*1 stricken from our dictionaries should be our vocabularies. Judge
To-the tortured route that McCor- conclusion that
mick takes to reach the Appeals is judgment
“The of the Court of judgment of the trial
reversed and the affirmed”, respectfully dissent with vigor my command. Also see
all
Washington Irving, The Book Sketch (London, 1920), Crayon, Gent. Geoffrey story happened of what
which concerns Rip Winkle after he
to the character Van twenty years.
slept for NICHOLS,
Joseph Appellant, Bernard Texas, Appellee.
The STATE of
No. 68981. Texas, Appeals
Court of Criminal
En Banc.
April *3 Shaffer, pulled guns
men Claude seventy year old victim. Shaffer bent counter, down behind the and it is contro- verted reaching whether he for an pistol kept unloaded behind the store coun- simply ter taking or whether he was cover. Appellant try opened stated “Don’t it” and ap- fire on It Shaffer. is unclear whether pellant’s shots hit Shaffer. Lane, (on E. Neil W. appeal Brian Wice Williams then turned and started to flee. Houston, only), appellant. door, As reached the Williams turned and shot at Again, Shaffer. it is unclear Holmes, Jr., B. Atty. John Dist. and Rich- which shot contacted the victim. Both men Anderson, Cochran, ard Winston E. Jr. and but, running Deli, fled out after of the Jones, Attys., Houston, Ira Asst. Dist. Rob- stopped Williams and went back into the Huttash, Atty., Austin, ert State’s for the *4 Deli, alone. Williams took the cash box State. from behind the counter where the victim standing
had been and ran out of the store. by picked up Both men were in two females Toyota. a blue OPINION Although in left temple shot the and WHITE, Judge. shoulder, Shaffer died a of as result a Appeal is taken a from conviction for single gunshot wound to his Ballis- back. V.T.C.A., capital murder. Penal Code Sec. investigation tics could not determine 19.03(a)(2).1 finding After appellant guilty, gun which Appellant caused this wound. jury the findings returned affirmative to eight and a of Williams netted total nine the three special issues under Art. 37.- robbery. dollars from the 071(b), V.A.C.C.P. Punishment was as- eighth point his of appellant sessed at death. will affirm. We challenges admissibility of the his confes Court, of appellant With leave this has argument, sion. His extremely while filed two raising twenty-six briefs a total of amorphous, organized can be into a three
points logistic of purposes, error.2 For challenge. First, appellant fold asserts a involuntary will not points address the of error in nu- violation, second, Sixth Amendment order, merical but them will address in third, da3 waiver and a Miran violation chronological order, trial consolidating request of Fifth his Amendment points possible. whenever for counsel. After a careful of each review we find that the properly confession was may briefly The relevant facts be stated. admitted. 13, 1980, On approximately October 9:00 a.m., appellant Ray and Willie Williams en- suppression The relevant facts the from Joseph’s Grocery tered Delicatessen and hearing are as follows. Pursuant to state- plan robbery. given with the to commit participants a As other by ments the approached they register, the cash and a photo by both offense a I.D. made wit- 74(o). appellant twenty 1. This is the second time has been brief and This second raises tried and convicted for this offense. The first points majority of error and constitutes punishment a trial ended in mistrial at the phase opinion. the issues refer- addressed this All when the could not reach a unani- appellant’s points ences to error to those are mous verdict on issue number two. raised in Sir. brief unless not- Wice’s otherwise V.A.C.C.P., 37.071(b)(2), Art. and this Court’s ed. response appellant’s to ninth of error. Arizona, 3. Miranda Lane, Esq., appellant's 2. Mr. E. Neil one of This case re L.Ed.2d attorneys, raising points a filed brief six of er- Miranda, throughout ferred to as with no subse ror. Mr. Brian Wice submitted a second brief quent citation appellant's thereof. being on behalf after allowed sub- appellate Tex.R.App.Proc., as stitute counsel. R. ness, I see the car apartments of the and didn't appellant suspect a became Anderson, of the street instant R.D. I middle offense. Officer stood Depart- car, Police for the and then looking detective with Houston around case, assigned learned that jumped ment I came the comer. around returning to the appellant home would be straight home on Pru- car and we went Eddy evening of Octo- Henderson on the dence. Officer Anderson and his ber Wednesday gun I took the back “On Dollins, partner, went Henderson’s home got I don’t know it from. dude p.m. approximately ap- 7:40 and awaited just hangs on the comer his He name. Appellant pellant’s arrival. arrived within say Live I want to of Calumet and Oak. minutes, placed was under arrest and kill the man. that we did mean read Miranda warnings. his up the coun- he come from behind When Appellant taken to the Houston Po- was ter, pulled gun on us.” he had [/s/] Department lice where he once more Joseph Nichols. his Miranda given warnings. hearing, appellant suppression At the then, acknowledging after that he under- p.m. approximately 3:00 that at testified rights, gave stood waived them and injected preludin, day his arrest he tape written recorded and confession marihuana. drank smoked some beer instant The confession offense. Williams, Tyrone a friend of signed p.m. at 10:15 The face of con- throughout day who was with requisite warning fession contains the partook of some of arrest and who also 38.22, required Art. rights waiver as intoxicants, appellant ap- testified as V.A.C.C.P. The confession read follows: ingesting peared “high” initially after “My Joseph name is Bernard Nichols. *5 cross-examination, On intoxicants. age. I am of I at years live appellant that Williams further testified I was bom on Prudence with friends. talk, times able to walk and was all coming 9-8-61. I from the motel. I was he not “out of his knew where was and was it Act II I think was the Motel. was with head.” Will, Evelyn. and Charlotte We were suppression
