*1 case to rebrief the before tioner’s counsel STALEY, Appellant, appeal, especially since Kenneth
disposition of the Steven untimely attempted to submit counsel had Brief,” which the Court a “First Amended [Cantrell consider. As refused to Texas, Appellee. The STATE Cir.1977) (5th ],
Alabama,
the courts appeal_”
petitioner a new and out-of-time
Id., at 664. This did. Passmore 607 F.2d
Although by no means a the instant brief is brief,” similarity between
“one-sentence disposition in
the issues and Passmore By summarily dis-
the instant case remains. forty forty-five points
posing only postpone
of error we the inevitable.
Experience teaches us that we will be forced appellant’s rights to effective as- address appellate process,
sistance of counsel and due by
either order of federal court or
post-conviction application for of habeas writ
corpus. 11.07. Tex.Code Crim.Proe.Ann. art.
Consequently, judicial the interests justice,
economy order the we should
brief in this case redrawn. If this cannot be counsel,
accomplished present appellate
we should remand the case to the trial court appointment appellate
for the of new counsel. comments, I
With these dissent
majority’s to not order this brief decision join judgment I
withdrawn and seventeen, five, of error
Court
twenty-seven twenty-eight. *3 Bums, McCrarey,
Danny Mary D. Robert Worth, Thornton, appellant. B. Fort Betty Atty., and Mar- Curry, Tim Dist. Conder, shall, Mallin, Steven W. Charles M. Mullen, Barta, Lisa Marc Moore & Terri Worth, Attys., Robert Hut- Asst. Dist. Fort Austin, tash, Atty., for the State. State’s stepped Robert Read slightly forward and nudged managers, two other assistant indi- they cating they should remain where were. OPINION Appellant then open commanded Read to registers cash and the safe. He also dictated McCORMICK, Presiding Judge. employees in that the the storeroom throw guilty found for the wallets, aprons. out purses their One murder of Robert Read the course of head, employee lifted be kicked V.T.C.A, Code, robbery. Penal Section by appellant. Appellant the chest threatened 19.08(a)(2). appel- The trial court sentenced employees that if any other others looked lant affirmatively death after the up, kill away!” he’d them —“he’d them blow special answered all the submitted issues. *4 police Believing The arrived. that Read 37.071(b), Article Appeal V.AC.C.P. to this button, pressed had alarm appellant silent 37.071(h), Court is automatic. Article police threatened that if the were outside V.A.C.C.P. willWe affirm. going Read be was to the to first die. Read calm. He appellant remained told there I. buttons, panic were no but would he be their hostage go error, long and out front them his first and second with as challenges sufficiency they appellant employees. the as did not hurt the the other Read, you evidence. His first “if up contention is that told fuck one time, prove appellant you.” evidence is to insufficient I’ll kill “intentionally” Appel killed Robert Read. Appellant, accomplices, his two and their lant’s second avers that the evidence is hostage they Eventually left the restaurant. prove insufficient to his act was committed hijacked a two-door Buick on Alta Mere “deliberately.” In reviewing challenge Duke Road. went around to the driver’s side evidence, sufficiency of the standard get and instructed the owner of the vehicle to whether, viewing “is after Rayburn got out. Duke and in the automo- light prosecution, most to the favorable Appellant pushed bile. into Read the back rational trier fact could have found the seat of the car and followed him. Police beyond essential elements of the crime gunshots heard as car several accelerat- Virginia,
reasonable doubt.” Jackson v. ed. 307, 319, 2781, 2789, U.S. 61 L.Ed.2d (1979); Upton During high-speed pursuit appellant A review of the facts accomplices, containing and his a brief case necessary. money some of the stolen and both semiauto- pistols matic were discarded at various loca- During spree, Tracey a four-state crime Ultimately, tions. the car broke down and Duke, Rayburn, appellant Brenda and ar- accomplices attempted All three flee. 14,1989 on rived October at a Steak Ale quickly captured. Appellant’s were first County just prior restaurant in Tarrant “[djon’t were, arresting words to the officers dessert, closing. After dinner and Duke and po- Upon apprehension, kill me.” their appellant removed two MAC 11 9-millimeter body lice discovered Read’s in the back seat pistols Rayburn’s purse. semiautomatic from of the Buick. Appellant secured the kitchen and rear area restaurant, proceeded of the while Duke The medical examiner testified that Read Appellant gathered
