuff dence from which the admitted 607, (Tex.Crim.App.1997). S.W.2d beyond appel- find a reasonable doubt Alford lant caused the deaths Faul and Analysis B. by reason intoxication. Appellant correctly asserts of error point We overrule one. prove State must that a defendant’s intoxi cation, not just operation of a SUFFICIENCY FACTUAL vehicle, See, caused e.g., the fatal result. THE EVIDENCE OF State, (Tex. Hardie v. 588 S.W.2d two, of error contests Crim.App.1979); Daniel v. sufficiency factual the evidence (Tex.Crim.App.1979); 233-34 support the causation element. The Court *7 State, 59, (Tex. Thomas v. 756 61 S.W.2d recently its Appeals of Criminal reaffirmed d).2 1988, App. pet. ref' — Texarkana State, 126, decision in Clewis v. case, (Tex.Crim.App.1996), ap
In this the evidence 129-30 that consis guilt pellate with of this State are constitu tent showed courts tionally empowered judgment a Honda on to review a Accord Interstate factual miles an at of a trial court to determine the approximately 100 hour 29, 1993, Leg., May appeals involuntary were Amended Act of 73rd 2. These from man- R.S., 1.01, slaughter convictions under section § ch. Tex.Gen.Laws 19.05(a)(2) pre-1994 Texas 3586, 3614, Penal Code. exception With the 3766. provided, part: statute vehicle, That air- additional element that motor (a) person craft, if he: A commits an offense operated public or be in a watercraft 49.08(a) place, are this statute section (2) by operating accident mistake when or substantially same. vehicle, airplane, helicopter, a motor or and, by boat while intoxicated reason 49.01(2)(B). 3. See Code Tex.Penal intoxication, such causes death of an individual. sufficiency of the evidence used to dictory estab testimonial evidence because res- lish the elements of the offense. Johnson olution often turns on an evaluation of State, v. 23 S.W.3d 6 (Tex.Crim.App. demeanor, credibility and ju- and those 2000). The standard of review announced rors attendance when the testi- restated, in Clewis was as follows: mony was delivered.
In determining
sufficiency
the factual
offense,
the elements of the
the review-
ing court “views all the evidence without
conclusion,
the reviewing court must
prism
light
of ¾ the
most favorable
always
cognizant
remain
of the fact find-
[i.e.,
prosecution,’
to the
views the evi-
unique position,
er’s role and
position
dence in a
light,]
neutral
and sets aside
the reviewing court is unable to
only
the verdict
contrary
it is so
to the
occupy.
authority
The
granted in Cle-
overwhelming weight of the evidence as
wis
disagree
with the fact finder’s
clearly wrong
unjust.”
be
Clewis
appropriate only
determination is
when
v.
The Court also addressed the degree of complete civil factual sufficiency formula- deference reviewing court must afford tion.
the fact finder. complete [T]he and correct standard a degree of deference a reviewing reviewing court must follow to conduct a provides court proportionate must be sufficiency Clewis factual review of the with the accurately facts it can glean elements of a criminal offense asks from the trial record. A factual suffi- whether a neutral review of all the evi- ciency analysis can only consider those dence, both for and against finding, few matters bearing credibility proof demonstrates that the of guilt is so can fully be determined from a cold obviously weak as to undermine confi- appellate approach record. Such an oc- determination, jury’s dence in the or the *8 casionally permits credibility some as- proof guilt, although adequate of if taken sessment usually requires but deference alone, greatly outweighed by is contrary to the jury’s conclusion based on mat- proof. beyond ters scope appellate the of the Id., at 11. court’s legitimate concern. [Footnote
and citation Unless the avail- reviewing omitted.] After all the evidence admit- able clearly record reveals a in different ted this case in a light, neutral we do appropriate, result is appellate an court not proof guilt find that the of is so obvi- jury’s must defer to the ously determination weak as to undermine confidence concerning what weight give to contra- the jury’s determination. The evidence of factually the was sufficient has been in this hold evidence guilt well summarized support jury’s verdict that the vic- opinion. to the by appellant’s caused tims’ deaths were of proof guilt do we find that the is Nor intoxication. contrary outweighed by proof. greatly defense, testified that Snyder For the error point of two. We overrule a that moved to the there was third car just appellant’s before vehicle struck left DIRE YOIR STATE’S Hyundai; Hyundai’s taillights that the the three, appellant In of error on; appellant not not and that did overruling court erred in argues the trial Appellant’s to be fa- appear intoxicated. of voir objection portion to a the State’s ther, Reckling, also and Whilden testified a burden implied dire that the defense had appear to be that did not intoxi- produce on the intoxi to evidence issue of addition, expert, cated. the defense’s cation. James, that, according testified to his cal- panel The dired State voir the venire culations, appellant’s traveling was vehicle they on the rely whether concerning per hour impact. 