Trevino v. State

probable of existence cause to PERALEZ, tality the circumstances. of Avilez v. Appellant, Janie Pena (Tex.App. — Houston v. Dist.], 1990).3 originally granted We [14th Texas, Appellee. The STATE of discretionary petitions for re State’s No. 965-90. of view to determine correctness holding light of the State’s contention Texas, Appeals Court Criminal appeals misapplied the court of En Banc. Gates, 213, decision Illinois v. 12, 1991. June 2317, (1983), by 76 L.Ed.2d 527 S.Ct. improperly employing reliability factor Rehearing Sept. Denied 1991. part analy of its Aguilar-Spinelli4

sis. arguments

Upon of the briefs and review appellant, we con- both State petitions that the were im- clude State’s providently granted. Accordingly, petitions for review are dismissed. State’s Bax, Houston, appellant. Richard C. WHITE, J., McCORMICK, P.J., and Holmes, Jr., Atty., John B. Dist. Winston dissent. Cochran, Jr.,

E. Ira Jones and Donna Cam- Houston, eron, Attys., Asst. Dist. Robert Walker,

Huttash, Atty., State’s and Alfred Asst., Austin, Atty.,

First State’s for State.

OPINION ON STATE’S PETITIONS FOR REVIEW DISCRETIONARY TREVINO, Appellant, Mario Joe

MALONEY, Judge. Appellant aggravated indicted for Texas, Appellee. STATE possession of cocaine with intent to deliver. Art. 4476-15 4.03.1 TEX.REV.CIV.STAT. § No. 69337. appellant’s pre- court overruled trial Texas, Appeals of Court of Criminal suppress seized in trial motion to En Banc. under Thereafter the a search warrant. by jury trial and entered appellant waived 12, 1991. June guilty. The court found plea of not trial Rehearing Sept. 1991. Denied appellant guilty after a bench trial and years’ punishment at fifteen con- assessed Department in the Texas of Cor-

finement

rections.2 appeals the convic

The court of reversed

tion, for search holding that the affidavit facts to establish to recite sufficient

failed Avilez, during pendency 1. Repealed & Soler who died and recodified as TEX.HEALTH appeal. 481.112. § SAFETY CODE 2. Now the Texas Department of Criminal Jus- Texas, 4. Aguilar U.S. 84 S.Ct. tice, Division. Institutional (1964), Spinelli v. United 12 L.Ed.2d 723 States, Appellant’s a consolidated case was decided in 3. codefendant, (1969). opinion of a Francisco with that Brender, Terry Casey

Art M. and Frank (Court-appointed appeal), P. Colosi Fort on Worth, (Court-ap- and Charles Van Cleve Arlington, pointed appeal), appellant. for Curry, Atty., Tim Dist. and C. Chris Mar- shall, Mary Taylor Thornton and Rufus Adcock, Worth, Attys., Asst. Dist. Fоrt act, Huttash, Austin, at or near of Atty., Robert made the time State’s reasonably or event condition recorded the State. thereafter. The records attached soon duplicates origi- of hereto are exact nal, and it is a rule the Texas Youth OPINION permit originals to not Commission McCORMICK, Presiding Judge. my custody.” leave 17, 1983, January body eighty- On objected The State at trial the intro- year-old alleging Blanche Miller found inside the certifica- was duction the exhibit Specifically, improper. her ransacked home. victim had been tion to be the State strangled raped. alleged improper that the certificate was Numerous items report com- during including the offense because it stated that the was were stolen television, stereo, piled by employee an Youth a radio and the victim’s of the Texas Commission, exhibit, face, on its Appellant capi- car. convicted of this while the punishment prepared by an tal offense and his was as- was shown to have been County Department appeal employee This is Harris sessed at death. judge sustained that conviction. Education. trial objection and denied admis- the State’s error, appellant In his first sion of the exhibit. reversibly judge contends the trial erred that al- appeal, appellant contends On phase during of trial when making psychologi- though he refused to allow the introduction of an employee of the cal assessment not an purporting psychological to be exhibit clearly Youth Councilthe record was Texas of Harris appellant. assessment Coun record of the being as an official identified the ty Department request of Education at which the and one of Texas Youth Council County of Harris Probation Office had the obtaining and charged Council was psychological assessment of conducted at the using. Appellant points out that years appellant when he old. was twelve the jurisdiction the of time he was under Appellant’s the exhibit contained written 5143d, Youth Article Section Texas Council concerning findings psychological as Statutes, empow- 25, Texas Civil Revised accompanied sessment. exhibit was This of law en- council to “make use ered the by by made out the records a certificate medical, detentions, supervisory, forcement of Texas Youth custodian Council. educational, correctional, segregative and Said certification averred: facilities, agencies and institutions other hereto consists records attached “[T]he Furthermore, appellant within the State.” of copies of true and correct records 5143d, Section argues that under Article employee an under the direction made V.A.C.S., 16, charged with Council was qualified duly of a officer for Texas all records “of examina- keeping written consequence of Commission as a Youth thereon, of conclusions based tions and Trevino, Jr. the detention of Joe Mario disposition concerning the of all orders and 1962). (Date 25th, July of Birth: every delinquent child sub- or treatment of “Further, the records hereto attached argues that Appellant ject to its control.” Youth Commis- are records the Texas record of an official the exhibit was regular in the which were created sion many used Youth Council which Texas business, regu- course of it was depart- including probation agencies, the Texas lar course of business at who referred juvenile courts ments of the employee for or Commission an Youth it, agents its children delinquent personal knowledge representative with of relevant and collection preparation act, or condition recorded event information psychological sociological and record or to make the memorandum or to it. children entrusted delinquent on the in- information thereof transmit is not record; the exhibit argues The State memorandum cluded such 3731a, Article under either or record was admissible and the memorandum V.A.C.S., provides qualifications which for admission and what were. 3737e,V.A.C.S., domestic records or Article (repealed Act

the Business Records effec- (Tex.Cr.App.1979), State, In Porter v. 578 S.W.2d 1986, September tive Texas Rules of denied, t. cer Evidence)1 (1982), agree. Clearly Criminal and we we There, the similar situation. considered a proper predicate not laid for admis- attempted to introduce into evidence State either Article sion of the exhibit under from Porter’s federal several documents is, although That 3731a or Article 3737e. parole file. These documents consisted alleged the certificate that the document discussing drug use various letters Porter’s prepared by employee an of the Texas ap psychological problems, a warrant Council, Youth this was not the case. Both Porter’s plication which recommended that require Article 3737e 3731a and drug due to his use and parole be revoked employee of the of the State business or pro participate failure to in treatment sought generate the record to be admitted grams, report prepared by and a an em State, Dingler into evidence. See 768 ployee drug facili of a addiction treatment (Tex.Cr.App.1989); Estes poor partic ty which described Porter’s Tex.Crim. 283 S.W.2d ipation program gave in the treatment (Tex.Cr.App.1955). See also Reed v. poor prognosis. him a These materials (Tex.Cr.App.1990). 811 S.W.2d 582 objections admitted over Porter’s were their admission was raised as Furthermore, examining after the exhibit appeal. error This Court reversed the persuaded we are that it does not have “the recognizing although conviction cer reliability” indicia of sufficient to insure hearsay may come tain within integrity finding process of the fact recognized exception hearsay rules rights commensurate with the of confronta- such evidence is not admissible it does tion and cross-examination. The exhibit reliability the indicia of sufficient report that the author shоws relied finding integrity to insure the of the fact gleaned on information from other sources process. Specifically, we held: including Harris County Child Welfare “The admitted in this case are documents Unit, the Child Center of Lake Guidance letters, letters, copies of which were or Jackson, Independent the Houston School kept or in the District Parole received District, Boys and the Great Plains Ranch. Antonio. These con- Office San letters report hearsay. Thus contains double upon hearsay, as hearsay tain as well Further, nothing report there is in the opinions regarding appellant’s mental show that the sources of information relied his amenabili- physical condition and upon by the author were accurate. More- of ty to rehabilitation. The sources over, nothing there the exhibit to show opinions are in most cases un- these named, or performed psychological who tests on no case are the authors 3731a, Act, vant, competent pro- 1. Article the Domestic Records be evidence of the occur- pertinent part vides in as follows: rence of the act or event or existence of instrument, Any judge if the finds "Section 1. cate, record, written certifi- the condition that: record, return, part report, (a) regular of or made in course of It was report, by part business; of made an officer of this State thereof, any governmental or of subdivision (b) regular It weis course of that busi- by deputy, employee or his or or un- employee representative ness for an of supervision, performance der his in the of the personal knowledge such business with employment, functions of his office and be, shall act, such event or condition to make such relevant, so as admitted in the courts far infor- memorandum or record or to transmit as evidence matter stated of this State of the be mation thereof to included in such memo- therein, subject provisions in Section record; randum or 3." (c) It was made at оr near the time of the Act, pro- Article 3737e the Business Records act, reasonably event or condition or soon pertinent part as vides in follows: thereafter.” "Section 1. A memorandum or record of an act, shall, rele- event or condition insofar as 598 the constitu compe- dermine rather than further sources shown to be

