*1 discretionary unduly policy of review that authority unlawfully restricts the reviewing
this of last resort in deci- Court policy Appeals. This
sions Court constitutionally
was never intended.”
S.W.2d at 300. interpret
I would the term “decision” opinion appeals of a court of ad-
mean the
dressing properly presented of error. judgment further hold that the
nothing statutorily than the dictated more
remedy court as a conse- which the fashions decision, has
quence of its and that the State proper, timely, orderly pre- fashion
in a ground for review to this Court.
sented its respectfully dissent. MEYERS, JJ, join
WHITE and
dissent. Boyd TEAGUE, Jr., Appellant,
Delbert Texas, Appellee. STATE
No. 69716. Texas, Appeals
Court of Criminal
En Banc.
June 1993.
Rehearing Sept. Denied *3 Worth, Alley, appellant.
Richard Fort Atty., Curry, Tim Dist. and C. Chris Mar- shall, Betty Greg Pipes, Asst. Marshall and Huttash, Worth, Attys., Fort Robert Dist. Austin, Atty., for the State. State’s OPINION McCORMICK, Judge. Presiding *4 Boyd Teague cap- convicted of Delbert kidnapping ital while in the course of murder V.T.C.A., attempted kidnapping. Penal 19.03(a)(2). Code, After the an- Section affirmative, in the swered the issues penalty. the death the trial court assessed 2(b), 37.071, Article V.A.C.C.P. Section Court, appellant appeal to this On direct twenty-two points of We shall raises error. affirm. appellant
Because does evidence, only briefly sufficiency we light the facts. Viewed summarize verdict, to the the evidence most favorable cohort, Par- appellant and his Robin shows date, tine, Tom- robbed Donna Irwin and her Cox, night late at at a scenic area over- mie County. Af- looking Lake Tarrant Worth rope and left ter bound Cox with lying ground, him face down on left the kidnapped Irwin and and Partine appellant. by As scene a truck driven area, they young- three they passed left going the men in a four-wheel drive vehicle way in the direction of where Cox other truck around Appellant turned the been left. drive began to follow the four-wheel vehicle. free, and managed to set himself
Cox had
drive vehicle
approached
the four-wheel
him. When the
on foot as it drove toward
stopped,
vehicle
Cox told its
four-wheel drive
happened and
occupants about what had
suddenly
ap-
help.
asked
foot,
occupant in the
peared on
shot each
in the
at least once
four-wheel drive vehicle
head,
escaped
Cox
and took their wallets.
the four-
uninjured.
occupants of
One of the
injuries and
from his
wheel drive vehicle died
clearly
the mo-
stated that
damage.
The trial court
permanent brain
another suffered
testi-
no witnesses
because
Bell,
tion was denied
recovered
occupant, James
The other
jury;
indictment
grand
fied before
appellant’s
his wounds and testified
from
file in this case.
upon the State’s
based
trial.
present to
judge
order the State
Partine
shootings, appellant and
After the
be
who would
of witnesses
appellant a list
La-
in their truck with Irwin.
left the scene
and the State
at trial
called
the State
sexually
as-
night,
took turns
ter that
Therefore,
er-
appellant’s point of
complied.
Partine were
saulting
Appellant and
her.
is overruled.
fourteen
ror
eventually
in Louisiana after Irwin
arrested
twenty, appellant
of error
In
note,
kid-
saying she had been
had left a
have
the trial court should
contends
gas
at a
napped,
in a women’s restroom
change of venue
motion for a
granted his
Irwin also testified at
station.
publicity
prejudicial pretrial
because
trial.
change of venue
surrounding
case. A
felony
if “there
may
granted in a
case
Pretrial Motions
prosecution is
county where the
exists in the
against
great
prejudice
[a
so
commenced
eleven, twelve and
In
fair and
cannot obtain a
that he
defendant]
thirteen, appellant contends that
the trial
31.03,
Article
V.A.C.C.P.
impartial
trial.”
psychiatrist or
appoint
failure to
court’s
*5
determining
applied
wheth
The test to be
in
attorneys
his
at voir
psychologist
assist
grant a motion to
court should
er a trial
motions,
dire,
requested
pretrial
in
denied
influ
change
the outside
venue is whether
counsel, equal pro
him
effective assistance
community climate of
affecting the
ences
process under the law.
tection and due
inherently
are so
a defendant
opinion as to
authority, ar-
Appellant
presented
has
no
the likelihood
suspect
raise doubt about
as to
gument, or
to show that he was
jury. Beets
obtaining
impartial
a fair and
to,
from,
or would
the assis-
entitled
benefit
State,
711,
(Tex.Cr.App.