80 miles at own by result of a test ordered their blood however, contrary proof, This does physician. A member of the venire said outweigh appellant’s greatly proof the that might opinion. a second she seek intoxication caused the deaths of Faul and the attorney’s response to assistant district Snyder’s testimony concerning Alford. venireperson, the and bench conference presence of car on high- the third followed, that were as follows: way by testimony was contradicted you And have to right [seek a [A.D.A.]: witnesses Meier and Ciaccio. That State’s And has opinion]. a second the defense burning rear right taillight at the every to a second right a case seek impact moment of the testimony opinion. repre- this And so defendant is Spence, who tested the bulb at the crime by lawyer all sented like defendants Appellant’s lab. state of intoxication was right go get and have a to out and they Neubauer, by appellant’s attested to themselves, tested have blood to that he admissions the nurses had been of those and Mr. right things to do all drinking throughout day and immedi- lawyers of the DeGeurin is one best collision, ately before the and the blood the United States. appellant’s speed test results. Regarding I ob- me. [Defense Counsel]: Excuse impact, Trooper testified it Bryce
at ject, approach like but would hour, per 111 miles was between and bench. speed on how depending many, the exact
any, appellant’s of the wheels on vehicle (Sidebar hearing conference outside impact. Bryce concluded that locked the jury:) likely front the most scenario was having I am Judge, Counsel]: [Defense collapse, locked indicat- wheels from metal object that and I to the trouble with speed per miles hour. ing a prosecutor telling the that the de- appellant’s Meier Ciaccio testified opportunity right fense or the has per passed them at over 100 miles vehicle go opinion out and take second shortly the collision. hour before law the produce evidence because the *9 any have guilt produce the on does not to jury’s Because decision re- defense prosecution cannot credibility its the and the lied on assessment of evidence witnesses, Now, thereon. whether or findings we defer to its and comment not, jury he intended or at this it raises that during voir dire the defendant a if question present produce we do not evidence had no burden to evidence. said, prosecutor after what the are we must We next determine whether failing something. to do That’s con- the error was harmful. Rule 44.2 of the trary, it proof shifts the burden of and Appellate provides Rules of Procedure law, contrary I it’s to but would ask that subject that constitutional error that is to you jury instruct the that the last.com- a harmless error requires review reversal you ment the State is not correct and beyond unless the court determines a rea get will a charge from the court as to sonable that the doubt error did not con is, effect, what the law words to that punishment. tribute to the conviction or quash panel. otherwise I have to error, defect, Any irregularity, other or I disagree completely with [A.D.A.]: variance that does not affect substantial saying. what he’s I think a we have Tex.R.App.P. rights disregarded. must be right arguments to make those and I 44.2. find that the error We was not of think are valid areas of discussion magnitude. constitutional We therefore juries during voir dire examination. appellant’s evaluate whether substantial rights were affected. modify my Let me [Defense Counsel]: objection. you If would instruct A right substantial is affected jury that the defendant has no burden to inju when the error had a and substantial any produce call or any witnesses evi- or in determining rious effect influence dence a criminal case. State, jury’s King v. verdict. jury certainly The The will Court: be (Tex.Crim.App.1997). A criminal prove instructed the State has to conviction should not be overturned for beyond their case doubt reasonable appellate non-constitutional