*1 RIDDLE, Appellant, Granville Appellee. Texas,
The STATE of 71011.
No. Texas, Appeals of
Court of Criminal
En Banc.
June 1994.
Rehearing Sept. Denied 1994. *2 37.071(b), penalty.
death Article V.A.C.C.P. Court, automatic, appeal to this direct appellant points sixteen of error. raises We shall affirm. trial, appellant the vic-
At testified he and years. tim had known each other for several 9, 1988, appellant On October and a friend drove to the victim’s home to see he want- drinking. go Appellant testified he ed pry a tire iron so the screen carried he could entry, gain off the kitchen window to but Appellant found a door unlocked. entered through the victim’s house an unlocked door “drunk, passed him and found out” bedroom. began
Appellant woke the victim and appellant talk to him. The victim told he relationship wanted to have a homosexual leave, appellant got up him. As arm, by pulled grabbed appellant victim him, top put lips on on ear, appellant’s put appel- one hand on Appellant lant’s butt. hit the victim “on the top” of his head with the tire iron. blow, testified that after he struck the first appellant got and the victim out the bed up, grabbed “raised his hands his head and moaning.” Appellant in- started testified he victim, flicted more blows and the got. The more he hit him the madder he victim was struck in the head at least fifteen house, he took times. As left the the victim’s wallet and his car. pathologist, The forensic who conducted autopsy, the victim’s the victim’s testified Davis, Kolius, Amarillo, Kay ap- V.G. blood-alcohol level was .29% which showed pellant. extremely the victim was intoxicated to Hill, Atty., Clay- Danny Wesley E. Dist. G. sensory degree that his motor and functions Sadler, Attys., ton and Bruce Asst. Dist. “totally pathologist further out.” The Huttash, Amarillo, Atty., Robert State’s Aus- multiple cause of death was testified the tin, for the State. trauma, fatal blow was blunt force and the victim “behind the left one which struck the compressed in the mastoid area and ear spinal pathologist also testified cord.” OPINION fatal blow. the first blow was not the McCORMICK, Presiding Judge. three, ap two and erroneously by jury pellant the trial court Appellant was convicted Pot- contends challenges for cause to venire- County pursuant ter murder denied his 19.03(a)(2). V.T.C.A., Code, members and Miller Penal Section terms “in distinguish could not between the answered the issues After affirmative, “deliberately,” any pro- tentionally” and imposed the trial court know, just talking I on the by ability distinguish them to those You fessed street, in one sen- might use deliberate terms was based on the State’s use of mis- effectively tence, intentionally the leading hypotheticals you might de- use stroyed any meaningful difference next time— in violation of Lane v. those terms *3 Right. “A. (Tex.Cr.App.1987), proge- and its S.W.2d 617 well, obviously, “Q. the —with the same— ny. appellant peremp- The record reflects looking for more. Legislature is torily Payne struck and Miller after the trial “A. Uh-huh. challenges to court denied his for cause “Q. suspect we think —there And we —or After had exhausted his them. no definition for it at this time. There is strikes, peremptory fifteen the trial court trial, by get but might be the time we to granted appellant peremptory another strike deliberately at no definition for there is requested used. later he this time. peremptory another strike to use on venire- looking “But I are for more believe trial member Glenn which the court denied. thought process. Appellant informed the trial court he would “A. Uh-huh.1 peremptory have used a strike on had Glenn erroneously his denied “Q. You a definition for inten- will receive challenges for cause to several other venire- those, tionally. already have one of We including Payne members and Miller. Glenn long time. and we’ve had one of those for juror. twelfth To was seated demon- is, intentionally person that acts or And error, appellant strate reversible must show respect with intent with to the nature of erroneously the trial court denied his chal- conduct, objec- it his conscious when is lenges for cause to both and Miller. engage or tive or desire to in the conduct See Martinez to cause the result.2 objective conscious or his “It’s either his engage in or to desire to that conduct
During the voir dire examination of State’s cause the result. Payne, prosecutor discussed the terms “intentional” and “deliberate” as follows: “Now, desk, I’m sitting my if I’m at and note, message beginning to write some or Now,
“Q. go question. let’s to the first up pen, begin something. pick I this and I you that I that Remember told murder it, stop and I and look back to write with knowing causing and intentional go pen at the other for a moment and death of another individual. And for our one, pick up it and I use this ahead and hypothetical, already we’ve found that he certainly pick act I it’s an intentional when intentionally knowingly and that caused objective up. this It was conscious death. pen. this and desire to use “So, Legislature when the constructed this I “It was also an intentional act when question “deliberately,” and used the word picked up, one but not obviously, they looking were for more than intentional, also deliberate. I had it was knowingly intentionally, thought it a thought process. about silly you would be answer you Do follow me? question moment. twice. “A. Yes. Right.
