Morrow v. State
910 S.W.2d 471
Tex. Crim. App.
1995
Check Treatment

*1 Ricky Eugene MORROW, Appellant, Texas, Appellee.

The STATE of No. 71219. Appeals Court of Criminal En Banc. May Rehearing Sept. Denied Dallas, Jagmin,

Keith E. appellant. Vance, Atty., Jeffrey John Dist. B. Keck, Dallas, Atty., Asst. Dist. Robert Hut- tash, Austin, Atty., State’s for the State. OPINION

PER CURIAM.1 was convicted of murder 19.03(a)(2). pursuant to Tex.Penal Code jury affirmatively After the answered the issues, appellant was sentenced death. Tex.Code Crim.Proc. 37.071(b). Appeal to this court is automatic. (h).2 Id. at We will affirm.

I. 58 different for cause. See Tex.Code opinion originally prepared by Judge

1. This first conviction was reversed. Mor- Campbell prior leaving Charles F. "Chuck” to his row v. 753 S.W.2d 372 the Court. *2 472 35.16(e)(2). 1 v. 438 each instance L.Ed.2d and Lockett

Crim.Proe. 586, 2954, challenged juror 973 U.S. 98 S.Ct. 57 L.Ed.2d a (1978). Cuevas, 742 at venireperson’s of a also S.W.2d cause because stated See mitigating, this means is that the factfin- lief certain evidence was not What the his der must be allowed to hear evidence stated belief that evidence Texas, act it. v. 448 aggravating, or his belief that certain Adams U.S. stated (1980). 38, 2521, may mitigating.3 100 L.Ed.2d evidence or S.Ct. 65 581 argue of these does Texas, is ad- evidence any miti- would not consider punishment phase capi- missible at the of a Illinois, See, Morgan gating evidence. v. trial. Crim.Proe. tal murder [Tex.Code 736, 2234, 719, 2222, 119 504 U.S. admitted, jury may Once 37.071.] (1992). A who will auto- give weight, in their it if individual in matically vote for the death appropriate, answering minds it is when good case will fail in faith consider the questions which determine sentence. aggravating cir- evidence of Adams, 46, at 100 S.Ct. at 2527.. him to cumstances as instructions weight amount of “[t]he ju- appellant’s do. are to Rather give any partic- might factfinder specific specific rors’ evidence.4 piece ular of evidence is left ‘the responds weight The to be and discretion’ exercised given any mitigating aggravating evidence or Cordova, juror.” each at [733 S.W.2d] punishment is to adduced at be determined Texas, quoting, v. 448 100 Adams U.S. juror. by the individual Cuevas, (1980); S.Ct. 742 at 346. S.W.2d in previously

We addressed this issue explained: Johnson v. State where we (Tex.Cr.App.1989), U.S.-, affirmed, v. 509 Johnson a for a trial court to overrule not error (1993). 2658,125 290 This for cause where is shown reasoning true evidence is also give particu- not or a will potential juror is aggrava- which believes variety “mitigating lar evidence” ting. Supreme recognized has Court State, 742 consideration. Cuevas cert, during that much of evidence admitted (Tex.Cr.App.1987), denied phase could punishment of a trial (1988); 175 Cordova v. cert, potentially aggrava- or be either (1988). (Tex.Cr.App.1988), denied n at-, ting. Id. 113 S.Ct. at 2669 Supreme has United States Court (evidence youth be considered give yet must mandated Penry, aggravating); U.S. any particular weight amount (mental at 2949 retardation at might in piece of evidence that be offered aggravating or could be considered Cordova, punishment. mitigation issues). ing punishment within the Texas has decid- S.W.2d at 189. What concerning case law pre- ed that the factfinder must not considering any Penry progeny proposi- stand for the prohibited from and its cluded or mitigating as a in tion that certain evidence is offered relevant evidence assessed, This incorrect. These or in an- matter of law. punishment eases concern whether our swering punishment question. Cordo- permits a effect to citing Eddings v. scheme [733 S.W.2d] va believes is 71 certain evidence which U.S. error, appel- example, point of example, in the 16th 4. For 3. For out, go "argument here lant to the does erred he the trial court given mitigating evidence veniremember Souders for cause to Juror, it.” Point of but to the status accorded consid- was unable to because the veniremember adopted in all of Error appellant's points referred to and 16 is organic illness er evidence and/or subject, con- on this save those mitigating. damage to be intoxication, specifically cerning voluntary 26, 51, 59, 65, 67, Points 84, 97, and 104. Johnson, mitigating. at-, mitigating. 113 dence of (“We S.Ct. at 2669 decide that there is no S.W.2d at 612-614. Trevino we held the reasonable likelihood that trial did not abuse its have found itself foreclosed from the defendant’s aspects youth.”); the relevant of [Johnson’s] *3 clearly cause because he had failed to state Penny, 327-328, 492 U.S. at 109 S.Ct. at concerning mitigating the law evidence. We (“Indeed, precisely stated, then, “[e]learly provides the law that directly should be related to mitigating is a factor which must be personal guiltyinnoeence of the defendant Id., considered.” at 614. A more correct must be allowed to consider and youth may statement would be: abe give effect mitigating evidence relevant to See, Robertson, ing factor. a defendant’s character or record or the cir- 712, explained n. 13. But we continued and offense.”); cumstances of the Franklin v. that while a must consider the evi- Lynaugh, 487 U.S. dence, does not have to (1988) (plurality opin- Trevino, that evidence. 815 S.W.2d at 614. ion) (“the jury Spe- instructions or the Texas cial preclude] jury [did Issues consider- challengeable Veniremembers ation of mitigating relevant circum- for their case, stances this or otherwise unconstitu- prior evidence. Our require decisions do not tionally jury’s here”); [limit] judge jurors a trial potential to inform Eddings 104,113-114, jurors that certain mitigating evidence is aas 869, 876, (1982), held, 71 L.Ed.2d 1 matter of law. judge the trial did (“refuse consider, the sentencer in overruling appellant’s challenges err law, a matter mitigating relevant for cause because the veniremembers did not evidence”); Lockett v. mitigating; believe certain evidence was nor 2954, 2964, judge overruling did the trial err in appel (1978) (“the (plurality opinion) Eighth and challenges they lant’s for cause because be Fourteenth Amendments lieved certain aggravating.5 evidence was sentencer, in all but the rarest kind of fifty-eight points These of error case, are over precluded from as a ruled. mitigating factor, any aspect of a defendant’s