error you produce and have no burden to evi- court, after examining the record as dence. whole, has fair assurance that the error jury, did not influence the or had but a you tell them [Defense Counsel]: Can slight effect. Johnson v. 967 S.W.2d that now? (Tex.Crim.App.1998). my The Court: No. I’ll tell them in correct, Certainly instructions. that’s find the error did not have a We you do right get have a to blood evi- injurious substantial and effect or influ dence. That’s certainly something you jury’s ence in verdict. determining can comment on. You can get evidence The trial to the re give court’s refusal I basically think that’s all he said. quested oral instruction could not have They charge will instructed in the be jury believing misled the into you produce any do not have any producing had a burden of evidence or evidence. proof burden of this case. This is be jury dired the cause defense counsel voir you would ask that [Defense Counsel]: extensively concerning presumption that right do now. innocence, proof, the State’s burden of No, I am not going Court: do stated, that, the fact as he defen “[T]he right now. whatsoever, dant has no burden doesn’t added.) (Emphasis witness, single call a doesn’t have have to word, by refusing say find the trial court erred the burden State.” We addition, request correctly charged defense counsel’s to instruct *10 you as you But can envision regarding [A.D.A.]: the State’s burden by the court could consid- you where said a situation doubt and proof beyond a reasonable type of offense? probation for this a Defen- er require law does not that “[t]he any produce prove his innocence or dant pro- definitely I consider Farley: could at evidence all.” that he knowledge without bation convicted had been before. point of error three. We overrule you. Thank The Court: Challenge for cause. [Defense Counsel]: DENIAL OF CHALLENGES Overruled. The Court: FOR CAUSE added.) (Emphasis five, appel- points of error four and denying the trial court erred in argues questioned lant also Fowler was venirepersons challenges bench, for cause to pertinent part, in as follows: Farley and Fowler. Fowler, I had Ms. [Defense Counsel]: you today whether you earlier asked the venire questioned Defense counsel someone probation for could consider they could consider panel about whether in I also added in this case. convicted manslaughter probation in an intoxication prior proba- had person and the there prior case in the accused had which you I can’t ask Take that out. tion. A conviction for while intoxicated. you probation to that. Can consider Farley venirepersons, including number of of— guilty found you someone that have Fowler, responded could not. person guilty of intoxicat- you if found a bench, in Farley at the questioned was killed, people two were manslaughter, ed part, as follows: under you is could question now the you I ear- had asked [Defense Counsel]: probation consider those circumstances probation you lier would consider about guilty? person you to that found in and I had added beginning absolutely he noth- Only had Fowler: if I [it] after awhile added where just I lived with on his record. ing else out, part. prior DWI. Take that DWI I can’t do it. an alcoholic and I prior probation out. Take DWI with an You lived [Defense Counsel]: you going you again, am to ask could alcoholic? probation person where a when consider I married to one. I did. Fowler: intoxicated you person guilty found a I am just can’t do it. Okay? And of two manslaughter causing the death —I sorry. as a people you probation consider So, second Counsel]:
possible punishment? [Defense if you were to learn would be question if excluding Farley: say yes I would DWI prior probation he had a knowing prior that he had a conviction nev- you could that circumstance under ... DWI. probation? er consider up If he messed I couldn’t. Fowler: up messed again, and did it first time you But Counsel]: [Defense history the first time then after prior probation had a then hear that he happen going to I have lived with it’s possible that as a you would not consider it. If I can’t live with again. again any under circumstances? punishment say me a second—I’ll you give totally I am not different case whole That’s correct. Farley: *11 318
one-sided. If you remember the case Fowler: That’s about the I only thing Bradley, I I can guess only person was the think of.
for County Galveston who said he abso- added.) (Emphasis The trial court over- lutely guilty. could not be That’s a ruled challenge defense counsel’s for cause thing. whole different to Fowler.