riding got At conclusion of the and we on a conversation robbing. hearing, about We came this little court found the confes the trial following store off of Fannin Street. Charlotte admissible sion and made driving. passed by the store the appellant sufficiently was We findings fact: was of parked first time and we saw one car of his Miranda rights; he volun warned decided front of the store. We all that intelligently tarily, knowingly and waived right this was all hit. confessing; he was not rights these before parked drugs down the street front of or other any “We influence of under the went in apartments. giving some Me and Will the confes at the time of intoxicants guns pulled the store. our on sion, attorney. We out request not and he did register the dude the cash and discretion, behind such clear abuse of Absent a money put told him to sack. findings upheld. will be by the court started The man behind the counter Denno, 368, 84 Jackson v. 378 U.S. S.Ct. bending the counter. He over behind Cannon v. (1964); 12 L.Ed.2d far couldn’t see had bent over so that we S.W.2d 664 I up pistol. he came him. Then 106 S.Ct. 474 U.S. guess getting ready to shoot. He he was (1986). shoot we reacted fixing was us. So his just cause contends that Appellant and shot. I was scared first fixing right to shoot one of counsel was vio knew that he was Amendment Sixth reacted shot. his confession us. So we and admission of lated However, appel time at the through into evidence. “I ran of the store and out merely signed he was lant his confession apart- alley of and around back The being questioned. under arrest I ran front complex. ment around right Sixth Amendment given Estelle, to the assistance involuntarily. Jurek (5th is not F.2d Cir.1980). counsel invoked until formal adver sary judicial proceedings have been initi All suppression the witnesses at the Gouveia, ated. United States v. 467 U.S. hearing appellant testified that was coher 180, 187-189, 2292, 2296-2298, 81 ent and in control all his faculties. His (1984); Williams, L.Ed.2d 146 Brewer speech experi was not slurred and three 387, 398-399, 430 U.S. S.Ct. 1239- police enced officers testified that (1977); L.Ed.2d Kirby v. Illi did any signs not A show intoxication. 682, 688-689, nois, that, toxicologist given testified the amount 1881-1882, Dunn v. of drugs appellant he testified that con (Tex.Cr.App.1985)sumed, span the time and the off involved rt. depressants set effect of and stimu ce lants, mere appellant would have been rational at subsequent questioning arrest and per of a the time he confessed. son does not constitute sufficient formali Appellant himself testified that he knew proceedings trigger zation of the Sixth doing what he was but that he would not requirement
Amendment Ap counsel. have easily “persuaded” giv- been so into pellant’s Sixth Amendment contention is ing a confession had he taken the not overruled. drugs. physi- He admitted that he was cally any abused manner. or threatened Appellant secondly challenges the admis- Appellant also testified that he was cur- sibility ground of his confession on rently probation robbery and that as intoxication, because he lacked the ca- arrest, a result of he of his was aware pacity knowingly voluntarily waive rights. constitutional He remembered that rights. his Appellant Miranda bases this warnings given Miranda were to him on the contention fact that he consumed numerous times that he had read and preludin, marihuana six and beer to seven signed his confession. There no evidence prior hours to confessing. appel- Whether way will in any over- lant even under the influence of these borne. drugs gave the time his confession is disputed. The trial made a finding adds the assertion that *6 not, appellant age his and intellect fact that and contributed his ina was we find bility intelligently nothing waive his Miranda indicate record to that this abuse, rights. no this support We find conten finding anwas of discretion.
tion in the record. testified that appellant was under the in years he the was nineteen old at time of Even fluence of the time confessing fully intoxicants at of con and and able to read write fessing, language. this automatically English would not ren There was no evi dence had an involuntary. der the confession Intoxi that he inferior intellect and cation, relevant, prior experiences jus his per se with the criminal while is not determi system voluntary tice fact favor of native of of a confession. voluntariness 511, waiver. v. 525 Lovell Brown, 424, v. F.2d United States 535 427 (Tex.Cr.App.1975). (8th Cir.1976); Vasquez 163 Tex. v. (1956). 16, 100, Cr.R. 109 The clearly supports The the trial evidence ap question central is the extent to which finding appellant knowingly, court’s pellant deprived was of his faculties due to voluntarily intelligently waived his and 109; Vasquez, supra intoxication. rights being gave and a confession without (Tex.Cr. 284 901 Dickey v. fact, influence under of In intoxicants. App.1955); Halloway v. 162 Tex.Cr. possible appellant’s the instant of evidence 322, 258, R. 259 If compare intoxication the evi- does incap intoxication rendered him in other cases intoxi- dence adduced where independent, able to make an informed cation involun- rendered confessions will, tary. compare, v. choice of free then his confession was See and Townsend
191 cocaine, 745, 293, 304-309, amphetamines from and Sain, symptoms 372 83 S.Ct. Lamb, voluntary); 752-755, (1963) (statement State v. confession was 462, (1983) 498, 467 year 19 330 N.W.2d involuntary defendant was 213 Neb. where con (blood .224 not render drug going through addict withdrawal alcohol level of old serum”); v. Mincey involuntary where defendant given and was “truth fession Arizona, 385, 398-402, coherent); 98 S.Ct. King 437 U.S. v. 2416-2419, (1978)
2408,
(heroin
day
57 L.Ed.2d
taken on
giv
(confession
involuntary when
in
rendered
render confession
confessing
of
did not
point
hospital
Commonwealth,
injured
en while
almost
voluntary);
Boggs
coma);
200 Colo.
People Fordyce,
(1985)
cert.
331 S.E.2d
Va.
1131, 1134(1980)(confession
made
612 P.2d
denied,
475 U.S.
ingestion
care and after
denied,
while
intensive
(1986)
475 U.S.
reh.
L.Ed.2d 347
held
morphine
of saturation
(con
90 L.Ed.2d
involuntary); DeConingh v.
433 So.
of alert
voluntary with evidence
fession
(Fla.1983) cert.