767
742
v.
S.W.2d
during
psychologist
psychiatrist
State,
tance of a
or
1988)
701
reh’g); Phillips v.
(op. on
State,
808
voir dire. See Rivera v.
875,
(Tex.Cr.App.1985), cert. de
S.W.2d
879
(Tex.Cr.App.1991);
3285,
v. nied,
909, 106
S.W.2d 80
Goodwin
91 L.Ed.2d
S.Ct.
477 U.S.
State,
(Tex.Cr.App.1990)
n. 1
(1986),
Fort Star-Telegram Worth and one in a na- Jury ment and Article Code V.A.C.S. newspaper, tional The Star. also voir dire trial was not held videotape copies introduced of news stories the Criminal District Number One Court that were broadcast on network television on courtroom in the' Fort Worth Criminal channels, investigator two different but an Building, Courts but held in instead was only for the defense testified that three tele- Ajax Building located in which is Fort Worth metroplex vision channels out of seven at the corner of Commerce and Weatherford *6 concerning appel- area had carried stories Appellant object Streets. did not until he only lant’s newspapers case and that three in filed a motion for new trial which he the area had covered the case. contended that the relocation violated the 24.910, It is clear appellant from the record that supra, mandates of Arti Section and any failed to establish that supra. members of his cle prejudiced by publicity. were See appellant preserved We find that has not State, (Tex. Gardner 733 S.W.2d 204 complaints appellate these review be (mere Cr.App.1987) poten fact that 15 of 77 timely object in cause he did not the trial jurors tial they dismissed because held con Ransom, 52(a); Tex.R.App.Pro. court. 789 guilt publicity clusions as to because of does 585; S.W.2d at Smith v. 683 S.W.2d inability not in and of itself establish the of 393, Moreover, (Tex.Cr.App.1984). ap appellant by impartial jury). to tried It is pellant does not contend that the relocation apparent from the voir dire records that the was harmful or affected the fairness of the appellant’s jury members of had little or no process. voir dire Points of error sixteen offense; fact, knowledge about the six and seventeen are therefore overruled. jurors nothing knew about the facts of the jurors Appellant point
offense.
that
Two
knew
the offense
claims
of error
12.31(b)
twenty-two
had occurred but knew no details.
that
of the Texas
Three
Section
jurors
specific
each recalled one
fact1 but Penal
because it vio
Code is unconstitutional
pledged
only
rights
process,
to consider
the evidence admit
lates his
to due
fundamental
fairness,
representative jury.
ted at trial.
admitted that
Juror Osburn
he
and
See
Texas,
38, 48-51,
hearing
could
remember
facts
the Adams v.
448 U.S.
(1980).
broadcast,
2521, 2528-29,
offense on a television
but ex S.Ct.
5H understand, Counsel. “[The Court]: appellant in Granviel ques- objection to last sustained the tion. 108 S.Ct. L.Ed.2d U.S. (1987). any Appellant does claim that exception. “[Appellant]: note our Please
jurors from service because were excluded way, it this “[Appellant]: Let me ask Ms. oath, unwilling to take the or even they were Hicks, act that an that’s does it follow expressed reservations balked done, an the same as act intentionally rather, oath; challenges taking about deliberately that’s done? panel by arguing that the invalidi entire Honor, again, Your we “[The State]: Once 12.31(b) destroys integrity ty of Section object calling for her to deter- would Gardner, 733 at 205. jury. or reveal what mine what her definition 12.31 oath is unconstitu Since the Section deliberately would be. her definition of only if Adams it is used tional under members, point objection, of error disqualify venire I sustained “[The Court]: twenty-two is overruled. Counsel. please note our “[Appellant]: Again, ex- one, con In ception, Judge.” restricting the trial court erred tends (Emphasis Supplied). cutting by
vоir dire of veniremember Hicks
peremptory
later exercised
concerning
questions
off
whether she under
court
challenge on Hicks after the trial
de-
a difference
stood there was
between
appel-
challenge for cause
following
nied the
“intentionally”
“deliberately.”
terms
would
made
she
have
lant
to her because
appellant attempted
reflects
The record
testify
on his own be-
expected
following questions:
ask Hicks the
half under
circumstances.
certain
Hicks,
[Appellant]:
you.
Thank
Ms.