the unnamed attributed to guarantee impartial jury.” tent to make the statements of an 493 tional suggest 478,110 them. It defies reason at S.Ct. at 806.3 See Seubert U.S. letters, merely they were these because (Tex.Cr.App.1990). 68 v. 787 S.W.2d office, government in a file in a collected 162, McCree, also v. 476 U.S. See Lockhart reliability sufficient to have the indicia of 1758, (1986); Tay 137 106 90 L.Ed.2d S.Ct. finding integrity of the fact insure the Louisiana, 522, 95 S.Ct. U.S. lor constitu- process commensurate with the (1975); and Strauder L.Ed.2d rights of confrontation and cross- tional 303, 25 L.Ed. Virginia, 100 U.S. v. West Porter, 578 S.W.2d at examination.” (1879). appellant’s second We overrule 746. point of error. 604 S.W.2d McCrary See also error, appel points In several (Tex.Cr.App.1980). We find that unduly contends that the trial court lant reasoning applied in the in Porter his dire examination restricted voir court did not abuse instant case.2 The trial deprived him of information need thereby admission its discretion when it denied the per intelligent for the exercise his ed Accordingly, of the into evidence. exhibit A consti emptory challenges. defendant’s appellant’s point of error is overruled. includes, under to counsel tutional error, appel In second Constitution, 1, Section Texas Article deprived jury of a lant asserts that he was right of his counsel comprising fair cross-section of the com panel order to exer jury members of the him the Sixth munity guaranteed challenges. intelligent peremptory cise Amendments in that and Fourteenth (Tex. State, 631 S.W.2d Powell v. jury jurors from the State struck all black State, 576 S.W.2d Cr.App.1982); Mathis v. issue has been decided ad panel. This (Tex.Cr.App.1979). Ordinari 836-837 Illinois, versely in Holland v. give the defendant ly, the trial court should 474, 110 803, 107L.Ed.2d 905 S.Ct. jury panel great questioning latitude Holland, (1990). the Court decided dire; however, the trial court during voir cog prohibition upon the exclusion “[a] impose reasonable re authority has groups through peremptory chal nizable dire of the voir upon the exercise strictions in the text lenges has no conceivable basis reasons, among for various Amendment, examination sup is without Sixth of what can decisions, prolixity to curb the un them port prior in our and would Hoffman, citing Palmer v. questioned 578 S.W.2d at 747 Court whether the 2. The Porter also 109, 113, 87 L.Ed. 645 318 (1943). considered "official written documents could be Article instruments" under 3731a: is made in McCormick The same conclusion “Clearly, pursuant to law of recordation Evidence, (3rd Ed. Ray, Section 1272 Law & events, acts, relating to the or matters official 1980). parole operations office or to of a federal particular parolees, there can be about which prepa- Appellant of the that at the time 3. writes perform- dispute, is done in the no reasonable pending same issue was of his brief the ration government offi- of the functions of a ance Supreme in Bat- Court before the United States Hoffman, v. official duties. Cf. Palmer 79, 1712, cer’s Kentucky, 90 v. 476 U.S. son 477, 109, (1943); S.Ct. 87 L.Ed. 645 Batson, (1986). This is incorrect. In L.Ed.2d 69 Andrews, (Tex.1966). Loper 404 S.W.2d 300 although petitioner attempted premise his to the parole office makes the fact that a district But communi- fair cross-section of the claim "the maintaining any opinion Amendment, practice of in a file a ty” requirement in the Sixth found parolee concerning within the opinion a Supreme or conclusion its on the Court based the source, charge, regardless does of its Equal office’s Clause of the Fourteenth Protection necessarily put in the expressed those statements no view on the mer- not Amendment per- kept any petitioner’s in the of records which are Sixth Amendment class its of of the Batson, government arguments. functions of a 476 U.S. at n. formance of the Appellant informal before this Court To hold that such at n. 4. officer's duties. S.Ct. 3731a, Equal rely upon Protection Clausе Article su- the are included within does and, records above, Supreme ‘designed Court has pervert to facili- as stated pra, a rule adversely experience to Amendment issue which decided the Sixth admission of records tate ” Porter, trustworthy.’ quite him. has shown to be questions in lengthiest part of a criminal stances the defense become asked proceeding. Bodde v. hopes binding particular juror of to a 568 S.W.2d cert, particular explain- of action (Tex.Cr.App.1978), denied 440 course without required under the ing to them what was S.Ct. (1979).4 court did not abuse its dis- Smith As this Court stated in law. The trial refusing question- (Tex.Cr.App.1974): cretion to allow the 513 S.W.2d 823 in ing. Appellant’s point sixth of error appellant certainly “While has the overruled. jurors end to examine to the of form- conclusions,

ing his no own there also error, point appel In of his seventh doubt that reasonable controls be complains lant that his dire examina voir exercised the trial court for various juror prospective tion of Emma Graves was dire reasons. Voir examination can be- impermissibly ability limited and his to ex lengthiest part proceed- come the of the intelligently peremptory ercise strikes ings.... prolixity, To curb some it is denied when the trial court refused to recognized that courts need have a dis- ask, “[Tjhough, you him are allow to cretionary area within which the exami- judge to be asked to the facts of the case might reasonably nation be limited.” you objectively and can do that without at 827. letting might the emotion that be involved such, As we will a trial court’s your duty juror reverse interfere as a to re with upon restriction of voir dire if it is objected review turn a true verdict?” The State as, trying pin determined that the trial court abused its this this “Counsel Id. prospective juror discretion. down as to her mental processes arriving in at a verdict.” single error, appellant a of objection trial court told sustained complains that the trial court abused its rephrase ques counsel limiting pro discretion in thе voir dire of Thereupon appellant’s tion. counsel asked: spective jurors Devenport, Berlin and Bar- Graves, juror, Mrs. sometimes as a Appellant bee. attempted inquire if the arriving jurors are forced to—in at a prospective jurors would consider verdict, they very are forced to take youthfulness mitigation of the offender regard unpopular stand with punishment. of At appellant no time did case, outcome of a and would the fact explain to these veniremen that the law presented that if the evidence that was requires juror must be able consider case, the evidence failed age offender the assessment proof beyond meet the burden of punishment. asked either or reasonable doubt —the definition (“would open questions you ended consider whatever that definition of reasonable youthful age crimi have, you may if the State didn’t doubt defendant”) questions nal or wherein he (sic) proof, burden could meet it’s attempted prospective jurors to bind the as though may as a they mitigate punish to whether —even unpopular decision State (“In age ment due to of the offender family, and the members could ..., dealing penalty with the death could upon based the evidence do that mitigation lessening consider [Empha- presented to the case? youthful age per of a sis added.] murder”). Appel son convicted my give do an un- “A. would best to jurors lant was entitled to inform the mean, doubt —I no unrea- reasonable requires age consider the the law impartial weight sonable doubt but pun of the defendant the assessment of — evidence all of the before. if ishment and could do so. This was reading Our of record indi And that true not done. would be even complained though in- cates that all three of the result— case, jury began transcription on of voir dire 4. In the instant selection 1984. The exami- 15, 1984, pages May and did not end until June nation fills more than 3500 of the record. 600 (Tex.Cr.App.1985); S.W.2d way. Mc Either State, (Tex. v. Manus

“Q. —might unpopular to thе State? be Cr.App.1980). The trial court did not abuse added) Yes, (emphasis sir.” refusing its discretion to allow such responses appellant reflect that re- Graves’ questioning. point This of error is over he insists question to the ceived an answer ruled. allowed and the the trial court should have render clearly record shows that she would error, point appellant In his tenth of solely and without a verdict evidence argues that the trial court abused its dis of the vic- any regard sympathies limiting prospec dire of cretion voir cannot family anyone else. We tim’s jurors tive James Heame and Rubin Mas discre- say court abused its that the trial attempted ques to sey. Defense counsel forcing pro- inform the tion in to their on whether an tion them about views requires spective juror that the law that guilt. Ap any indication of indictment was and upon her verdict the evidence she base that as a result of such pellant maintains swayed by public she is not to be that intelligently exer restriction he could not inquire if she opinion, and to thereafter peremptory challenges. his fol cise point law. This of error could follow that during lowing occurred defense counsel’s merit and is overruled. is without prospective juror of Hearne: voir dire error, appellant In his ninth Now, if ask believe will its dis argues that the trial court abused has or think or that since following refusing permit to cretion court, indicted, brought into that been question: guilty? might a little bit Now, setting for a moment aside Attorney]: “MR. ADCOCK [State’s prosecutor told about what the has Honor, at this time we are Your penalty, and what the law the death ‍​‌​​‌‌​‌‌‌​​​​​​‌‌​​‌‌‌‌‌​‌‌​​‌​‌‌​​‌​‌‌‌‌​‌‌‌‌​‍simply object question, that penalty, regarding the death (sic) to state the law cor- asks counsel change to include more could the law juror; rectly prospective penalty instances where the death instruct him that as a the Court will invoked, you do should be is no that the indictment matter of law that?” guilt whatsoever evidence objec- The trial court sustained State’s not he could follow whether or commenting, “I question don’t tion to this law. ability prospective juror has the think “THE COURT: effect change the law and that was the The Court will instruct maintains your question.” Appellant time, appropriate the Court will at the fully him ruling prevented from that this charge will contain give you a which feelings exploring the views given the total statement earlier to prevented the prospective juror and also no indictment itself is panel; that the establishing prospec- defense should not be guilt and it irrevocably opposed to a life juror was tive way as evidence considered Appel- in a murder case. sentence guilt. ruling the court’s lant also asserts Attorney]: “MR. MOLINA [Defense obtaining in- him from sufficient prevented Honor, prosecutor’s has the ob- Your exercise intelli- formation which jection been sustained? challenges. dis- gently peremptory his We “THE COURT: agree. Yes, sir.” prospective ju counsel asked the When State, citing Appellant, she Mathis open-ended question of how ror the law, (Tex.Cr.App.1979), Camp penalty change the death he S.W.2d (Tex.Cr.App. global fishing expedi 685 S.W.2d embarking on a bell v. 1985), tion; argues im that when the trial court overly broad and his objection ques 703 sustained the State’s permissible. See Smith Honor, impermissibly tion it in all restricted his voir dire Your of the conversa- again examination. I tions—in order so that won’t transgress ruling, did on the Court’s case, In the instant we have no absolute objection the the Court sustain the appellant’s limitation of voir dire as prosecutor I made? don’t know how which Campbell. occurred Mathis and I proceed; to whether should ask objection appellant’s The State’s was that again I need question same or whether question phrased correctly. was not rephrase my question or what— sustaining objection, the State’s the trial “MR. ADCOCK: way appellant court no intimated that Honor, light the court’s Your question properly could not ask a worded law, I correct statement of the will regarding prospective juror’s ability to my objection. withdraw Indeed, prosecutor’s follow the law. properly the instant case. The trial court acted