The Court: Mr. Drosnes? Appellant claims the trial court
erred in denying challenges these two for venirepersons cause because the were bi phase ased a against upon of the law which [Prosecutor]: What we are about is not rely, namely, he was entitled to mini you ping pong to use as a ball. We mum punishment. See Tex.Code Cmm.P. give you impression don’t want to 35.16(c)(2). art. Appellant applica filed an trying you apart that we are tear probation, tion for and maintains he was question you here. The is haven’t heard eligible probation jury. for from a See the evidence? Tex.Code CkimP. art. 42.12 4. Bias Fowler: True. against range punishment prop is a er area for challenges And can’t cause. Williams you [Prosecutor]: we tell what State, (Tex.Crim. 525, v. 773 S.W.2d 536 intelligent evidence is. You are an App.1988). this, question you woman. The is can scenario, you envision a can envision a However, the trial court did not fact situation that you would authorize err in denying appellant’s challenges for probation? to consider There are thou- appellant’s questions cause because sands of fact out situations there and improper disqualify venirepersons intoxication manslaughter are —there juror A only cause. must be able to fact situations where the defendants probation punishment consider as in a prior have history, good no criminal a proper case for an offense as defined going likelihood is to be rehabilitated. Appellant’s law. conviction for You don’t that until you know hear the while intoxicated not an element of evidence. case; the intoxication it manslaughter Fowler: That’s true. evidentiary only. A venireperson is not disqualified merely because he or she question you The is can [Prosecutor]: probation could not consider under the you wait until hear the evidence and can specific being facts of the case tried that you say at I’ll proba- consider go beyond the elements of the offense. tion until I hear I the evidence and State, 140, See Sadler v. 977 142 S.W.2d up my make own mind? State, (Tex.Crim.App.1998); McCoy v. up. Fowler: I am afraid I have made it (Tex.App. [14th — Houston just I sorry. am do that. It’s a whole ref'd); 1999, pet. see also White v. Dist.] total block. (Tex.Crim.App. 629 S.W.2d He’s asking you Court: what Sadler; 1981). explained in As the Court you would do in this case. The question jurors the facts requires The law to use you can probation is consider a case punishment to the crime as tailor a person where was— guilty committed defendant. As happened, Fowler: Not it’s this. before such, to rule that it would be nonsensical juror to fit the you [Prosecutor]: That’s scenario that who will use the facts probation? punishment unqualified could consider crime to the for either a defendant omitted] tion challengeable thus for cause—such principal or a defen- guilty as a juror doing exactly what the found would be *12 party, as a is biased guilty dant found requires. law by the the law as established against Legislature. juror is not prospective hold that a
We Id. at 406. he or challengeable for cause because appeal is not con present The pun- the facts to determine she will use Judge Keller by Johnson. As trolled prospective juror A is not ishment. opinion, concurring in her pointed out on inabili- challengeable for cause based is implicated, of when parties, law “[T]he range punish- the full of ty to consider element of the offense functionally an he she can consider long ment so as or J., (Keller, concur- Id. at 410 tried.” for the range punishment the full of responsibili- agree that criminal ring). We (cid:127)offense as defined law. offense, of an ty is a functional element (Emphasis original.) at 143. Id. and, thus, defined part of the offense “as proper question The to determine bias prospective jurors must by law” for which against regarding punishment the law range the entire of be able to consider whether, proper in- would have been a punishment. manslaughter case as
toxication defined contrast, appellant’s prior misde- By statute, it, justify where the the veni- facts driving intoxi- meanor conviction for while reperson fully fairly could consider the of, to, part elemental nor cated is not range punishment, including entire of It manslaughter. offense of intoxication is Sadler, minimum and maximum. 977 punish- merely peculiar relating a fact 142. S.W.2d at case, and not “the particular ment this pro- for applicable law to the case” which Farley Both and Fowler ex spective jurors challenged could be for pressed they probation could consider proper manslaughter in a intoxication case. cause. Thus, they against were not biased the law State, Appellant also cites Post v. 936 punishment.
