Robinson v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

McCORMICK, Presiding Judge.

We granted appellant leave to file a motion for rehearing to address the merits of appellant’s points of error four, seven through ten, and fourteen, and to reexamine our disposition of appellant’s first and second points of error.

Viewed in the light most favorable to the verdict, the circumstantial evidence, in relevant part, supports a finding beyond a reasonable doubt that appellant, acting with two others, was the actual triggerman who killed the deceased during a robbery. V.T.C.A., Penal Code, Section 19.03(a)(2). In his confession that was admitted into evidence, appellant claimed that one of the coactors was the triggerman. The jury was charged at the guilt stage that it could convict appellant of capital murder either as a primary actor or under the law of parties.

In his first and second points of error, appellant argues his written confession was obtained in violation of his right to counsel under the Fifth and Sixth Amendments to the Federal Constitution and Article I, Section 10, of the Texas Constitution.1 Appellant claims the original opinion overlooked the significance of the exchange between himself and the magistrate before whom appellant appeared for a hearing in Houston just before he signed the confession. See Robinson v. State, 851 S.W.2d 216, 222-223 (Tex.Cr. App.1991); Article 15.17(a), V.A.C.C.P. We set out the relevant portions of that exchange here:

“Q. [By the Court]: Now, it’s my understanding that, I guess sometime, was it yesterday, that I have also before me a statement of a person in custody. Do you know what that is, like a confession?
“A. [By Appellant]: Yes, sir.
“Q. And you know who Officer Kent, C.W. Kent is?
“A. No sir.
“Q. Okay. Do you know this man right here?
“A. Oh, yes.
*233“Q. Have I told you — if I told you his name was C.W. Kent, would you recognize him, wouldn’t you?
“A. Yes.
“Q. You have talked to him, haven’t you?
“A. Yes, sir.
“Q. Correct me if I am wrong, I have been told some things and I need to ask you to find out if they are true. That you talked to some officers, primarily Officer Kent, and he gave you some warnings. Did he not? Do you remember that?
“A. Yes, sir. He talked to me.
“Q. And you gave him a statement of some kind, did you not?
“A. Yes, sir.
“Q. And it’s my understanding that this statement was typed out by somebody?
“A. Yes, sir.
“Q. A secretary of Mr. Kent.
“[By Officer Kent]: By me, sir.
“Q. By Officer Kent. It was typed out, and it’s my understanding that because you have difficulty reading that somebody read it to you?
“A. Yes, sir.
“Q. And the whole thing?
“A. Yes.
“Q. Is that true so far?
“A. Yes, sir.
“Q. And at that time you indicated to the officers that you wanted to think about whether or not you wanted a lawyer; is that correct?
“A. Yes, sir.
“Q. Okay. But see, they didn’t want you to sign it because they felt that you needed to be warned again and . talked to by somebody and make sure that we all understand, you know, that we do what you want to do, not what somebody else wants you to do. You understand that?
“A. Yes. Sir.
“Q. So, I guess, basically what my job is with you today is, I have got this statement before me. And what do you want to do about this?
“A. I want to sign it, sir.
“Q. You want to sign it?
“A. Yes, sir.
“Q. Do you want a lawyer?
“A. If I need one.
“Q. Well, see it’s up to you. The only thing that I can tell you, I can tell you what your rights are, you know. Okay. Before you make a statement you have to be told all these things that you have a right to not make any statement and that any statement you may make is probably going to be used against you at any trial down the way. You understand that?
“A. Yes, sir.
“Q. Okay. That you have a right to have a lawyer present to advise you prior to and during any questioning. If you are unable to hire a lawyer, a lawyer can be appointed by the Court to advise you while you are being questioned. You understand that?
“A. Yes, sir.
“Q. Okay. And that you have a right to terminate an interview at any time. Okay?
“A. Yes.
“Q. Now, the only thing I need to know is because you had indicated at one time that you wanted a lawyer, just like it said in these warnings, they can’t talk to you any more. See?
“A. Yes.
“Q. If you want a lawyer, we’ll get you one. If you don’t want one, you don’t have to have one. But if you choose, you are the one that has to make the decision as to what you want to do.
“A. You mean if I want a lawyer present for me to sign that?
“Q. Yes.
“A. No, sir. I want to sign it.
“Q. You want to sign it. You don’t want a lawyer?
“A. No, sir.
“Q. You understand everything that we have talked about?
“A. Yes.
“Q. Are you telling me you don’t want a lawyer then?
*234“A. To sign that? No, sir.
“Q. You get a lawyer to represent you. We are talking about this statement right here. That’s all we are talking about right here. You tell me what you want to do.
“A. I want to sign it.” (Emphasis added)

Appellant argues in his motion for rehearing that after his “equivocal” request for counsel, the unusual circumstances of this case indicate he was inadequately informed of his right to counsel, and his waiver of counsel was not understanding or voluntary.2 Appellant claims the magistrate should have advised him that his act of signing the confession “was what turned [the] inadmissible, inculpatory statement into an incriminating, admissible piece of evidence.”3 See Article 38.22, Section 1, V.A.C.C.P.