tion of this venireman. In Abron v. whatsoever and whether ... no tive him. asked in Court noted questions during voir dire which have been 408. We find that this is asking lant of law the indictment is no spective juror felt him to be “a little bit guilty” er objection attempt juror] was not entitled to S.W.2d 405 Unfortunately because of the indictment when it restricted informed improper could follow that law?” would have been “as a matter improperly ask a trial court (Tex.Cr.App.1975), appellant properly phrased ques form. 523 S.W.2d at defense counsel made inquire worded what occurred evidence appellant that the [the if the question. prospec disallow against Appel prop guilt pro “MR. BANKSTON: “THE COURT: “MR. BANKSTON: fusal to tor’s pass on it. to answer the Note our The witness to answer. ruling Well, Court ecutor Court has ^[*] juror, objection. the law. we would—even objection as to the has stated to give ^[*] we exception already given withdrawing question, If ^[*] prosecutor’s objection? ruling is withdrawn. The will move ask the court for a to the wish the witness ^[*] If though to the I instructions to will direct the it, not, prospective Court’s ^[*] since along. prosecu- we will pros- ^[*] re- Smith, 703 S.W.2d at 645; McCarter ^{[*] [*] [*] [*] [*] [*]} (Tex.Cr.App. 478 S.W.2d Honor, in Your view the court’s 1972). ruling limiting the defendant area, questions deny- in this in essence prospective juror As to Massey, we find ing the defendant effective assistance error, appellant any. waived if Dur- denying of counsel and the defendant dire, ing appellant Massey voir also asked right intelligently exercise he felt that because had been (sic) strikes, preemptory pass we will guilty indicted “must be a little bit ques- this witness. have no more We something.” Again prosecution object- added) (Emphasis tions.” guilty” ed to the use words “little bit requested Massey the court to instruct Thus, clearly the record that the shows guilt. that an indictment was no evidence of way trial court in no restricted The court admonished defense counsel to prospective juror Massey. dire voir questions include in his “a sufficient defini- exchange regard- At the conclusion of the tion of the law so that witness can ing objection, State’s trial court correctly respond question.” clearly invited defense counsel ask the Massey court then instructed that an indict- Nevertheless, question again. defense guilt. no ment was follow- forego asking ques- counsel decided to ing then occurred: prohib- tion which he now maintains he was asking. Appellant “MR. BANKSTON Attor- ited from should not [Co-Defense ney]: complain. Appellant’s now be heard to juror, you And as a would be and is case. point of error is without merit tenth trial he should have been allowed After this plore objection. question. Again, we must appellant. objected issue: committed when the court pellant asserts that reversible State’s jections to question appellant had been as to the the case. police officers who questioning Westbrook brook testified that sions, erroneously Westbrook the trial overruled. pellant complains that examination of A review be a conflict of part be mony in So would mony. like cers that “You very much like They matter what and under officer show, court exploring I to believe the In a multifarious objection I believe conflict said, know depth misrepresentations? criminal case will credibility are could case there Now Thereupon would take the witness are of the record shows appellant’s questions. West- there regular the trial court sustained people. that we are ask Westbrook’s oath, with a witnesses appellant prospective juror Brian the other evidence they could do testimony and that sustained you he knew several of the might be witnesses court, on several occa tell the other citizens, preventing area. Prior believe police officer’s testi- The ones I know are you police is conflict?” police officers. during regarding his the defense in this following question: tendency point of asked the State people. going to and, feelings on this maintains that jury direct lies the State’s ob allowed to disagree with officer’s sustained the that a so there the voir fashion, no to ask you police offi error was error, ap that the it, yes. to this have— began know, police belief stand testi your may may dire Ap ex- Appellant then asked defense counsel brook after defense “A. “Q. “Q. “A. “A. rect? that could have told believe yeah, I could there ty, what believe far rect? lieve those had not lied to would ny and I don’t know subject of this know, had. ances, never lied tend guy’s you know them? would court sustained you tend to believe you know cause of bit, evidence, ship as friends or asked to decide on their about ^[******] Well, Well, ISo Then from If I I am not sure that out, I no matter how me you don’t question, because you they are might he told you these judge them sway (sic) something makes them at believe them, probably. something that sounded gather other areas but it’s hard you and because counsel returned your prior relationship and wouldn’t are they understand what have stated police be a police began questioning West- that, me stated saying these probably believe you, him your from that time or not. tend to believe—to are point of error. problem of believabili- acquaintances, officers; happened, something that was impressive but me, guess officers, in that vein? more than believe police slight, simply them answer, your State’s question which say yes or no to believable, I I you whether will it; say therefore, you testimony and I don’t know shortly there- your your a answer officers and just him. If he is that to the sub- know, in the in testimo- you mean. friendship objection, and, you acquaint- that cor- I one that relation- enough, I would answer a little gather would I to me After him.” Yes, past if a cor- will be- be- ^[******] ject police officers’ credibility: this, Mr. West- me ask Kennedy and Let “Q. You Officers know naturally you juror, brook. As Huffman and and Officer Allsbrooks facts and judge in this would be potential witnesses they are come them more as others because judge the witnesses relationship them? prior you. your before I have that no be- “A. No. answered it cause some discomfort Would fore, I think. any discomfort to for the death vote might penalty you in a case where Well, I it and “Q. he asked Uh-huh. that police some of officers know I had to reask it. it and asked for the State? testified No, I Okay. wouldn’t.” “A. saying it cause me “A. You are would prohibited counsel Clearly, defense was any discomfort? prospective juror re questioning the from “Q. Yes. friendship one of the wit garding his “A. No. what was that was because believe that cause it should ^[******] anyme I’m—I don’t think it would going on. been. discomfort, I If voted I no matter is what for it, ing repetitious questions. Patterson would nesses officer and how such would examination Counsel was acting within or that judge the in this area and the allowed extensive voir its witness was witness’s discretion affect how credibility. trial court in exclud a police dire he (Tex.Cr.App. 598 S.W.2d “Q. what to know is ... we need [B]ut McManus, 1980); at 520. in a case capital that because murder talking asking you are the State is about The next two instances simply I penalty, for the death and am complains concern West- which you asking you that selected as were penalty feelings about the death brook’s though juror, you might even know Initially a life sentence. Westbrook versus officers, police you some of that personally he favored the that indicated regardless still that of that re- believe for an penalty over life sentence death lationship, you that be a fair and Ap murder. convicted individual juror to a impartial person accused pellant challenged the for cause. venireman capital murder? During attempt to rehabilitate the State’s juror, acknowl prospective Westbrook guess you “A. I well—it that are seems had previous his answers been edged that getting say- leading me towards me— opinion lay could that personal but he question— ing no for this and answer the opinion aside No, “Q. I- present strictly on the evidence questions know, I “A. I know. and I understand. appellant’s then The court overruled ed. just repetition, guess. I It’s con challenge for cause. Defense counsel dire examination: tinued his voir “Q. Yes. Westbrook, in re- you Mr. said guess I I would tend believe prosecutor’s questions sponse to I more probably that knew someone I biased. you you that had—that were I know.” than someone didn’t o you used. that’s the believe word

Thereupon appellant challenged Westbrook leaning you were for And that cause. After State had rehabilitat- for trial and penalty going into the death court juror, the overruled ed the right? your opinion; is that that was cause. Defense counsel challenge Well, opin- if it when asked along the questioned again Westbrook ion, yes. my opinion. That is line: same “Q. Okay. sir, believe, West- you still Mr. Do know, says, you brook, certain someone you that because know “A. When witnesses, supposed listen to evidence are people that would be it, probably leaning to- decide I could slight would be a there that, them, too. believe handle you would wards “Q. Now, here, when court tween the death when sentence and a life can,

say probably to, I sentence? able the lawyers will come back and “MR. WILSON: say, well, let me ask it in this fashion Honor, I object Your to that get and see if I can positive more he limits it unless to his answer to the answer. special issues or would he let in- “A. Okay. fluence him or answer those personal your Because of beliefs as special issues from the facts. penalty your to the death “THE COURT: thoughts, do think that that would Give me a minute. I am way affect the decide on the objection.” sustain the penalty death or the life sentence? Appellant sustaining asserts that “MR. WILSON: objection question State’s to this the trial Honor, again, Your here he’s answer- improperly court restricted his voir dire. ing question. saying He’s not death merely This is incorrect. The trial court penalty or life sentence. He’s answer- objection improperly sustained an to an ing questions, question and this is im- phrased questiоn. defense Thereafter properly framed. pose properly counsel was allowed to “MR. BANKSTON: phrased question to and was Westbrook Honor, investigate fully

Your allowed to Westbrook’s objection? was that an feelings in this area: “MR. WILSON: murder cases there—in Yes, object we to it. Texas, course, sentencing body “MR. BANKSTON: people. jury, is the You are twelve objection? What was given questions to factual answer “MR. WILSON: provide an- ultimately which will framed, improperly That it was Your swer as to or not the whether Honor. life gets a death sentence or a sen- ^{[*] [*] [*] [*] [*] [*]} tence. in your feelings leaning Because of

“THE COURT: penalty, towards the death would those I objection will sustain the as it is. you deciding leanings affect in on the (sic) try persue You can the area of penalty opposed to a life sen- death as inquiry working are on.” tence? Clearly, prohibiting the court was de- facts, proba- “A. After I have heard the inquiring fense counsel from as to West- bly Okay. say I instead of not. will feelings regarding brook’s how the death The facts would probably, just no. penalty would affect his deliberations on probably speak for themselves.” punishment issues. The court had al- both sides much latitude in exam- lowed The instances about which last two ining Westbrook this area. Defense point of error appellant complains in this question improperly counsel’s was framed feel inquiry concern his into Westbrook’s instructing and the court was counsel to ings punishment of regarding the minimum inquiry. ap- rephrase his Counsel did years of murder. De five for the offense proached again this area much later in the concept explained fense counsel voir dire examination when he asked the of murder to West- lesser included offense following question: counsel asked Westbrook if brook. When your feeling any in which Because of about a life he could envision murder case parole year justified, and the is at- a five sentence

sentence it, it, expressed replied thought he tached to Westbrook five thinking years light your would that affеct would be too of a sentence. your deciding objected question- decision be- State to the line of it, caught okay? That’s got had grounds that the defense ing on the minimum earlier waived feeling is that gave you are The court So what years in this case.

five way you are think- of the—the because following instruction: ing your opinion is that “THE COURT: case, you could not given murder feeling of the Court that ei- It is the years as the sentence. consider five challenge on the mini- party ther can “MR. GORDON: mum sentence issue. it, if preambles object unless will ques- My concern is that when these it, (sic) can justified the facts to asked, asked, can just flat tions are fairly it. consider five-year sentence you consider “THE COURT: it, preamble to some kind of without sustained.” It will be get opinion from a we don’t a fair sustaining again of the State’s Once juror. Defense tioning of Westbrook: “Q. “A. Now that’s feeling The Court will ror; okay? er that. To set of ever a sufficient consider the minimum I to include five much; okay?” what thing out when earlier, you role a still state slap circumstances, ^[*] A Well, question parole years on system, you phrase are counsel then resumed his while back you say you about a on the hand? circumstances, something does that parole, so that we can ^[*] just something thought for my concern. I want business? What preamble for, jury, that the you of whether or not he can way ask a that five murder, life sentence and permit ^[*] that and does that affect or less. That would you go do half can I understand the of a about man, into about question, you mentioned some- ^[*] interrogation on punishment, preamble doesn’t years prospective get your your can conceive of a the life and under the actual ^[*] time would be you said you ultimate thinking it help —how- ought being ques- prop- give that like ^[*] but get pa- ju- us pellant’s fense counsel never several objection court had earlier pellant the lesser included offense sustained. area State deficient and the question. Counsel’s appellant’s voir “A. Yes. “Q. “A. “A. “Q. “Q. tence that against would affect have if therefore, it to of rehabilitated give the minimum ^[******] challenged And No. punishment on this case? It wouldn’t at all? I ... Following reasons, questioning: challenge those against for haven’t me, testimony You I immediately returned to murder, I clearly not a suppose I have couldn’t even strong would ‍​‌​​‌‌​‌‌‌​​​​​​‌‌​​‌‌‌‌‌​‌‌​​‌​‌‌​​‌​‌‌‌‌​‌‌‌‌​‍five-year minimum sen- including dire examination. Westbrook that this was overruled spelled objection heard way you said that pretty question was last juror; don’t five-year minimum from feelings definitely of murder. punishment for any out the interchange ap strong feelings that you? restriction of for cause your would decide however, de tell he testimony, that he could after the you; didn’t properly say answer clearly proper this you Ap but for do years you Okay. mean and a half do it. two didn’t on the street. talking guilt would be back or in- “Q. I not about am nocence. gets pound a of guyA busted with have established Okay. “A. After we gets twenty years and