“A “Q. “Q. you going tripa you probably agree And would If to take know, life, you at every day you may and I here to Red there’s me that River — that, intentionally more than interchange and deliberate. least two routes. There’s Apparently anticipating usage trial court overruled next set of of that term. The 1. State’s questions, appellant objected granted running then to the State’s appellant’s objection him because, things, among examination hypotheticals other questioning. objection line of to the State's by used the State failed to illustrate meaningful difference between intentional by emphasis supplied 2. the writer. All conduct, deliberate and the State failed to define "deliberately" meaning and within the common Now,
but, know, Boys “Q. Okay. you let tell this: We you you go can me either Dalhart, you prove premeditation. The go or can do not have to Ranch Road and says premeditation is specifically law to Dumas to Dalhart. something you. we do not have to your get up morning, you pack “You So, premeditation somewhere going intention of to Red car with the “deliberate,” intentional is that word or you pull up stop sign River. Then process— thought that extra your or not make decision as to whether Right. “A. Road, Boys Ranch going are to take through you’re going go expecta- Dumas. “Q. purpose —it was on with the would result. Follow tion that death objective certainly your “It was conscious me? go to Red River. You did and desire to *4 “A. Yes. you act. Then make that as intentional you’re going Now, to may a decision as to which route “Q. right. you receive All an intentional act. But take. That’s also during guilt enough evidence innocence thereto, act, a deliberate trial, in addition it’s whereby phase, phase the first of the you thought process. had more you question you think can answer this thought longer. You about it know, thing yes. the first that is You but happen you guilty, find him I’m going to if you “Do follow me and see the distinction desk, I’m going up to stand at this and making I’m those two? between Honor, retender, say, we or going to ‘Your “A. Yes. they’ve all the evidence we resubmit you “Q. right. All And don’t—I notice you can consider all Which means heard.’ yet, you any children but when don’t have surrounding things you heard that children, know, you you get there will be crime. sure, time, your getting I’m when child is you may have heard “And evidence house, up ready they walk to leave the and only you it was not inten- proved to that door, they open the door to to the tional, thought do that extra that he did leave, you your says, ‘Don’t leave wife with the process, and it was deliberate this house.’ expectation that death would result.” they the room. And stand “And she leaves questioned as follows: Appellant then moment, they go on out. there trial, “Q. Okay. particular In this we “A. Uh-huh. anything probably more than have focused Well, objective “Q. it was their conscious ‘deliberately.’ And since else on the word It was an desire to leave that house. Attorney, and you’ve talked to the District up to act when walked intentional you experience have had a little bit since But it was a deliberate open that door. Attorney had read and since the District thought they sat there and about act when you must use the definition that out. moment and then went on it a is, person acts “intentionally” word —that intentionally or her conscious when is his you “Do follow me? objective engage in the con- or desire “A. Yes. cause the result. duct or try- “Q. youDo that distinction we’re see words, us, just your you own “Could tell ing to make? see, sir, you that there is the difference Yes. “A. mind, intention- your difference “Q. thought process. And And that extra deliberately used in the context ally and you beyond a reason- prove we have question? first of that process thought extra able doubt that me, Well, bit hard. To “A. it’s a little there, expectation a deliberate act with mean about the same. those words that death would occur. say, I people lot of so “Q. That’s what a you? you us that make “Would understand. Yes, “A. Yeah. I would.
