THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
283rd Judicial District Court of
Dallas County
On December 13, 2000, the appellant and six other inmates escaped from the Connally Prison Unit. On Christmas Eve, the group robbed the employees of Oshman's Supersports in Irving, taking merchandise and firearms. After stealing one of the employees' Ford Explorer, one of the escapees drove it to the loading dock and radioed the other escapees to hurry because a cop was coming.
Irving Police Officer Aubrey Hawkins responded to a 911 call about the robbery. He drove to the loading dock and pulled in behind the Explorer, just as the escapees were leaving the store. The escapees fired at Hawkins, who was shot eleven times by guns that were fired from several directions and distances.
In January 2001, the appellant and some of the other escapees were arrested in Colorado. The appellant confessed to participating in the robbery.
In May 2002, a jury found the appellant guilty of capital murder. Pursuant to the jury's answers to the special issues in the court's charge on punishment, the trial court sentenced the appellant to death.
Appeal to this court is required. The appellant presents twenty-eight points of error: four on pre-trial matters, twenty on jury selection, and four on the guilt stage of the trial. He does not contest the sufficiency of the evidence.
I. Pre-trial Issues
A. The Appellant's Confession
Point of error twenty-one is that "the trial court erred in failing to suppress [his] confession" because it followed an illegal arrest in Colorado. The appellant argues that the Texas capital-murder warrant obtained by Detective Johnson of the Irving Police did not support his arrest because (1) the affidavit supporting it lacked probable cause, (2) its authority did not extend beyond Texas' borders, and (3) it was based on an unconstitutional lineup. He also argues that nothing in a federal warrant charging him with unlawful flight to avoid prosecution reflects his participation in the Oshman's crime and therefore, it cannot support his arrest.
At the hearing on the motion to suppress, the parties stipulated that certain evidence and testimony presented on a motion to suppress in co-defendant Rivas's trial would be admitted in this case; therefore the court could consider the evidence and the previous testimony without requiring the witnesses to testify again.
Included in this evidence was the prior testimony of Sergeant Robert McDonald, who was in charge of the Regional Fugitive Unit of the El Paso County Sheriff's Office in Colorado Springs, Colorado. He explained that nearly two weeks prior to the arrests, authorities had received reports from citizens who had seen some of the escapees in Colorado.
The stipulated evidence included a portion of a report written by Deputy United States Marshal Gerard McCann, which described the organization of federal and local authorities to establish a perimeter around the Colorado RV park in which the escapees had been living. He also explained that a "mobile take-down team" was formed in case any of the fugitives left the park. As the authorities were making their preparations, a Jeep Cherokee left the park and stopped at a convenience store down the road. Once it stopped, the mobile take-down team converged on the vehicle. Three escapees including the appellant were taken into custody without incident. Several weapons were recovered from the vehicle, and the three escapees were transported to the Teller County Sheriff's Office.
Also introduced by stipulation were the testimony and notes of Sergeant Jeff Spivey of the Irving Police Department. The notes say that after being informed that law enforcement officials in Colorado had three of the escapees in custody, he flew to Colorado.
The only new evidence at the appellant's hearing was Irving Police Department Detective Randal Johnson's testimony about his investigation of Hawkins's murder. Johnson said he determined that the escaped inmates were responsible for the crime, and he obtained an arrest warrants for each of them. Johnson was aware that federal authorities were already involved in trying to re-capture the fugitives. On January 22, 2001, after receiving information that the appellant and the other escapees had been taken into custody in Colorado, Johnson, Spivey, and a federal officer flew to Colorado. They first visited the RV park where the fugitives had been living and assisted in obtaining a search warrant for the fugitives' trailer. Johnson and Spivey then went to the Teller County Jail where Johnson and FBI Agent Robert Moen interviewed the appellant.
The State introduced copies of the Texas arrest warrant, the appellant's voluntary statement, the federal arrest warrant, and the search warrant for the RV.
The trial court made findings of fact and conclusions of law. It first noted that the appellant was arrested by Colorado authorities in a joint operation with an FBI "task force." The court found that Detective Johnson arrived in Colorado approximately six and a half hours after the appellant's arrest and began interviewing him. When Johnson began the interview process, the Irving warrant had been signed, and Johnson did not get a Colorado warrant based on his Texas warrant. Thus, the court concluded that "Article 51.13 is not going to apply, because there were no charges filed and, too, the officer did not get a requisition for Colorado warrant." The court also concluded that Article 14.04 of the Code of Criminal Procedure did not apply because Texas authorities did not physically take the appellant into custody before he confessed.
However, the court did find that Colorado Revised Statute 16-3-102, which resembles Texas Code of Criminal Procedure 14.04, permits a Colorado officer to make a warrantless arrest when he believes that a criminal offense has, in fact, been committed and the officer has reasonable grounds for believing that the person being arrested has committed the offense. The court held that officers may rely on other law-enforcement communications for probable cause. From communications with Texas officers, the arresting Colorado officers knew that the appellant had escaped from a Texas prison and was suspected of committing capital murder. This information gave them sufficient probable cause to arrest the appellant. The Court also concluded that the arrest made in Colorado was valid as a result of the federal warrant. Therefore, the court ruled that because the appellant was legally in custody before Johnson spoke with the appellant, the appellant's confession was admissible.
