Stewart v. State

STEWART, Darryl Elroy Appellant, Texas, Appellee.

The STATE of

No. 68889. Appeals

Court of Criminal

En Banc.

Sept. 1984.

Rehearing Denied Feb.

H9 Simonton, only, appeal for Gray, Will appellant. Jr., Holmes, Atty., Dist. and

John B. Atty., Brough, Asst. Dist. Hous- C. James Huttash, Austin, ton, Atty., State’s Robert for the State.

OPINION McCORMICK,Judge. convicted of mur-

der. Punishment was assessed at death. sufficiency of the evidence is not chal- lenged. through

In grounds of error one three, appellant complains the exclusion prospective jurors of twelve for cause in violation of Adams v. 65 L.Ed.2d 581 Illinois,

Witherspoon v. (1968).1 20 L.Ed.2d 776 In his error, fourth he contends that error was committed when the trial court challenge prospec denied for his cause to juror tive Felts and he was forced to use a peremptory challenge. dire in com-

Voir selection this case 12, 1980, thirteen menced on June some days prior to the United States Texas, supra. Court’s decision Adams v. decision, At the time the voir Adams dire selection in this case was still decision, progress. Prior to the all Adams jurors complained of the of in grounds first four of error were excused July appel- the trial court. On counsel, lant’s trial aware of the Adams decision, apprised the trial court that some previously of the who had been ex- cused have been excused erroneous- ly requested peremptory one additional strike to cure error: I, IV, page 1. The state of the record in this case causes us Volume 231 and ends Volume concerning organization. page guilt punish- offer comment its 1753. The actual trial on The record has come to us in eleven volumes. ment is located in Volumes V and VI. If a transcription proceedings organized chronologically, of the has not record is arranged chronological reporter appel- been and this order court should at least furnish the review, extremely complete makes it complicated by difficult to further late courts with central index. We compliment attorney the fact that there is no central both illustrate, begins citing proper portions index. To the voir dire the State for us to the II, page through It Volume 2617. continues the record for without their task assistance our XI, page Volume It then continues in would have been even more difficult. MUSSLEWHITE; please “MR. If it were excused because could not Court, comes now the Defendant Dar- questions dealing answer through ryl by and his Stewart attor- phase respect punishment with to a neys, respectfully request the Court party who was not the actual direct (sic) pre-emptory for additional chal- perpetrator of the offense. lenges. juror, The next last object systematic “We further Defendant, by was stricken whose jury. exclusion all blacks from this Felts, position name is Earl is our it some, recall, There were as I that were right rely that we have a to — I by struck will take that back. jurors and may to follow the law be couple The State has used a of strikes theory. able to fit into our defensive I on them. don’t recall. But five of challenged He was in where a situation were those that struck for cause were him, challenged if my the State it is black. opinion it humble would have been a reasons, “For all Your those good challenge, but the de- because Honor, request would respectfully we challenged ground, fense him on this it (sic) pre-emptory an additional chal- required was overruled and we were to lenge. Further, regards strike him. with I Right. “THE think COURT: some, it, may I quite as have it not be record should reflect that the Adams correct, challenges some but nineteen vs. Texas case has been decided after by were made the State for cause con- already jurors had we selected some (sic)jurors. cerning perspective assigning this case. And without it to “In view of the recent any particular juror, going amI opinion, I is Court believe it Adams vs. grant your motion for that additional my to the best of recollection strike, caution, in in abundance of there, jurors there were two back matter. Court, apologize and I I cannot you. “MR. Thank MUSSLEWHITE: — give going their names I start can “MR. ARNOLD: Is that one additional up through back in here. But the first strike, Honor? Your (sic) perspective jurors sixteen who “THE One additional strike.” cause, my COURT: were excused for is recol- added) (Emphasis lection that at least of them two were put question upon to answer the based A constitutional error with dealing the Texas Code whether party Rogers waived affected. v. penalty or not the fact that death State, (Tex.Cr.App.1982) 248 640 S.W.2d case, was involved this whether or (on Rehearing); Motion State’s Second for would affect delibera- their State, (Tex. Thompson v. S.W.2d any issue, and tions on fact with an jurors Cr.App.1976). applies This im answer, they were affirmative ex- properly capital murder removed cases. cused, submit, for the which recent State, (Tex.Cr. v. Crawford case, improper. is (on State, App.1981) rehearing). v. Russell “Further, regard with to some of (Tex.Cr.App.1980); S.W.2d 238 Boul jurors, these we feel that were State, (Tex.Cr.App. ware v. 542 S.W.2d 677 excused, upon improperly based 1976). — parties in instances I law of some It is clear in the case with instant many. honestly can’t tell how It is reference to those who improperly our belief the Court improperly prior July been excused parties discussed the law of with refer- 1980, and the denial of question first with reference to ence to the answer to the Further, appellant’s challenge prospec punishment phase. for cause juror prior tive jurors, perspec- with reference to other Felts which also occurred (sic) July jurors, appellant tive there were some who received all the of the individ particularized circumstances requested. relief Since individual offender be and the peremptory ual offense received the one additional Ju impose death sentence.” it can requested made no fore strike which he Texas, 96 S.Ct. at 2957. rek v. concerning ac objection further the court’s jurors, thirteen pertaining tion to these upon Spivey v. relies waived. De error, any, if hold that Cir.1981), Zant, (5th F.2d 464 State, (Tex.Cr. Russe v. 579 S.W.2d case in a proposition that State, v. Duffy App.1979); 567 S.W.2d charge to in the court’s must be instructed (Tex.Cr.App.1978); Boulware v. pass mitigating circumstances consider through one four supra. Grounds of error penalty. the death ing upon are overruled. Zant, page at 471. We would Spivey this Court remind error, appel fifth his In any lower federal by the decisions of bound 37.071, contends that Article V.A.C. court. Flores 487 S.W.2d C.P., Eighth and Fourteenth violates State, v. Pruett (Tex.Cr.App.1972); 463 the Constitu Amendments of United States Further, (Tex.Cr.App.1971). S.W.2d 191 provisions for tion because it contains no Quinones State, supra, that v. held in directing instructing jury’s the consid any charge regarding evidence of jury mitigating at the eration of circumstances necessary mitigating was circumstances Appellant punishment phase of the trial. Arti questions prescribed under since the upon the States relies United jury grasp clearly allow the cle 37.071 Ohio, Court decisions Lockett v. in 438 U.S. mitigating evi logical relevance of the (1978); 586, 2954, 57 L.Ed.2d 973 98 S.Ct. of the record Finally, dence. our review 95, Georgia, Green v. 99 S.Ct. requested the appellant never shows that Eddings v. 2150, L.Ed.2d 738 60 charge jury mitigation. on trial court to the Oklahoma, 104, 869, 71 102 S.Ct. (1982). 1 All L.Ed.2d three of the cases that, by the time Appellant argues since upon by appellant relied concern situations phase of the trial was punishment the capital in case which the sentencers a already that the jury the had found reached precluded considering mitigat knowing- were from “intentionally or defendant acted punishment phase ing evidence the ly,” jury precluded from consider- the was muster, each case. To meet constitutional it con- ing mitigating circumstances when capital the sentencers in a case must be in an- appellant’s “deliberateness” sidered Further, consider all relevant swering Special allowed to Issue No. Ohio, supra; evidence. Lockett v. Green such as the instant argues that a case Oklahoma, one, Georgia, supra; Eddings v. evidence that the v. where there was Carolina, triggerman, but the v. North defendant was not the Woodson supra; 2978, parties the law of at 280, jury was instructed on U.S. 96 S.Ct. 49 L.Ed.2d phase, bur- (1976). guilt-innocence the State’s proof punishment the first issue den of 37.071, supra, previously has Article reduced, materially jury and the was was v. Jurek passed muster constitutional punishment compelled to view the first Texas, requiring “yes” answer. as Quinones State, v. (1976), and (Tex.Cr.App.1980), initially there 592 S.W.2d We would note ap conflicting that Article 37.071 evidence as to whether where it was determined Thus, considering pellant triggerman. it is provides that “in whether appel may very possible that the convicted impose sentence the be death believing that he did kill the victim. evidence of mit- asked consider whatever Furthermore, that “deliber the defense can we have held igating circumstances Thus, “intentionally knowingly” are capital- ately” and or bring it.” “the Texas linquistieally equivalent. Heckert v. sentencing procedure guides and focuses State, (Tex.Cr.App.1981). jury’s objective consideration of the 612 S.W.2d 549 testify We have also held that word regarding “deliber lowed to information De- ate[ly]” as used in Article 37.071 need not tective obtained Roberts from Michael Rai- charge be defined court’s to the jury ney because that would information penalty stage at the aof murder shown that co-defendant was State, trial. Russell v. 665 S.W.2d 771 the actual killer. Defense counsel asked (Tex.Cr.App.1983); King following: (Tex.Cr.App.1977). S.W.2d Rath “Q. you Do know whether or not er, “deliberately” the term is to be taken got