2d 501
defendant
comprehension where
ness and
(1984)
L.Ed.2d 228
beer,
a fifth of
pack of
and
consumed a six
involuntary
(confession rendered
where
marihuana, and took two
whiskey, smoked
and
given
on thorazine
valium
while
thorough compilation
speed).
hits of
For a
reality).
touch
while out of
see,
A.L.R. 4th
applicable caselaw
argument
capacity
Appellant’s
Moreover,
of intoxi
the instant evidence
overruled.
the evidence adduced
cation falls far below
held to be
in cases
intoxication was
where
eighth
his
final contention under
his
insufficient to render the confession invol
a violation
asserts
untary.
compare,
States
See and
United
request
Amendment
for coun-
of his Fifth
(4th Cir.1977)
F.2d 1120
Sledge,
requested
an
Appellant claims that
sel.
S.Ct.
confessing
prior to
attorney two times
(1977) (defendant’s
claim
requests
denied. The trial
both
were
“high”
injec
he was
due to an intravenous
appellant did not invoke
found that
and one-
preludin
tion of heroin and
two
nothing
again,
find
right
counsel and
confessing rejected in
half hours before
that this was
in the record to indicate
police testimony that he
coher
view of
of discretion.
abuse
ent);
Wilkins, 659 F.2d
United States v.
case,
argument
this
As is often
(7th Cir.1981)(fact that defendant
swearing match between
to a
comes down
injected drugs at
was under influence of
arresting officers.
appellant and the
questioning
time of
overridden
nurse’s
court,
judge is the exclusive
who
testimony
appeared coher
that defendant
credibility
witnesses
ent);
Faul, 748 F.2d
United States v.
given
testimony at the
weight to be
(8th Cir.1984) (statements
three
made
hearing,
the testimo
suppression
believed
surgery voluntary
days
extensive
after
*7
State, 613
Hawkins v.
ny of the officers.
was advised of Miranda
where defendant
720,
(Tex.Cr.App.1981)
coherent);
rights
appeared
Mallott v.
and
422,
919, 102
denied,
70
454 U.S.
S.Ct.
cert.
(blood
(Alas.1980)
State,
P.2d
743
608
denied,
(1981)
reh.
of
would render
alcohol level
.31 which
90%
ond for counsel was made to Offi very busy Houston which police just prior cer Anderson at the station present. planning I’m also to married be confessing. Officer Anderson Dol- February the 14th. request lins denied that such a was made. Q. your wedding You have scheduled court, position is in who the best time? testimony to hear the and see demean- Yes, I A. do. testimony of the witnesses found the imagine Q. you I would would be the officers more This the trial believable. preoccupied rather find it difficult to do, Hughes free to give your matter immedi- this attention S.W.2d 857 you. ately thereafter. would excuse So L.Ed.2d S.Ct. certainly I think that’s in the court’s (1979), reh. and we me adequate discretion reason for supports find the trial evidence you obligation at this excuse from this court’s conclusions. Maybe you’ll time be in a time. next serve, position to sir. totality you. review of the Thank After careful record, we find that voluntar- MR. SCOTT Note [Defense counsel]: rights ily chose to his constitutional Honor, waive exception, our Your the ad- properly and confess. The confession was set really ditional fact that we aren’t Appellant’s eighth 15th, admitted. error Judge. start until *8 is overruled. Contrary to the State’s contention (third excep of error objection
In his first that counsel’s our “[n]ote brief) tion”, general preserve any in the contends too er error Lane was context, ror, that, excusing pro- given find the the by trial court erred we that the apprised appel Terry sufficiently court spective juror Hurzeler its own was sponte objection to the court’s sua juror subject not lant’s motion where such was
193 case, See, prospective In instant the trial court juror excusal of Hurzeler. the (Tex.Cr. State, 60, juror erroneously prospective 76 excluded 717 S.W.2d Carter motion the objection is not a Hurzeler on its own because App.1986). While such wedding by specificity, any, pre juror preoccupied was so model is State, incapable 557 and work or unfit served. Zillender v. S.W.2d 515 was (Tex.Cr.App.1977). serve. Such an exclusion does not consti disqualification Ar tute an absolute under is a trial judge It axiomatic that 35.19,V.A.C.C.P., ticle nor it fit within does sponte prospec sua excuse a should never challenge a for grounds the for available absolutely juror juror unless is tive 35.16, cause listed in Article V.A.C.C.P. See, serving jury. disqualified from on a However, challenge proper for cause can a V.A.C.C.P.; 35.19, Roug 35.16 Articles grounds not ly be asserted on which are (Tex.Cr. State, 651, eau v. 738 S.W.2d 35.16, specifically enumerated Article State, App.1987); Goodman v. S.W.2d V.A.C.C.P., challenge a is such where 850, and cases cited prospec based on facts that show that the so, however, If the does therein. court juror “incapable or unfit tive would be only error a upon reversible will arise 35.16(a), Art. jury.” serve on the Y.A.C. showing applicable of harm. The harm C.P.; 664, 669 Moore v. 542 S.W.2d different, dependent analysis is denied, (Tex.Cr.App.1976) cert. qualified juror the excluded is or whether 2666, 97 S.Ct. disqualified for service. Tex.Jur.3d., p. Sec. 339. erroneously Where the trial court stated, Moore we qualified juror, a harm is excludes shown that, 35.16(A), supra, provides Article by the fact that the State its exhausted “(a) A challenge objection for cause is an peremptory challenges, and that but for juror, alleging particular made to a some actions, juror the court’s would have him unfit incapable fact which renders served. Bell v. is jury....” to serve on the The statute Goodman, (Tex.Cr.App.1986); su parts, providing chal- divided into three However, pra at 856. sua when lenges which both the State for cause sponte disqualified juror, excludes a i.e. may make, and the those which defense challenge juror properly subject who to a may the State make those which cause, only for harm is shown when nothing in may defense make. We find defendant establishes that he was tried renders lists an the statute which these legitimate objec to which he had a challenges cause. for exclusive basis Bell, 795; Goodman, supra tion. su any Challenges for cause based on 856; Esquivel pra at ground are or- mentioned statutes denied, dinarily discre- addressed sound U.S. omit- judge, tion of trial [citations Bodde ted]. (Tex.Cr.App.1978) cert. Moore, at 669. supra (1979) 59 L.Ed.2d is evidence the record There reh. 1062; support the trial court’s determination