regarding 1996, (Tex.App 343 Worth S.W.2d . —Fort State, Appellant relies on Johnson v. ref'd). case, pet. In that four counts of (Tex.Crim.App.1998). S.W.2d 404-05 robbery together, were tried aggravated case, Ap- Court of Criminal venirepersons expressed their ina and two jurors peals prospective held that probation person bility to consider challengeable they for cause because committing of they guilty whom had found punishment the minimum consider Id. at 346. multiple aggravated robberies. guilty aggravated found a defendant the trial appeals The court of held that principal. as rea- robbery Court chal overruling court erred in the defense soned: case, In that the defense lenges for cause. jurors entitled to who could consider Legislature has determined and was
[T]he punishment found punish- range full the full range codified that counts, guilty of all as the same wheth- the defendant any ment for offense is case, present appellant’s In the guilty charged. found as a er the defendant Therefore, intoxicat prior while party. or as a misdemeanor principal of the State’s part ed was not juror who does not “believe conviction prospective him; merely eviden- it was punishment,” charges against full range [cita- in the tiary on punishment. the issue of State, We find ruling. adverse Cockrell v. circumstances of Post inapposite to be 89 (Tex.Crim.App.1996). appeal. to this permissible There are four areas points We overrule of error four and (1) for jury argument: summation of the five. (2) evidence, reasonable deductions from (3) evidence, answers to the argument STATE’S JURY ARGUMENT (4) counsel, of opposing pleas for law ON GUILT enforcement. v. Cifuentes *13 In point six, appellant complains of error S.W.2d (Tex.App. [1st — Houston of following prosecutor remarks of the 'd). 1999, pet. Dist.] ref during jury argument at the conclusion argument We find the State’s guilt stage: of the jury would celebrate if the I you thing, [A.D.A.]: And tell one if it’s a guilty guilty returned verdict of not or guilty not verdict or if it’s a verdict of criminally negligent homicide does not fall criminally homicide, negligent these any into categories these and was there folks will be going to celebrate tomor- improper. fore We next consider whether row. Tex.R.App.P. error was harmful. know, [Defense You Judge, Counsel]: 44.2(b). apply the We three factors estab improper that’s argument object and I lished Appeals the Court of Criminal to it. analyzing improper jury harm from I Judge, [A.D.A.]: feel it’s certainly argument Mosley v. 983 S.W.2d proper. argument. It’s (Tex.Crim.App.1998). The factors Objection
The Court: overruled. (1) (the severity are: of the misconduct magnitude prejudicial of the effect they probably [A.D.A.]: And are of the going (2) prosecutor’s remarks); celebrating to be at measures the Tremont House. (the adopted to cure the misconduct effica Judge, you [Defense if Counsel]: don’t cy any cautionary instruction stop it going now it’s to be even worse (3) judge); and certainty of conviction object and I to it. It’s outside the rec- (the absent the strength misconduct of the ord and you it’s also —and if want me to conviction). Id.; evidence supporting up will, state it there I but obviously it’s Cifuentes, 983 at 896. improper argument. going Court: As far as to the Tre- The prejudicial prose effect of the House, mont objection sustained. cutor’s remarks not severe. The re there, I tell you [A.D.A.]: who won’t be marks, improper, merely spec while poor and that’s two kids from Galveston ulative of if appellant might what do found deserve, County who didn’t who didn’t guilty charges, guilty not of the or of the deserve what this man did to them. criminally lesser negligent offense of homi kids, you And tell what these two what factor, cide. Concerning the second no poor these two County Galveston kids given by curative instruction was the trial lives, get will never they do their Finally, argument court. we find that the get will never flaming chance to have certainty did not affect the conviction. fancy desserts in a restaurant. strong, already The State’s case was as Thus, opinion. addressed in this find we Appellant any objection waived the error was harmless. all argument but the first because he did object not pursue objection or to an point We overrule of error six. in- you I ask Counsel]: [Defense JURY ARGUMENT STATE’S disregard they must struct PUNISHMENT ON prosecutor, and of the the last statement seven, appellant of error so, tell us now. to do are unable argued at improperly contends the State response families did that the victims’ was in punishment My argument [A.D.A.]: Appellant argues He men- argument. restitution. not want to Mr. DeGeurin’s that, granted the trial court countless because restitution tioned the word prevent compensate in limine to the vic- motion wants to State’s times. He civil settle mentioning tims, going from income percentage defense of his such evidence was ments and because the yictims. trial, argument the State’s
offered they are not inter- You said The Court: outside the record. money? ested following con- The record reflects the this man. From [A.D.A.]: argument: cerning the State’s money from the They got The Court: *14 Restitution, what is that? [A.D.A.]: of the fact company. Because insurance penny from Money? They don’t want a out, stay away kept you need to we that this man. from it. me, Your Counsel]: Excuse [Defense jury— I ask that the Counsel]: [Defense That’s outside the record. Honor. mistrial, to move for so I don’t have Objection sustained. The Court: me, in- you Judge, what you tell Judge, argued he that. to do? [A.D.A.]: tend up The Come on back here. Court: disre- just I tell them to The Court: will said that Mr. Ibrahim gard anything (The following proceedings were had money. about presence jury.) of the outside I believe now the De- Because Counsel]: Counsel]: Comes [Defense [Defense sufficient, jury I’ll move for a presence fendant out of the of the is not mistrial, jury, in of the Throughout and for a mistrial. but not front moves by request the trial we have of the State this time. al- granted by and the Court not been Motion denied. The Court: get to into the evidence that
lowed gentlemen, sustained Ladies and family money, paid sued for both fami- last state- objection to Mr. Ibrahim’s lies, in hundred and paid excess of two disregard ment. You are instructed each, fifty thousand dollars and money. It’s that is said about anything money, each for they even sued other anything and not part not a of this case prosecutor now to state out- and for you are instruct- you to consider record that he’s not interested side the may proceed. it. You ed not to consider in in no one money. Number argument assuming the State’s Even were not interested family testified prompt and the trial court’s improper, was two, the evidence money, and number suffi- disregard was strong instruction put on shows that I not allowed to was State, Guidry v. any cient to cure error. money they were interested (Tex.Crim.App.1999). I move for paid. light of that So properly de- motion for mistrial The a mistrial. nied. Objection Mo- sustained. The Court: seven. point of error We overrule for mistrial is denied. tion DEADLY WEAPON FINDING deadly weapon.... It follows that Tyra’s pickup undoubtedly a deadly
In
eight, appellant
error
weapon in the instant cause.