Honor, at first
“[Appellant]: Your
we
Jury
[appellant] guilty
based on the fact
found
would
for cause
taking
intentional
while in the
sufficiently
life
that if
answered
[Hicks]
committing kidnapping,
course
damaging
presented
evidence was
upon
called
these
were
expect [appellant] to
she
[i.e.,
questions
issues]
three
testimony. That’s in
come forward with
about,
talking
been
that we’ve
do
Eight
Fifth Amendment
feel
violation of his
intentionally
deliberately
are the
challenge for
remain silent. And we would
*7
same?
cause.”
Honor,
going
Your
to
State]:
wе’re
“[The
case,
proper
it
In a
murder
capital
object under the Charles Melton versus
jurors
question potential
for a
to
defendant
requesting
Texas case that
The State of
is a
they understand there
differ
on whether
deliberately
definition of
is an
her her
committed “inten
between a murder
ence
improper question which
not be
should
tionally” and
committed “deliber
a murder
Jury.
If it
allowed of the
is a term
may intelligently
ately”
ex
so
defendant
juror
ordinary usage the
can
for
determine
lay
challenges or
peremptory
ercise
it is and we
have a
themself what
don’t
challenge for cause.
predicate
proper
for a
they feel
right to ask what
it is.
675,
State,
684-85
v.
730 S.W.2d
See Gardner
905,
(Tex.Cr.App.),
484 U.S.
108
going
I’m
to
sustain
Court]:
“[The
(1987);
248,
Smith v.
We also have that in would influence his to be a case, intelligent the denial of use of impartial juror. fair and The trial court challenge peremptory single on a venire- granted challenge the State’s and excused Here, may member be harmless. See id. Hinsley jury duty. Appellant from had no granted the trial court appellant single questions Hinsley objection for and made no peremptory challenge appel additional after gone—i.e. to his excusal until after he was peremptory lant had used his fifteenth chal Therefore, the trial court him. had excused Therefore, lenge. appellant unless can show might error he has waived an peremptory he needed additional chal State, appeal. Mays claim on 726 lenge grant to cure trial court’s failure to 937, (Tex.Cr.App.1986), cert. de S.W.2d 950 legitimate challenge by appellant, for cause nied, 1079, 1059, 484 U.S. 108 S.Ct. we cannot reverse this conviction on the ba (1988) (any L.Ed.2d 1020 error waived point sis of first of error. See object failure to excusal economic Gardner, 690;2 730 S.W.2d at see also Mar Moreover, hardship). have held a trial we State, (Tex.Cr. tinez v. 763 S.W.2d court does not abuse its discretion sua App.1988). sponte excusing a veniremember for econom State, ic reasons. See Butler v. 830 S.W.2 d Appellant contends in his second Therefore, point (Tex.Cr.App.1992). even of error that the trial court erred in error, granting appellant preserved State’s for cause to he would not Hinsley Appellant’s veniremember based on economic be entitled relief. second juror may reasons. A be excused a chal of error is overruled.
lenge for cause when voir dire discloses a
juror “incapable
fact that would render the
through
third
fifth
Henley
or unfit to serve.”
respectively
the trial court
assert
(Tex.Cr.App.1982);
see also improperly
challenges
overruled his
for cause
(Tex.Cr.
Nichols v.
513 you look you phase 479 to the second would (Tex.Cr.App.1986), go 797 U.S. (1987). you punishment at one and would 860 issue L.Ed.2d S.Ct. automatically be that that must determine point of Appellant’s third error your yes on earlier find- answered based improperly the court overruled claims trial ing? challenge to for cause Osburn because he [By “A. like it Osburn]: would feel prejudice against appellant a bias or and would, guilty I found of first. if him the to case applicable the law under 35.16(a)(9) (c)(2), Article V.A.C.C.P.3 “Q. you Why do it should auto- feel seventh of error asserts the yes? matically be answered erroneously request trial court denied his it a they proved “A. without Because peremptory an additional to re guilty. a doubt he was shadow of petit jury. Appellant move Osburn from words, “Q. question your in In other that challenged he Osburn cause because only impor- thing own mind and that’s appellant’s age mitiga not in would consider now, that tant us in own mind to punishment,4 of automati tion he would question you anything to do asking is not cally special “yes” issue on one based finding you already made additional to guilt. finding an earlier of phase the trial? the first response in Osburn stated to is, no.” “A. I don’t feel like it questioning the defense that he would not age mitigating Later, exchange consider a to be a following defendant’s occurred be- “legally age.” factor defendant prosecutor: was tween and the Osburn A trial сourt its in abuses discretion overrul And, “Q. [By if the facts Prosecutor]: ing challenge for cause to a veniremember yes proved that a answer was didn’t show who follow the cannot law. See Trevino v. you you beyond a reasonable doubt you it would answer wouldn’t answer no— — U.S. -, grounds, rev’d on other yes? proved it it no unless was (1992). S.Ct. 118 