L.Ed.2d Valore v. (Tex.Cr.App.1977); properly Henriksen v. Hurzeler prospective juror (Tex.Cr. challenge subject to a non-enumerated such judge, trial in his discre- for cause.4 The App.1973). However, personal juror plans and although as of his quick to the extent are to note capability Al- support upon his to serve. evidence their effect though there is in the record juror trial judge’s decision rests in the that this the ultimate determination serve, ab- judge and will not be disturbed have court’s discretion unfit to more careful would abuse, developed testimony. must be some evidence sent an there further Rather than support juror's the court’s determination. conclusory fash- the record to views in summarize ion, judge very colloquy between the judge provided terse should have the State question prospective juror in the instant case ample Hurzeler opportunity to and defense
tion, pre- determined Hurzeler was so in anee accordance her with instructions occupied personal problems that he Witt, and oath. Wainwright v. 35.16(a), was unfit to serve. Article V.A.C. 412, (1985); C.P.; Moore, supra. Tex.Jur.3d, Texas, Adams v. Sec. p. 340. Because Hurzeler was 65 L.Ed.2d Castillo properly cause, subject challenge to a for (Tex.Cr. “disqualified” he becomes juror. a Good- App.1987). The trial court determined that man, Thus, supra present- at 856. we are punishment capital Lewis’ views on were ed with improper sponte sua exclusion prevented such that or would have disqualified juror. of a is Such error re- substantially impaired perform her dutiful versible only where establishes totality ance. Based of the voir by that he jury was tried a he which had dire, agree and find that the did excusal legitimate objection. Esquivel, supra; not constitute an of discretion. abuse Henriksen, supra. legitimate To exhibit a The tenor of the dire voir examination objection jury, appellant would have Lewis, prospective juror concerning her showing to make some that he either feelings penalty, about the death is best forced to exercise a strike in peremptory characterized her initial and re- most prevent disqualified order to juror from peated response: “I don’t know. I’ve nev- sitting accept or that he was forced to thought er about it before.” It was clear objectionable in juror prospective ju- throughout struggling give that she was Bell, place. See, ror’s supra Ap- at 796. questions honest answers difficult which pellant showing. has no made such During she had never considered. the ini- Although the trial court in erred excus- testimony, tial two-thirds of her Lewis vac- ing prospective juror Hurzeler on its own position in capital punish- illated her motion, Ap- such error not reversible. initially She ment. stated she would pellant’s first of error is overruled. objections have conscientious to the death points through four of Mr. error six penalty, but later stated she could brief, Lane’s appellant asserts the same return affirmative which answers would challenge to sponte the court’s sua excusal constantly a death result sentence. She However, appel- four other jurors. as equivocated concerning ability her to vote concedes, lant made no objection impose penalty, the death and her an- Error, excusal of prospective jurors. these swers were often concluded with caveats any, 661; Rougeau, supra waived. as, “I I such don’t know what would do. Holloway v. think So don’t it would be fair for me (Tex.Cr.App.1984); Johnson v. get say thing on the one and then (Tex.Cr.App.1981). change my being mind.” After informed Appellant’s through points fourth sixth by the court numerous times that she error, brief, contained in counsel Lane’s are give yes no would have to a definitive or overruled. answer, responded Lewis to defense coun- Appellant, in his third questions sel’s as follows: erroneously contends that the trial court Now, COUNSEL]: [DEFENSE granted challenge cause to State’s believing beyond proper case of a reason- prospective Virginia juror Lewis viola- all of any ques- able doubt that those ¶. Illinois, 391 Witherspoon tion of yes, you could could tions be answered yes? them answer challenged The State Lewis of her because No. LEWIS]: [JUROR against penalty. ap- views the death your an- What COURT]: [THE plicable juror’s is whether standard swer? capital punishment "pre- views on would substantially impair” perform- vent or No. her LEWIS]: [JUROR being questions" issues not a model effective method in which to 5. "[T]hose of an 37.071, develop testimony. V.A.C.C.P. such Art. *10 No. are So there LEWIS]: [JUROR COUNSEL]:
[DEFENSE facts that circumstances or no set of And that would be COURT]: [THE could proved you you that could be cases? in all your position circumstances, no matter any under ever Yes. LEWIS]: [JUROR matter how case or no how bad a Irregardless [sic] COURT]: [THE killed, make many people were that could case? in the the evidence yes? questions you answer these Yes. LEWIS]: [JUROR say I would have LEWIS]: [JUROR re- The State will [PROSECUTOR]: I I don’t would no know what because challenge, Your Honor. new its do. Well, light her COURT]: [THE continued, Then, questioning Lewis as going answers, to sustain the Court from again responses in her once vacillated I can. challenge. I’ve done the best being issues not able to answer juror was a Prospective Lewis any being able to “yes” under facts to “vacillating” “equivocat and quintessential “yes” if she was “convinced.” answer them presented with such a ing” juror. Where questioning, fifty pages of Finally, after demeanor, expres elements such as juror, took over the examination the trial voice, sion, all of and tone of emphasis given: following testimony was and the record, escape purview of a cold which you Do feel there is [THE COURT]: assessing the mes factors in important are you answer- justify evidence that would fact, great of this sage conveyed. Because ing question6 yes? that court who to the trial deference accorded Well, being I don’t [JUROR LEWIS]: juror position to view is in the best know, no, I don’t say I’ll have to because strength of her views. Liv calibrate know. ingston v. You do not feel there [THE COURT]: (Tex.Cr.App.1987); Franklin you justify could be evidence would (Tex.Cr.App.1985) cert. de you to answer proper and render it nied, question yes? that second Williams (1986); I don’t know. LEWIS]: [JUROR (Tex.Cr.App.1981) cert. Well, I’ll have to ask L.Ed.2d 1008, 102 S.Ct. [THE COURT]: position way Granviel one or you to take Supreme so that Court will other (Tex.Cr.App.1976) cert. your position is.