it, descrip- information about understood its normal use in com heavy-chested being tion man? language. Esquivel mon object “MR. I ARNOLD: to this. This is (Tex. Cr.App.1980); King v. very thing object I being State, supra. hearsay. argues that we cannot be cer- “THE COURT: Sustained. tain reached its decision with- regard mitigating circumstances, out “THE COURT: Whatever information compel However, and this should reversal. appears report on that offense tell cannot from the record that else, you got from someone was it consider the factors. from officer another from a 37.071(a) provides during Article witness or what? punishment phase Yes, “THE I WITNESS: think infor- presented any as to matter that the court specifically speaking mation he sentencing. deems relevant came from another officer. mitigation. was allowed to hear evidence “THE COURT: Another officer? given the freedom to con- “deliberately” they Yes, strue understood it “THE WITNESS: sir. commonly Appellant pro- used. has “THE objection Your is COURT: sus- vided no evidence to show that the tained.” “deliberately” equivalent construe as the In order for a complaint concern “intentionally knowingly.” or We de- ing the exclusion of to be con cline to assume did so. by appellate court, sidered an the record Because the statutes Texas do not testimony must show what the excluded preclude consideration of cir showing would have been. Absent a appellant and cumstances because has not been, testimony what such would have proven that the in the instant case did an concerning offer of a statement what consider circumstances show, nothing the excluded evidence would issue, in answering the special first presented Rumbaugh for review. ground overrule his fifth error. (Tex.Cr.App.1982); (Tex.Cr. James v. 546 S.W.2d 306 error, ground In sixth his App.1977). The record us contains complains of testimony exclusion testimony evidence of what the excluded would shown that co- been, would have much it less what would defendant was the actual killer. have shown. We are unable to review the examination, On direct Detective William appellant’s ground merits of of error. Fur partner Owen testified that he his De- thermore, other evidence adduced at investigated tective Roberts Jim crime trial, specifically appellant’s own confes cross-examination, scene. On Detective sion, which if believed have shown would during Owen testified course of that the co-defendant was the actual killer. investigation personally their he did not ground This error is overruled. Rainey, neighborhood Michael child, questioned Appellant but that the child supplemental has filed a brief argues alleges Detective Roberts. now grounds four additional that Detective Owen should have been al- of error. In his first additional complied, she had error, undress. After appellant argues that his victim to conviction Kelly get under into a closet. and sentence of death are invalid he ordered her to Florida, Enmund v. get point he tried testified that at this In En- (1982). appellant pointed S.Ct. appellant to leave but mund, Supreme the United States Court Kelly told him to look gun at be- reversed the defendant’s conviction valuables. While apartment around the proven Enmund cause it was never around, looking he heard the Kelly was deceased, attemptéd killed the to kill the apartment slam. front door of deceased, killing place that a take intended daughter had en- three-year-old victim’s employed in or intend that lethal force be Appellant put apartment. tered the the course of the crime. The mother. in the closet with her girl little in a case such as En- Court wrote out of made the victim come Soon mund, clearly where the defendant was appel- When and sit on the bed. closet triggerman, the focus must be on not the engage demanded that the victim culpability, on the cul- the defendant’s him, she told him intercourse with sexual killing pability did the actual of those who having her could not since she was she robbery: suggested that she en- period. When he on ‘individualized "... for we insist him, gage in’ she refused fellatio with require- consideration as a constitutional upset. began crying. Appellant became sentence,’ imposing death ment head, put pistol to her covered He his Ohio, 586, 605, Lockett twice, killing her pillow with a and shot 2954, 2965, (1970) 57 L.Ed.2d her. (footnote omitted), which means that we char- must focus on ‘relevant facts of the daughter testified The victim’s and record of the individual offend- acter apart in the only person one that she saw Carolina, v. North Woodson er.’ her mother’s murder. ment at the time of 2978, 2991, 49 appel description of the killer matched Her (1976).” L.Ed.2d is evidence which lant. Because there triggerman, appellant was Enmund We are not faced with the situa- shows v. Florida case, does not hold that Enmund jury tion the instant however. conflicting of heard evidence as to who case. This apply to the instant killer, the actual the or his co-de- error is overruled.