marijuana, he okay. right. All guilt, five, gets that spends ten. Murder you and now mean, “Q. guilty of murder me He’s sense. I doesn’t make have it. guy bigger than the that was crime guilt If is established—” down the street

carrying marihuana question: objected The State to this Because voir dire was not im- “[I]n murder, charged capital restricted, properly point this case he’s with his thirteenth of says and unless he that he has been found error is overruled. guilty capital only not of murder and that error, appel his twelfth of involved, object murder is I am argues lant that his voir dire examination question. misleading.” The that It’s trial prospective juror of Massey Rubin was im- “Counsel, if you court then instructed: permissibly restricted when trial court will, your questions phrase restrict prohibited asking him if he would answer, get specific them so as to a rather apply philosophy eye eye” for “an an general question than some so that from arriving at he considered fair what get we answer we cannot draw some punishment. argues The State feelings

flat conclusions as to what question repetitious. agree We gentleman Appellant’s are.” counsel the State. continued: During his voir dire examination of Mas- Well, “Q. (sic) you let me ask if sey, defense counsel asked he could con- you fashion. If found have someone years sider five guilty capital you not murder and guilty accused was found murder, him guilty found guilty murder but was found of murder. strong feelings those following Thereafter the occurred: against five-year sentence affect— my But is whether or not say yes. “A. would have to minimum, you would consider that know, strong feelings You those sentence, five-year in a murder case equal five-year don’t favor a intentionally has where someone case; minimum sentence on the murder the life of human knowingly taken is that about the bottom line? being legal justification without what- “A. That’s it. about soever a case? And that’s how feel and it knowingly If he took know- affect murder case somebody life else ingly took the facts; regardless of the is that cor- legal justification— without rect? “Q. Intentionally knowingly, or without “MR. ADCOCK: legal justification, took the life of an- Honor, object. Your we are being. other human That was not his answer. He turns give years; I them no. “A. Could five changes say, any murder it to “Q. you I And couldn’t because—and case. part guess this would be because gave is The answer he did not religious you your beliefs that told me says, favor it. He is correct. ago. a moment You all discussed right And then he turns around situation, punish- crime and very this case, says, then in murder ment, your Sunday class. school gentleman improper. that is This has your You have discussed that and be- gone this— over upon liefs as to that are based “THE COURT: discussions; your Sunday school Sustained. that correct? “MR. ADCOCK: No, upon my “A. sir. It’s based read- many gone over with us

—has this ing of the Bible. object. repetitious. I It’s times and be; “Q. right. All And what would that “THE COURT: part you what of the Bible do believe on? philosophy sustain.” that this is based

We will you ‘eye eye’ “A. The tells for Bible clearly repe- questioning This latter tooth.’ ‘tooth for properly The trial court sustained titious. “Q. right. your find no All And that is kind of objection and we abuse

the State’s рhilosophy; in the trial court’s actions. is that correct? of discretion charged crimes or people with the Yes, “A. sir. “Q. then I take it case, me, ^[******] Now in the event that if Mr. Massey, were selected as that, what in this as a you’ve particular juror— told “A. “A. “Q. you convicted Yes, Is that (sic) are a You also sir. of crimes? right? who indicated to me that reads the Bible? Yes, “A. sir. jury that a defendant and the found murder, guilty but

was not Bible; is that “Q. And in the believes murder, guilty then because right? “Q. “A. Under the phy, the fact that philosophy fication? year sentence to a murder case years; yes, sir. they took or somebody’s these difficult, consider ‘tooth for a knowingly hard for me to let a man off on five And that’s feelings, your religious philoso- imposing if not the life of an life had been tooth,’ taken without just circumstances, knowing impossible, ‘eye deliberately, for an enough minimum five- believe intentionally it for legal justi- eye’ you to in this where and a your be “A. “A. “Q. the Bible? training you firmly believe you have ed If eye,’ and ‘a tooth for killing know, somebody kills ^[******] pay. And one of the Well, (nods you got to them; is that Bible that head adopted you got the yes, believe affirmatively) philosophy that is stat- somebody just to be weigh the evidence. in that says philosophies a tooth.’ And do your evidence— principle ‘eye for an religious ought again I when we “Q. Massey, Mr. think views? you indicated that left off here enough; yes, “A. That’s not sir. part of eye’ philosophy for an ‘eye then, it, And consider wouldn’t beliefs; right? religious was that your I take it? Yes, sir. No, sir.” no again, there is Now Massey Thereupon challenged the defense answer, my question you, wrong but ju- for cause. The State rehabilitated the presented to sir, if the evidence is that ques- and defense counsel resumed his ror the facts that indicated you and tioning: knowing intentional and there was an Massey, I make sure Mr. want to legal justification murder without prosecutor you understand what words, there other that murder —in telling you over here. self-defense, in- there was no no you as we Again, it’s difficult for know legal justification sanity, therе was no in you will do sit here now what all, at it an inten- for that murder knowing case without any particular killing, taking of knowing tional and case; something that but based about sir, life; if you, could another human me a mo- you indicated to upon what juror in that selected as a you were philosophy this is ago, your ment —and situation, you consider particular could having go by, by what I am what punishment of five very minimum ago me—is that some weeks you told years? class sat your Sunday school you and WILSON: “MR. very basically this and discussed down question, Your Honor. Object to that issue; that correct? in if felt the does not include it he It Yes. “A. it. justified facts meeting that “Q. And it was resolved at “THE COURT: too le- that we were your in church Sustained. nient, society, were too lenient as a we case, Massey, again basing ously inquired Mr. whether Massey ap- a would case, particular a ply

the same—in can philosophy assessing pun- biblical in you you juror if a selected as ishment. The record refutes —could years consider case five a murder Clearly appellant contention. had made an where there had been intentional inquiries regard such to the assessment knowing killing legal justi- without years of the minimum of five fication? included the lesser offense murder. Well, it, if “A. we have have would Clearly juror responded had that he weigh have to the evidence on it. his decision on the would base evidence and evidence, you weighed If could personal philosophy of “eye not on his an you weighed you consider after eye for an and a tooth for a tooth.” In the evidence? addition, appellant, the record that shows Yes, although using language of weigh- I could consider after Mas- ing personal philosophy, sey’s evidence.” received an an- inquiry posed swer to the when point ap- At this the trial court overruled following question immediately after the pellant’s challenge for cause' and defense objection ques- court sustained questioning: counsel resumed his tion issue: “Q. And, course, Massey, Mr. se- “Q. Hoрefully question, one final Mr. juror, lected as Court is Massey. you person guilty If found a you lawyers tell I think all of the —and murder, you would automati- agree principle one will with this —and penalty? cally vote for the death you required are not to com- No, pletely ignore your common sir.” sense. your You can take common sense back appel- find that the record shows that We you apply there and can com- whatever fully explore this area. lant was allowed to mon sense have accumulated cutting repeti- The court was correct off through your years experience. point questioning. Appellant’s tive twelfth you may conjunction And there- —in of error is overruled.

with, you may apply personal whatever er In another multifarious feelings have, you may whether ror, appellant alleges his voir dire was religious, philosophical, or whatev- attempts improperly restricted in that his your previ- include er. And that would meaning of “deliberate” to discuss the ously position concerning an stated Appellant cut off the trial court. were ‘eye eye’ and a for a for an ‘tooth points such instances: out four tooth.’ sir, if you, you were selected as Would Prospective McElyea Juror apply tend to juror, would your And I like to direct ... would earnestly philosophy have so attention, question if I the first Court, candidly told the and that deals with delib- apply philosophy back erateness, the deliberateness or the arriving you may con- at what there punishment? In other conduct of the accused. What fair sider to be words, you apply philosophy you, does the word ‘deliberate’ mean to and a ‘tooth for a ‘eye eye’ for an ma’am? tooth?’ “MR. WILSON: “MR. WILSON: Honor, object going I to that Your into being repetitious, meaning go- that as

Object to of terms that are not ing Honor. defined Your to be Court.

“THE COURT: “THE COURT:

Sustained.” Sustained. “Q. your concept What is of the word question that Appellant asserts I previ- asking. ‘deliberate’? that’s all am I he had nоt because repetitious not means, not define the Court will asking you doubt definition am not what deliberate you the term sit what apply, you but here as would now, concept means. your is what ‘deliberate’? of the word tell this. The courts you I can that the word of have said Intentional.” State Texas deliberate and the word

intentional Prospective equivalent. Juror Sutton In other linguistically not words, the same they, don’t mean

“Q. My you is the word question to sense thing. I think that makes And you. defined for deliberate will to do light you are asked of what to you happen It’s definition whatever somebody determining or not whether answering question. Do use in that guilty murder. me you follow there? questions you will be asked One “A. Uh-huh. or not the murder to decide is whether “Q. If included—for the your definition intentionally caused. the death was premedita- included word deliberate resolve that you And in the event words, thought tion—in other against the favor issue accused out; thing, out, planned sort of words, you find the in other of Texas you make the State you go on into the guilty, then accused prove you beyond a to reasonable ques- the next punishment phase; and premeditated in fact doubt that it was to is wheth- you asked resolve tion are special issue you before answered deliberate. er or not the conduct was yes? number one mind see a dis- you your own Can “MR. ADCOCK: tinction between those two burdens try- objection, Honor. He’s Same Your proof? ing object. to her. bind We can, yes. I I think “MR. BANKSTON: “Q. I think it makes sense assume Bind? talking are both instances we “MR. ADCOCK: a state of mind of about Deliberately is a of common us- word committed the act. who age. requirement pre- no There’s “A. Yes. He's trying meditation. to define de- talking “Q. If we a state liberately premeditation to have in it. were about intentional, less mind that was than “THE COURT: already determined you would have objection, Counsel.” We sustain you said inten- when I tionally did it. So submit Prospective Massey Juror means even more the word deliberate question, Massey. Mr. One more Do intentionally. than the wоrd question. your This is the last What is agree? definition of deliberate? “MR. WILSON: “MR. WILSON: Honor, to object, I Your that as that, Your object I am deliberate. giving a definition of Honor; and de- going into definitions ordinary usage. object I It’s common by the liberately will not be defined suggesting him what a definition is. Court. “THE COURT: “THE COURT: Sustained. Sustained, Counsel.”