The magistrate had no legal duty to inform appellant of the significance of signing the confession, and his failure to do so does not make appellant’s act of signing the confession involuntary. See Phillips v. State, 701 S.W.2d 875, 890-91 (Tex.Cr.App. 1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986) (failure of interrogating officers to inform defendant that he was the target of a capital murder investigation did not render defendant’s confession involuntary), overruled in part on other grounds, Hernandez v. State, 757 S.W.2d 744, 751-52, n. 15 (Tex.Cr.App. 1988), cert. denied, — U.S. -, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992), overruled in part, Fuller v. State, 829 S.W.2d 191, 200 (Tex.Cr.App.1992). Under the circumstances of this case, the magistrate fulfilled his duty to clarify appellant’s prior, equivocal request for counsel, and to inform appellant of his rights so appellant could intelligently and knowingly exercise them. See Russell, 727 S.W.2d at 576-77; Article 15.17(a), V.A.C.C.P.4

As we understand it, appellant also argues the magistrate inadequately informed him of his right to counsel in connection with his signing the confession. Appellant seems to argue the magistrate only warned him he had a right to counsel during the interrogation process, which was already, over except for obtaining appellant’s signature on the confession. Based on the portions of the record set out above, appellant was advised of his right to counsel in connection with his signing the confession. The record also reflects that after appellant made an equivocal request for counsel, he knew of his right to counsel and he voluntarily chose not to assert that right when he signed the confession. This is all the constitution requires. See Russell, 727 S.W.2d at 576-77. Appellant’s first and second points of error are overruled.5

*235Appellant’s fourth point of error asserts the trial court erred in denying at the guilt stage of trial his requested issue asking the jury whether it considered appellant’s confession “or disregarded it pursuant to the court’s charge.” The magistrate, before whom appellant appeared for the hearing in Houston before he signed the confession, testified at trial on the circumstances of that hearing. The trial court, pursuant to Article 38.22, Section 6, V.A.C.C.P., instructed the jury not to consider appellant’s confession unless it found beyond a reasonable doubt that it was obtained lawfully.

Appellant argues the harm flowing from the denial of his requested issue is as follows: •

“In Appellant’s case, if the jury disregarded the confession, they would have had to disregard it entirely, both the inculpatory and exculpatory portions, and their decision would have to be made upon the testimony of [three witnesses]. The argument might have taken on a far more aggressive and positive tone at punishment based upon such circumstan- “ tial evidence of Appellant’s role. The point is not so much that the defense would have advanced a different specific argument, but that they would have had the option of altering the presentation of evidence (the Appellant himself might have testified) and argument. Further, counsel on appeal and this Court might have been in a different posture concerning a sufficiency of evidence argument on guilt or on one of the special issues: he would have been in a different position, in case he raised on appeal some other error in the charge that might require, under the dictates of [cite omitted] an evaluation of ‘all the evidence’ at trial to assess harm.” (Emphasis in original.)

Appellant argues to deny him an answer to his requested special issue is to “deny him a fair trial and a fair appeal and therefore to deny him due process of law in violation of federal and state constitutional guarantees.” 6

Article 37.07, Section 1(a), Y.A.C.C.P., provides for a general verdict in every criminal action; therefore, the trial court did not err in refusing appellant’s requested issue. Moreover, appellant’s allegations of harm are too speculative to demonstrate any constitutional violations. Appellant’s fourth point of error is overruled.

Appellant’s fourteenth point of error claims the special issues in Article 37.-071(b), V.A.C.C.P., were unconstitutionally applied to him because they provided no mechanism for the jury to give mitigating effect to the evidence of appellant’s non-triggerman status. Appellant, in effect, argues Article 37.071(b) allows him to be put to death “for merely being a party to a murder.” He claims Article 37.071(b) as applied violates the Eighth and Fourteenth Amendments to the Federal Constitution and Article I, Section 13, of the Texas Constitution. However, only appellant’s federal constitutional claims are properly before this Court. See Heitman, 815 S.W.2d at 690-91, n. 23; Morehead, 807 S.W.2d at 579, n. 1.