secure the front. all the object had suffered a blow a blunt to the employees in During the kitchen storeroom. The nature of wound forehead. led manager the confusion an slipped assistant Read’s was station- examiner believe head police. out a rear door called the ary the blow occurred. Read had also when head, restaurant, securing appellant After been shoulder and shot side. manager present demanded that the himself. The examiner testified Read was medical one occasions he intended kill right temple merous shot in the distance police The evi- seconds, if the were outside. Read thirty approximately inch. Within jury rationally sufficient for a dence was region. in the Both Read was shot shoulder intentionally Read as shot conclude been The third shots would have fatal. impending exe- attempted to off his he fend imme- would have been final bullet which error point of Appellant’s first cution. The diately fatal entered Read’s abdomen. overruled. the bul- medical examiner testified that when right right let entered Read’s shoulder is suffi also believe the evidence We forensic arm down at his side. rationally that a conclude cient expert gunshot that the to the shoul- testified deliberately.1 appellant acted nine approximately der at a distance of gun on powder There was residue inches. stage of the trial guilt facts at the “The expert both of Read. forensic hands support alone can often sufficient powder finding hands could spe testified the Read’s affirmative penalty stage at the trial. attempting to cial issues with consistent someone Williams himself. defend denied, 493 (Tex.Crim.App.1988), cert. 207] [110 presented guilt The evidence *5 jury must find “a of delibera ‘A moment phase jury of the trial is for a sufficient actor and the determination on the tion appellant “intentionally” rationally conclude answering justified kill” it is in before brief, appellant shot and killed Read. In his “yes” special number one.’ Kin issue struggle contends a ensued in the comman (Tex. State, 84, 95-96 namon v. 791 S.W.2d appellant deered car between and Read. Crim.App.1990). of The determination de grabbed pistol When Read semiautomatic must liberateness be found from totali appellant, pistol from went off several ty of the circumstances.” Johnson times. alludes to several wit State, (Tex.Cr.App. testimony concerning in nesses’ movement 1992). car as well as that a side the evidence bullet error, point appellant in the first As Buiek as exited the front windshield of the struggle limited of a illus- to the evidence theory. supporting further evidence this deliberately. did appellant trate not act However, light when viewed in most fa verdict, disagree ap with vorable struggle of a is believe evidence We pellant’s contention. not inconsistent with a determination deliberately. appellant Read’s that acted specific may intent to kill inferred “The may attempt an last efforts have been deadly weapon, from the use of a unless impending by appellant. avoid his execution reasonably appar- it manner of its use appellant A believe that rational could bodily injury seriously ent that death or right temple. point in the shot Read blank State, Godsey not result.” could telling even more (Tex.Cr.App.1986). The 580-81 to kill his threats to kill intention Read was indicates in that Read this instance robbery police if the throughout Read in the at a distance of one inch shot appel- The outside. evidence indicated were region right temple as at a as well incorrectly responsi- Read was lant believed region right range of nine inches summoning ble for the officers. evi- These shots fired within shoulder. were appellant dence is sufficient to believe acted thirty of each The evidence deliberately. Appellant’s point seconds other. second er- appellant nu- repeated also indicated that ror is overruled. expec- deliberately special provided issue Article ted and with the reasonable V.A.C.C.P., 37.071(b)(1), inquires, or tation that the death of the deceased anoth- result; the conduct of the defendant "whether er ...” the death of the was commit- caused deceased error,