In considering a trial court's ruling on a motion to suppress, an appellate court must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002); Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990). In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). Evidence presented at the trial on the merits may be considered when, as in this case, the suppression issue has been re-litigated by consent by the parties during the trial. Ibid.
The appellant correctly argues that the authority of an arrest warrant does not extend beyond the state's borders. Thus, the Texas warrant could not be used as authority for an arrest made in Colorado. The appellant also correctly asserts that the Article 51.13 of the Texas Code of Criminal Procedure (the Uniform Criminal Extradition Act) does not support his arrest.
On the other hand, the evidence does support the court's conclusions that the appellant's arrest was proper both under the federal warrant and as a warrantless arrest by the Colorado authorities. During the motion to suppress, the State offered a copy of the federal warrant into evidence.
The appellant argued that the federal warrant was based on probable cause only as to co-defendant Halprin and not as to him. The appellant re-urges this argument on appeal. Additionally, he argues that nothing in the affidavit supporting the federal warrant gave any indication that the confidential informant mentioned was trustworthy.
In the affidavit for the warrant of arrest for unlawful flight to avoid prosecution, an FBI agent stated that on December 25, 2000, an Irving, Texas, magistrate issued arrest warrants for the appellant and his six co-defendants for the capital murder of an Irving police officer. Those warrants were based on the eyewitness identification of the appellant and his co-defendants, the other escapees. On December 27, 2000, the agent received information from Texas Department of Criminal Justice Investigator Bruce Tony that the seven defendants had fled from Texas to Mexico. Tony received his information from a confidential source who had spent the night of December 26, 2000 with two of the co-defendants and had a conversation with one of them about the Oshman's robbery and "the group's" plan to flee into Mexico.
In Illinois v. Gates, 462 U.S. 213 (1983), the Court held that an appellate court must look at the "totality of the circumstances" in determining the sufficiency of a search warrant affidavit. It is no longer imperative that the record reveal both that the informant is credible and that the informant has a substantive basis for the information he has given. Compelling evidence of one prong will make up for a deficiency in the other. Furthermore, a reviewing court is not to conduct a de novo review of the magistrate's probable cause determination. Id., at 236.
If there is a "substantial basis" in the record to support the magistrate's ruling, an appellate court should not overrule the magistrate's decision. Massachusetts v. Upton, 466 U.S. 727, 732-33 (1984).
Here, the confidential source's statements to Tony reflect specific information based on the source's personal knowledge. Two days after Hawkins's murder, the source obtained information from one of the escapees about the robbery, the shooting, and the group's future plans to flee. Furthermore, given the context of the conversation, the court could have reasonably determined that "the group" referred to included the appellant. The court did not abuse its discretion in determining that the federal warrant was sufficient to support the appellant's arrest. Therefore, the appellant was legally under arrest at the time he gave his statement.
The appellant's arrest was proper also as a warrantless arrest by Colorado authorities. Colorado Revised Statute 16-3-102 permits a Colorado officer to make a warrantless arrest when he has probable cause to believe that a criminal offense has been committed and probable cause to believe that the person being arrested has committed the offense. The stipulated evidence presented at the motion to suppress indicated that both Colorado and federal authorities knew that the appellant was among seven escaped Texas inmates before the day of their arrest. Although the exact source of their knowledge was not apparent from the evidence presented at the motion to suppress, the court could have concluded reasonably that the information was sufficient to provide them with probable cause to arrest. This conclusion was further supported by evidence presented at trial by Teller County Sheriff Frank Fehn and several officers from the Sheriff's Office of El Paso County, Colorado. These witnesses testified without objection that their offices had received "be on the lookout" notices since December 25, 2000, concerning the seven Texas escapees and the violence they had committed in Irving.
Because the record supports the court's findings and conclusions that the appellant was lawfully in custody when he gave his statement to Johnson, we uphold the refusal to suppress the appellant's statement. Point of error twenty-one is overruled.B. Evidence Seized
The appellant asserts in his twenty-second point of error that "the trial court erred in failing to suppress the evidence of the weapons seized from the vehicle in which [he] was a passenger because of his illegal arrest." In a one-paragraph argument, the appellant adopts the argument and authorities he cited in his previous point of error. Just as the previous point of error failed, so this one fails. Point of error twenty-two is overruled.
C. Right to Counsel
The twenty-third point of error is that "the trial court erred in failing to suppress [his] confession because of the Teller County Sheriff's Office['s] refusal to allow legal counsel to consult with [him]."