fendant, Kelly. Kelvin error, appel- remaining grounds of In his light Viewing the evidence in the most jury charge at the complains that the verdict, the evidence favorable the trial was guilt-innocence phase of Kelly, who both shows that and con- the faulty because it allowed apartment complex as the lived in the same finding making a appellant without vict victim, complex walking through were the killer or appellant was the actual they passed open door of the when the merely party to the offense. Kelly apartment. Appellant told victim’s the law of charged The court (appellant’s) gun, a .25 that he wanted his Code, V.T.C.A., Penal pursuant parties automatic, there be some- because 7.01(a), 7.02 and Section Section Section apartment he could thing in the victim’s (b). paragraph 15.02(a) application and gun and en- Appellant retrieved his steal. charge reads as follows: of the apartment. Kelly mean- tered the victim’s “Now, evidence you if find from the standing outside of the victim’s while was on or beyond a doubt that reasonable scream, apartment. Kelly heard the victim 1980, in Har- February, about the 6th of “Oh, into the my God” and he rushed Defendant, Texas, Darryl County, ris happening. apartment to see what was Stewart, of in the course room, Elroy did while Kelly, standing living in the could commit bur- committing attempting or in one appellant talking to the victim hear habitation, owned William glary ordered bedrooms. Melton, guilty party, E. him as a as that term is intentionally caused the death by shooting charge. of Donna Kate Thomas her in the defined Court’s gun, you with a then will find the De- charge require that would “We want a Murder, guilty Capital fendant unanimously determine which charged you if the Indictment. Or responsible, he is under which of the two beyond find from the a reason- responsible, and that theory he would be day able doubt that on or about the 6th Further, unanimous. that verdict be County, February, in Harris verdict sheet at conclusion Darryl El- Kelly that Kelvin and options whereby the charge contains roy conspiracy to Stewart entered into a guilty him either as a find burglarize of William E. the habitation perpetrator of the said actor and direct Melton, pursuant thereto guilty party.” as a offense of murder or attempt carry out carry did out or This was overruled. conspiracy burglary, such to commit committing such while in the course argues that under Appellant now Kelly inten- burglary, any, if Kelvin required to obtain a the State is Enmund Donna Kate tionally cause the death of himself finding that the defendant was by shooting gun her with a Thomas killer, kill or that he intended to or Defendant, Elroy Darryl Stew- However, Enmund does attempted to kill. art, conspiracy, any, if pursuant to said Rather, finding. En- require such a assist, aid promote, intent to or with the proof that the defend requires some mund or at- Kelly Kelvin in the commission kill, killed, intended attempted to ant either burglary, tempted of the said commission killing contemplated a to kill or there, the shoot- then and at the time of imposed. may be sentence of death aiding ing, any, acting if with and Kelly attempt- Kelvin the execution 37.07, Furthermore, Article Section burglary, and that ed execution said every 1(a) verdict provides that “[T]he shooting Thomas fol- of Donna Kate general.” Other action must criminal conspiracy in the execution of the lowed 37.071, in Article Y.A. provisions than the pur- of the unlawful furtherance C.C.P., has no authori jurisprudence Texas Darryl Elroy Kelly and pose of Kelvin special issues allowing the submission of ty burglary, and that to commit the Stewart judge The trial jury in a criminal case. to a shooting of Donna Kate Thomas denying appellant’s re properly in acted have been antici- an offense that should quest. carrying result of the out pated as a find the conspiracy, then will Furthermore, provide Texas law does Stewart, Defendant, guilty Darryl Elroy guilty of may be found that an individual in- Capital charged Murder as the of party to the offense. if he was a an offense dictment. 7.01, 7.02, And under En- supra. Sections a you or if have you “If do not believe mund, guilty found may be an individual thereof, (sic) then will reasonable to death sentenced of murder and guilty.” not find the Defendant triggerman but not the even if he was following objec- the appellant made force in the contemplated the use of lethal charge: tions commission of the offense. two, object the Number “... type require the does not Since Enmund given jury the charge as Court’s requested, finding jury which of determine, if requiring the not properly overruled find the trial court guilty, whether they find the Defendant charge at the objection to the actor, is, that the a direct guilty he is as These phase of the trial. guilt-innocence directly responsible for is individual who are overruled. grounds of error through his the death of the deceased affirmed. act, judgment is they find immediate or whether own