“A. death would expectation that At- reasonable that the District “Q. The difference occur. you that it takes torney suggested to has thought process. more
a little more —some “A. Yes. difference, you feel that’s the “Do you agree that? “Q. with Would agree that? you do “A. Yes.” Well, sounds reasonable to me. “A that mean, say, I it’s all hard for me like used contention the State support of his words, ap- the two tell the difference between understand hypotheticals, we improper it, “pen” like that could be “trip” but it sounds arguing be the State’s pellant to thought process. a little more the law hypotheticals takes misstated and “child” per-
by informing the veniremember only by capital murder guilty can son be me, they really say, because to “A. I can’t that causes intentionally engaging conduct thing. you pretty much the same mean If See, e.g., Morrow v. death. intentionally something or delib- that’s do (Tex.Cr.App.1988) 375-76 n. 3 you’re you do it because erately, — (intentional of conduct murder is a “result it. That’s definition. want to do offense;” must intend to en- the defendant your objective? “Q. be conscious It would the death gage in conduct that causes *5 Yeah, to do that.” “A. desire that con- death result from and intend that duct). Lane in questioned Appellant primarily as follows: relies on The State then argument. support of this Charles, Leg- “Q. you recognize when the question that first islature created Lane, “shooting in ceil- the the State’s they the word —not defined the defined of misstated the definition ing” hypothetical in- they used the word ‘deliberate’ word — by suggesting person could be “intentional” ‘intentional,’ certainly stead of though even he did guilty capital murder ques- make sense to answer that would not inten- result from his not intend that death they exactly again tion mean the same. State, at 743 S.W.2d tional conduct. Lane that, you? me on don’t You follow part of the State’s 627-29. The second “A Yes. ceiling” hypothetical also “shooting in the “Q. examples you remember those And improperly suggested that “intentional” you gave that I earlier as to the extra essentially the mean- “deliberate” had same thought process required that’s in order to being that delib- ing difference prove up and intentional? deliberate above finding that required a erate conduct Yes, expectation that death “A I remember those. actor had a reasonable conduct; his intentional result would “Q. Okay. You make us would hypothetical created a part of the the second those, you would not? actually “was “deliberate” which definition of “A. Yes. “intentional.” Id. working definition” you somebody “Q. because found Just Therefore, a false hypothetical created intentionally guilty of com- knowingly and and deliberate between intentional distinction murder, mitting you would not conduct, only have confused the and could automatically question first answer that impression of common sense veniremember’s ‘yes,’ you? would Id. and deliberate conduct. intentional No, “A I would not. “Q. You wait until heard would Lane, Here, “trip,” unlike the State’s phase to the miti- and listened properly il hypotheticals “pen,” and “child” circumstances, aggra- gating as well as by in of intentional the definition lustrated vating circumstances? required a con forming the veniremember “A Yes. result; a conscious desire to cause scious objective pen, to take a to use a as desire and “Q. then make the determination And Morrow trip, and to leave a house. See thought that or not that extra to whether Aso, State, un- n. 3. at 375-76 with the 753 S.W.2d a deliberate idea he could form 6 Lane, State, suggested Payne.