Under the Texas capital murder scheme, a jury must not be precluded from giving effect to relevant, mitigating evidence in answering the special issues. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Cuevas v. State, 742 S.W.2d 331, 346 (Tex.Cr.App. 1987), cert. denied, 485 U.S. 1015, 108 S.Ct. 1488, 99 L.Ed.2d 716 (1988). We have rejected similar federal constitutional challenges as that made by appellant here, and have held that special issue one of Article 37.071(b) clearly focuses the jury’s attention on a defendant’s individual conduct, and does not allow a defendant to be put to death for merely being a party to a murder. See Cuevas, 742 S.W.2d at 341-43, 350-51; see also Belyeu v. State, 791 S.W.2d 66, 71-74 (Tex.Cr.App.1989), cert. *236denied, — U.S. -, 111 S.Ct. 1337, 113 L.Ed.2d 269 (1991); Tucker v. State, 771 S.W.2d 523, 528-30 (Tex.Cr.App.1988), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989); Westley v. State, 754 S.W.2d 224, 231-33 (Tex.Cr.App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 577 (1989). In addition, special issue one has been interpreted as being tailored to permit an affirmative answer for a “major” participant in a capital murder involving multiple parties, but not for a “minor” participant. See Cuevas, 742 S.W.2d at 342-43. Special issue one provided a vehicle for the jury to give mitigating effect to appellant’s nontriggerman status. See id. at 351.

Also, the jury charge at the punishment phase instructed the jury that the law of parties, as defined at the guilt stage, did not apply to the punishment phase. In closing arguments during the punishment phase, appellant argued his nontriggerman status militated against imposition of the death penalty, and the State did not argue for the application of the law of parties in answering the special issues. Under these circumstances, the jury could not have been misled into believing it could affirmatively answer special issue one because appellant was merely a party to a murder. See id. at 351-53.7

The United States Supreme Court also has recognized that special issue two of Article 37.071(b) allows the sentencer to consider “whatever mitigating circumstances” a defendant can show. Jurek v. Texas, 428 U.S. 262, 272-73, 96 S.Ct. 2950, 2955, 49 L.Ed.2d 929 (1976); see also Cuevas, 742 S.W.2d at 350. More importantly, Texas’ capital murder scheme is constitutional “precisely because it does allow for consideration of mitigating evidence.” See Lackey v. State, 819 S.W.2d 111, 120 (Tex. Cr.App.1989). Special issue two also provided a vehicle for the jury to give mitigating effect to appellant’s nontriggerman status. See Lackey, 819 S.W.2d at 119-120; Cuevas, 742 S.W.2d at 350.

Regarding special issue three,8 appellant argues that since it “generally has no relevancy to a nontriggerman defendant and did not here, there is no way for mitigating evidence to be brought before the jury as the scheme presently exists.” He further argues “there are no statutory instructions or special issues applicable to a nontrigger-man defendant” under Texas’ capital murder scheme. Special issues one and two provide a vehicle for the jury to give mitigating effect to evidence of a defendant’s nontriggerman status. Therefore, we reject appellant’s argument that there are no special issues applicable to a nontrigger-man defendant. Appellant’s fourteenth point of error is overruled.

Appellant’s points of error seven through ten respectively assert the trial court erred in refusing his request to question veniremembers Davis, Edmonds, Webster, and Carroll before granting the State’s challenges for cause to them. The record reflects that after preliminary questioning by the trial court, the trial court granted the State’s challenges for cause to the veniremembers based on their views on the death penalty. A trial court’s error in refusing to allow a defendant to question a veniremember will be deemed harmless if, at the time the trial court grants the State’s challenge for cause, the venire-member, through questioning by the prosecutor or the trial court, made it absolutely and unmistakably clear that his views on the death penalty would have prevented or substantially impaired the performance of his duties as [a] juror in accordance with his instructions and his oath. Perillo v. State, 656 S.W.2d 78, 80-81 (Tex.Cr.App. 1983), cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608 (1989).

With respect to Davis, Edmonds and Webster, the record reflects they unequivocally stated they would automatically answer the special issues in such a way *237as to prevent imposition of the death penalty regardless of the facts. Therefore, refusing to allow appellant to question them was harmless. See id.