After learning of the arrests of the escapees, Deborah Grohs, a Colorado Public Defender, attempted to speak with the appellant and the other escapees. She had not been retained or appointed to their cases. During his interrogations, the appellant never requested an attorney. In fact, the appellant waived his right to an attorney on at least two separate occasions on the day he provided his statement.
If an accused requests counsel, thereby invoking his Fifth Amendment right to counsel, all interrogation must cease until an attorney is present or the accused reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Miranda v. Arizona, 384 U.S. 436, 474 (1966). However, nothing in the Fifth Amendment imposes a duty on the police to inform a suspect of an attorney's requests or efforts to see him. Moran v. Burbine, 475 U.S. 412, 425 (1986).
The appellant argues that this case is controlled by Dunn v. State, 696 S.W.2d 561 (Tex. Crim. App. 1985). In Dunn, the Houston Police Department refused to inform the defendant that attorneys hired by his wife to represent him were trying to meet with him during his interrogation. We concluded that although the defendant gave his confession voluntarily, he did not make a knowing and intelligent waiver of his right to consult with an attorney in violation of both the Fifth Amendment to the United States Constitution and Article 1, Section 10 of the Texas Constitution. Dunn's interpretation of the Fifth Amendment right to counsel has been overturned. Goodwin v. State, 799 S.W.2d 719, 729-30 (Tex. Crim. App. 1990).
The appellant has not argued that the Texas Constitution should be interpreted any differently than the United States Constitution; therefore, we may treat them as giving the same protection. Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1991).
This Court has held that the state constitutional right to counsel affords no more protection than its federal counterpart. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). The appellant has not argued a violation of Code of Criminal Procedure Article 38.22. Point of error twenty-three is overruled.
D. Transcription
In his twenty-fourth point of error, the appellant argues that "the trial court erred in rejecting [his] counsel's request that the court reporter transcribe all sidebar and bench conferences." He claims that, before trial, he filed a motion to compel the court reporter to take down all conferences, and his request was granted. However, according to the appellant, at trial, defense counsel requested a side-bar conference, and when the court reporter did not appear, he objected to her absence. The trial court informed counsel that he would not require the reporter to transcribe the bench conferences. The State conceded at the appellant's motion for new trial that there were numerous unrecorded conferences. The appellant contends that the court's refusal violated Rule of Appellate Procedure 13.1 and deprived him of a complete record.
Rule of Appellate Procedure 13.1 requires the official court reporter or court recorder to "attend court sessions and make a full record of the proceedings unless excused by agreement of the parties." Although Rule 13.1 now requires a reporter to take down all proceedings, it does not relieve a party of its obligation to object to preserve error. Valle v. State, 109 S.W.3d 500, 508 (Tex. Crim. App. 2003).
Rule 33.1(a) requires that the record show that a complaint was made to the trial court by a timely request, objection, or motion that was specific, and that the trial court ruled or refused to rule. Rule 38.1(h) requires that an appellant's brief contain appropriate citations to the record, which certainly includes citations to the complaints and rulings. The appellant fails to cite in his brief or in his motion for new trial any objection or adverse ruling. His complaint is inadequately briefed. Point of error twenty-four is overruled.
II. Voir Dire & Jury Selection
A. Code of Criminal Procedure Article 35.16(a)(10) Procedures
The appellant's first three points of error complain about voir dire procedures relating to Code of Criminal Procedure Article 35.16(a)(10), which reads:
(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:
* * *
10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged without further interrogation by either party or the court. If he answers in the negative, he shall be further examined as to how his conclusion was formed, and the extent to which it will affect his action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case. If the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged.
His first point of error complains that "the trial court erred by refusing to include in the jury questionnaire questions pursuant to Article 35.16(a)(10) of the Code of Criminal Procedure." During voir dire, the trial court refused the appellant's request to include certain questions in the jury questionnaire because, as the appellant conceded, similar questions were already included in the questionnaire.
In his second point of error, the appellant contends that "the trial court erred by permitting the rehabilitation of prospective jurors who were disqualified under Article 35.16(a)(10)."
His third point is that the court erred by denying his motion that persons who indicated on their questionnaires that they had formed an opinion about the case be asked only three questions. The trial court refused the appellant's request.
The conduct of the voir dire examination rests largely within the sound discretion of the court. Curry v. State, 910 S.W.2d 490, 492 (Tex. Crim. App. 1995). Indeed, the trial court has the right and the duty to impose reasonable restrictions on voir dire. Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 920 (1995); Cantu v. State, 842 S.W.2d 667, 687 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993). The trial court did not err in refusing to include the appellant's questions in the questionnaires.
Article 35.16(a)(10) does impose a restriction on the trial court's discretion by prescribing questions that must be asked when a juror says that "there is established in the mind of the juror a conclusion as to the guilt or innocence of the defendant." Such a "juror shall first be asked, whether in his opinion, the conclusion so established will influence his verdict."
The appellant's motion for three questions was not in accordance with the statute. His first question was whether the juror had learned anything about the case other than in court. It has no basis in the statute.