II. In appellant his sixth con- overruling tends the trial court erred in error, appellant his third objection racially to the State’s motivated argues the trial court in not disqualify erred challenge peremptory to veniremember Cal- ing veniremember Aston because he was un peremptory vert. After the State’s chal- legal 35.19, der a accusation of theft. Article lenge, objected alleging the chal- V.A.C.C.P., specifies that no veniremember lenge 35.261, V.A.C.C.P., Article violated impaneled appears “shall be when it that he Kentucky, Batson v. subject second, third or fourth cause (1986).2 35.16, challenge though Article both parties may consent.” The third cause of Recently, in Chambers v. we ad- challenge in Article 35.16 is the venire- challenges stating, dressed Batson member “is under legal indictment other any felony.” Today, accusation of theft or Batson, “In Court outlined phrase we must decide whether the “other analytical tool for testing challenges legal necessarily accusation of theft” includes the State’s use of strikes: a civil suit. Initially, the defendant must establish a prima showing that the State exer facie exercising construction, statutory peremptory challenges cised its on a basis Court has unambigu looked the clear and of race. The burden then shifts to the language Boykin ous of the statute. explana State to articulate race-neutral (Tex.Cr.App.1991); strikes; questioned tions for its the defen Moore v. (Tex.Cr.App. S.W.2d 787 may dant explanations. rebut these Final 1993). Appellant contends the term “accusa ly, the trial court must determine whether tion” legal does not have a technical defini the defendant has carried his burden of tion and interpreted therefore it should *6 proving purposeful racial discrimination consistent its with common definition. In [Batson, 106, the state. 476 at U.S. 106 parlance, common the term “accusation” has 9, (Tex.Cr. at 1728.]” S.Ct. 866 23 meaning broad including oral or written App.1993) wrongdoing. law, cries of in the the term “accusation” is limited to “a formal is Caucasian. Veniremember charge against person, to the effect that he Calvert is African-American. Prior to Cal- guilty punishable offense, is of a laid before a vert three other African-American magistrate jurisdiction court or having veniremembers were for called examina- inquire alleged into the crime.” Black’s Law successfully challenged tion —two were for Dictionary, Ed.1983; 5th States United v. by appellant, cause the other was successful- Patterson, 65, 68, 14 20, 21, 150 U.S. S.Ct. 37 ly challenged by the State.3 The State used (1893). L.Ed. 999 it We believe was the challenge their ninth peremptory on Cal- import clear of Legislature previous eight vert —the were used non- phrase legal “other accusation” was to corre African After American veniremembers. spond legal with the definition of “accusa peremptory challenge, State its ap- exercised tion,” specifically a charge formal criminal pellant objected, upon based Article 35.261 against Therefore, an individual. a civil Ohio, and Batson. Powers v. 499 See U.S.
pleading alleging conversion does not consti 400, (1991) 1364, 111 411 S.Ct. 113 L.Ed.2d challenge tute a cause under Article 35.19. (white Accordingly, appellant’s challenge can per- defendant a state’s third error veniremember); overruled. emptory of a strike black State, 227, Recently in Butler v. challenged individually. 872 S.W.2d are examined and 1994), (Tex.Cr.App. 246 we held Article 35.261 challenge this instance the Batson occurred dur- Therefore, inapplicable capital cases. dire, ing voir therefore we our limit review analysis appropriate limit our state and federal prima showing available facts facie constitutional considerations. ruling. at the time court's challenges 3. Batson in our cases are nec- essarily problematic because the veniremembers
891
accord,
869,
offered
the Texas
protection
870
as to the
Mead v.
protection
differs
or how
The trial court deter- Constitution
prima
guaranteed by the U.S.
protection
mined
failed to meet his
from the
appel
to pursue
instance.
decline
burden
Constitution. We
facie
arguments
lant’s Texas Constitutional
527,
policy
in Batson
853
533
of this Court
him.” Johnson v.
challenges has
review trial
74 and
Tex.R.App.Proc.
been not to
(Tex.Cr.App.1992);
court’s determination of whether the defen
prima
showing.
dant has made a
Dew
facie
his federal constitutional
support of
(Tex.Cr.
589,
berry v.
591
challenge,
Witherspoon
appellant cites
Rather,
App.1989).
we have avoided
Illinois,
Witherspoon
391
progeny.
its
v.
rigid
appellate
determinations for
review
1770,
510,
776
U.S.
88
20 L.Ed.2d
S.Ct.
findings by
Dewberry
such
trial courts. See
Witt,
412,
(1968); Wainwright v.
469 U.S.
State, supra;
Department
v.
Texas
Com
844,
(1985); Gray
841
v.
105 S.Ct.
83 L.Ed.2d
Burdine,
248,
munity
450
U.S.
Affairs
648, 107
2045,
95
Mississippi,
U.S.
S.Ct.
253-54,
1093-95,
1089,
(1987). Appellant acknowledges
L.Ed.2d 622
(1981). However,
in this
instance
contemplate
the cases
use
cited
the State’s
prima
showing
at the
court was
facie
challenge
for cause to eliminate venire-
only that the State struck a member of an
sentencing a
members
are hesitant in
who
group.4
identifiable racial
This is not suffi
Witherspoon,
defendant to death.
