Morris v. State

OPINION

KELLER, Judge.

In December of 1993, appellant was convicted of capital murder under Texas Penal Code 19.03(a)(2). The offense, the murder of James Moody Adams in the course of robbery, was committed in May of 1991. The trial court submitted to the jury the special issues set out in Article 37.0711, subsections 3(b)(1), (2) and (3)(e) of the Texas Code of Criminal Procedure.1 In accordance with the jury’s answers to those issues, the trial court assessed the appellant’s punishment at death. Article 37.0711(3)(j) provides direct appeal to this Court. Appellant raises nineteen points of error. We will affirm.

1. BATSON CHALLENGE

In points of error one and two, appellant asserts that the trial court erred in overruling his objection to the State’s peremptory challenge of prospective juror Robert Dreannan. Appellant contends that the challenge was racially motivated in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

We review the record of the Batson hearing and the voir dire examination in the light most favorable to the trial court’s ruling. Adanandus v. State, 866 S.W.2d 210, 223 (Tex.Crim.App.1993); Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). We will not disturb a trial court’s ruling on a Batson issue unless it is clearly erroneous. Id.

On his jury questionnaire, venireman Dreannan indicated that he was strongly in favor of the death penalty. During voir dire however, he said he had spent a sleepless night worrying about his answer to that question. When asked whether youth would improperly factor into his consideration of the punishment issues, venireman Dreannan refused to answer:

Q: [A]re you saying that youth—you would never, never return a verdict that would cause a young person to be put to death?
A: That’s too hard of a question to ask. I’m not going on it because I have an 18-year-old son.

At the Batson hearing, the prosecutor said he thought venireman Dreannan had been deceptive in answering the youth question. The trial court noted for the record that its observations of Dreannan’s demeanor were consistent with the prosecutor’s explanation. She also commented that the prosecutor had seated a large number of blacks in a recently completed capital murder trial. The trial judge found the prosecutor’s reasons to be racially neutral and denied the Batson challenge. According due deference to the decision of the trial court, we find that its decision was not clearly erroneous. Point of error one is overruled.

In point of error two, appellant claims the trial judge improperly based her ruling upon the absence of purposeful discrimination by this prosecutor in a separate criminal trial. A ruling on a Batson objection is a credibility determination. Because the trial judge determines the issue of the prosecutor’s credibility, it is not error for the court to consider its past experiences with a prosecutor in determining his credibility. See Fowler v. State, 863 S.W.2d 187, 189 (Tex.App.—Houston [14th] 1993, pet. ref'd). Point two is overruled.

*6132. EFFECT OF PAROLE

In points of error three through eight, appellant asserts that the trial court erred in disallowing questions on voir dire concerning the minimum time a convicted capital murderer sentenced to life in prison must serve before he is eligible for parole. Appellant claims this information is relevant to the issue of future dangerousness. He further asserts that the trial court violated both the United States and Texas Constitutions in refusing to allow such questions on voir dire.

Appellant claims he should have been allowed to inform prospective jurors that if sentenced to life, he would serve a minimum of 15 years before becoming eligible for parole. He asserts that without this knowledge, jurors might entertain the mistaken belief that he would be released much earlier, and respond by handing down a sentence of death instead of life. Appellant contends in point of error three that knowledge of the parole law is therefore necessary to an accurate determination of future dangerousness.

This Court has held that parole is not a matter for a jury’s consideration in a capital murder trial. Smith v. State, 898 S.W.2d 838, 846 (Tex.Crim.App.) (plurality opinion), cert. denied — U.S. -, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Broxton v. State, 909 S.W.2d 912, 919 (Tex.Crim.App.1995); Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992). As to future dangerousness, we have held that in deciding whether a defendant poses a continuing threat to society, a jury considers not only free society, but also prison society. Because the length of appellant’s incarceration does not reduce or increase his future dangerousness, it is not relevant to that issue. Id at p. 495. Point of error three is overruled.

Appellant argues in points of error four and five that Due Process and the Eighth Amendment require that a jury be informed of his “parole ineligibility.” These issues have been resolved contrary to appellant’s position. Smith, 898 S.W.2d at 853; Broxton, 909 S.W.2d at 919. Points of error four and five are overruled.

In points of error six through eight appellant claims the trial court’s refusal to inform the jury about parole violated Article I, Sections 10,13 and 19 of the Texas Constitution. Appellant points out that this Court can interpret the Texas Constitution more broadly than the Federal Constitution. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). Appellant argues that the Texas Constitution guarantees a party the right to use his peremptory and for-cause challenges intelligently. As appellant points out, a voir dire question is proper if its purpose is to disclose a juror’s views on an issue applicable to the ease. See, e.g., Shipley v. State, 790 S.W.2d 604, 608 (Tex.Crim.App.1990). A Texas jury must determine future dangerousness. Parole ineligibility as it relates to future dangerousness is thus, appellant argues, a proper subject for voir dire.