“By Mr. Bankston: Prospective Bagnall Juror Bagnall, were selected Mr. juror, simply tell I you á moment as a will I indicated to As —and argue anybody will define don’t believe ago, just as the Court will not juror you as a can use term this—that

for what the reasonable 610 deliberate;

definition of ‘intentionally’ whatever it word the and word ‘de- you. Okay? means to liberately,’ you agree will with me that “A. Okay.” synonymous? are almost “MR. BANKSTON: This questions Court has faced similar past. State, the In Chambers v. 568 Honor, in ques- Your answer to that cert, denied, (Tex.Cr.App.1978), S.W.2d 313 tion, again I impose would like to 928, 1264, 59 L.Ed.2d 484 objection, attempt in that it is an (1979), reasons, overruled other and part juror the of the State bind State, Grijdlva (Tex.Cr. v. 614 S.W.2d 420 meaning word the ‘deliberate’ as App.1980), pro- defense counsel asked the given has been defined and to the word spective juror thought whether she deliber- penal ‘intentional’ under the code. As ate conduct carefully meant considered con- the of the State of Texas has al- law juror responded duct. the When affirma- Court, ready outlined to the been tively, prosecutor objected that defense courts have said—the Court of Crimi- attempting counsel was to infer that the Appeals said that nal two required prove premeditation. State was linguistic equivalents. words are not objection The court sustained the and re- prosecutor attempting to cir- explore fused to allow the defense to go opinion by cumvent or around that Court, noting matter further. This implying juror, prospective voir dire examination would take an unrea- juror, those two words are—in length attorneys sonable of time if on both thing, fact the same and mean we ob- throughout sides selected different words ject being it as misstatement contemplated charge and asked each ask the Court to law meant, prospective juror what those words juror instruct the that the two words found no abuse of discretion. 568 S.W.2d thing. don’t mean the same years at 323. Two later the Court made “THE COURT: holdings Esquivel similar 595 cert, (Tex.Cr.App.), 524-525 de- overruled, objection but we will nied, U.S. S.Ct. tell the that the word ‘deliberate- trial cert, denied, dire examination of the term L.Ed.2d 251 599 S.W.2d judge has discretion to limit the voir “deliberately.” (1980), (1980). Unquestionably, regarding (Tex.Cr.App.1980), Milton the definition As S.Ct. such, we but the word Proceed, Counsel. has not ly’ defined ^[*] has—I been ^[*] mean, our law. defined ‘intentionally’ ^[*] word ^[*] by ‘deliberately’ our ^[*] has been statute, ^[*] “Q. find every day no abuse of discretion the trial I take it in life those court’s limitation of voir dire synonymous almost be words would examination. you? “MR. BANKSTON:

Appellant complains State Honor, Again, object to do he was allowed what was allowed Your we on the do; points specific to five instances in previously same reason stated. explore which the State was allowed to “THE COURT: “intentionally” definitions of and “deliber Proceed, Overruled. Counsel. ately” prospective jurors. We set “By Adcock: Mr. pertinent ‍​‌​​‌‌​‌‌‌​​​​​​‌‌​​‌‌‌‌‌​‌‌​​‌​‌‌​​‌​‌‌‌‌​‌‌‌‌​‍portion out the of the voir dire question. You answer prospective examination of Juror Kromer knowing legal “A. Without defini- being alleged er representative tion, say yes, they then would have to ror: synonymous in my are mind at the Prospective Juror Kromer moment. getting And this is I am down ... And if and I were out what However, courtroom,

public conversing and used the to. in this we meaning. The court, essarily have the same of the when you as an officer as gener- follow a questions seemed to gives charge, he will State’s Judge a jurors that explaining to the legal scheme of al you a definition define to necessarily synon- not the terms were person can be 'intentional’ and a word questions were defense ymous intentionally responsible for while held defi- suggested some open-ended or if he is either of a crime the commission find jurors. We nition of the term aiding in the com- simply present and did not its discre- trial court abuse that the of a crime. mission eighth point of error Appellant’s tion. getaway example be the good A ovеrruled. though robbery driver in a case. Even point and a go inside a store he didn’t multifarious Finally, in another any money, anybody at or take pistol to au citation point of error and without and he could be indicted under our law that on numerous claims thority, appellant a reasonable guilty beyond found re erroneously trial court occasions the intentionally robbed that he doubt that, after the State dire stricted voir someone. challenge for cause and a would make

“A. I understand. juror passed to the defense prospective ^{[*] [*] [*] [*] [*] [*]} questioning, the trial court limited de of the State’s inquiry to the area fense Now, you apply that rationale Appellant’s cause. brief challenge for situation, reasoning to a murder separate instances where four points out ques- why can see now think Ap occurred. alleges such restriction he punishment jury is to the at the tion him practice this denied pellant asserts that particular defendant do stage, did this (1) in that of counsel effective assistance deliberately, you see? aspects explore other could not counsel Yes, I see that. “A. might lead juror which prospective “Q. Okay. people If who had two attempt at rehabilitation him to decline murder, capital in a like were involved per appellant thereby possibly save of a during murder the commission challenge if counsel rehabilitated emptory up say front robbery, and one man he was unac only to find that register, and another man is at a cash respects, defense other ceptable to the restaurant and he in the back in its (2) unduly restricted counsel was difference? somebody. kills See the jurors because to rehabilitate efforts intentionally of them can be Both range complete fully explore could not murder, only one guilty of but thoughts and beliefs. jurors’ deliberately, you them did it see? instances those four have reviewed We Yes, I understand. counsel in each one defense find that Sо, in their there is a difference ... asking the way restricted no meaning why we have—at and that’s although the to ask he desired stage, we have stay appellant court did admonish trial jury, hearing determine challenge for cause. the area of within in ei- facts have heard from the to ask appellant was allowed In each case not the defen- portion, whether or ther an answer question and he received deliberately, committed the acted dant juror. This prospective from the deliberately.” act Appellant’s four- merit. error is without support does not The record is overruled. point of error teenth asked allegation. The State never error, points of In his next four term jurors to define the prospective errone argues that the trial court questions appellant “deliberately.” The State’s challenges for ously several that the terms overruled merely jurors informed the prospective jurors.5 cause he made to “intentional” did nec- “deliberate” forced to exercise present must show that he was reversible error 5. In order points three, five, appel- error four and No. determining punishment: each lant consider Mueller were prospective jurors complains juror youth indicated that erroneously that his as a mitigating challenges Berlin, overruled when Barbee and would not factor in for cause “A. “Q. that —does that consider the—like consideration on the death say, ^[*] Well, now, And that would not life ^[*] imprisonment are ^[*] you ^[*] be asking to the death part penalty? ^[*] me your also the, ^[*] penalty? you And asking are if the

Prospective Juror Barbee age younger would make a difference? No, “Q. “Q. let me Barbee, clarify that. In the two deciding In in decid- —Mr. you considering, issues would ing be impose penal- whether to the death the factual issues— ty, youthful age per- would the significance Okay. son any accused be of “A.

you in resolving that decision? “Q. —dealing probability with with deliberateness, answering yes and in age “A. The that the is? defendant issues, on those or no factual and in “Q. Yes. dealing with the penalty, death age— “A. Would his you youthful age, consider if it is of- “Q. Yeah, age, youthful the would the into fered evidence? accused, age any person any be of Well, no, “A. no. significance resolving you the is- “Q. Okay. And that enter would not sue as to the whether or not death picture into of it? penalty ought imposed? to be No, I I my opinion, “A. don't think—in “A. No. sir.” age any think don’t would make difference, if, again, the was Prospective Juror Donald Mueller again, being there. This whether “Q. know, mind, You in dealing guilty guilty my with the is- not no, know, sues that are if I going way you to be raised in but felt one —

punishment, not, no, did I all of the evidence is intro- the evidence wouldn’t let age get you duced and are be told to involved with that. your base your decision on talking punish- Now we are about decision— upon

those factual issues based ment. evidence. If there was evidence of Yes, sir. “A. youthful age of a defendant convicted “Q. Okay. you aside So would set that capital murder, consider consider it? and wouldn’t setting answering those —in No, because, again, looking I’m “A. factual issues? asking my mind at what are me age? As being youthful far as I at the yet, looking would be “Q. Yes, that the defendant is of a case that over to complete would be

youthful age? this And I get to of the trial. Rankin, challenge prospective Immediately peremptory spective juror to excuse Warner Jr. strikes, appellant juror challenge to whom his for cause should after the exhaustion of these challenges. requested peremptory been sustained. He then must show that additional challenges peremptory request. Following he exhausted his court denied this trial accept juror prospective later forced to whom he State, dire the voir examination of Westbrook, objectionable. appellant requested to be an addi- found Green Brian cert, denied, challenge (Tex.Cr.App.1979), peremptory tional since Westbrook (1980). objectionable juror. denied 64 L.Ed.2d was an The court requests request. record in the shows that as to instant case Similar were made Fisher, peremptory challenges jurors Loyce Bullington Judy to the fifteen addition John V.A.C.C.P., 35.15(a), by requests Article These were the trial authorized Barnes. denied appellant preserved court authorized to exercise trial two court. We find that has peremptories. Appellant challenges additional exercised trial issues of the court’s denial of his peremptory challenge pro- his seventeenth for cause review. the offender. We youthful'age of age, cally I let say that could wouldn’t . disagree appellant know, with my as far affect decision guilty. guilty or not Lockett, Court, exam- Supreme statute, con- penalty ining the Ohio death talking pun- Okay. I’m about Eighth and Fourteenth cluded misunderstanding ishment. be sentencing require that Amendments answer, dealing only I’m your but capi- authority rarest kind in all but the stage. You have al- statutorily preclud- murder case tal ready guilty. found him any aspect of a defen- considering ed from Okay. or record or dant’s character considering just And now are the offense that de- circumstances person is deciding the a issues whether mitigating factor as may offer as a fendant to death sentenced a life sentence a Eddings later, years punishment. Four to sentence. Eddings Court. Supreme before the came “A. Uh-huh. of first- sixteen-year-old convicted awas your answer is And believe Al- degree police of a officer. murder young the not consider would though penalty death statute the Oklahoma age— sentencing proceeding in a provided that Yes, you right. are produced regarding “any could be evidence although mitigating and circumstances” your not enter into And mitigation, Eddings, presented evidence in answering setting on deliberations —on history emotional family a turbulent and issues; of is that those correct? disturbance, imposing in the judge, the trial Yes, sir.” consider, a refused to death sentence mitigation law, purposes of of matter Prospective Juror J.R. Berlin Eddings’ upbringing circumstances of the In dealing penalty with the death Instead аnd emotional disturbance. dealing the and with factual issues only mitigating circumstance to found the answer, have to could youth, he held this to be Eddings’ but be lessening mitigation consider as or in aggravating outweigh the insufficient to punishment youthful age of a thereby and assessed the circumstances capital convicted of murder? penalty. judge’s trial assess- death youthful age; “A. The no.” by the of the case was affirmed Okla- ment Appellant challenged prospec each Appeals. of Criminal Justice homa Court grounds jurors tive for cause on the Powell, writing majority for the dealing they against reversed, Supreme Court, were biased the law States United age age holding: and the consideration assessing punishment penalty in a death placed by limitations “We find that appellant’s challenges case. All three of mitigating upon the evi- these courts for cause were overruled consider violated the they dence upon Ap a each. peremptory used strike may Lockett. Just as the State rule this pellant argues before Court that each preclude the sentencer not statute against applicable the law juror factor, was biased considering any mitigating from trial capital punishment and that to to may the refuse con- neither sentencer law, challenges sustained his sider, any court should have as a matter of relevant 35.16(c)(2), instance, He re per Article V.A.C.C.P. In mitigating evidence. Oklahoma, 455 104, Eddings v. lies on U.S. instructed a judge as if the trial had (1982), disregard mitigating 102 L.Ed.2d 1 S.Ct. 71 evidence jury Ohio, Eddings 98 S.Ct. Lockett proffered on behalf. (1978), proposi sentencer, Ap- L.Ed.2d 973 for the Court of Criminal review, sentencing authority may determine peals