125 conduct; CLINTON, truly Judge, dissenting. yet “mitigating” criminal as de- a mental disease or evidence3—such Given the facial narrowness of Article fect, deprived, childhood or the a abusive 37.071(b)(2), certainly V.A.C.C.P.1it is not militating youth the defendant—while specious argue, appellant, as did that we general, surely against a death sentence cannot be certain that its the reached specific probative weight has tremendous decision with due consideration whatever danger- answering the future favor of mitigating circumstances could Thus, “yes.” any miti- question ousness Yet, proffer. Judge reply McCormick’s gating such have force evidence intentionally unresponsive: ap- seems particular is the minds of in a case pellant did prove that the by language the narrow emasculated properly consider circumstanc- (b)(2), by unaided an instruction as to when truth, party es.2 In a “burden of has permissible “mitigating” use of that Texas, proof” in matter. this The State evidence. however, have an does duties to ensure processes accused those are due un- Oklahoma, A Eddings brief look at v. generally, der the law and that the is 869, 104, 71 1 S.Ct. L.Ed.2d given adequate guidance in its delibera- (1982) There, point. will illuminate specifically. tions Supreme is Court held that senteneer required following to consider the evidence 37.071(b)(2) tentatively ap Since was which the court characterized as itself 262, proved Texas, in Jurek v. “mitigating:” year Eddings that the 16 old L.Ed.2d S.Ct. this a had child of divorce and lived with- (b)(2) argument Court has brooked no that five; alone, supervision out since was may, rules standing inadequate an and a that his mother was an alcoholic guide when it comes to consideration Rather, prostitute; age that at the of 14 he was mitigating circumstances. Judge it, attempted father who McCormick sees sent to live with his Quinones guidance adolescent with was “settled” in v. control disturbed Ed- (Tex.Cr.App. physical punishment; excessive 1980), scarred; Judge Dally opined: dings wherein emotionally development at a his mental level sev- readily