With respect to Carroll, appellant asserts she was almost a classic, “vacillating,” Perillo juror.9 We set out the relevant portions of Carroll’s voir dire here:

“[BY THE COURT]: Now, I’m going to ask you a personal question.
“Now that you’ve seen the two [special issues] and you know the result of your answers to those two questions, do you yourself have any conscientious, religious, or moral scruples against the infliction of death—
“[By Ms. Carroll]: Yes.
“THE COURT: —as punishment for crime in a proper case?
“A. Yes. Yes.
“THE COURT: And your answer is?
“A. Yes.
“THE COURT: Now, is that absolutely in every case, no matter what—
“A. Every case. I just could not do it.
“THE COURT: It makes no difference to you what the facts and circumstances are?
“A. Makes no difference, no.
“THE COURT: Let me finish my questions, so that we’ll get your answers on the record.
“Are you telling me that you would automatically, in every case, no matter what the facts and circumstances were, always answer those two questions in such a way that you knew the defendant would not receive the death penalty.
“A. That’s right.
“THE COURT: Would your answer to that question always be the same, no matter what the facts and circumstances of any case might be?
“A. That’s right.
“THE COURT: Could you ever participate with eleven other jurors and vote in such a way that you would answer those two questions yes, regardless of the facts, knowing that the death penalty would result if you answered the two questions yes?
“A. Yes.
“THE STATE: Judge, based on Ms. Carroll’s (sic), we’ll ask that she be excused for cause.
“THE COURT: You will be excused.
“APPELLANT’S COUNSEL: Your Hon- or, in order to render effective assistance of counsel to the defendant, may I put a few questions to the juror?
“THE COURT: No, sir. It was unequivocal.” (Emphasis added.)

Appellant claims Carroll’s final voir dire response shows she was a vacillating juror, and he argues we are bound by the record in reviewing this point. On this record based on the totality of Carroll’s answers, the trial court was entitled to find she was unequivocal in her views against imposition of the death penalty no matter what the facts. See Porter v. State, 623 S.W.2d 374, 376-77 (Tex.Cr.App.1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982).

Appellant’s points of error seven through ten are overruled.

Appellant’s motion for rehearing is denied; the trial court’s judgment is affirmed.

OVERSTREET and MALONEY, JJ„ concur in the result.

CLINTON, J., dissents.

. In his motion for rehearing, appellant asserts he cited authority "for the application of Texas constitutional law to the issue," and “he was not asking this Court to treat the matter differently from the federal courts, but to continue [the approaches of interpreting the State and Federal Constitutions as providing parallel protections] that seem to have been the norm.” In neither his original brief nor his motion for rehearing has appellant provided argument in separate grounds, with a separate substantive analysis and argument provided for each ground, on how the protection provided by the Texas Constitution differs from the protection provided by the Federal Constitution. See Heitman v. State, 815 S.W.2d 681, 690-91, n. 23 (Tex.Cr.App.1991); Morehead v. State, 807 S.W.2d 577, 579, n. 1 (Tex.Cr.App.1991). Therefore, only appellant's federal constitutional claims are properly before this Court.

. See Russell v. State, 727 S.W.2d 573, 576 (Tex. Cr.App.), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 119 (1987) (a defendant’s inquiry into interrogating officer's opinion on the necessity of the presence of counsel during interrogation is not a clear invocation of the right to counsel).

. Appellant’s motion for rehearing is directed to the conduct of the magistrate; he does not claim the interrogating officers violated his rights.

. Cases such as Russell illustrate what interrogating officers may do when an accused makes an equivocal request for counsel. Here, the interrogating officers arguably afforded appellant more protection than he was entitled to under Russell by taking appellant before a neutral magistrate to clarify appellant’s equivocal request for counsel instead of clarifying appellant’s desires themselves. And, the magistrate arguably afforded appellant more protection than he was entitled to under Article 15.17(a) when he advised appellant, among other things, that any statement he made “probably" would be used against him at trial. Compare id. (requires the magistrate to inform an accused that any statement he made “may” be used against him).

.We also note that appellant’s confession was the only evidence from which the jury reasonably could have found that appellant was not the triggerman. One of appellant’s coactors died under suspicious circumstances before trial. The other coactor took the Fifth Amendment at trial and did not testify. A female companion of the victim’s, who also was at the scene, was pretty sure appellant was the trigger-man based on his voice and mannerisms and a process of elimination of the other two coactors as the triggerman. At punishment, appellant argued against imposition of the death penalty because he was not the triggerman.

. As we understand it, appellant argues that since the jury could have convicted him of capital murder under the law of parties, he would have been in a better position at punishment to argue against imposition of the death penalty if he had an affirmative answer to his requested special issue. According to appellant, if the jury considered his confession, then it must have believed appellant was not the triggerman.

. See also Johnson v. State, 853 S.W.2d 527, 534-35 (Tex.Cr.App.1992, motion for rehearing pending).

. Special issue three asked, "[W]as the conduct of the [appellant] in killing the deceased unreasonable in response to the provocation, if any, by the deceased."

. In Perillo, the trial court reversibly erred in granting the State’s challenge for cause to a vacillating veniremember without first giving the defendant an opportunity to question the veniremember. Perillo, 656 S.W.2d at 80-81.