know what 53 L.Ed.2d right, then no. All LEWIS]: [JUROR Wainwright v. opinion In the seminal nob—there You could Witt, Justice COURT]: stated, [THE Rehnquist is no evidence? juror bias cannot [Determinations Okay, then could LEWIS]: [JUROR ses- question-and-answer reduced to be be convinced that someone would be manner results in the obtain sions which continuing society. threat sense common a catechism. What experience has realized
should have
simply cannot
many
proved:
veniremen
you feel there is
Do
COURT]:
[THE
reach the
enough questions to
asked
presented to
be
any
that could be
evidence
made
has been
their bias
it
where
your mind could render
you which to
clear”;
“unmistakably
these veniremen
second is-
you to answer the
proper for
react when
how
will
read,
may not know
you find from
do
sue which would
sentence,
imposing the death
faced with
beyond a reasonable doubt
the evidence
articulate,
may
or
may
be unable
the de-
probability
there is
feelings,
hide their true
[foot-
wish to
criminal acts
commit
fendant would
clarity
this lack of
Despite
note
constitute a continu-
omitted]
that would
violence
however,
record,
there will
printed
ing
society?
threat
37.071(b)(2), V.A.C.C.P.
of Art.
being special
two
question"
issue number
6. "[T]hat
be
judge
situations where the trial
is left whether she could
penal
assess the death
impression
pro-
the definite
ty,
that a
and her
uncertainty,
continual
caveats
spective juror would be unable to faith-
qualifications
do not undercut the va
fully
impartially
apply the law ...
lidity of her solidified final stance.8 Grif
*11
why
this is
paid
deference must be
v.
As an
of such a
Rehn
the trial court’s determination that Lewis’
quist points to the voir
prevented
dire examination of views would have
or substantial-
venireman Pfeffer from O’Bryan
Es
ly impaired
performance
of her duties
telle,
(5th Cir.1983)
serve on the Her extreme emotional murder, regardless of the evidence which insecurity concerning the penalty, death might be adduced at trial. which manifested itself in her continual questions Lewis answered the as follows: equivocating responses, could have been you you Do feel that [THE STATE]: sufficient to substantially impair per her parties could not follow this rule of Moreover, formance. unequivocal, Lewis’ guilty capital find someone murder final statement that because of her views penalty and then assess a death where affirmatively she spe would never answer non-triggerman? are a Is that what cial issue number two was sufficient you’re telling us? justify her exclusion. Miller v. Yes, sir. [JUROR LEWIS]: (Tex.Cr.App.1987); S.W.2d 386-387 And that would be Briddle v. [THE STATE]: 384-385 your decision all cases? (Tex.Cr.App.1987); Knox v. Yes, sir, Livingston, su it would [JUROR LEWIS]:
pra. be, prior vacillating non-triggerman, Her statements as yes sir. interesting position It to note that this same result because it was the consistent she took appeed O’Bryan wets reached in the direct definitively when answer. The trial forced to Court, O'Bryan our see position in the best to determine her and, sincerity point, and resolve at that became (1980), even sufficiently satisfied that her stance was confi- though applicable wets standetrd that time questioning grant dent to terminate further stringent Witherspoon the more standard challenge. Additionally, the State’s defense Illinois, supra. counsel must have been somewhat satisfied of Lewis’ final answers confidence note, however, validity
8. We that the attributed uncharacteristically request since he did not fur- response simple to the final is not due to the questioning. ther statement, juror’s fact that this wets the last but confusion, exception Amid this Lewis stated that only to Lewis’ consistent guilty capi- participants could find both opinion came while the trial court was at- However, immediately there- tal murder. explain pro- tempting to the bifurcated trial explained further law after the State parties. cedure and the law of Lewis be- non-trig- solely the parties and the fact that began answering ques- confused and came trial, offering a factu- german would be on assumption that a tions based clarification, then asked example al “bifurcated” trial meant that he would be non-trigger- find Lewis he could ever sitting party for each on two trials —one re- guilty capital man murder. Lewis misunderstanding the offense. His became confusing really sponded, is what’s “[t]his clear in the voir dire the follow- later when way explained it and then to me. The ing transpired: now, explaining way you’re it Okay, you’re what LEWIS]: [JUROR *12 that I don’t feel that in all consciousness saying, is that we have reached a verdict forward, point could.” From this Lewis guilty penalty may of and whatever the find consistently stated that he could not be, segment but then in the second of the guilt the defendant did any in case where trial, speaking person the we’re of trigger. pull not pull trigger? Am I under- did not earlier, applicable standard As stated standing correctly? this “pre juror’s would is whether the views Yes, THE COURT: sir. substantially impair” perform or his vent And then we would [JUROR LEWIS]: The Wainwright, supra. ance. State particu- have to render a verdict on that inability challenged of his to Lewis because person. lar parties. Article 35.- follow the law right. THE COURT: That’s V.A.C.C.P., 16(b)(3), to authorizes the State pull That did not challenge prospective juror any [JUROR LEWIS]: for cause trigger? prejudice against “any who has a bias or is phase upon which the State the law right. THE COURT: That’s rely punish or entitled to conviction you’re Is that what [JUROR LEWIS]: Although vacillated some ment.” Lewis saying? position, possibly in his due to what right. THE That’s COURT: proce confusion the bifurcated trial over sir, right, All then [JUROR LEWIS]: dure, outset and clearly stated being my guilty person decision of on the he could not follow the end of voir dire that pulled trigger stand. Is would court, parties. The trial who was law of that correct? juror’s assess the position the best to THE Sir? COURT: views, that Lewis’ beliefs impliedly found I first said on the [JUROR LEWIS]: non-trigger consti concerning defendants brought in segment they of a trial and to against the law sufficient tutes a bias stipulates verdict and the law performance. We substantially impair his regardless of they’re equally guilty, supports the trial find that the record was, in the case what the crime whatever Phillips v. court’s determination.