L.Ed.2d law [By Right. Osburn]: “A. requires juror youth at least to consider So, “Q. you fair when would—would it be answering in mitigating factor say you [appel- when had—when that Here, however, issues. See id. Osburn was you questions asked some counsel] lant’s required law him to informed the consid answering yes, you wouldn’t an- about youth age mitigation punishment. er or yes you wouldn’t write down unless Therefore, appellant cannot demonstrate swer— Os- you considering of the proven it all against phase burn had a bias this the law. you might hear whether initially Osburn testified understood phase trial you the first came to “intentional” was not the same as “deliber- you might in the or hear some evidence claim, support ate.” In of this cites might of a relate to phase second portions following to the of the record: yоu keep open issue “Q. [By jury] But Defense]: [the you until had heard and not answer it mind intentional, act, found intentional but here evidence; that true? all find or are asked to whether not the Right. “A. conduct deliberate and it was with the expectation case, the death of
reasonable particular and we’re not In a would result. case, deceased another talking particular about but abstract, possi- my question you general If case in it is “So is: were given juror facts for guilty ble under a set of that had found someone *9 jury to be convinced that phase, at the find and a whole murder first now that years challenge Appellant at the of the old time 3. The record reflects did therefore, 35.16(a)(9); only Osburn under Article offense. 35.16(c)(2) appellant's claim under Article properly Tex.R.App.Pro. this Court. before 52(a). intentionally yet defendant acted Mays, supra, and basis was harmless. See at they evidence, when had heard all of the 949-50. might they still be that would answer the following exchange The record reflects the no, question if the evidence in total doesn’t during questioning by initial the State: answer,
justify yes you and were not “Q. [By you Do Prosecutor]: think yes convinced that a appropri- answer was you—have you anything in read the news- ate, you question would answer that first paper, anything seen on television about no? this ease? I “A. would consider all of the facts be- [By “A. I at the time. Williams]: I question, fore even answered that re- came, that; gardless they “Q. Okay. of where whether Where was was that on middle, beginning or the I newspaper? wouldn’t at- television or tempt to answer it until I had all heard Probably “A. both. (sic) it, sayd them and that’s that’s all “Q. Having something read in the news- facts, now base it on that.” papers television, something or seen Although initially ap- Osburn indicated to remembered, you’ve whatever it was that pellant’s counsel he “felt” he would automati- your is there established in mind such a cally special “yes” answer issue one based on guilt conclusion as to the or innocence of finding an guilt, earlier Osburn’s later [appellant] you as would influence prosecutor answers to the indicated he would finding action in a verdict? follow the special law and answer issue one “A. I don’t think it would me. influence based on presented the evidence at both “Q. Okay. you Do know what it is that phases record, of trial. On this we cannot you heard; you do recall? say the trial court abused its discretion in just I something “A. recall about the kid- overruling appellant’s challenge for cause to napping going to another I State. Osburn, or in denying appellant’s request for mean, I vaguely, you recall it know. peremptory challenge additional to use on it, don’t know the details of but— Osburn. See Sattiewhite v. (Tex.Cr.App.1989). Appel- “Q. Okay. you—were any pho- Did there lant’s third and seventh recall, error are tographs you footage filmor overruled. anything accompanying reports you saw? fourth of error as “A. I don’t remember. improperly serts the trial court overruled his “Q. Okay. you any opinions Do have challenge grounds for cause on various case, having about the heard or read what Appellant Williams. claims Williams was ob you’ve jectionable heard or read? because she would not consider age, baсkground social voluntary in long ago.” “A. No. It’s been so in mitigation punishment; toxication she (Emphasis Supplied). automatically would “yes” following relies on the dia issue one finding guilt; based on an earlier logue during questioning later the de pretrial and she publicity stated influ fense: However, ence her verdict. did not
challenge Williams because she could not
“Q.
[By
Okay.
you
Defense]:
Do
age
background
consider his
and social
recall—Knowing
long
this is a lot—a
time
mitigation
therefore,
punishment;
these
fact,
you
after the
but do
recall whether or
grounds
preserved
appeal.
two
are not
time, having
newspa-
not at the
read the
62(a).
Tex.RApp.Pro.
TV,
pers
possibly
having
watched
opinion
formed an
that time
appel
There was no evidence that
guilt
[appellant]?
or innocence of the
lant was intoxicated when he killed the vic
[By
really
“A.