tion that mitigating weight given permitted consider relevant cases must be be including may give it no mitigating specifi they evidence. But not factor relevant weight by excluding such evidence tion against of whether were biased their consideration.” 455 U.S. at 113- law since the law explained was never (footnotes 876-877 S.Ct. at omit- to them. A trial court abuses its discretion ted emphasis original). challenge in overruling prospective a jurors when it has been established that then, Clearly provides youth the law juror can not follow the law. But until mitigating a factor which must be con- such showing a is made the trial court sidered. Failure the trier of will fact at least not be found to have so youth consider in their abused its discre determination of tion. dire constitutes error the voir examination but the law Byrd provides prospective also Von juror that in certain circumstances cert, sentencing authority denied, (Tex.Cr.App.1978), find S.W.2d 883 youth significant mitigating factor L.Ed.2d 1073 punishment: in the assessment of (1979), posed the defense on the range punishment applicable “Nor do that the we doubt less Ed- dings offered relevant er of murder mitigating pro ev included offense and the Eddings youth idence. years spective was a of 16 responded that he did not at the time of murder. Evidence of a probation think he pos could consider as a history difficult family and of emotional punishment. sible challenged The defense typically disturbance is by introduced de the judge venireman for cause. The trial See McCautha mitigation. fendants in questioned prospective then juror the who California, v. 183,187-188, 193, judge opposed told the he that was not 1457, 1460, 91 S.Ct. 28 L.Ed.2d 711 “probation pro the and could consider law” cases, (1971). In some such evidence proper judge bation in a case. The trial properly given may weight. be little Byrd’s challenge then overruled for Yon But years when the defendant was 16 old reviewing in cause. This Court the case at the time of offense there the can be no agreed subject that was not the venireman doubt that evidence of a family turbulent challenge to a cause. 569 for S.W.2d at beatings history, by father, of a harsh also Goodman 891. See 701 and of severe emotional disturbance is (Tex.Cr.App.1985) (during particularly Eddings, relevant.” examination, prospective juror the voir dire (footnotes U.S. at at S.Ct. initially expressed a bias but after the law added). оmitted emphasis explained to him also indicated he 35.16(c)(2),V.A.C.C.P., Article pro law); would follow the Barefoot challenged vides that a venireman (Tex.Cr.App.1980), 596 S.W.2d 881-886 cert, for if cause and he or she excused indicates denied, against prejudice any bias for or (1981) (during the voir dire upon any party law which is entitled to examination, prospective jurors initially ex rely. warranted, Before excusal is such pressed a after the bias but law was ex however, it must be shown that the venire plained they they to them indicated could prejudiced against man is biased for or the case, law). the follow the In instant law. Such a showing was not made in the prospective given jurors were never Although instant case. the three individu opportunity testify they as to whether personal als feeling stated it was their that prejudice against had a the law. Under they any person’s age would not consider circumstances, these the trial court did not issues, answering special they were denying appellant’s abuse its discretion required never informed the law that them third, challenge Appellant’s for cause. to make such a of consideration points fourth and fifth of error are over age citations, depending certain —that ruled. upon particular case, they the facts give error, youth mitigating ap could his little value in eleventh pellant argues the trial court assessment of but erred altogether. denying could not refuse to consider it for challenge prospec cause juror Thus none of ques- the three addressed the tive Leah after Sutton Sutton testi- “Q. Uh-huh. require the defense to fied she

produce appellant’s innocence. evidence getting straighter it a little I am During dire examination de- voir (sic) now.

fense, the burden of trial court instructed her mediately During she could render a Sutton testified that even the State’s presented by the defense before challenged proof verdict. attempt she would have Sutton for cause. to rehabilitate Apрellant the State had though hear im- “THE COURT: The Court burden shifts. Do always remains on ^{[*] [*]} will proof you charge ^[*] understand is on the State and ^[*] State. jury that the ^[*] that?” It never ^[*] that she prospective juror indicated juror, following occurred: asked if she and the trial court understood Now, ago a while Mr. Bankston questions. by the had been confused earlier you you asked felt that the accused “yes.” The prospective answered you guilty, could have been asked, right. “All court then trial to hear from vote—would Now, understanding, your an- guilty. him before could vote you change or would swer still same sim- Or did he ask some way?” The venireman your answer that, I

ilar to or heard some kind—but change it, stated, sir.” “I would have proof understand the burden appel- Thereupon the trial court overruled over here with us? "A. With “Q. Right. “Q. They “A. “Q. “A. “A. Uh-huh. “Q. So, if the Court instructed put up— remember part. not guilty? They with us and while put up? that? didn’t meet our the burden er on the All Right. You remember me They No, Okay. guilty, under ago, right. sir. don’t you. can there’s no burden I said I said we have to shut You accused, is just Okay. proof what And an accused have are simply guess burden are law we shut to was it to to had to shut just could I didn’t prove comes argue prove anything. prove up over here with to rest proof. is what you that he is whatsoev- that he’s to? that we you saying get has the follow up up right You that — or following colloquy: newed his lant’s “A. That’s “Q. “A. would present you would, that look would he is suppose that dant’s suppose the State cate come challenge ^[******] But Yes, [By contrary; what that he was to this or forward guilty. have require require, challenge I take table to come forward to Defense Counsel] you sir.” wrong? you correct, you already proved to for cause. table would the defendant —or .it, this table was felt like was some evidence the, require you not present over here and because of Texas guilty. expect right? cause after guilty; Appellant re- or the defen- defendant — Well, Then this side and evidence brought me to indi- is would let’s let’s that that you you you and to to challenge for again I it now. overruled “A. understand court Yeah. ques- counsel resumed cause. Defense your I an- then take And tioning: ques- to Mr. Bankston’s swers then Sutton, of Tex- you could follow law after the State tions is that Mrs. pro- on the you put might explain no burden I rests—and always goes you. The State accused? cess to presentation of evidence. I had first saying And I to Right. they have they feel like that And once sides. hear both presented you all of the evidence she would follow the regarding law that is necessary for them present, proof. burden of The trial correctly court they will up say, stand Your Hon- appellant’s overruled challenge for cause. or, rests, the State which means we point This of error is therefore overruled. through are at the moment. In error, his fifteenth point of ap At that time if the State were to stand pellant argues that he deprived of a up say, Honor, Your we rest our jury peers of his when the State was al case, at that you require time would challenge lowed to cause prospec the defendant to come forward and tive who was excludable under With present evidence of his innocence. erspoon Illinois, 391 U.S. 88 S.Ct. No, sir. From I gath- what have (1968), 20 L.Ed.2d 776 because of his ered today, they here do not have to. or her regarding views penalty. death “THE COURT: He asserts that this resulted in seating Okay. Sutton, Mrs. again I inform jury of a predisposed guilt. to find you you and instruct you that if are Supreme United States Court decided this panel, selected on this the court will against appellant issue in the case of Lock give you a charge written in which it McCree, hart v. you will tell that the proof burden of (1986). Appellant’s always on the State and ... remains point fifteenth of error is overruled. throughout with the State pro- the trial “VENIREWOMAN SUTTON: Yes, Sir. tions that follow those instructions? standing any personal cess. ^[*] addition are obligated ^[*] are that, given ^[*] to follow the instruc- I will tell ^[*] belief. Can you, ^[*] not with- because, ^[*] lists a relying only upon crux of picking potential jurors sentation of women and minorities. The pellant complains that the trial court erred denying large In his sixteenth his motion to number argues, the voter contention is that by citizens diluted the quash system registration the venire who error, used in repre ap registered to vote [By Defense are excluded from Sutton, Mrs. Counsel] jury duty go high proportion am with a time, back one of these more explained being

and as I proce- individuals women and minorities. dure a ago, moment once the State The record February shows that on rests, signals the end of their 1984, appellant original filed his motion to case. quash alleged the venire. In this motion he My question you, ma’am, to is if the under-representation young adults from rested, State would at that time ages 14, 1984, the May 18 to 25. On expect then require and the defendant appellant filed an quash amended motion to to come present forward and to venire; the expanded this motion he his evidence of his innocence? allegations to Hispanics. include blacks and No, sir.” 15, 1984, May pretrial hearing On was At the conclusion of the examination of the regarding conducted the amended motion. prospective juror, appellant per- exercised a time, At that the trial appellant court asked emptory against strike her. any supporting he had evidence to present. A reading Appellant replied of the entire voir dire that he did not shows initially any that Sutton misunderstood evidence at that time the but he law regarding proof; however, supporting the burden of would have evidence “in a few explained her, after the days.” Appellant law was to carry she asked the court to clearly that she along indicated understood the the motion present until he could always State had the proof, burden of in support the evidence of the motion. The defendant required put was not to on evi- court appellant’s instead denied motion but innocence, dence to his establish and that advised appellant that he reargue could it had and sworn.7 began day jury ter the been selected Voir that was later. dire presented in on June evidence not concludеd June 1984. On Because this was indeed, objection by presented the af- timely over strenuous was fashion— appellant present allowed to following the trial court the a month jury ter was seated “of the nature of a bill.”6 Prior evidence it. Ac- long not consider voir dire —we will evidence, presentation of to the the how- point error is overruled. cordingly, this ever, the trial court his denial of renewed point of error In his seventeenth quash array. to The appellant’s motion erred appellant alleges the trial court appellant because failed State asserts that into evidence be admitting his confession on his motion present to amended cause, testimony pretrial at the argues, he initially present- at quash to the time was interrogation con hearing established opportu- he his ed to the trial court waived appellant his tinued after had invoked agree. nity challenge array; to we record establishes to remain silent. The Esquivel 595 S.W.2d 516 otherwise. cert, denied, (Tex.Cr.App.1980), During hearing on motion (1980), confession, suppress to his Detective J.D. orally his first chal- the defendant raised City Depart- Police Huffman of the Haltom lenge array during trial court’s approximately 6:30 ment testified that at questioning jury panel. initial boarding p.m. to the house where he went court noted that he consider the trial would inquire him. appellant staying to about array being challenge to the filed. landlord, appel- talking to the While he was oppor- counsel for the When defense asked in the back lant out from a bedroom walked tunity present support of evidence in his going up the hall began of the house and challenge prior voir dire examination living room where Huffman toward the parties, the court announced that he standing. Huffman testified that not would consider evidence. appellant asked him his approached Esquivel’s challenge court then overruled inquired if he had ever name and been array timely because it not been had Appellant identified trouble ‍​‌​​‌‌​‌‌‌​​​​​​‌‌​​‌‌‌‌‌​‌‌​​‌​‌‌​​‌​‌‌‌‌​‌‌‌‌​‍with law. presented. citing language This Court cur- himself told Huffman he was 35.06, V.A.C.C.P., agreed Article at rently parole. Huffman related that trial 523. court. 595 S.W.2d at We appellant might he believed Esquiv- analogous find the case instant Although offense. be connected with the provides el. Article 35.06 court “[t]he Huffman ad- appellant, he did arrest challenge shall hear and determine a to the spe- rights: his vised him of constitutional array interrogating those summoned before if he like cifically appellant he asked added). qualifications” (emphasis their as to lawyer if he like to have Thus, the Code of Criminal Procedure Appellant replied negatively remain silent. clearly provides that the determination inquiries. Huffman then asked to both challenge array to the must be made anything if he knew about begins. dire examination before voir car, Appel- stereo and television. victim’s appellant timely filed In the instant case he had replied lant he did not and said that challenge array and the court day. testi- been at the house all Huffman it voir examination overruled before dire however, appellant become appellant present not fied that he noticed had began; did appel- of his until “real and hesitant.” When support motion nervous af- using, protested he then kind of see the format that 6. When the State that it was unable to present adequately tice, get informally a such defense in short no- let him with him court, explained: might the trial doing, you what it us show he’s enable basically simply trying I’m do “What to ... faster.” to move a purpose his record for the of a let him make court, put Esquivel, at to State some as did not rule bill. disadvantage don’t want 7. The trial unduly appellant’s with this. at S.W.2d the merits motion. 595 help give and them a "If recess would us 523. to some minute review of this now 618 began walking