His second question was whether they had an opinion or belief that the appellant was guilty, which is significantly different from the statutory question of whether there was established in the mind of the juror a conclusion as to the guilt or innocence of the defendant.
Therefore his third question, which was whether the opinion or belief would influence them in their verdict, was just as significantly different from the question that the statute requires.
The trial court had discretion to refuse those questions. The third point of error is overruled.
The appellant's claim that the trial court erred in permitting the rehabilitation of prospective jurors who were disqualified under Article 35.16(a)(10) also fails. In his brief, the appellant sets out the responses from twenty-five different veniremembers who answered the opinion question in the questionnaire with statements such as, "I believe he is guilty," "He did it," or "I already think he's guilty based on the news coverage I've seen." He claims that any veniremember who responded in this fashion had an opinion as to his guilt and was therefore absolutely disqualified and should have been dismissed by the trial court without further questioning pursuant to Article 35.16(a)(10).
Article 35.16(a)(10) does not absolutely disqualify a veniremember who has an opinion regarding the appellant's guilt or innocence. Rather, to invoke Article 35.16(a)(10), the proponent must make a challenge for cause and demonstrate that the veniremember's conclusion as to a defendant's guilt or innocence would influence his verdict. Curry, 910 S.W.2d at 493. The appellant has not done this. The trial court did not abuse its discretion in refusing to excuse the prospective jurors based solely on their answers to questions in the written questionnaire or in allowing the venirepersons to be further questioned. The second point of error is overruled.
Finally, the appellant complains under his first three points of error that, because of the pervasive pretrial publicity and the court's failure to employ his requested questions in the jury questionnaire, he was denied his due process right to be tried by a fair and impartial jury. U.S. Const. amend. XIV. However, the court granted a motion to change venue in the case, and none of the veniremembers that the appellant mentions in his brief on these points served on the jury. Without more, the appellant has failed to show that he was tried by an unfair or partial jury. See, e.g., Murphy v. Florida, 421 U.S. 794, 800-01 (1975) (holding that the mere existence of a preconceived notion as to the accused's guilt or innocence is not sufficient to rebut the presumption of a prospective juror's impartiality). Points of error one through three are overruled.
B. Denying His Challenges for Cause
In points of error four through thirteen, sixteen, and seventeen, the appellant claims that the trial court erred in overruling his challenges for cause to eleven different veniremembers: Eddy (point of error four), Thomas (point of error five), Patterson (point of error six), Carol Wardrup (point of error seven), Chitsey (point of error eight), Hunnicutt (point of error nine), Surratt (point of error ten), Fullerton (point of error eleven), Self (point of error twelve), Jerry Wardrup (point of error thirteen), Self (point of error sixteen), and Cone (point of error seventeen). He claims that these venirepersons "were disqualified, most often and most clearly due to the influence of pretrial publicity and due to their bias[es] in favor of [the] death penalty."
To preserve error on denied challenges for cause, the appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury. Feldman v. State, 71 S.W.3d 738, 743-45 (Tex. Crim. App. 2002); Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996).
The appellant's ninth and tenth points of error have not been preserved. In his ninth point of error, the appellant complains about venireperson Hunnicutt. However, the record shows that the appellant did not use a peremptory strike on Hunnicutt even though he had strikes available. Feldman, 71 S.W.3d at 743-45. Point of error nine is overruled.
In his tenth point of error, the appellant complains about vernireperson Surrat, who was chosen as a jury alternate. The selection of alternate jurors is separate and distinct from the selection of the primary panel. Cooks v. State, 844 S.W.2d 697, 721 (Tex. Crim. App. 1992). Following the selection of the primary panel, the court wipes out any unused peremptory strikes either party might possess, and then gives each party one or two additional strikes depending on the number of alternate jurors they are to select. See Article 35.15(d). Thereafter, the rules for preserving error on challenges for cause during selection of an alternate juror are the same as those applicable during the selection of the primary panel. Cooks, 844 S.W.2d at 721. The appellant failed to use a peremptory strike in selecting the alternate jurors. Therefore, he has not preserved error on his complaint regarding Surrat. Appellant's tenth point of error is overruled. With regard to the remainder of the appellant's complaints about denial of challenges for cause, the record reflects that the appellant exhausted all fifteen of his peremptory challenges, received three additional challenges, used those challenges, and then requested, but was denied, further challenges.
When the trial court errs in overruling a challenge for cause against a venireperson, the defendant is harmed if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike. Feldman, 71 S.W.3d at 743-45; Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986). Because the appellant received three extra peremptory challenges in addition to the fifteen that he was granted by statute, the appellant can demonstrate harm only by showing that at least four of his complained-of challenges were erroneously denied. Feldman, 71 S.W.3d at 743-45.