As noted above, parole is not a matter for a jury’s consideration in a capital murder trial. Broxton, 909 S.W.2d at 919. For this reason, parole ineligibility is not “an issue applicable to the case,” and questions about it are not proper questions. The Texas Constitution thus does not give an accused the right to ask prospective jurors in a capital murder trial questions regarding parole ineligibility. Points six through eight are overruled.

3. MITIGATING EVIDENCE

In point of error nine, appellant contends that the trial court erred in excluding evidence that the State chose not to seek the death penalty against his two co-defendants. Appellant claims his co-defendants’ lighter punishment is constitutionally relevant mitigating evidence which should have been admitted during the punishment phase of trial.

Appellant argues that his personal culpability in the murder was equal or similar to that of his co-defendants who did not receive the death penalty. In response to this we must point out that appellant’s role in the crime was not identical to his co-defendants’ roles. The evidence shows that while three men were involved in the robbery, it was appellant who held the gun and shot the victim four times. In any case, it is possible for two people who have committed identical *614murders to receive different sentences based on differing degrees of mitigating character and background evidence.

Moreover, this Court has held that evidence of a co-defendant’s conviction and punishment is not included among the mitigating circumstances which a defendant has a right to present. In Evans v. State, 656 S.W.2d 65, 67 (Tex.Crim.App.1983), we stated:

“We do not see how the conviction and punishment of a co-defendant could mitigate appellant’s culpability in the crime. Each defendant should be judged by his own conduct and participation and by his own circumstances.”

Id.

Appellant relies upon Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), in which the United States Supreme Court recognized evidence that the defendant’s accomplices were not sentenced to death as part of the mitigating evidence which was admitted at trial. However, Parker did not address whether evidence of disparate sentencing is mitigating evidence which must be considered under the standard set out in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The punishment which appellant’s co-defendants received relates neither to appellant’s character, nor to his record, nor to the circumstances of the offense. Point of error nine is overruled.

4. SUFFICIENCY OF THE EVIDENCE.

In point of error ten, appellant asserts that the evidence was insufficient to support the jury’s negative finding on the mitigation issue. Because the weighing of mitigating evidence is a subjective determination undertaken by each juror, we will not review mitigating evidence for sufficiency. Colella v. State, 915 S.W.2d 834 (Tex.Crim.App.1995). Point of error ten is overruled.

5. THE SPECIAL ISSUES

In point of error nineteen, appellant claims the mitigation issue violates the Eighth Amendment to the United States Constitution because “meaningful appellate review of the jury’s answer to that special issue is impossible.” We have recently decided this contention adversely to appellant’s position. McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996) at 498-500 (Keller, J. concurring at 524-525). Point of error nineteen is overruled.

In point of error fourteen, appellant claims Article 37.0711(3)(e) is unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, appellant argues that the statute is unconstitutional because it assigns no burden of proof, burden of persuasion or standard of proof to the issue of mitigation. We have already held that the Eighth Amendment does not require that the State be assigned the burden of proof on Penry issues. Barnes v. State, 876 S.W.2d 316, 330 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Because the Eighth Amendment does not require limitations on a jury’s discretion to consider mitigating evidence, see McFarland, 928 S.W.2d at 518-519, the Constitution does not require a burden of proof to be placed upon anyone. Point of error fourteen is overruled.

Appellant complains in point of error thirteen that the mitigation issue violates the Eighth and Fourteenth Amendments to the United States Constitution because it “permits the openrended discretion” condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, the United States Supreme Court has held that allowing a jury the discretion to recommend mercy after considering mitigating evidence is not unconstitutional. Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989). Furthermore, we have recently decided this issue adversely to appellant’s position. McFarland v. State, 928 S.W.2d at 520. Point of error thirteen is overruled.

In point of error twelve, appellant argues that the statutory definition of mitigating evidence is unconstitutional under the Eighth Amendment because it limits the jury’s consideration of mitigating factors to those reflecting his “moral blameworthiness.” *615Appellant claims the statutory language prohibits consideration of mitigating evidence which has no bearing on moral culpability, such as a history of kindness, religious devotion or special ability in some field.

Appellant has presented no such evidence in his case. Appellant presented evidence of past abuse, mental illness, intoxication, drug addiction and remorse, all of which reflect upon the issue of moral blameworthiness. Appellant also presented evidence that he benefitted from the structured environment of a boot camp. This evidence pertains to the future dangerousness issue. Because appellant has not presented any evidence with mitigating impact beyond the scope of the special issues, he has not been sentenced to death in violation of the Eighth Amendment. Burks v. State, 876 S.W.2d 877, 910 (Tex. Crim.App.1994); Lane v. State 822 S.W.2d 85, 38 (Tex.Crim.App.1991), cert. denied, 504 U.S. 920, 112 S.Ct. 1968, 118 L.Ed.2d 568 (1992). Point of error twelve is overruled.