Williams]:
don’t
know.
Therefore, any
tim.
denying appel
error in
lant’s
asking—
cause Williams on this
I’m
*10
finding
guilt
of
of
on
earlier
“yes”
case better
based
If I
remember the
“A.
could
stage.
guilt-innocence
guess
capital murder аt the
you.
tell
I
you know —I could
—I
I—
explained Williams
prosecutor
later
probably I did form an
assume that
would
guilty
be
could
found
it.
how a defendant
opinion
the
that I heard
at
time
parties,
law
and
capital murder
under
Okay.
“Q.
one focused
special issue
explained
also
that
anything
in
that
You do that
almost
“A.
individu-
jury’s
attention on a defendant’s
do,
you
you know.
explained
The prosecutor
al
also
conduct.
“Q. Okay.
you
I
to ask
And what
need
may present new evidence
that the State
is,
way possible
you
any
there’s
do
think
hearing.
then stat-
punishment
Williams
opinion
you
that
back
formed
require the
the law and
ed she could follow
existing,
publicity was
then when the
beyond
issue
prove special
one
State to
your
verdict
would that influence
would
also said she
reasonable doubt. She
Jury?
on this
you’re chosen
sit
case if
automatically
special issue one
answer
depend
just
remember
“A. It would
if
“yes”
to what the
regard
without
”
the details
it.
by the
During
questioning
de-
was.5
later
could,
So,
you
“Q. Okay.
testi-
if
if
fense,
guessed there
she
Williams stated
brought
brought
out
mony that’s
answer
could
a situation where she would
be
you,
and
back those details
reinforced
having
special
one “no” after
found
issue
recollection,
your
pos-
then
refreshed
capital murder:
guilty of
defendant
verdict,
sibly could
influence
“Q.
you imagine
[By
Defense]:
Can
you’re telling me?
what
you
sitting on the
where
were
case
”
suppose
(Emphasis Sup-
“A. I
it could.
trial,
punishment phase of a
where
plied).
it,
law
justified it and the
allowed
facts
argues,
initial
“[0]nce [Williams
[appellant] guilty
already
having
found
ly] stated what
read would influence her
she
intentionally killing someone in the course
disqualified
matter of
verdict she
law_”
as a
committing
you then
kidnapping,
could
35.16(a)(10),
Article
And
it
that Number
no?
read
answer
disagree. Nothing
We
V.A.C.C.P.
carefully.
testimony
Williams’ initial voir dire
indicated
punish-
[By
And this is
Williams]:
“A.
actually
she
ever had formed a conclusion on
ment, right?
appellant’s guilt
in
or innocence that would
“A. Yes.
fluence her verdict. See
Macias
could
a situation
guess
there
be
193-94
it could be no.”
where
denied, 484
U.S.
S.Ct.
(1988).
applicable,
Under the
L.Ed.2d
objec
Appellant claims Williams
review,
say
standard of
we cannot
dеferential
initially stated she
because she
tionable
its
trial court abused
discretion
over
issue one
automatically
special
answer
would
ruling appellant’s
for cause to
guilt,
finding of
“yes”
on an earlier
based
publicity
pretrial
Williams on the basis that
subsequent attempt to rehabili
there
nowas
influence her verdict.
would
support this
tate her. The record does not
Although
initially indicated
initially
claim.
Williams
stated she understood
Williams
“yes”
one
special issue
“intentional-
she would answer
there was
difference between
finding
guilt, she later
ly”
an earlier
“deliberately.” During
ques-
later
based on
by
defense,
during questioning
said
would not
tioning
Williams stated she
she
from this
automatically
prosecutor. She did not vacillate
answer
issue one
would
So,
yes;
yes,
you
is that
[By
"Q.
would answer it
Prosecutor]:
wouldn’t
then
just automatically
Question
Number 1
right?
is,
regard
yes, without
the evidence
what
Right.
"A. Yes.
you?
yes,
prove
"Q.
we
it should
And if
failed
Right.
[By Williams]:
"A.
you’d answer no?
prove
Okay.
require
"Q.
State to
You’d
Right.”
"A.
yes.
prove
if we
it should be
should be
And
*11
upon
position
questioning
further
the de
the
as
Defendant
would influence
fense. Thе trial
your
court did not abuse
finding
its
action
a verdict?
in overruling appellant’s challenge
discretion
[By
“A.
Prater]:
feel like it would.
for cause to Williams on the
that she
basis
So,
“Q. Okay.
yes
is that a
answer?
automatically
issue one
“A. Yes.”