A defendant may properly challenge any prospective juror who has a bias or prejudice against the defendant or any phase of the law upon which he is entitled to rely. Art. 35.16(a)(9), (a)(10), (c)(2). When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the trial court's ruling. Feldman, 71 S.W.3d at 743-45; Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995). The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law. Feldman, 71 S.W.3d at 743-45. Before a prospective juror may be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Id. Finally, the proponent of a challenge for cause has the burden of establishing that his challenge is proper. Id. at 747. The proponent does not meet his burden until he has shown that the veniremember understood the requirements of the law and could not overcome his or her prejudice well enough to follow it. Id. When the record reflects that a venireperson vacillated or equivocated on his or her ability to follow the law, the reviewing court must defer to the trial court. Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999); Brown v. State, 913 S.W.2d 577, 580 (Tex. Crim. App. 1996).
In point of error four, the appellant complains that the trial court erred in denying his challenge for cause to prospective juror Eddy, because Eddy favored the death penalty, saw little purpose for the mitigation issue, and placed the burden on the defense to convince him that a life sentence was appropriate.
At the beginning of the State's individual voir dire of Eddy, Eddy explained that he understood the need to listen to all the evidence and that he could be fair. Throughout voir dire, Eddy consistently stated that he would base his decisions on the evidence presented.
After the prosecutor explained the purpose of the mitigation question, the following exchange occurred:
Q. [Prosecutor] Do you think [that the mitigation question is] a good question to have in a death penalty case?
A. [Venireperson] No.
Q. Why not?
A. Because if you find the other two guilty [sic], there shouldn't be no third question.
Q. If you think he's - already found him guilty and he's a future danger and that he anticipates a life would be taken, that that [sic] pretty much makes your decision for you?
A. Yes, sir.
The prosecutor then further explained the reasoning behind the mitigation question and the importance of keeping an open mind and listening to all of the evidence before answering the mitigation question. Eddy then commented that, after hearing the purpose of the mitigation issue, he understood its relevance.
Eddy also acknowledged that he marked in his questionnaire a general belief that the death penalty was appropriate for anyone who committed murder. However, when the prosecutor explored this belief, Eddy stated that he was thinking of heinous fact situations when he marked that answer. He noted that he now recognized that a life sentence might be more appropriate in some cases.
At the outset of the appellant's questioning Eddy commented that it might be "tough" for him to determine that some capital murderers deserved a life sentence, but that he would be open-minded and would listen to all of the evidence. He acknowledged that his views regarding the death penalty were fairly ingrained and "a lawyer trying to talk [him] out of it [was]n't going to change [his] feeling or views about the death penalty." However, he also stated that if he was given "good enough reasons not to give it," then he could see "not giving the death penalty."
Although Eddy conceded that he leaned toward giving the death penalty, he consistently reiterated that he would have to hear all of the evidence before he could make a decision in a particular case. We hold that the trial court did not err in denying appellant's challenge for cause to veniremember Eddy. Point of error four is overruled.
In point of error five, the appellant complains that the trial court erred in denying his challenge for cause to prospective juror Thomas because Thomas had formed an opinion as to the appellant's guilt, favored the death penalty, and thought mitigating evidence was irrelevant.
During voir dire, Thomas indicated that he had read about the crime in the newspaper. Thomas stated: "I guess I have an opinion, but I don't know that I could, you know, tell you my verdict, unless I really, you know, heard the evidence." Thomas also confirmed that he was in favor of the death penalty; however, he admitted that he did not think it was appropriate in all cases.
Throughout the State's questioning, Thomas occasionally equivocated in his responses. For instance, when asked if he could follow a particular law, Thomas responded, "Well, I would hope I could," and when asked whether he agreed with certain legal concepts, Thomas simply responded, "That's the law." After the prosecutor clarified that a juror did not need to "be able to wipe [his] mind clean," to be qualified, and that he need only be able to set aside what he learned outside of the courtroom and not allow that to influence his verdict, Thomas agreed that he would be able to do that.
During the appellant's questioning of Thomas, Thomas indicated that he could not just forget what he knew about the case, but that his decision would ultimately be based on the evidence presented. Thomas stated that he believed that the escaped inmates had committed the crime for which the appellant was on trial, he favored the death penalty, and he thought evidence of appellant's childhood was not relevant. However, Thomas consistently stated that he would follow the law despite his abstract opinion. Given this record, we hold that the trial court did not abuse its discretion in denying the appellant's challenge for cause to veniremember Thomas. Point of error five is overruled.
In his sixth point of error, the appellant complains that the trial court erred in denying his challenge for cause to prospective juror Patterson because Patterson had formed an opinion as to appellant's guilt, favored the death penalty, thought mitigating evidence was irrelevant, and would put the burden on the defense to show that the appellant would not be a continuing threat to society.
During voir dire, when the prosecutor asked Patterson if she could be a fair and open-minded juror, Patterson equivocally answered, "I'm not sure." In fact, many of her answers thereafter were equally equivocal. Ultimately, however, when the prosecutor directly asked Patterson if she could follow any instructions that the court gave her, she said that she could.