391 U.S.
prima
cient to meet
defendant’s
bur
facie
1777;
Wainwright,
at
at
88 S.Ct.
purposes
den for
of Batson. See United
852; Gray,
at
U.S.
nied,
2220,
953,
saying
110 S.Ct.
what I
109
“VENIREMEMBER:
Howard,
(1990); People
L.Ed.2d 545
really,
simply
147
saying—I
said
I was
what
103,
914, 927-928,
Ill.2d
167 Ill.Dec.
588
guess,
thinking
for some reason we are
(1991);
1044,
N.E.2d
1057-1058
State v.
put
different.
If
were
the evidence
before
Johnson,
119,
547,
306
410
S.C.
S.E.2d
550
me and if I
the evidence
saw that
were
—
(1991),
denied,
U.S. -,
cert.
overbearing
more
on one side than the
1691,
(1992);
Brog
893 ruling he “specific grounds for Appellant’s specific complaint con- state strikes.6 specific make if the the court cerning these veniremembers is that desired five con- apparent from the grounds of the court’s interference were not “cumulative effect 52(a). deprived court jurors appellant A trial Tex.R.App.Proe. with each text.” intelligently of counsel in an request assistance clarification of permitted effective is challenges.” exercising his or ina- objection Appellant’s at refusal trial. objection trial for the bility clarify his twelve, through appellant points nine impugned upon cannot court be rulings by the trial not set forth does creating Appellant’s reversible error. court prohibit him from court which restrict or point of error overruled. thirteenth jurors asking potential any questions.7 showing nothing preserved Absent such appellant’s point of er fourteenth for review. Jones — ror, improperly the trial court he contends denied, (Tex.Cr.App.1992), 494 cert. challenge granted the for cause State’s (1993); 1858, 123 -, in violation of Wain 52(a).8 veniremember Chandler through Tex.R.App.P. Points nine Witt, 844, 83 wright v. 469 U.S. twelve are overruled. (1985). may A L.Ed.2d veniremember error, point ap In the thirteenth challenged when that for cause it is shown gave poten pellant argues the trial court his or her views on the juror impression “a of the relative tial false substantially impair perfor “prevent or attorneys After involved.” abilities with of his or her duties accordance mance objected appellant question, to a State’s judge’s trial instruc the oath taken and the clarify requested appellant trial court tions.” Crane v. objection. exchange An the tri between Wainwright v. (Tex.Cr.App.1990) (quoting, concerning court and al occurred Witt, ruling supra. “The trial court’s on guilt. culpability whether moral included challenge for cause on this basis is reversible requested appellant The trial court define clearly abuse if it was an of discretion.” culpability.” request Eventually, “moral this Jones, 497; at Goodwin during became order. Several times (Tex.Cr.App.1990), cert. exchange stated she did denied, However, objection. appellant’s understand appellant’s attorney clarify refused objection, which other res- Chandler evinced clear Veniremember attorney objected implica to the trial court’s penalty. ervations about the death they improperly objected. tion had prosecutor properly ques- trial court and preserve feel- complaint
To
for
review to
tioned the veniremember
how those
our
objection,
party objecting
ings
following
must
law and
a trial
would affect her
charge
concerning
was a
and an
terroristic
she believed there
na
anrest and
for a
whether
deliberate,
threat.
intentional and
difference between
that her
should
the court commented
answer
through
Points nine
thirteen
venire-
concern
presented
those
on the definitions of
terms
based
White,
Waites, Watson, Seibert,
members
by counsel.
Cannon, respectively.
necessary
While not
error,
disposition of
note that
examples
8. Appellant
which the
cites several
jury,
Watson served on the
Seibert was success-
potential juror
on fine
trial court instructed
cause,
challenged
per-
fully
White
example,
initial
of the law. For
one
*9
by
emptorily challenged
the State.
guilty
ly
find a
that he would
defendant
stated
participated
voir dire
7. The trial court
in the
though
had a reasonable doubt.
even
he
jurors
potential
the extent that
instructed the
she
juror
that under the law
trial court instructed
example,
points of
in-
law. For
proven guilty beyond a rea
is innocent until
he
veniremember Waites that the defendant
structed
However,
ruling
there
cited
doubt.