“yes”
finding
guilt.
based on an earlier
of
granted
The trial court
chal-
the State’s
McCoy
940,
See
713 S.W.2d
950-51
lenge for cause to Prater under Article 35.-
(Tex.Cr.App.1986),
denied,
940,
cert.
480 U.S.
16(a)(10), V.A.C.C.P. As the trial
ex-
court
(1987).
107 S.Ct.
Ap
L.Ed.2d 779
Prater, appellant
following
cused
made the
pellant’s
point
fourth
of
is
error
overruled.
objection:
Appellant’s
point
fifth
of error asserts the
object
“Judge,
granting
we
the
of the
erroneously
trial court
overruled his chal-
challenge
State’s
respect
cause with
lenge for cause to Swindell
she
because
could
[Prater], in that the Prosecutor asked —the
appellant’s
not consider
age
intoxication and
did
properly
Prosecutor
not
follow [Article
mitigation
However,
punishment.
we
35.16(a)(10) in asking
question.
]
no
find
reversible error
there is no
because
asked,
requires
juror
“It
that the
‘Is
was intoxicated when he
guilt
there such
conclusion
or
as to the
victim,
the
killed
and the record reflects
Defendant,
hearsay
of the
innocence
from
Swindell was never informed the law re-
otherwise,
or
as would
juror
influence the
quired
youth
age
her to consider
in miti-
or
her action in finding
his or
a verdict.
Trevino,
gation
punishment.
To ascertain whether
chal-
this cause of
614; Demouchette,
at
731 S.W.2d at
exists,
lenge
juror
the
shall first be asked
83; Mays,
Appel-
charge
“conspiracy,”
on
which was similar to
fifteenth
parties
charge,
prosecutor’s
a law of
and the
asserts
argument
erroneously
the trial court
admitted
could have been understood
the
at
guilt-innocence phase
the
jury
permit
capital
of trial
a
murder conviction
evidence
of an
the defendant’s coactor’s
extraneous offense he
murderous act
committed. On
appellant
only
where
during
intended
direct
commit a
examination
the State’s case-in-
robbery.
chief,
Id. at 76-78. The main
during
rationale
Irwin
testified
the course
opinion
for the
was that the Clark court was
of the kidnapping
appellant
she and
as
were
uncertainty
left with “a level of
and unrelia-
leaving a
convenience store
ap
Houston
bility
fact-finding process
[in] the
that cannot
pellant suddenly put his hands over the ta-
capital
be tolerated
case.”
at
Id.
78.
toos on his
he
arms because
saw his old
probation officer:
distinguishable
We find Clark
for several
Here,
Clark,
reasons.
unlike
neither the evi
“Q.
[By
[appel-
Prosecutor]:
the
Did the
dence,
charge
the
nor the State’s final
say
give you
or
anything
lant]
reason
argument
could have misled the
into
why
put
he
his hands over his arms cover-
believing it
appellant
could have convicted
ing the tatoos?
capital
though
murder even
he intended to
[By
“A.
He told me that
Irwin]:
there
only
Compare
commit
robbery.
at
id.
77-
standing
awas man
over
talking
there
More
our
importantly,
prior
decisions
telephone,
the
that it was his old Probation
recognize
punish
the
issues at the
something
Officer or
like that.”
phase provide “unique
ment
criteria for as
penalty
sessment
of death in
Appellant objected
testimony
this
because
cases,”
jury’s
and
focus the
attention on it
clearly
was not “so
interwoven or connect-
a defendant’s
conduct
individual
and not the
appeal,
ed
appellant
with the offense.” On
conduct of his cohorts. See Andrews v.
argues
testimony
probation
about his
51-52
S.W.2d
officer
impropеr
was an
reference to an ex-
rt.
488 U.S.
109 S.Ct.
ce
182,
prejudiced
traneous offense that
him.
(1988);
prosecutor
Evidence of
made
one reference to
*14
punish
is
testimony
support of
claim that
neous offenses
admissible
in
the State’s
trial;
phase
ment
of a
murder
there
appellant was the shooter.10
forе,
appel
properly
trial court
overruled
tatoos
man
“Who hid the
from the
he saw
Worley’s testimony. Har
objection
lant’s
to
in the
he saw that
convenience store that
State,
(Tex.Cr.App.
v.
ris
827 S.W.2d
thought
a
he
was Probation Officer? You
1992). Also,
object
appellant
not
to Kin-
that.”
know who did
therefore,
testimony;
pre
he
to
nard’s
failed
record, any
admitting
On this
error in
Ir-
52(a).