Furthermore, although the prosecutor noted that Patterson had indicated that she favored the death penalty in her questionnaire, when she asked Patterson about her beliefs, Patterson stated that a life sentence would be appropriate under the right circumstances. Patterson also explained that, despite the pretrial publicity in the case, she could set aside any information she obtained from outside sources and render a verdict and answer the punishment questions based on the evidence presented.
During defense questioning, Patterson acknowledged her belief that the death penalty was an appropriate punishment. When the appellant reminded Patterson that she had indicated in her questionnaire that she did not think she could be a fair juror because she thought that the appellant was guilty, Patterson explained that although she was still of the same opinion, "it shouldn't, but it might" influence her verdict.
In discussing the special issues, Patterson indicated that she would expect the person she found guilty of capital murder to prove that he would not be a future danger. She also explained that in regard to the mitigation issue, she could not envision a scenario in which she thought a capital murderer ought to be sentenced to life. Throughout the questioning about the special issues, it was apparent Patterson did not completely understand the manner in which they were used. However, towards the end of the appellant's questioning of her, she remarked that, while she was strongly in favor of the death penalty, her responses in the questionnaire about the death penalty were made before she knew about the special issues and their function in the trial.
The court thereafter attempted to clarify Patterson's position. When asked whether she could answer the first two special issues "yes" or "no" depending upon the evidence presented, Patterson responded that she could. Patterson also responded that she could still consider a life sentence even after finding that a defendant would be a continuing threat and did intend or anticipate that life would be taken.
At best, Patterson stated on more than one occasion that she understood the law and could follow it. At worst, she equivocated and vacillated in her answers. Moore, 999 S.W.2d at 400; Brown, 913 S.W.2d at 580. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant's challenge for cause to veniremember Patterson. Point of error six is overruled.
The appellant complains in his seventh point of error that the trial court erred in denying his challenge for cause to prospective juror Carol Wardrup because Wardrup was biased in favor of the death penalty.
Throughout the prosecutor's questioning, Wardrup stated that she could be fair and open-minded, could follow the law, and could make her decisions according to the law and the facts that she heard in the courtroom. She reiterated this stance during appellant's questioning. When asked by the appellant about her statement in the questionnaire that she favored the death penalty, Wardrup explained that while this was her opinion irrespective of the law and any particular facts, she would still have to hear all of the evidence before she could answer any of the punishment questions in a particular case. Finally, when the judge asked Wardrup directly whether, despite her opinion, she could follow the law and render her decisions based upon the evidence presented at trial, Wardrup stated that she could. We hold that the trial court did not abuse its discretion in denying appellant's challenge for cause to veniremember Carol Wardrup. Point of error seven is overruled.
In his eighth point of error, the appellant complains that the trial court erred in denying his challenge for cause to prospective juror Chitsey because Chitsey favored the death penalty and thought mitigating evidence was irrelevant.
Although at the outset of the questioning, Chitsey admitted that he strongly favored the death penalty, he also indicated that each case should be evaluated on its own facts. Similarly, Chitsey commented that because of what he already knew about the case through the media, he did not know if he could truly be fair and wait and listen to all of the evidence before making a decision in the case. However, after the prosecutor explained that jurors have to make decisions based on the evidence presented and that they could not be influenced by what they have heard or read about the case, the court directly asked Chitsey if he could render a verdict based on the law and evidence, Chitsey responded that he could.
With regard to mitigating evidence, Chitsey told the prosecutor that he could consider all of the evidence and base his answer to that question on the evidence. In explaining some of the answers he gave in his questionnaire regarding mitigating evidence and the death penalty, Chitsey explained that his answers were given without regard to the circumstances of a particular offense. Once he learned the law, Chitsey said on a number of occasions that he would base his decisions both at guilt or innocence and at punishment on the evidence presented in the courtroom. Thus, the trial court did not abuse its discretion in denying the appellant's challenge for cause to veniremember Chitsey. Point of error eight is overruled.
In his eleventh point of error, the appellant complains that the trial court erred in denying his challenge for cause to prospective juror Fullerton because Fullerton favored the death penalty and was biased against mitigating evidence.
At the outset of questioning, although Fullerton commented that the United States was probably "last in line among the nations of the world to reject the death penalty," he stated that he still believed that death was an appropriate punishment for some extremely heinous and severe crimes. Fullerton agreed that mitigating evidence is sometimes appropriate, but stated that he would have to consider all of the evidence before he could answer that special issue. The trial court did not abuse ts discretion in denying the appellant's challenge for cause to venire member Fullerton. Point of error eleven is overruled.
Because the trial court did not abuse its discretion in denying the appellant's challenges to the various veniremembers presented above, and because the appellant's remaining complaints involve only three other veniremembers, the appellant cannot show on appeal that at least four of his complained-of challenges for cause were erroneously denied. Thus, he cannot show harm. Feldman, 71 S.W.3d at 747. Points of error twelve, thirteen, sixteen, and seventeen are overruled.C. Limiting Voir Dire Questions
In points of error fourteen and fifteen, the appellant contends that the trial court erred when it limited his voir dire examinations of Jerry Wardrup and Dana Self. He asserts that he was denied the opportunity to ask proper questions of Wardrup and Self, and was thereby denied the right to intelligently exercise his peremptory challenges.