is no
sonable
innocent;
presumed
that venire-
was
to be
by appellant
the trial court restricted
which
in
evidence; that
member
must consider all
Seibert
questioning.
pa-
was not
consider
veniremember Watson
White,
during
Additionally
role.
voir dire
performing
juror
as a
in
pellant
her duties
answer-
was entitled
additional
charge,
to an
ing
special
special
issues. Chandler stated that
fourth
issue. The court would submit
special
feelings concerning
penalty
concerning
to the
issue
her
the death
wheth-
appropriate
er the death sentence was
in
“probably
this
impair”
would
somewhat
her deci-
See
case.
of error seventeen and
impairment
The extent of the
sion.
was
eighteen,
When asked what her an-
eventually
undefinable. But
the trial court
infra.
court,
question
by
this
swer to
was
Chan-
asked:
responded
dler
did
that she
not “believe
have,
your feelings
you
your
“Would
that
appropriate,”
feeling
death is
and that
would
reservations,
you
if
heard
that
question
cause her
answer that
“no.” The
you beyond
convinced
doubt
reasonable
challenge
trial court sustained the State’s
that
yes
[the
answer should be
that
and found
Chandler’s views would sub-
issues,]
special
reservations,
your
would
stantially impair
performance
juror.
her
as a
you
thought
very, very
after
it
had
over
who,
Today,
presented
we are
with a
thoroughly
weighed everything,
would
our former
your
under
caselaw
absent
you
reservations cause
to tend to
special issue, arguably
fourth
would not have
questions
answer
in
one of
no
challengeable
been
for cause. For while
way?”
opposed
penalty
Chandler was
the death
court,
Veniremember Chandler answered the
may
she
have been
able
follow the law.
honest,
say
I’m
probably
yes.” Appel-
“If
I’d
Adams,
However,
supra;
supra.
Riley,
See
attempted
lant
to rehabilitate Chandler.
issue,
special
as for the fourth
Chandler stat
ed in no uncertain
that
terms
she believed
Okay.
“DEFENSE COUNSEL:
And
morally that
appropriate
death
not
harder,
inspecting
you’re
the evidence
not
question
nega
she would answer that
in the
saying
you
that it would make
answer one
Recently
tive.
Court stated
questions
you
that
have to answer
jurors
they
unalterably
that
“whether
evidence,
against
you?
are
opposed
penalty
favor of
to the death
probably
“CHANDLER:
I would
look-
every
definition are ones who can
case—
ing for reasons to lessen.”
perform
their
duties
accordance with
law,
protestations notwithstanding.”
their
A
following
considerable discussion ensued
—
Illinois,
U.S. -, -,
Morgan
confusing
questions.
set of answers and
2222, 2233,
testify is not sufficient.
reasonably be
“Language
at
that can
III.
present
to refer to a failure to
construed
fourth
In his
and fifth
from the defendant’s
evidence other than
error, appellant
prosecutor im
contends the
testimony
amount to comment
own
does not
on
failure to
properly commented
testify.”
on
Ibid.
failure
testify.
permissible
four
There are
areas
argument
argument by
the State: summation
contends the
to testi-
evidence,
appellant’s failure
from the
direct comment
reasonable deduction
before
objected
impression that we had all determined
the submission of
9. After
State
during punishment,
special
issue
the fourth
dire we would use.
we had started voir
throughout
stressed that
counsel for
way,
it
since we have done
this
"And
parties
voir dire there was a belief
all
manner,
feel
in this
I
we have voir dired
since
charge
special
Ap-
issue.
would contain such a
improper
change
this
it would
argued:
pellant
because,
least,
very
we
at the
Honor,
por-
participation in
"Your
jurors,
we have been—been
confuse
trial, up
point-
point, has
tion of the
to this
all
adequately
exercise our
able
manner;
doing
There is no
ed toward
it in this
challenges
everything
did was
because
previously
in the
as I
manner set out
pointed
code
charge.”
on what we have now in the
based
So,
objection.
by my
manner
out
objec-
court then overruled
State’s
upon
extra-legislative
agreed
as it
that we
special
my
issue.
the submission of the fourth
is the
that it was
tion to
were. But this
manner
*11
fy.