character or record and of the circum- stances of the offense that the defendant through fifth twelfth and proffers as a basis for a sentence less than points judge 109th of error contend the trial death.”) refusing permit appellant to in potential jurors form certain evidence cites Trevino v. and must be considered as (Tex.Cr.App.1991), rev’d on other grounds, assessing punishment.6 such in The trial err, because, above, did not as stated proposition youth mitigating as a such a comment would matter of law. have been incor Trevino, instance, inas this rect statement of the law. Points of error they stated that through did not believe evi- five twelve 109 are overruled. 5. appellant several of these upbringing, accused's abusive mental illness/or- pro- farther that Texas Penal Code illness, 8.04 ganic damage, artistic abili- voluntary vides that evidence of intoxication is record, ty, good jail compassion kindness and However, mitigating as a matter of law. others; alcoholism, addiction, drug towards only provides “temporary insanity section respectively, and must be consid- by caused intoxication be introduced assessing punishment. Appel- ered as such in actor in of the attached to the Brief, 116, 121, 123, 125, 127, Original pp. lant's being offense for which he is tried." Section 129, 131, Additionally, and 133. provide voluntary 8.04 does not that evidence of 109, appellant objected State inform- intoxication is aas matter of law. not, is, ing potential jurors that “what or is through appellant of error considered is to be decided five attempted Brief, juiy.” to inform the App’s Original p. that evidence of an However, attorneys do

II. defense duty; an identical rather their 30th, In Ms provide possible for their the best defense error, appellant contends judge erred very complaint by is illustra- hold the cause of who would of tMs contends tive difference. proof greater than be to a burden poten- challenge a that he should be able to yond coun a reasonable doubt. The State hold tial because he would only they juror for ters that can greater proof than State to a burden of “be- ground cause on tMs under Tex.Code Crim. yond a reasonable doubt.” provides Proc. art. This article appellant immensely. greater burden assists may challenge any potential grant argument we to Were *4 against prejudice who “has a bias or challenge he could these veniremembers for any phase upon of the law wMch State justice, cause in the of we interest rely pumsh to for conviction or entitled essentially permitting defense at- be ment.” torneys to to veniremembers ability recognizes to the State’s of their This would detriment be challenge potential under the statute. sys- against very upon which our tenets However, he contends that in the interest of Therefore, tem is structured. defendants trial, he, too, to chal- a fair should be able challenge potential jurors for analogy, lenge jurors tMs on basis. As against are biased the law which the who appellant argues that if can chal- the State rely State is under entitled lenge potential upon law which the 30th, and 74th rely (e.g., is entitled to that a defendant are overruled. pumsh- to assess minimum is unable judgment of court is affirmed. ment,) should then he be able to jurors upon the State is law wMch CLINTON, J., in the result. concurs rely. entitled to MANSFIELD, J., joins following with the why The rationale the State make join I note: I of the Court. based the veniremembers solely express my ap- write concern ability to assess the minimum dangerously close to an pellant comes abuse Nethery was discussed system. By raising appellate of our Nethery, dupli- many appear of wMch error — held, pages we and multifarious —in 531 and cative briefs, appears appellant may four impartial The State’s interest is in fair and relationship concluded there is a jurors, legal system’s in accord with our length appeal quality of an and tween defendant basic tenet insure that no a rush same. While one advocates a fair trial. The impartial is accorded and cases, justice, especially capital dilatory seeks, seek, uphold or should delay justice do not serve either tactics jury system. integrity of time also result waste of valuable permitted time for resources. It scarce impartial be fair who cannot a limit as to imposing to consider pun- he will not consider the full length and the number urges later ishment. Whether the State appeal of may be on briefs that submitted maxi- to assess the minimum or ease, after perhaps modeled Rule no mum is of moment. 74(h), Appellate Rules Procedure Texas prosecut- primary at 691. The of all appeals). (currently applicable to civil ing attorneys is not to to see convict but J., KELLER, participating. justice is done. Tex.Code Crim.Proc. includes, least, duty to TMs at the 2.01. and, innocent convicted

see that the pumsh- appropriate, that minimum where Nethery, is assessed. ment