“The jury grasp logical can years age. eral below his relevance of evidence to the probability issue of whether there a is Depending fo- perspective on one’s future acts criminal of violence.” cus, damning evidence is at once such true; very paradox is significance, mitigating. No is It this doubt this its however, only in For, asking jury questions answering is unclear. renders (b)(2), 37.071(b) constitutionally decidedly language would consider the range severity prior many The truth is that vi- the defendant’s insufficient. bestowing probability presumably 1. there is a de- a basis for "Whether fendant would commit acts mercy criminal of vio- on the defendant. continuing not, lence that would per- constitute mercy, If and there room for is no 37.071(b).] society.” threat to [Hereinafter haps Court will to acknowl- edge denied what it in Jurek argues "deliberately,” also the term (1976): V.A.C.C.P., 37.071(b)(1), employed as should be defined. Article mandatory up sets death sen- Texas scheme my dissenting I stand tence much like those condemned as unconsti- (Tex. opinion in Russell 665 S.W.2d 325, Louisiana, tutional in Roberts v. U.S. 1983). Cr.App. 3001, S.Ct. 49 L.Ed.2d 974 and Woodson "Mitigate” 2978, Carolina, 280, “to to become less means cause 428 U.S. 96 S.Ct. North mollify Ohio, to make less severe harsh hostile: ... (1976). also Lockett v. L.Ed.2d 944 See painful: Seventh New or Collegiate alleviate." Webster’s 2954, 586, 57 L.Ed.2d 973 U.S. S.Ct. Dictionary (1969). Louisiana, (1978); and Roberts v. deciding penalty In the of in a context (1977). 97 S.Ct. 52 L.Ed.2d 637 capital “mitigating" case in effect of constitutionality cious criminals suffered at the hands of If we are to ensure the irresponsible 37.071, parents; only give lip and unfit common service we must not knowledge it; many holds that violent crimi- broadly interpreting we must also to physically nals were children and apply interpreted. easily abused This could that the American crime rate rises and falls requiring be effected a instruction proportion in direct of our number mitigating evidence. on happen citizens who to under 35. When folly It is for the Court to first acknowl- prosecute person place such a a right edge murder defendant’s to jury’s hands the decision of whether that evidence, produce mitigating give die, person enough is to live or is it to use, presume these guidance in its then protest him that we have allowed to adduce holdings laypersons know the of Lockett evidence, mitigating yet take no measure to affirma- Eddings until the defendant jury’s understanding of their ensure the tively proves contrary! I regard role in to that evidence? think jurors The defendant is entitled to who history redundancy, not. At risk of mitigating all circumstances. will consider may, in deprivation and misfortune some rely speculation and as- Rather than on blameworthiness, cases, even moderate sumptions, today, de- as does Court history may establish the while the same rely advised to on fense counsel would be committing fu- probability of a defendant promises give to consid- prospective jurors’ Or, similarly, the ture acts of violence. special independent of the narrow very mental or emotional disturbance eration— mitigating circum- issues—to whatever impairs ability a defendant’s to con- which the defendant adduce for the stances to the law lead the form “mercy” is purpose deciding whether mercy. exercise should appropriate in the case. Counsel sum, jurors In a defendant is entitled to upon responsibility themselves take mitigating circum- whose consideration holdings jurors of the of Lock- inform the to whether that evi- stances is not limited part which constitute a Eddings ett and future dan- dence does or does not indicate applicable upon to the case “the law preclud- gerousness. must not be reply ... as miti- the defense is entitled to according practice ed in law or in from gation punishment,” and exer- ... of independent weight factors that are miti- challenges who cise for cause proba- gating perhaps but irrelevant to the 35.16(c)(2), follow them. Article cannot dangerous bility future conduct. issue of If the Court is sincere its V.A.C.C.P.4 Ohio, Lockett v. See and its comply with Lockett intentions to (1978); and, Eddings, 57 L.Ed.2d 973 should be wel- progeny, procedure such a Carolina, supra; cf. v. North Woodson open arms. comed with 2978, 2982, do not evince that majority Because a (1976). acknowl- Rather than today, I dissent. intention inadequacy of 37.- edge the circumstantial 071(b)(2) accomplish the mandate progeny, majority of this and its

Lockett MILLER, JJ., join. TEAGUE and said, again, blithely time Court has impose a considering whether to jury must be allowed death sentence the

consider whatever evidence bring defense can

circumstances the denied repeatedly

it. But also necessity, of inform- utility, much less they may so consider

ing

evidence. course, also, request circumstances. an instruction should

4. Counsel

Case Details

Case Name: Stewart v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 19, 1984

Citation: 686 S.W.2d 118

Docket Number: 68889

Court Abbreviation: Tex. Crim. App.