See Minton v.
testimony
Tex.Crim.
of the first words out of this
(“We
(App.1956)
facts the case.” Yanez of during trial mitigating offered apply evidence This is Penry Lynaugh, in violation of question and format. accomplished in answer 106 L.Ed.2d However, presented with the venire is not issues, statutory special the In addition until which it will follow the exact law following jury the the gave trial court statutory scheme the of the trial. Our conclusion special issue: setting charge fourth provided that court’s has the presented to the applicable out law beyond a the evidence you find from “Do
jury they and have heard evidence after doubt, considering mit- after all reasonable 36.14, argument. jury Article before evidence, thereby, if and con- igating appellant complains In so far as V.AC.C.P. culpabili- sidering level the defendant’s may any questions by the State which and the cir- ty, background and character veniremembers, particular have confused offense, that the of the cumstances remedy object to proper was to the State’s punishment?” appropriate of death is the 52(a). Tex.R.App.Pro. question at that time. question in the affir jury answered special issue” is suffi mative. This “fourth nothing hold Article 35.17 We Penry. commands of State cient to meet the for the requires a trial court to define terms (Tex. McPherson, 846, 847-850 Therefore, trial not venire. court does Appellant’s seventeenth and Cr.App.1992). refusing abuse its discretion instruct eighteenth of error are overruled. legal of a at the upon venire definition term request party. either See Robertson Accordingly, appellant’s sentence (Tex.Cr.App.1993) judgment are affirmed. (“Because the has not heard been dire], it [during voir is not an of discre abuse CLINTON, J., dissents. deny prior a request tion for a trial court to dire, upon type to voir decide BAIRD, Judge, concurring. charge given Appel punishment.”) to be reasons, point following I concur lant’s fifteenth of error is overruled. For six, points of error fourteen and resolution of nineteen. V. error, ap point In his sixteenth I.
pellant
court
in re
contends the trial
erred
appellant con
fusing
point of error six
an instruction to the
which would
every
peremptory
strike
required
have
them to exclude
other
tends
State’s
racially
hypothesis
except
motivat
veniremember Calvert
reasonable
judge
parties
guilt.
required.
no
After
instruction was
ed.
both
Calvert,
exercised
questioned
199-200
State
Hankins
objected,
rehearing).
con
(Tex.Cr.App.1981) (opinion
on
strike.
tending the
because she
Appellant’s
sixteenth
of error is over
struck Calvert
State
judge held “...
I’ll
The trial
ruled.
was black.1
made,
prima facie case has been
find that the
so,
explanations.”2
eigh
The State
point of
we’ll hear
error seventeen
racially
teen,
not
moti-
responded
not
strike was
appellant
contends
ruling
judge’s
objected to
trial
State
three black veniremembers
2. The
1. The record reveals
prior
successfully challenged
contending
prima
were
for cause
make a
failed to
of Calvert. Calvert was the
judge
voir dire
the State's
case. The trial
sustained
facie
Consequently,
remaining
venire.
black
objection,
want to hear the
but stated "...
I
Calvert,
striking
the State struck 100%
anyway.”
reason
black veniremembers.
provided
vated and
race-neutral
group.
twelve
rea-
identifiable racial
This is not suffi-
prima
cient to meet
defendant’s
sons for the strike.3
over-
facie
purposes
Ap-
burden for
...
Batson.
appellant’s objection.4 Appellant
ruled
now
pellant’s
sixth
of error
overruled.
ruling
contends that
was erroneous.
recognizes,
plurality
As the
we do
review
*13
any
of
person
The exclusion
from
prima
showing
the determination of a
facie
of
prohibited.
service on the basis of
is
race
discrimination when race-neutral reasons for
Kentucky,
Batson v.