In point of error eighteen, appellant asserts that Article 37.0711(3)(i), which prohibits informing a jury that failure to reach a unanimous verdict on any of the punishment issues will result in a life sentence, is unconstitutional. Specifically, appellant claims the statute violates the Eighth Amendment to the United States Constitution.

We have previously rejected this argument. In Rousseau v. State, 855 S.W.2d 666, 687 (Tex.Crim.App.1993), we held that preventing a jury from knowing the effect of its answers to the punishment issues does not subject a defendant to cruel and unusual punishment under the Eighth Amendment. Point of error eighteen is overruled.

6. APPLICATION OF THE DEATH PENALTY

In point of error eleven, appellant contends that the due process clause of the Fourteenth Amendment requires this Court to conduct a “proportionality review” with regard to the appellant’s death sentence. Appellant asserts that this Court should consider whether his sentence is excessive or disproportionate compared to sentences imposed in similar capital eases. Appellant concedes that in Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the United States Supreme Court rejected this argument when it was raised under the Eighth Amendment. Appellant claims that the argument he sets forth requires a different holding under the Fourteenth Amendment. He relies on Honda Motor Company, Ltd. v. Oberg, 512 U.S. 415, 114 S.Ct. 2331, 129 L.Ed.2d 336 (1994), in which the United States Supreme Court held that due process required a state to afford appellate review of the excessiveness of punitive damage verdicts.

Honda dealt with civil procedures, which by their nature operate under vastly different due process principles than do criminal cases in general and capital punishment cases in particular. See, e.g., In re Winship 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process requirements in criminal proceedings) and Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977)(death is different). Honda does not stand for the proposition that due process requires comparative proportionality reviews of all civil judgments, much less, all criminal judgments; at most it stands for the proposition that due process requires some minimal safeguard ensuring that individual judgments are not excessive or disproportionate. Honda leaves open the form these safeguards might take. Honda held that a comparative proportionality review was required only because Oregon had no alternative means of safeguarding against excessive or disproportionate judgments. 512 U.S. 415, 431—133, 114 S.Ct. 2331, 2340-2341, 129 L.Ed.2d 336, 349-350.

The federal Constitution requires more than the minimal safeguard of a comparative proportionality review to ensure the fair imposition of the death penalty. Because death is qualitatively different from any other punishment, the federal Constitution requires the highest degree of reliability in the determination that it is the appropriate punishment. E.g., Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-2992, 49 L.Ed.2d 944 (1976); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976); Furman v. Georgia, 408 U.S. 238, 92 *616S.Ct. 2726, 38 L.Ed.2d 346 (1972) (decided in conjunction with Branch v. Texas). To ensure this reliability, the United States Constitution imposes requirements of proportionality of offense to punishment, of a narrowly defined class of death eligible defendants, and of an opportunity for each juror to consider and give effect to circumstances mitigating against the imposition of the death sentence. See Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). In short, the due process principles governing the imposition of a sentence of death are distinct and more onerous than those governing the imposition of a civil judgment. Compare Tuilaepa to Honda.

It is for good reason, therefore, that the United States Supreme Court has not held that due process requires a comparative proportionality review of the sentence of death, but instead has held that such a review would be “constitutionally superfluous.” Pulley, 465 U.S. at 49, 104 S.Ct. at 879. See also Jurek, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)(upholding our capital punishment scheme even without a comparative proportionality review). Point of error eleven is overruled.

In points of error fifteen through seventeen, appellant claims the death penalty has been arbitrarily imposed in violation of the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Article I, Sec. 13 of the Texas Constitution. Appellant maintains that the existence over the years of “radically different” sentencing schemes has resulted in disparate sentencing of capital defendants. We have decided appellant’s federal constitutional claims adversely to his position. Lawton v. State, 913 S.W.2d 542, 559-560 (Tex.Crim.App.1995).

Appellant also makes this challenge under Art. I, Sec. 13 of the Texas Constitution. Appellant reminds us that we can interpret the Texas Constitution more expansively than the federal Constitution and notes that the Texas Constitution proscribes cruel “or” unusual punishment. He refers us, without any elaboration, to a California case that attributes significance to a similar state constitutional proscription. But beyond claiming that it is “obvious,” Appellant does not explain why he believes the Texas Constitution offers broader protection than the United States Constitution. Accordingly, we overrule points of error fifteen through seventeen.

The judgment is affirmed.

CLINTON, J., dissents. MALONEY, J., concurs in the result.

. All references to Articles are to the Texas Code of Criminal Procedure unless otherwise provided.