may be. (Tex.Cr.App.1985) denied, 477 U.S. cert. you THE That is the law COURT: (1986); Selvage v. things find these that went over (Tex.Cr.App.1984); Ses beyond a reasonable you proven are sion v. S.W.2d doubt, yes. rt. ce 1876, right, All sir. But LEWIS]: [JUROR (1985). 85 L.Ed.2d trial we saying in the second you’re then contention, Dur Contrary that was with to trying the man would be trigger. rough v. pull the him did not but "[Tjhese being findings required 7.02. things" Code Sec. V.T.C.A., parties. Penal under the law of (Tex.Cr.App.1981), inapplicable wholly Appellant’s point to tenth of error tion. juror. Durrough
the instant
involved an
overruled.
granted
improperly
challenge
juror
to a
point
(first point
In his eleventh
of error
that, although
who stated
she had consci
brief), appellant
in counsel Lane’s
error
scruples against
penalty,
death
entious
fundamentally
that the
contends
trial court
Dur
applicable
could follow the
law.
she
failing
charge
pun
erred
to
rough, supra;
challenge
The instant
rely
could
the law
ishment that
on
inability
based
an Article 35.16
of the
answering
parties
issues
parties.
juror
to follow the law of
We
of Green v.
violation
due deference to
trial court’s
accord
(Tex.Cr.App.1984) cert.
inability
conclusion that such an
existed
(1985).
S.Ct.
84 L.Ed.2d
juror’s ability
would
obviate the
concedes, however,
failed
that he
jury. Appellant’s
serve on the
second
request
object
of such
the absence
error is
overruled.
charge.
object
The failure
all
charge waives
but fundamental error.
error,
ap
In his
fourth
Duffy
36.19,
V.A.C.C.P.;
Art.
pellant contends that the trial court incor
197, 204
de
rectly denied his
for cause
challenge
nied,
58 L.Ed.2d
Appel
prospective juror A.K. Richardson.
funda
constitute
challenge
exercised a
peremptory
lant
proportion,
egregious
mental
must be
*13
juror.
erroneously
this
Where a trial court
deprives appellant
harm
it
create such
that
su
challenge
36.19,
overrules
a defendant’s
for
impartial
a fair and
trial. Art.
State,
that he pra;
cause,
v.
157,
Almanza
the defendant
must show
686
S.W.2d
a
peremptory challenges
(Tex.Cr.App.1985).
all of
care
exhausted
171-172
After
record,
totality
of the
the
we
Appellant
harm
ful review
before
can be established.
error or harm.
made
such
find no such
attempt
no
to make
a show
has
he had
ing.
record reflects that
one
First, the
failure of the trial
Error,
peremptory challenge remaining.10
sponte charge
jury
the
that the law
sua
State,
v.
Demouchette
any, is
harmless.
parties may
applied
not
be
East
75,
S.W.2d
83 (Tex.Cr.App.1986);
731
not constitute
er
issues does
fundamental
State,
v.
606,
(Tex.Cr.App.1985)
702
S.W.2d
611
State,
supra,
v.
Green
Court
ror.
In
this
denied,
(1985);
rt.
1000
474 U.S.
ce
prior
8th
caselaw to
reversed
follow
State,
v.
701,
(Tex.Cr.App.1981)
White
629
707
S.W.2d
by
requirements
Amendment
announced
938, 102
denied,
U.S.
t.
456
v.
cer
Enmund
Supreme Court
the U.S.
1995,
(1981). Appel
Green,
supra
at
n. 4.
case,
ap
adduced in
instant
concerning
language
seizes
this
from Green to
conduct,
pellant’s
argue
substantially supports
it was
error for
fundamental
jurys’
spe
to omit an
“anti-parties” charge
the court
affirmative answers to the
However,
punishment.
charge
at
such
cial
Because
issues.13
conduct
by Green,
required
Enmund,
supra, or
alone
was sufficient
sustain the affirma
nor is it
supra,
by any
mandated
Texas
answers,
tive
we cannot find that he suf
See,
statute.
Stewart v.
egregious
fered
harm from the lack
anof
118, 124
(Tex.Cr.App.1984)cert.
charge
“anti-parties”
punishment.
U.S.
prophylactic
“anti-parties”
While
(1985).
itWhile is abundantly clear that an
given
instruction
be
punishment,
should
“anti-parties” charge
acceptable
would be
upon request, the absence
in
of such an
and,
fact,
Court,
applauded
see,
by
this
struction in the instant case did not consti
Blackwell,
McCormick
Texas Criminal
egregious
tute
error or harm.
Tison
Manual,
81.15, p.
Forms and Trial
Sec.
Arizona,
(9th Ed.1985)and 3 Texas
Practice
Criminal
(1987);
Bullock,
Cabana v.
75.103,
Guide,
75-58.1,
p.
Sec.
the failure to
S.Ct.