476 U.S.
106 S.Ct.
strike(s)
the
are articulated.
also,
3. The State recited the reasons for the intentional act to a conviction for 1) general opposition death; 10) strike: held a Calvert murder and sentence of State 2) penalty; cause; death Calvert 11) demonstrated ina unsuccessfully challenged Calvert 3) bility questions; to answer direct and clear equated Calvert the terms "intentional” “de- expressed displeasure Calvert with the trial liberate”; and, 12) appeared to Calvert be weak judge's sequester jury during decision tri any opinion willed and "unable to maintain al; 4) through had a Calvert nervous demeanor challenge.” questioning the face of the or dire; 5) out voir Calvert an inabili demonstrated law; 6) ty to understand follow the Calvert's 4. The found the fifth seventh employer currently representing a son had supported by reasons were not the record. See murder; capital charged criminal defendant 7) with 3., supra. n. when, Calvert was unable to articulate her 8) opinion, appropriate; was restaurant, although employed supplied Calvert was in a emphasis 5. All unless otherwise indi- expressed feelings capital she no about murder cated. restaurant; 9) committed in a Calvert was hesi concerning questioned tant when use of an Texas), conjunction the Su- with Branch explanations indicate that Calvert State’s capital first preme struck the basis race. State’s Texas sentenc- Court held the op- general explanation dealt with Calvert’s discretion, uncontrolled ing scheme allowed Although position capital punishment. under overly and unconstitutional broad if she would stated selected Calvert Legislature Eighth Amendment. render a follow her oath and law and by enacting Tex.Code responded to Furman evidence, upon the further verdict based she 37.071, narrowing the art. Crim.Proc.Ann. legislator voting if indicated that she were punish- persons subject capital class propriety capital punishment she on the providing for the assessment ment against it. These comments would vote jury’s punishment upon based re- capital per- “present precise situation where statutory sponse punishment issues.6 This viz: emptory challenge appropriate, sentencing passed constitu- scheme *14 juror for prospective challengeable is not Texas, 262, in v. 428 U.S. tional muster Jurek cause, prosecutor but the does not believe 2958, 2950, 276, 929 96 49 L.Ed.2d S.Ct. juror venireperson be [a] the will favorable (1976). State, the S.W.2d State.” Mines 852 941, the 946 Because rul- chal- The first successful constitutional erroneous, clearly ing of is not the Penry in where lenge to art. 37.071 occurred see, Hill, 865; 827 S.W.2d at Williams presented Pen- mitigating evidence was that 95, (Tex.Cr.App.1991); 804 101 mentally ry and suffered from was retarded 707, Whitsey v. and 726 resulting poor in im- organic damage brain (opinion rehearing), I (Tex.Cr.App.1989) pulse inability to from control and the learn sixth disposition concur the of presented experience. Further evidence point of error. Penry as a child. The Su- was abused jury preme Court found the was unable to
II. give Penny’s mitigating effect to evidence Appellant’s fourteenth and nineteenth through statutory punishment the issues and points dramatically of error illustrate the ap- art. was unconstitutional as held 37.071 capital jurispru confusion that arisen in has plied. 302, Penry Lynaugh, dence since 109 Fur S.Ct. that, Penry pass in order to Con teaches ther, these of error two valid raise muster, sentencing stitutional a 1) application Penry: concerns over the of jury provide scheme must the with a vehicle Penry
whether should used to exclude give mitigating and “consider effect jurors who, Wainwright, under Adams and a character evidence relevant to defendant’s 2) serve; and, qualified are otherwise or the the of record or circumstances of the whether uncontrolled discretion de 319, Penry, 492 at fense.” U.S. at nounced Furman now sanctioned the judicially such approved 2946. We have two Penry requirement of a vehicle. McPherson, vehicles. State v. 851 Capital A. A Constitutional (Tex.Cr.App.1992), approved we the use 846 Sentencing Scheme allowing punishment of additional issue an 238, jury if the to determine “the death Georgia, In Furman v. 408 92 U.S. (1972) (decided 2726, response Defen- 33 L.Ed.2d reasoned moral
5.Ct. 346 continuing imposed, threat lence that would constitute 6. Before a sentence death Tex. 37.071(b) required society; Code Crim.Proc.Ann. art. following pun- jury unanimously evidence, (3)if answer the whether con- raised ishment issues in affirmative: killing the deceased duct of the defendant (1) whether the conduct of defendant response provoca- was unreasonable in the death of the deceased was commit- caused tion, any, by if deceased. deliberately expec- ted and with the reasonable 426, 3, 1125, p. art. Leg., ch. 63rd Acts tation that the death the deceased anoth- 1,§ eff. 1973. June result; er would (2) probability that the de- whether there is would commit criminal acts vio- fendant background, character, they they honestly dant’s and to the aver that will find Id., crime of which he questions was convicted.” answer in the facts af- S.W.2d at 850. In Fuller v. are they beyond convinced firmative if doubt, (Tex.Cr.App.1992), approved otherwise, S.W.2d 191 yet reasonable but not permitting nullify frankly instruction prospects who conceded that the its statutory penalty may affirmative answer to one of the affect what their punishment if mitigating judgment issues honest the facts will be or appropri- they may demonstrated life sentence was what deem to be a reasonable Id., ate. 829 S.W.2d at doubt. Adams, 448 U.S. at Legislature responded to Pen- Wainwright The Court reaffirmed Adams in ry by amending requiring art. 37.071 and Witt, following statutory pun- to answer the (1985), holding: ishment issue: opportunity We therefore take this Whether, taking all into consideration reaffirm ... the ... standard from Adams evidence, including the circumstances proper as for determining standard offense, the defendant’s character a prospective may when be excluded background, personal and the moral for cause because his or her views on defendant, culpability of the there is a *15 punishment. capital That standard is mitigating sufficient circumstance or cir- juror’s “prevent whether the views would cumstances to that a warrant sentence of impair substantially performance or of imprisonment life than a sen- rather death juror his duties as a in accordance with imposed. tence be his instructions and his oath.” 37.071(2)(e).