When a trial court erroneously prohibits a defendant from properly questioning individual prospective jurors, the defendant suffers harm if he has been forced to use a peremptory challenge he would not have otherwise used but for the trial court's error. Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim. App. 1997). For the reasons noted in points of error twelve, thirteen, and sixteen, supra, the appellant did not lose the peremptory challenges he exercised against Wardrup and Self. Therefore, even if the trial court did prohibit him from propounding proper questions to these two prospective jurors, the appellant cannot show that he was harmed. Id. Points of error fourteen and fifteen are overruled.
D. Granting State's Challenges for Cause
The appellant complains in points of error eighteen and nineteen that the trial court erred in granting the State's challenges for cause to veniremembers Pipkin and Horchem.
During questioning by both sides, Pipkin indicated that a life sentence would be more appropriate for a non-shooter accomplice. The appellant argues that, after further questioning, Pipkin retreated from this opinion. However, the record reveals that Pipkin changed her stance several times. Furthermore, Pipkin seemed confused about her own answers and the law.
Horchem also indicated that although she had no qualms about the death penalty in general, she could not impose it herself. She also indicated that, due to the media attention focused on the case, she had formed an opinion as to appellant's guilt which might influence her in reaching a verdict in this case. The State challenged her on this basis.
Neither of these complaints is of constitutional dimension. Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998). Therefore, if the trial court erred in these two challenges for cause, a reversal is warranted only if the record shows that the error deprived the appellant of a lawfully constituted jury. Id. at 394. The appellant fails to make such a showing in this case. Points of error eighteen and nineteen are overruled.
E. Qualifying Venirepersons
The appellant asserts in his twentieth point of error that the trial court erred in denying his "motion to qualify forty-two venire persons before the exercise of peremptory strikes." He claims that his rights to due process and equal protection were violated when the trial court overruled his request to use peremptory challenges following examination of the entire venire as is done in non-capital cases. We have previously addressed and rejected this argument. Valle v. State, 109 S.W.3d 500, 504 (Tex. Crim. App. 2003); see also Art. 35.13. Point of error twenty is overruled.
III. Guilt-Stage Issues
A. In-Court Identification
The appellant asserts in his twenty-fifth point of error that the trial court "erred in failing to suppress the in[-]court identification of [the appellant] by the eyewitnesses to the offense." In support of his assertion, the appellant refers to his argument regarding an unduly suggestive identification procedure which was set forth in the "points attacking [the appellant's] arrest."
In this point, the appellant presents some law on identification and lineup procedures. He then quotes the affidavit of Dr. Roy Malpass who avers that, in his professional opinion, the lineup the police employed was so unduly suggestive as to amount to an unconstitutional procedure. What the appellant has not done is to tell us where in the record we might find this affidavit, who the eyewitnesses are about whom he complains, or where in the record we might find any of their testimony identifying the appellant in court or testifying to their initial identification of him. Although the State's brief has filled in some of the blanks, it does not absolve the appellant from properly briefing his own issues. We hold that the appellant's point is inadequately briefed. Tex. R. App. P. 38.1. Point of error twenty-five is overruled.
B. Compelling Testimony
The twenty-sixth point of error in the appellant's brief is that "the trial court erred in not compelling Eugene Morgan to testify." The appellant asserted that Morgan would testify that he was a member of the Catholic clergy and that he held a position of authority and trust when he sexually abused the appellant as a child. After consulting with counsel appointed by the court, Morgan invoked his Fifth Amendment privilege against self-incrimination "[w]ith regard to any relationship with [appellant] or anyone else," and refused to testify. The appellant asked the court to force Morgan to testify. He claimed that the incidents about which Morgan would testify happened more than twenty years ago and that the statute of limitations had run, so that Morgan could no longer be prosecuted. He also claimed that Morgan could not be prosecuted solely on his statements; corroborating evidence would be required. The appellant also claimed that, because Morgan was in the State pursuant to a subpoena, he could not be arrested or served with process.
On appeal, the appellant claims that Morgan's testimony was central to his punishment defense, which centered on the "psychological difficulties that resulted from his molestation as a teenager" by Morgan.
The Fifth Amendment, made applicable to the states by the Fourteenth Amendment, requires, "No person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V; Malloy v. Hogan, 378 U.S. 1 (1964). This privilege not only extends "to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant." Hoffman v. United States, 341 U.S. 479, 486 (1951). However, the government may compel witnesses to testify when their incriminating statements (or evidence derived from those statements) cannot be used against the speaker in any criminal case. United States v. Balsys, 524 U.S. 666, 671-72 (1998); Kastigar v. United States, 406 U.S. 441, 458 (1972); Brown v. Walker, 161 U.S. 591, 602-04 (1896). For instance, the privilege preserves the core Fifth Amendment right by granting a witness immunity from the use of that compelled testimony in a subsequent criminal case. Chavez v. Martinez, 538 U.S. 760, 770-72 (2003). Likewise, when the relevant limitations period has expired, the protection provided by the Fifth Amendment becomes moot and the privilege against self-incrimination no longer applies. Stogner v. California, 539 U.S. 607, 619-20 (2003); Brown, 161 U.S., at 597-98. The trial court is required to determine whether the witness has correctly asserted the privilege, and to order the witness to answer questions if the witness is mistaken about the danger of incrimination. Ohio v. Reiner, 532 U.S. 17, 19 (2001); Hoffman, 341 U.S., at 486.