like the State that deliber- cause to See Satterwhite v. (Tex.Cr.App.1993). required thought process” 858 S.W.2d 417 [than ate “more purpose” intentional] or “on and with the Having determined the trial court did not expectation that death would occur. There- denying appellant’s challenge in err for cause fore, Lane, hypotheticals unlike the State’s Payne, unnecessary it is to address wheth- did not misstate the definition of “intention- erroneously appellant’s challenge er it denied suggest al” and did not that “deliberate” was for cause to Miller. Mil- We reviewed actually working definition of “intentional.” essentially ler’s voir dire and find it is Payne’s the same as voir dire. The State argu- We also understand to be hypotheticals gave used the same and Miller ing defining “deliberate” as re- State’s essentially responses Payne. the same quiring thought process” improp- “more Therefore, deny- trial in court did not err usage er because it was not the common ing appellant’s challenge for cause to Miller. However, is, meaning of that term. Appellant’s points of error two and three are effect, the same basis this Court several overruled. distinguished eases has “intentional” from “deliberate” conduct. See Lane v. one, con find S.W.2d 628. We no error denying appel tends the trial court erred definition the used for “deliberate.” State lant’s instruction on self-defense because the If evidence raised the issue self defense. argues also the State’s self-defense, the evidence the issue of raises hypotheticals improper the accused is entitled to have it submitted to “merely preparation describe acts of jury. Dyson argument do not even cause a result.” This (Tex.Cr.App.1984) citing Semaire principle overlooks the that “intentional” and State, A “deliberate” are terms which describe mental person justified using deadly force *6 completed states instead of acts. See “(1) against another when: the defen V.T.C.A., Code, 6.03(a); Penal Article Section justified using dant would have in been force 37.071(b)(1), person pos A can Y.A.C.C.P. (2) 9.31; person § in under reasonable causing sess a certain mental state without not retreat defendant’s situation would result; therefore, hypotheticals which illus (3) ed; deadly and the use of force was type trate a of mental do not have to state reasonably immediately believed to be neces involve acts which “cause a result” for the sary protect against the defendant anoth purpose explaining of a certain mental state attempted deadly er’s use or use of unlawful distinguishing or between different mental force, prevent or to the imminent commission states. State, specified of violent v. crimes.” Werner 639, (Tex.Cr.App.1986); 711 S.W.2d 644 Appellant argues also the State’s V.T.C.A., Code, Penal Section 9.32. hypotheticals improper simplistic had consisted situations which Appellant that after the vic testified nothing capital to do with a murder case. him, tim homosexual advances toward made Appellant authority, cites no and we are he hit him in the head with the tire iron and none, prohibits from aware of the State got Appellant off the bed. remembered the using simple, hypotheti- noneriminal hands, conduct raising grabbing his head victim his . “in Thereafter, cals to illustrate the distinction between moaning. appellant hit the tentional” and “deliberate” conduct. See victim in the head at least fourteen more 74(f). Tex.R.App.Pro. We find no error sim testimony the victim times. There was no hypotheti- ply simple because the used sexually appellant State attempted ever assault fact, might In any way cals. be desirable use initial blow or harm him in after the simple hypotheticals to illustrate difficult-to- testi to the victim’s head. did not distinguish fy attempted in a murder case. terms he could not retreat or he dire, doing so. totality prevented Based on the of the voir we retreat but was wielded a say cannot court abused its discre There was no evidence Bennett the trial appellant from leav- denying appellant’s challenge weapon prevented in which tion
7 consider- special issue under justified given to that in his use of mg. Appellant was V.T.C.A., Code, ation.” Penal Section deadly force. have re person would 9.32. A reasonable following court also submitted The trial and, deadly using force treated’ without charge: in the definition therefore, appellant not entitled to was may in- mitigating A circumstance "... v. on self-defense. See Martinez instruction to, clude, any aspect of not limited but is State, 645, (Tex.Cr.App.1989); 647 775 S.W.2d character, background, or the defendant’s (Tex.Cr. 776, State, 779 621 S.W.2d
Barree record, of the crime circumstances and the State, (on reh’g); Sternlight v. 540 App.1981) could make an affirma- you believe 704, Point of under con- special issue tive answer to is overruled. error one in this case.” inappropriate sideration four, six, ten, and eight, In of error nearly given here is identi instruction twelve, challenges the constitution appellant in Fuller approved cal to the one this Court scheme, ality capital sentencing as of Texas’ 191, (Tex.Cr.App.1992), — ease, Eighth and in under the applied his denied, U.S.-, 113 S.Ct. rt. ce to the United Fourteenth Amendments (1993). Here, 124 L.Ed.2d Ly Penry v. pursuant to States Constitution charge the trial court’s ex Fuller v. naugh, 109 S.Ct. 492 U.S. jury pressly to answer one authorized (1989). four, point In of error L.Ed.2d 256 negative if it special issues more of the the trial court erred contends “mitigat thought the evidence had sufficient objections overruling to the his charge ing any kind.” Id. The value of See mitigation charge because the instructions on infir constitutional adequate to avoid the jury’s improperly limited the consideration by Penry Lynaugh. See mity condemned mitigating four, six, ten, issues. eight, his evidence Id. Points of error six, appellant point In of error contends twelve are overruled.