L.Ed.2d
give
charge,
request
such a
absent a
Estelle,
Skillern v.
over, challenged arguments. tion the special incorpo any the issues of themselves argument requirements by Generally, jury rate error is the Enmund-Green waived focusing upon by failure re directly solely object the defend the defendant’s See, State, culpability. quest disregard. ant’s Cuevas v. 742 an instruction to Briddle 331, 379, (Tex.Cr.App.1987); State, 343 (Tex.Cr.App. S.W.2d Bux- v. 742 390 S.W.2d 11. Author’s emphasis points unless otherwise noted. ceeds to assert numerous multifarious concerning argument Regardless jury of error. 12. We note that place appellant’s trial took appellant’s grouped disclaimer different 1982, Green, years prior two to our decision review, points expedite we find it to be much supra. expedient more to follow the rules. in- fifth, justice, finality 13. See terest of and due to the of appellant’s our discussion of sixth reviewed, error, points punishment, points post, were Tex.R. seventh wherein however, sup- sufficiency App.Pro., 74(p), against address port of the evidence to we warn R. special See, State, three issues. future violations. Woodard v. 696 1985, 622, (Tex.App.—Dallas no S.W.2d 625 footnote, Appellant, "recognizing”, after in a pet.). prohibition against this Court’s points multifarious error, 74(d), pro- Tex.R.App.Proc., R. 200 State,
1987);
(Tex.
Romo v.
through
points
2d
cert.
error,
ap
In his twentieth
101 S.Ct.
pellant
only point challenging
raises the
an
see,
(1980).
52(a);
Also
Tex.R.App.Proc., R.
However,
objected
argument.
jury
Tex.Jur.3d,
2928, pp.
sec.
743-744 and
argument
objection
was that the
2931, pp.
sec.
749-750.
rule is
“not a correct statement of the evidence.”
This
found
judge
rely
on
admonished the
appellate presumption
ed on the
that an
their own recollection of the evidence be
disregard
obeyed by
instruction to
will be
overruling
objection.
appeal,
fore
On
curing
possible
jury,
any
thus
error.
argument
contends that the
See,
State,
Waldo v.
746 S.W.2d
punishment
a comment on his failure to call
State,
Gardner v.
(Tex.Cr.App.1988);
-54
challenge
ap
on
witnesses. Because the
—
(1987)
denied,
730 S.W.2d
cert.
peal
comport
objection
does not
,
U.S.
—
trial, nothing
presented
review.
see,
Tex.Jur.3d,
Also
sec.
Sharp
(Tex.Cr.
However,
exception
751-756.
arises
Guzmon
App.1986);
argument
prejudicial
where the
is so
cert.
disregard
an instruction to
would not have
89 L.Ed.2d
Romo, supra;
Smith v.
cured harm.
Miller v.
201
Virginia,
Jackson v.
549,
(Tex.Cr.App.1981),
doubt.
443
612
552
and
sonable
S.W.2d
307,
2781,
Gran
99
U.S.
S.Ct.
While this
has
in
Court
money.
victim
demanded
When
deferring
Legislature
sisted
counter, appel
deliberate,
crouched down behind the
defining
the task
the term
try
opened
“Don’t
it” and
fire.
lant stated
approximated
meaning
have
its
in accord
disputed
usage”
Although
which defend
something
ance
“common
as
it is
as
Heckert
intentional,
wound,18 it is
more than
ant’s shots caused the fatal
exemplify
the conduct of the
the clarification
be afforded
defendant
"[W]hether
legislative
action
this area.
death of the deceased was
caused the
committed
deliberately
expectation
and with the reasonable
case, Williams,
18.In
co-defendant’s
that the death of the deceased or
would
another
*16
supra,
that Wiliams fired the fatal
we stated
37.071(b)(1),
Art.
V.A.C.C.P.
result....’’
assumption
upon
shot. This
based
guilty plea
accepting
Williams’
and statements
not,
Legislature
yet,
17. We note that the
has
as
However,
responsibility for the murder.
there
accepted
repeated
our oft
invitation
statutori-
conclusory proof
single deadly
is no
that the
ly
in the
of 37.-
fact,
define "deliberate"
context
by Williams.
chest wound was fired
In
7, 630,
See, Lane,
628,
071(b)(1).
supra at
n.
n.
points to-
case
evidence adduced
instant
J.,
(Duncan,
concurring);
630-631
deadly
appellant having
ward
fired
shot.
Williams,
322,
explicit
supra
shooting,
at
n. 6. Thus no
appellant told the driver
Just after the
again
applied
getaway
had
definition can be
herein. Once
of the
car that he
to shoot
accomplice
statutory
Appellant also
definition and
victim.
told another
we note
need for a
finding
appellant individually engaged
appellant
clear that
fired the first shot at
range. Additionally,
close
it was shown at
thought process
in a
which activated the
punishment
appellant
had committed
murder,
showing
intentional
thus
deliber
robberies,
prior
numerous
one in
he
see,
State,
which
Livingston
Also
v.
ateness.
shot the victim. This evidences the fact
(Tex.Cr.App.1987);
338-339
S.W.2d
killing
by
the instant
was done
State,
(Tex.Cr.App.1986)
v.
Carter
67-68
—
experienced robber rather than an excited
—,
denied,
t.
cer
108 S.Ct.
days
A
the commission
amateur.
few
after
(1987);
San
planning by appellant to commit the instant
dismissed,
appeal
denied and
476 U.S.
offense—hence the need to borrow the
(1986);
In our co- 680 S.W.2d case, Williams, supra, defendant’s we
stated,
rt.
ce
(1985). Appellant’s
Smith
In
those
omitted]
[citation
I. Nature
Offense:
support
find the evidence sufficient
finding on the is-
jury’s
affirmative
confession, entered
Appellant, by his own
of deliberateness.19
sue
gun with the full
the store with a loaded
Smith,
robbery.