In the instant case, neither party requested that Morgan be granted immunity for his testimony. Rather, the appellant argued that Morgan should be compelled to testify because of (1) the running of the statute of limitations; (2) the need for corroboration, and (3) the fact that Morgan could not be arrested or subjected to service of process as long as he was compelled to be in Texas by subpoena. However, all of the appellant's arguments were based on Texas law. Balancing the defendant's right to compulsory process and the right to present a defense against the witness's right not to incriminate himself, the trial judge stated that no evidence had been presented regarding whether the witness could still be convicted in another jurisdiction, especially in light of the recent national exposure regarding sexual abuse by members of the clergy. Furthermore, the judge remarked that he was "even more satisfied" with the ruling after the appellant made an offer of proof that detailed a number of extraneous acts.
Notwithstanding this, the lack of specificity as to these acts, their location(s), and the time frame involved, required the trial court to speculate somewhat in making its determination. However, even if this speculation resulted in the trial court's erring in its determination not to compel Morgan to testify, the record shows beyond a reasonable doubt that the appellant was not harmed by any such error. Tex. R. App. P. 44.2(a). The fact that the appellant became sexually involved with Morgan was presented through the defense psychologist, Dr. Judith Becker. Becker also testified about the appellant's feelings concerning the involvement and the negative impact of Morgan's rejection of the appellant. These facts remained undisputed even though the State extensively challenged Becker's professional opinion of the appellant as a passive person and her lack of review of various documents generated in the case. Because the appellant was not harmed by the lack of Morgan's direct testimony, we overrule his twenty-sixth point of error.
C. Stipulating to Cause and Manner of Death
In his twenty-seventh point of error, the appellant complains that "the trial judge erred in failing to allow [him] to stipulate to the cause and manner of [Hawkins's] death because, in light of the offer to stipulate, such testimony was more prejudicial than probative." Specifically, the appellant sought to exclude the medical examiner's testimony and a mannequin the doctor used to show Hawkins's wounds.
The appellant relies on Old Chief v. United States, 519 U.S. 172 (1997), and Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), to support his claim that the court should not have allowed this evidence. However, Old Chief and Tamez concerned the prejudicial effect of evidence of a defendant's prior convictions when the defendant has offered to stipulate to the existence of such convictions. That is not the case here.
In the instant case, the appellant and six other prison escapees robbed a sporting goods store and killed a police officer. The jury was allowed to find the appellant guilty either as a principal or as a party to the crime. The appellant's actions, the actions of his co-defendants, and the nature and extent of the wounds Hawkins suffered were directly relevant and highly probative to the decision that the jury had to make in this case.
Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Unfairly prejudicial evidence gives rise to "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). Although graphic evidence of the injuries that the appellant and his co-defendants caused may be prejudicial, it is not unfairly so. Id. Finally, the prosecution is entitled to prove its case by evidence of its own choice, and a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the State chooses to present it. Old Chief, 519 U.S., at 186-89. The trial court did not abuse its discretion in refusing to allow the appellant to stipulate to the cause and manner of Hawkins's death. Point of error twenty-seven is overruled.
D. Party Instructions
The twenty-eighth point of error, is that the appellant's Fifth, Sixth, and Fourteenth Amendment rights were violated by the charge of the court, which allowed the jury to convict the appellant as a party to the offense. Specifically, the appellant argues that, in light of the United States Supreme Court's opinions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), the parties issue should have been pled in the indictment. The appellant, however, also recognizes that this Court has long held that the law of parties need not be pled in the indictment. Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002).
Apprendi and Ring focus on facts which will increase punishment over the statutory maximum. Specifically, Ring requires any fact other than prior convictions that increase the maximum penalty be alleged in the indictment and proved beyond a reasonable doubt in federal cases. Ring, 536 U.S. at 600. The statutory maximum punishment in capital murder cases is death. Tex. Penal Code § 19.03(b). A party to a capital murder is criminally responsible for the crime to the same extent a principal is. Tex. Penal Code §§ 7.01-02. Including the parties issue in the indictment would not allow the State to seek a more severe punishment. Accordingly, Apprendi and Ring do not require the parties issue to be alleged in the indictment. Point of error twenty-eight is overruled.
We affirm the judgment of the trial court.
Hervey, J., not participating.
Delivered March 29, 2006.
Do Not Publish.