jury give full could not consideration fourteen, alleg- point mitigating all relevant evidence be effect to Arti- is invalid because es his death sentence overruling cause the trial court erred V.A.C.C.P., 37.071(b)(1), is unconstitution- cle objections “mitigating definition of evi to the ally Appellant has not shown how vague. charge. in the court’s dence” 37.071(b)(1) unconstitutionally Article eight, appellant alleges error 37.071(b)(1) consistent- vague Article has submitting instruction that erred ly See Jurek been held constitutional. *7 hopelessly confusing and the was instructed 2950, 2957, Texas, 262, 274, 428 96 S.Ct. U.S. jury disregard oath under Article to their State, (1976); 929, Motley v. 49 L.Ed.2d 939 error, 35.22, point In his tenth of V.A.C.C.P. 283, (Tex.Cr.App.1989). 286-87 773 S.W.2d by appellant trial court erred asserts the is overruled. Point of error fourteen refusing appellant’s request for an additional seven, nine, five, points In of error special Appellant’s point of issue. twelfth fifteen, eleven, appellant makes thirteen alleges error his death sentence is invalid points of as he does the same contentions 37.071, Y.A.C.C.P., limited because Article ten, four, six, four eight, twelve and error jury’s mitigating evi the consideration of I, and 19 Article Sections 13 pursuant teen to dence. merely of the Texas Constitution. the trial court The record reflects authorities relied adopts arguments the charge following jury at the submitted the the United support argument his under on to phase of trial: The Texas Constitution Constitution. States determine, giving to protection
“If effect than the may provide greater when evidence, Constitution; however, each mitigating that a life sen- the States United tence, negative finding developed independently to by argument be as reflected must State, consideration, than v. 858 S.W.2d under rather other. Elliott the issue of the See sentence, 478, v. appropriate (Tex.Cr.App.1993); re- Johnson is an 487 a death 527, State, (Tex.Cr.App. 533 personal culpability of 853 S.W.2d sponse to the moral 1992), defendant, be negative finding should 8 — U.S.-, 154, 126 by hypothetieals, attempted
cert.
114
tor’s
which he
to
denied
S.Ct.
(1998);
v.
L.Ed.2d 115
see also Heitman
demonstrate
difference between the two
State,
tendency to militate in favor of affirmative answers, nevertheless, may if it has an 1148-92. No. mitigating impact, serve as independent Texas, Appeals of of Criminal answering more of the Court one or basis ‘no,’ jurors’ En Banc. special spite issues of the honestly, special to answer issues oaths Sept. 1994. with what believe accordance * * * In the relevant evidence shows.
short, simply adequately inform does may that it assess a [mitigating on account of
less than death
evidence], irrespective of what the evi- and fu-
dence shows as to deliberateness dangerousness.”
ture
Id., (emphasis original). at 316 & 317 in the mini- in Fuller was at least
The instruction
mally adequate to serve this function. The
instruction here is not. explanation, an more instruction
“Without baldly jury may consider tells the mitigating alto-
evidence to be that seems issues, special
gether irrelevant to the sense, aggravating is
relevant
likely in context of our scheme to confound
rather than inform.”
Rios, supra, at 317.
However, identify appellant is unable to
any mitigating cannot be evidence that either mitigating
accounted for in fashion within the issues, special see
confines of the Johnson
Texas, -, 2658, 125 113 S.Ct. U.S. (1993), or has
L.Ed.2d 290 Court significance agree mitigating
seen fit to has Penry
apart issues. re-
quires no instruction at all absent introduc-
tion of such evidence. That the Penry
gave an insufficient instruction appellant’s not a basis to reverse
therefore
conviction.
Accordingly, I concur the result. *9 BAIRD, JJ., join II of
MILLER and Part opinion. Smith, Looney, Hous- Paul C.
Kenneth W. ton, appellant.