Tex.R.App.Pro.
serve
See
error.
testimony regarding appellant’s vague
win’s
Moreover,
testimony
Kinnard’s
was not hear
probationary
former
status was harmless.
testimony
say.
was offered
Kinnard’s
Appellant’s
point
is
fifteenth
of error
over-
assertion,
nonhearsay
prove
fact of an
ruled.
the truthfulness of
purpose,
prove
and not to
eighteenth
Appellant’s
and nine
fact,
hearsay purpose.
Tex.
the asserted
points
complain
teenth
of error
the trial
801(d).
eighteenth
Appellant’s
R.Cr.Evid.
erroneously
punish
court
admitted at the
are
of error
overruled.
nineteenth
phase
appellant’s
of
ment
federal
point
eighteenth
firearms violations. His
of
point
twenty-first
of еr
reversibly
trial
error claims the
court
erred
admitting
in
erred
ror asserts the
court
testify
by allowing a witness
about
felony
appellant’s prior
conviction
evidence of
appellant
offense for which
was never
possessing
“shotgun
less than 18
charged
point
or arrested. The nineteenth
was based on
inches” because
conviction
reversibly
asserts
trial court
ap
is no evidence
an information
there
by allowing
testimony
hearsay
erred
from pellant
The
re
indictment.
record
waived
another witness.
object
he
appellant did not
on the basis
flects
therefore, nothing
Attorney
appeal;
is
Worley
now
on
Assistant United States
asserts
Tex.R.App.Pro.
objection
preserved
pre-
testified without
for review.
52(a).
addition,
required
is not
viously
in
In
the State
had been convicted
State court of
prior
in a
felony
possessing
“shotgun
a waiver
indictment
offense
show
punishment, and
to enhance
than
inches” for which
re-
conviction used
less
Worley
the record
five-year
appellant points to no evidence
ceived a
sentenсe.
then
issue. See Smith
prohibits
federal law
a convict- where he raised the
testified that
State,
393,406 (Tex.Cr.App.1984);
falsely
felon
and to
683 S.W.2d
ed
to receive
firearm
jury argument
prosecutor’s
cannot
10.
entire
9. The new Rules of Criminal Evidence became
The
appel-
inviting
jury
to use
be characterized
September
effective
See Acts
ap-
probationary status to convict
lant's former
5-9;
Leg.,
p.
§§
69th
Ch.
see also
person generally.
pellant
a bad
because
Mayes
(Tex.Cr.App.1991);
first issue on the deliberately basis The term does not have a having guilty found an accused of an legal inten- jury definition and therefore the proposed majority opin- tional murder. The expected to own common use their under- ion holds that Osburn was rehabilitated on standing as that term to what means. point, authority on of Sattiewhite v. Legislature obviously ob- —the (Tex.Cr. at 279-281 viously could have used the term intention- Sattiewhite, App.1989). joined dissented al but that a useless act would be because Duncan, Judge ground already have will determined that genuinely venireman had not been rehabili- intentional, the act was so if wanted Likewise, tated. I do believe Osburn *15 deliberately, to use instead of intentional was genuinely in rehabilitated this ease. they surely have chosen that could word.
The Court held venireman in the Sattiew- suggest you I assume or I would it hite to have beеn rehabilitated because he jury calls for the to take a second look he the asserted could “follow law” and would vantage point from a different answer- wait until present- all the evidence had been ing question, jury that doesn’t auto- so punishment phase ed at the of trial before matically yes Question answer Number 1 making special his decision as to the first solely they because found a defendant act- argued issue. In dissent I that a venireman intentionally phase first ed at the of the who cannot tell difference between “in- only just trial and not because the its [sic] tentional” and cannot be “deliberate” rehabil- a different there but also word because itated they may heard all not have the evi- of ‘particular dence on that issue until the “by simple expedient promising of trial, jury close
wait until so would be punishment all the inis expected question to not that until to make answer his determination ‘deliberate- they had heard all evidence at the ness.’ If in mind his ‘intentional’ and ‘de- trial. liberate’ synonymous, are identical or it does not matter whеn makes the latter you I take be able to do it would that? determination, long it so as follows his A. Yes.”* finding intentionally verdict that question quali- This entailed the multifaceted killed. of the His resolution deliberateness could fication that the venireman wait until predetermined.” issue will still be answering all the evidence in before was State, supra, (Clinton, Sattiewhite v. at 291 my way thinking, first issue. To J., dissenting). Osburn’s therefore does affirmative answer Here, prosecutor first broached the expression that a not count as an undiluted subject with Osburn of the venireman differ- finding would of intentional murder not dic- ence between “intentional” and “deliberate”: ques- tate his answer the deliberateness Sattiewhite, (Clinton, J.,
“Q. Now, you [special supra notice in tion. dissent- will issue Later, Legislature ing). upon questioning that counsel for one] has used the you agreed deliberately, may appellant, term that he recall that Osburn testified * Emphasis supplied. is, like it no.” “delib- A. I don’t feel prosecutor’s assessment that
with the
erately”
intention-
“is different than
word
this,
rehabilitation, Osburn
With
absent
of the
ally.”