challenges the legal sufficiency of the evi
prove
dence to
that he used or exhibited a
Id. at 798.
deadly weapon, arguing that the State did
Walker,
the Court held:
prove
“use” of the automobile as a
We therefore hold that
operation
deadly weapon “according to what
an
may
automobile
constitute the use of
Legislature intended when it created the
a deadly weapon under a prosecution
deadly weapon provision of Article 42.12.”
19.05(a)(2).
under
We further hold
nine,
In point of
argues
error
he
that the
that no intent to use the automobile as a
trial court erred in submitting the tissue of
weapon need be shown.
the use or exhibition
deadly weapon
of a
Walker,
for the same reason.
raised and the Court of Crimi further motion Rehearing and for Appeals State, nal in Walker v. 897 S.W.2d Rehearing En Banc. 812, 814 (Tex.Crim.App.1995), Tyra v. I dissent from the majority’s resolution (Tex.Crim. 897 S.W.2d 798-99 points of error one and two. is, App.1995).5 appellant That contends an finding affirmative of the use or exhibition collided with the victims deadly weapon of a permitted only is when early one morning busy freeway on a be- there is evidence of actual intent to use the tween Houston and Galveston. One of the object to cause harm. victims of sitting the collision was in the In Tyra, the Court held: stalled car and the other was behind the car pushing majority’s it. The Tyra analysis was convicted of involuntary man- ignores possibility slaughter, collision oc- accidentally killing a man pickup with his curred truck because he was too because the victims’ car was immo- drunk prece- fast-moving freeway, to control the vehicle. bile on a it Our was dark dents establish that anything, including visibility good, was not and one of the vehicle, a motor actually which is used blocking taillights victims was of the cause the being death of a human a car. These factors alone could have made 19.05(a)(2). (See 4. Tex.Code 3g(a)(2). Crim.P.art. 42.12 former Penal Code section opinion.) footnote 2 of this Tyra 5. The defendants in Walker and involuntary manslaughter convicted of under inevitable, regardless of the the collision
appellant’s intoxication. find,
I do not believe the doubt, appel- that the beyond reasonable responsible for lant’s intoxication was fact, jury’s assessment collision. case years imprisonment in each only four it than less is some indication intoxication caused appellant’s certain the collision. FINCH, Appellant,
Steven Dale
v. Texas, The STATE of State. 2-00-414-CR, Nos. 2-00-415-
CR, 2-00-416-CR. Texas, Appeals Court of Fort Worth. March 2001. Gonzalez, P.C., Brown & Ruben Gonza- *16 Worth,
lez, appellant. Fort for Curry, Atty., Tim Dist. Charles Crim. Mallín, Atty. Asst. Dist. and Chief M. Section, state. Appellate CAYCE, C.J.; Panel D: DAY and LIVINGSTON, JJ.
OPINION
CAYCE, Justice. Chief appeals Dale Finch three convic- Steven con- robbery by threats. After tions ap- sidering appellant’s whether notice court, jurisdiction of this peal invoked the properly jurisdiction conclude our we invoked.