Tex.Code Crim.Proc.Ann. art.
Id.,
424,
at
U.S.
S.Ct. at 852.
Qualifications
B.
Juror
Wainwright
Penry
C. Adams and
Capital
in a
Case
capital punishment
While
issues that
Jurek,
After
concerning
issue arose
Wainwright
arose in
ap-
Adams and
would
veniremember, opposed
capital
whether a
to
settled,
pear
questions
be
the instant case
punishment,
disqualified
on a
serve
viability
the continued
of
cases
those
after
capital
jury.
Tex.Penal Code Ann. Penry.
expressed
Veniremember Chandler
12.31(b)
§
provided
any
for the exclusion of
general opposition
capital punishment
her
juror
who would be
the mandato
affected
feelings
but
set
stated she could
aside those
ry penalty of
imprisonment
death or life
and decide
case in accordance
capital
those convicted of
murder.7 Howev
judge’s
with her oath
trial
instruc-
er,
operation
Court held the
Accordingly,
tions.
under Adams and Wain-
12.31(b)
§
impermissibly
qualified
excluded
qualified
wright, Chandler
to serve on
jurors.
Texas,
38,
Adams v.
Indeed,
appellant’s jury.
the State concedes
2521, 2528,
S.Ct.
tal Penry Furman D. opinions of When the Court inconsistent, conflicting only are our Furthermore, appellant contends that Pen- apply holdings course the most ry now allows the the same uncontrolled opinion recent guidance. and await further Furman. This is a discretion forbidden plurality Because the follows that I course proposition with which Justice Thomas concur in the resolution of four- agrees. concurring In his opinion in Gra- teenth and nineteenth of error. ham, Justice Thomas stated: comments, join I judgment With these ... rationality Whatever contribution to of the Court. Furman, consistency we made in we Penry. have taken back pro- with
cess, upset we have the careful balance MALONEY, JJ., join OVERSTREET and through Texas had achieved use opinion. special its issues.
[*] [*] [*] [*] [*] [*] Part MILLER and I of this opinion CAMPBELL, and otherwise JJ., join join judgment of the Court. Penry very reintroduces risks that sought had through to eliminate simple directive that States in all events
provide rational standards for sen-
tencing. years, For 20 we have acknowl-
edged relationship between undirected danger discretion and the of discrimi- natory sentencing danger we have held —a inconsistent Eighth with the Amend- single
ment. holding When does so much many ENGLAND, violence to Appellant, so of this Court’s Trace Gene precedents settled area of fundamen- *17 law, tal constitutional it cannot command force of stare decisis. view, my Texas, Appellee. The STATE of
Penry should be overruled. No. 762-93. Graham, at -, 911, 113 S.Ct. at (Thomas, J., concurring). Texas, Court Appeals of Criminal En Banc. Penry Although agree I do not should overruled, I sympathize can with Justice 14, Sept. Thomas. I do Supreme not believe the Penry anticipated Court the broad effect capital jurisprudence
would have on or the ap-
difficulties state courts would face its
plication.
can only hope
Supreme
I
-,
cases,
3027,
separate
(1993);
seven
113 S.Ct.