lant indicating appellant’s turned around and back desire to terminate bedroom, down the to his hall Huffman the interview. stopped him and him he advised wаs approach appellant’s We will contention investigation under for the arrest First, from two aspects. different it is murder. Appellant was then taken to the appellant clear from the record that was city jail by magis- where he was warned custody not in and under thus not custodial warning trate. This p.m. occurred at 6:55 interrogation right when he “invoked” his Appellant placed jail then was cell Arizona, Miranda to remain silent. 384 where he remained until approximately U.S. S.Ct. L.Ed.2d 694 12:30 a.m. Meanwhile the detectives were (1966), interrogation defines custodial engaged obtaining in the activities of and “questioning by initiated law enforcement executing a search warrant of after a officers has been taken into obtaining room autopsy and results of custody or deprived otherwise of his free- the victim. Detective Huffman testified any significant dom of action in way.” 384 autopsy, that when returned from he at U.S. at 1612. at a.m., 12:15 pa- he intended to some finish Detective repeatedly Huffman testified perwork go then and home first he but appellant was not arrest under and he instructed Detective W.B. Allsbrook to fin- necessary did feel not it was to arrest gerprint photograph appellant and so that appellant appellant until after turned and following would not have to do it the to his started walk back into room. We morning. Allsbrook testified that as he right find that claimed invocation appellant appellant took out of his cell during any to remain silent made was not happen. asked him what was to Cannon v. interrogation. See custodial replied appel- Allsbrook that it toup was (Tex.Cr.App. Appellant began talking lant. then about cert, 1985), denied, S.Ct.

the offense. Allsbrook testified that he (defendant’s (1986) stopped appellant immediately in mid-con- right claimed invocation of the to counsel and, reading versation after him warn- during any interroga not made custodial ings, appellant asked he Allsbrook if want- tion). present ed an attorney and if wаnted to he right Appellant waive his to remain silent. Second, if determine that even we replied attorney he did not want an and appellant at the custody was time he just that he wanted to talk the of- about silent, right his invoked to remain fense. At this Allsbrook summoned knowingly record shows that he and later Appellant Detective Huffman. taken voluntarily right when he initi waived that again given into an office and his warn- regarding the of ated the conversation ings. again appellant Huffman if he asked Immedi fense Detective Allsbrook. wished an attorney present to have and ately appellant Detective after indicated right he wished waive his remain that he interview at Huffman wanted Appellant replied silent. that he wanted to terminate, boarding he house to talk to Huffman and he did need a warnings placed given his under arrest and lawyer. Appellant began giving then transported again. Appellant was then regarding oral statement the offense. Fol- immediately tak city jail where he was statement, lowing giving of the oral magistrate en also informed before a who writing signed by ap- was reduced to warnings rights. him his These were pellant. writing signed appellant. reduced booking Appellant was then taken Appellant asserts that indicated room, telephone access to a allowed questioning wish to terminate to in- in jail. passed then six hours placed voke his Some remain silent at the board- ing Detective woke house he turned from De- before Allsbrook away when photograph go up fingerprint to and attempted tective Huffman to back order during interrogation into his room. Detective testified him. occurred Huffman No interpreted appellant’s taking he too he actions as time. Allsbrook testified as was

619 the offense consti constituent elements of appellant his cell asked appellant out of capital tuting aggravating feature of a happen. to When him what was up appel- charge unnecessary, evеn in the replied that it murder is Allsbrook was talking lant, immediately began appellant quash. of motion to Andrade v. face a stopped him in State, 585, (Tex.Cr.App. the crime. Allsbrook about 589 700 S.W.2d cert, gave warnings denied, 1112, midstream and him his 1985), 106 475 U.S. S.Ct. asking if specifically appellant he again, 1524, (1986); v. L.Ed.2d 921 Hammett 89 right his to remain silent. wanted to waive State, 699, (Tex.Cr.App. 708 578 S.W.2d cert, about the Appellant said he wanted to talk 725, 1979), denied, 100 S.Ct. 448 U.S. began Detective Huffman offense. Before (1980); 2905, L.Ed.2d 1086 Smith interviewing he appellant, again went over 693, (Tex.Cr.App. State, appellant rights. again cert, Once appellant’s 1976), denied, 922, 97 S.Ct. 430 U.S. like he specifically asked would was (1977). 1341, Appellant’s 51 L.Ed.2d 601 Appellant re- attorney present. an nineteenth, twenty-first twentieth and plied attorney. he did not need an points error are overruled. of if he appellant also Huffman asked error, point appellant ar- In a related of or if like to remain silent he would waive by not gues the trial court erred Appellant to remain silent. stated it failed quashing the indictment because he like to talk to Huffman. specify exact mode of theft and appellant asked what he When Huffman seek- robbery exact of the State was mode about, appellant replied that to talk wanted ing prove. this contention to be We find Ap- the offense. he wanted talk about above, in a As noted merit. we without gave then his confession. pellant capital case the indictment need murder appellant’s The record shows that re allege elements of the offense consti- quest questioning to terminate the Andrade, tuting aggravating offense. “scrupulously Michigan v. honored.” Mos at 589 and the cases cited there- 700 S.W.2d 96 S.Ct. ley, point of er- Appellant’s twenty-second in. (1975). Appellant clearly L.Ed.2d 313 initi ror overruled. Cf., ated the conversation with Allsbrook. (Tex,Cr. Hearne v. 534 S.W.2d 703 appellant argues Next App.1976). Thus no violation of Code, 19.03(a)(2)is V.T.C.A., Penal Section gave his confes rights occurred when because, although stat unconstitutionаl Phillips sion. 701 S.W.2d inten assigns capital sanctions ute cert, denied, (Tex.Cr.App.1985), “in course tional of murder commission kid committing attempting to commit of or (1986). properly court admitted trial robbery, burglary, aggravated napping, Ap appellant’s confession into evidence. arson,” actually pre the statute rape, or seventeenth of error over pellant’s penalty larger for a num the death scribes ruled. of including two versions of crimes ber error, aggravated, two of points kidnapping regular In three — robbery regular aggrava quash of that his motions to the versions contends — ted, less than four versions of bur granted and and no should have been indictment habitation, burglary of compelled glary burglary to set should have been the State — building, burglary of a vehicle and aggravated rape, elements of rob out the Ap burglary coin-operated of a machine. building.8 of a We have bery burglary pellant ambiguity consistently allegation of the asserts that this that the held alleged aggravated rape. paragraph charged The second Appellant murder in with 8. was committed in the course count that the murder count indictment. The first a three attempt an to commit paragraphs, the commission or three indictment contained alleged robbery. paragraph that the alleging The third paragraph a different manner of each alleged paragraph was committed in the course first murder capital murder. The attempt to commit a bur- an committed in the course commission the murder was building. glary attempt to commit an of a of or the commission 620 statute causes vague the statute to be so history background cial and and rele-

as to be unconstitutional. extenuating vant circumstances. The court refused to charges. submit these ap- Now This contention has been previously de- pellant argues that the denial of spe- these against cided appellant. In Jurek v. cially requested charges foreclosed jury the 522 934 (Tex.Cr.App.1975), affirmed considering the individuality of the Texas, 262, Jurek v. 428 2950, U.S. 96 S.Ct. appellant thereby Eighth violated the (1976), 49 L.Ed.2d 929 this Court examined and Fourteenth Amendments to the United the constitutionality 1257, of Article States Constitution. V.A.P.C.9 In answering the guarded whether the against statute Since has filed his brief arbitrary and imposition standardless of Court, Supreme Court has issued it the death penalty, the Court found that the opinion in Penry 302, Lynaugh, v. 492 U.S. statute 2934, 109 (1989). S.Ct. 106 L.Ed.2d 256 “limits the circumstances under which There the Court determined the Texas State seek the death penalty to a penalty death statute was unconstitutional group small of narrowly defined par- applied statutory jury because the in- ticularly brutal offenses. This insures structions, V.A.C.C.P.,10 Article pro- 37.071 that the penalty death only will be im- vided no jury express vehicle for the its posed for the most serious crimes It also response” give “reasoned moral and thus insures that the penalty only death will mitigating Penry’s effect evidence of imposed type for the same of offenses mental retardation and childhood abuse. which occur under types the same of No such conclusion in warranted circumstances.” Jurek v. 522 today. case before us S.W.2d at 939. Clearly muster, to meet constitutional The Court further coupled found that sentencing authority in a case stringent safeguards 37.071, of Article must be allowed to consider all relevant V.A.C.C.P., the Texas death penalty mitigating Ly evidence. Franklin provided scheme against the arbitrary im- naugh, 164, 2320, 108 S.Ct. 101 position of the death penalty; consequent- (1988); L.Ed.2d Ohio, Lockett v. ly, we appellant’s find contention to be U.S. 57 L.Ed.2d 973 without Appellant’s merit. twenty-third (1978); Green v. Georgia, 442 U.S. point of error is overruled. (1979); S.Ct. Eddings