He master-
Williams,
intent to commit
supra at 321. Just as
robbery, picked
appropriate
minded the
mirror-image
of the instant
the near
facts
Williams,
“hit”,
gun,
drew his
demanded
su-
case,
store to
recognized
as was
first, aiming
money
opened fire
direct-
jury’s
pra,
are sufficient
to sustain the
the evidence
thought
“In Smith this Court found
hit
that he fired the first shot which
argued
Additionally,
support
as
answers
the victim in the chest.
the affirmative
sufficient
prosecution,
angle
of the chest wound
facts concern-
issues based
during
appellant’s position
was consistent with
ing
conduct."
the defendant’s
individual
factually
robbery.
and evi
It is
unknown
Green, supra at 286.
shot,
dentiarily improvable
the fatal
who fired
Thus,
comport
findings
En-
in Smith
negate
does not
the deliberateness
but this
requirements.
mund-Green
individual actions. Santana
1986).
(Tex.Cr.App.
may themselves, in and of be sufficient finding to sustain a dangerous future Appellant years was nineteen old at the ness, e.g., O’Bryan see 591 S.W. committing and, time of the instant offense 2d 480-481 (Tex.Cr.App.1979),they are defendants, many capital unlike had 13 supportive planned, of a calculated and willing character witnesses testify for robbery cold-blooded during appel which him punishment. at The testimony ad- lant did not gun. hesitate to use his that, duced from these witnesses was while school, high appellant in was an outstand-
II. Prior Criminal Record ing athlete, average grades had presented disciplinary problems. no known Appellant’s history criminal exhibits a Appellant dropped high had out of school propensity for early violent offenses. age at support 17 to his just wife who had appellant was convicted of theft. On baby. had a family Several friends testi- 7, 1980,
July appellant placed was on nine they thought appellant fied that could be years’ felony probation robbery for a con- Appellant’s year rehabilitated. nineteen viction. It during was this probationary old appellant wife testified that had a small period appellant that committed the instant child given and should be another chance. capital 13,1980 August murder. On appel- parents His they got testified that divorced lant attempted committed an capital mur- appellant when was seven but both had a robbing der while Stop-N-Go a clerk at a good relationship with They their son. felt convenience store. The facts of this rob- appellant inwas trouble because of bery particularly are appel- violent pressures supporting family a and, lant demanded money gunpoint because he fell in with a bad crowd. gave had, when the clerk all he appellant demanded more. When the clerk was not support There is evidence to jury’s looking for the money quickly additional appellant determination that would commit enough, appellant shot him in the left criminal acts of violence in the future con- shoulder, just According above the heart. stituting continuing a society. threat victim, “shooting blood was Appellant’s out” statement that he would “shoot from body appellant his remained unth- any[one] got way” in his is borne out warted, in position the same through and continued prior history his criminal and the money. to demand On capital October 1980 facts of the instant murder. A rea- just days prior two capital to the instant jury appel- sonable could have found that murder, appellant ag- committed proven propensity another lant had aggrava- a gravated robbery at a convenience store ted robberies wherein he exhibited no hesi- wherein he took the open clerks’ wallets and the tation to fire on the chosen victim money registers from gunpoint. the cash outweighed by mitigat- which was not 14,1981, Finally, on June jail pend- ing young age, while in family pres- factors ing offense, possible for the instant amendability sures and to rehabili- part Further, contemplatedly took a violent es- tation. it was reasonable for cape plan involving gun, a loaded home- to have not found the “bad crowd” place fingerprints. and Williams contend that the vic- its usual and devoid It pulled gun, eyewitness highly implausible pulled tim but an testiñed that seems that the victim gun. up gun, fatally replaced the victim never touched or reached for the shot and then Although gun routinely kept gun place, leaving behind in its normal all without counter, robbery any fingerprints. store it was found after the *18 made); 1.02, mitigating light shall Art.
argument extensively in retroactive law be prior aggravated V.A.C.C.P.; Ridyolph v. the fact that some of by appellant, offenses were committed act- (statutes do alone, and, in ing in the offenses which Barbee v. apply retroactively); others, instigative acted with he took an (Tex.Cr.App.1968) cert. Appellant’s leadership role. sixth 1779, 23 point of error overruled. (1969) reh. (Code Con point
In of error number seven brief) applicable to of Crimi struction Act Code in chal (point two the Lane Procedure). lenges sufficiency of the evidence to Because first nal finding to support jury’s prior affirmative date of trial was held to the effective special number three.22 We find this (e), issue the amendment to subsection only support The contention meritless. application. has no Additional amendment of this issue is even submission prospective ly, presumed a statute is to be evidence victim the controverted operation expressly made retro in unless reaching gun for a in self-defense.23 V.T.C.A., sec. spective. Government Code true, robbery if this were victim has Even State, 311.022;26 Pesch v. right such de to defend himself without applica (Tex.Cr.App.1975) (prospective “provocation.” rising fense to the level of retrospective in presumed). tion No such of fact A reasonable and rational trier point ninth expressed. Appellant’s tent is seventy year old could have found that the is overruled. of error and, provoke appellant more victim did not is affirmed. judgment The of conviction over, appellant’s opening act fire at not, respect, point range any blank defen response
reasonable
to the victim’s
CAMPBELL, JJ.,
CLINTON
Smith,
See,
at
sive actions.
concur
the result.
393; Smith,
jury should be imprisonment, of life
sessment his first trial.24
applied retroactively to
See, p. 2673. Leg., ch. Acts 67th however, Code, spe Texas Government of a
cifically states that the amendment prior operation not affect its
statute does it. V.T. any prior action taken under 311.031(a)(1).25
C.A., Code sec. Government I, (no also, Const., Art. sec.
See Tex. same, law, substantially stating be- 25. Prior defendant the conduct of the 22. [W]hether Act, V.T.C.S., ing 2, Construction Art. 5429b- Code killing in re- was unreasonable the deceased See, Leg., ch. Acts 60th sec. 3.11. any, by provocation, the de- sponse to the p. 1039. ceased. same, law, substantially stating be- 26. Prior 20, ante. See footnote Act, V.T.C.S., Art. 5429b- ing 2, Construction Code Leg., ch. 60th sec. Acts 3.02. 1, ante. 24.See footnote p. 1038.