his resolution
Asked whether
challengeable fоr cause. See
proved himself
“auto-
murder would
question
intentional
(Tex.Cr.
State,
So is: If were on And, Q. if didn’t that jury the facts show guilty that had found someone you beyond a yes proved to answer was phase, murder at the first now that you it you go phase you doubt wouldn’t answer to the second would look reasonable was you it no unless it punishment you issue one would answer and would no— yes? proved automatically determine that that must be yes your find- answered based earlier Right. A. ing? So, you it be Q. when would—would would, I I A. would feel like it if found say you [De- fair to that when had —when guilty him first. of the you ques- asked some fense had Counsel] Q. Why you feel it be automati- do should yes, you answering wouldn’t tions about yes? cally be answered un- you yes wouldn’t write down answer — they proved A. it without proven you considering Because all of it was less guilty. shadow of a doubt you might hear whether the evidence that words, you phase the trial Q. your in in the first question In that it came other in the impor- you might some evidence only thing mind hear own and that’s now, might relate to phase that of a trial that tant mind second us own open anything you keep would question asking you issue and is not to do you until had heard finding you already made mind and not answer it additional to the evidence; true? phase at the of the trial? all of first Right. A. Q. case, particular In a and we’re not GONZALES, Appellant, Alex case,
talking particular about this but general abstract, possi- ease in in the it is given juror ble under a set of facts for a Texas, Appellee. The STATE of and a find whole to be convinced that intentionally yet a defendant acted No. 1641-92. they evidence, when all heard of the might Texas, they Appeals still be that Court of would answer that Criminal no, question if the En total doesn’t Banc. answer,
justify yes you were not Sept. 1993. yes appropri- convinced answer was ate, question answer that first Rehearing Denied Nov. no?
A. I would consider all of the facts question,
before even answered that re- gardless came, they of where whether the Secrest, Jr., Houston, George McCall middle, beginning or the I wouldn’t at- appellant. tempt to answer it until had heard all of it, sayd them and [sic] that’s that’s all Holmes, Jr., Atty., B. John Dist. and Timo- facts, Taft, now base it on that.” thy G. Chuck Rosenthal and A. Donald Smith, Houston, Attys., Asst. Dist. Robert Osburn’s answers here amount to no more Huttash, Austin, Atty., State’s for State. than another assurance that he would not special decide the first issue until he had Sattiewhite,
heard all the evidence. As in not alter will the fact that his answer to already the first issue has “automati- OPINION ON STATE’S PETITION FOR cally” been determined virtue of his find- DISCRETIONARY REVIEW ing that an intentional murder was commit- PER reason, CURIAM. my view, ted. For this Osburn was not rehabilitated. charged pursu with murder At the time the trial court denied his chal- 19.02(a)(1) § ant to Tex.Penal Code Ann. Osburn, lenge against cause (2). But the him convicted of the lesser *17 had all peremptory exhausted fifteen of his voluntary manslaughter, offense of Tex.Penal challenges, and had also used the one addi- 19.04, § punishment Ann. Code and assessed peremptory challenge tional the trial court years at seven confinement. The Court of granted Appellant requested yet him. Appeals reversed. Gonzales v. peremptory challenge. another additional (Tex.App. S.W.2d 848 [1st Dist.] — Houston This consequently Osburn 1992). jury. became the twelfth member of the granted petition We the State’s for discre- say, appellant Needless to had made it clear tionary grounds review raises two which objectionable juror. Osburn was an I would review, namely judge correctly that the trial therefore reversibly hold that the trial court voluntary instructed the on the law deny appellant’s challenge erred to for cause. judge properly intoxication and that the trial not, majority respect- Because the does specific excluded evidence acts violence fully dissent. carefully considering After the deceased. grounds, that our
these we find decision grant petition improvident. the State’s petition Accordingly, the State’s is dismissed. WHITE, J., concurs in the result.