Prior to the trial Oklahoma, court’s submis S.Ct. sion of charge punishment (1982). to the 71 L.Ed.2d 1 The United States jury, appellant requested special Supreme Court, four in examining Article 37.071 charges. requested charges asked regards juror’s to a consideration of court to specifically jury instruct the mitigating evidence, explicitly held that answering special issues should “the capital-sentenсing procedure Texas consider the appellant’s age, guides jury’s objective focuses the con level, maturity appellant’s personal so- particularized sideration of the circum predecessor "(1) 9. Article 1257 was the immediate Whether the conduct of the defendant substantially Section 19.03 and was worded that caused the death of the deceased was pertinent part same. The of Article 1257 read deliberately committed and with the reason- as follows: expectation able the death of the de- "(b) for murder with result; malice ceased or another aforethought imprisonment shall be death or “(2) probability whether there is a reasonable (2) person intentionally for life if ... the defendant would commit criminal committed the murder in the course of com- acts of violence that would constitute a threat mitting attempting kidnapping, to commit society; burglary, robbery, rape, forcible or arson.” "(3) evidence, by if raised whether the conduct capital sentencing procedure killing 10. Under of the defendant our the de- jury, finding response after ceased the evidence was unreasonable in sufficient guilt, required spe- provocation, any, establish to answer three the deceased.” Article 37.071, cial issues: V.A.C.C.P. in- appellant’s to submit required the not of the individual offense and was stances a impose jury. offender before it can to the individual structions sentence,” Texas, Jurek v. 428 U.S. death First, appellant there is evidence 274, 262, 2960, 96 S.Ct. 49 L.Ed.2d 929 family” had a “disruptive and came from (1976), prior Penry, and to this Court had “tragic” family life.12 There is also evi- questions prescribed held that under “average” stu- appellant was an dence that jury grasp Article 37.071 allowed the to However, no “good worker.” dent and a evidence, mitigating logical relevance of attempt given no explanation is further and as such there was no need to further to whether made to relate this evidence is charge jury regarding evidence of miti nоt be a death in this case would or would gating circumstances. Stewart response” appellant’s to moral “reasoned 118, (Tex.Cr.App.1984), S.W.2d phrase The “reasoned moral circumstance. cert, 866, 190, 88 denied 474 U.S. 106 S.Ct. special significance in response” given was Quinones (1985); L.Ed.2d 159 specifically The Court Penry decision. cert, (Tex.Cr.App.), denied 449 in the absence of instructions held that 101 S.Ct. U.S. informing jury that it could consider however, in (1980). Penry, After those mitigating give effect to the evidence particular present cases is where evidence Penry’s mental retardation and abused nature, 2) 1) mitigati ed that is rele background jury conclude that the was “we juror’s vant to a determination that death expressing provided not vehicle appropriate would or would not be response’ to that evi- its ‘reasoned moral response” “reasoned moral to the defen rendering its decision.” 492 U.S. dence circumstances, 3) the particular dant’s phrase at 2952. The can at 109 S.Ct. mitigating effect of the evidence be cannot California, traced to Brown v. be statutory special considered under the is (1987), 93 L.Ed.2d sues, judge required the trial court wrote: where Justice O’Connor informing jury submit to the “instructions give jury view, it could consider and my the defen- “In evidence about [particular] mitigating effect to the evi rele- background and character is dant’s by declining impose dence the death ... held vant of the belief because 328, 109 penalty.” Penry, 492 at S.Ct. society that defendants who commit at 2952.11 to a criminal acts that are attributable disadvantaged background, or to emo- Appellant has failed to direct our atten- problems, may be less tional and mental in the exists tion to where record there no culpable defendants who have than mitigating give rise to evidence culpabili- emphasis This such excuse. special “Penry” instructions. Neverthe- sentencing long has been ty in decisions less, reading our of the record we Anglo-American jurispru- reflected trial, only find evidence offеred at in Ed- As this Court observed nature, dence. mitigating in arguably even struggled common law has dings, the context presented jury either to the capital problem developing with the special or not of the second issue system that is ‘sensible significantly ju- to a relevant shown uniqueness of the individual.’ 455 response.” “reasoned moral Conse- ror’s at Lockett court U.S. at 110 S.Ct. quently, conclude that the trial 874]. we [102 presented through the 12. This evidence was 11. The Supreme Court failed to understand jury "impose testify does not as to Texas law witnesses who were called to under State’s jury de- penalty.” in a case community reputation death bad in the and, upon special issues an affirma- cides three attempt Appellant did he came. from which each, finding shall sentence "the court tive ju- independent of this. to offer evidence 37.071(e) Article to death.” the defendant by a informed of what was meant rors were not such, high Court failed As V.A.C.C.P. family” "tragic family "disruptive life” and jury give is to "miti- Court how the inform this gating the circum- how such affected and/or mitigating that is not effect” to offense. stances of the special being capable outside the considered issues. and Eddings reflect the pun- ty belief that penalty of the Texas death laws. 492 directly ishment should be related to the (Su U.S. at 109 S.Ct. at 2946-2947 personal culpability of the criminal defen- preme noting validity Court that “the facial Thus, dant. imposed sentence at penalty of the Texas death statute had the penalty stage should a rea- upheld in been Jurek on the basis of assur reflect response soned moral special ances that the issues in would be defen- character, dant’s background, terpreted broadly enough ... [and that] crime rather than mere sympathy or Penry argues that those assurances were emotion.” 479 U.S. at 545 S.Ct. at [107 particular not fulfilled in his case ...” (O’Connor,J., concurring) (emphasis 841] [emphasis original]). in the Bly See also added). Pennsylvania, 299, stone v. 110 Brown, Subsequent to Justice 1078, O’Connorre- 1081, (1990) S.Ct. 108 L.Ed.2d 255 peated phrase the in her conсurrence in (Supreme noting Court constitutionality of Franklin, 487 U.S. at 108 at S.Ct. penalty decision). Texas death Penry after 2333, which holding was elevated to a slightest If we were to hold that the bit of the Penry decision. From we what can good testimony, character not shown to be discern, allowing jury express to its relevant to the offense or the offender and response” “reasoned moral means some- yet all, to special available warranted a thing affording jury more than case, every instruction in we would have opportunity express “sympathy to its serious to doubts as the statute’s constitu emotion” towards the defendant and as tionality. Georgia, See Furman v. 408 such the presented evidence must be the 238, 309-310, 2726, 2762, U.S. 92 S.Ct. 33 same or of similar quality character and (1972) (Stewart, J., L.Ed.2d 346 concur in Penry. found Thus, ring). nonspecific nature of the Certainly the evidence today before us testimony today along before us with not quality of the same and character that testimony’s dissimilarity to that found in Supreme Court faced in Penry. There Penry case lead us to conclude that the the Court confronted evidence demonstrat- refusing trial court did not err in to in ing Penry organic suffered from brain jury appellant’s specially struct damage and moderate mental retardation. requested charges. gruesome He was to shown have had a There mitigating is also evidence upbringing youth where as a he was beaten appellant’s youth; appellant twenty- was frequently resulting variety in a of learn- years ing one old at the time of the offense. dysfunctions and behavioral in his adult mitigating testimony, affect of Supreme life. The Court determined that however, mitigating presented jury such to relevance “ha[d] to his moral culpability beyond scope ability context of his to reform. Charles special jury Walker, issues and that the general counsel for the Texas express unable to Parole, its ‘reasoned moral re- Board of Pardons and testified and sponse' determining to that evidence in argued jury defense counsel before the whether appropriate punish- death was the that the older a becomes the more ment.” 492 U.S. at 109 at S.Ct. 2948. likely he away is to turn from crime. case, however, The evidence in this does Thus, jury special was allowed under Supreme not fit into the Court’s rubric of give mitigating issue number two affect allowing jury express its reasoned appellant’s youth and find that because judgment. moral The evidence is unrelated pose of such he not a future threat any aspect why how or death in this society. See Russell 892 Lynaugh, v. appropriate case would or would not be an (5th Cir.1989); F.2d Mccoy 1214-1215 response actions and the non- (5th Lynaugh, v. 874 F.2d 966 Cir. specific appellant's facts of life are no 1989). See Lynaugh, also Franklin v. 487 comparable to in Penry. where that found (1988)

It should Penry (plurality opinion). Accordingly, ap be remembered that im plicitly reaffirmed the pellant’s facial constitutionali last of error is overruled. error, we Having found no reversible judgment.

affirm the MALONEY, JJ., dissent

CLINTON State, given

for reasons in James v. 415, 417, 3, (Tex.Crim.App.1990)

S.W.2d n. Goodman, parte 816 S.W.2d

and Ex They dissent

(Tex.Cr.App.1991). further given Boyd

for the reasons (Tex.Cr.App.1991); Boggess v. 69,990, (Tex.Cr.App., No. delivered

State 29, 1991),

May Lackey (Tex.Cr.App.1991).

S.W.2d 392 J.,

BAIRD, participating. Dallas, Banner, Turley, E. Hal

Tim K. DILLEHEY, Appellant, Robert Clifton appellant. Vance, Atty., M. and Yolanda John Dist. Long, Dist. At- Gregg Asst. Joosten and Texas, Appellee.

The STATE of Dallas, Huttash, Atty., tys., State’s Robert ‍​‌​​‌‌​‌‌‌​​​​​​‌‌​​‌‌‌‌‌​‌‌​​‌​‌‌​​‌​‌‌‌‌​‌‌‌‌​‍No. 472-90. Austin, for the State. Texas, Appeals of Criminal

Court

En Banc. June 1991. APPELLANT’S PETITION OPINION ON DISCRETIONARY REVIEW FOR Rehearing Sept. 1991. Denied MILLER, Judge. cause, guilty to appellant plead

In this placed on possession of cocaine plea to a adjudication pursuant deferred bargain. placed The trial court ap probation years and fined for three 42.12, Art. pellant hundred dollars. five 5(a)). (see 3d(a), Sec. V.A.C.C.P. now Sec. permis Appellant requested and received appeal the trial sion from the trial court overruling sup his motion court’s order (the cocaine). The Court of press evidence citing appeal Appeals lack dismissed appeal jurisdiction address Dillehey v. adjudication. deferred 1990). (Tex.App. 788 S.W.2d — Dallas upon granted appel- which we The issue not a defen- petition is whether or lant’s adjudica- appeal dant can from deferred

Case Details

Case Name: Trevino v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 12, 1991

Citation: 815 S.W.2d 592

Docket Number: 69337

Court Abbreviation: Tex. Crim. App.