Drinkard v. State, 69660

• Citation: 776 S.W.2d 181
• Decision Date: 14 June 1989
• Docket Number: No. 69660,69660
• Parties: Richard Gerry DRINKARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 181

776 S.W.2d 181

Richard Gerry DRINKARD, Appellant, v. The STATE of Texas, Appellee.

No. 69660.

Court of Criminal Appeals of Texas,

En Banc.

June 14, 1989.

Rehearing Denied Sept. 13, 1989.

Doug O'Brien, court appointed on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and William J. Delmore, III & Glenn Gotschall, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

Richard Gerry Drinkard was convicted by a jury of the offense of capital murder. At the punishment stage of the trial, the jury returned affirmative findings to both special issues and appellant was sentenced to death. In his appeal to the Court of Criminal Appeals, appellant asserts three points of error. All three points concern the voir dire phase of the trial. ¹ Finding no error, we affirm appellant's conviction.

In his first point of error, appellant complains the trial court erred in excusing veniremember Michael Shelby on the State's challenge for cause. Appellant argues that Shelby's views on the imposition of capital punishment did not disqualify him from service as a juror, according to the United States Supreme Court's rulings in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

In the case of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court set forth the long-standing measure for determining whether a veniremember was excludable due to opposition to the death penalty. Under the Witherspoon rule a veniremember could be excluded only where they made it unmistakably clear they would automatically vote against the imposition of the death penalty, or where their attitude would preclude them from making an impartial determination of guilt or innocence.

In Wainwright v. Witt, supra, the United States Supreme Court took the opportunity to clarify the holding in Witherspoon v. Illinois, supra. In Wainwright, supra, the Court abandoned both Witherspoon 's substantive standard and its stringent burden of proof requirement. See also, Ex parte Russell, 720 S.W.2d 477 (Tex.Cr.App.1986). The Wainwright opinion reaffirmed the Adams v. Texas, supra, standard for determining when a veniremember may be excluded for cause due to his or her views on capital punishment, stating that the appropriate measure is "whether a juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright, 469 U.S. at 424, 105 S.Ct. at 852 (citing Adams, 448 U.S. at 45, 100 S.Ct. at 2526). This standard has been adopted and applied by the Court of Criminal Appeals. See e.g., Knox v. State, 744 S.W.2d 53 (Tex.Cr.App.1987); Montoya v. State, 744 S.W.2d 15 (Tex.Cr.App.1987); Mann v. State, 718 S.W.2d 741 (Tex.Cr.App.1986); Clark v. State, 717 S.W.2d 910 (Tex.Cr.App.1986); Carter v. State, 717 S.W.2d 60 (Tex.Cr.App.1986); Hogue v. State, 711 S.W.2d 9 (Tex.Cr.App.1986); Sharp v. State, 707 S.W.2d 611 (Tex.Cr.App.1986).

The following excerpts from the record containing the voir dire examination of veniremember Shelby are relevant to the inquiry:

"Q: And I need to know if the State proves to you beyond a reasonable doubt that these two special issues should be answered yes, will you answer them yes every time?

"A: No.

"Q: Is that a strong feeling that you have?

"A: Yes.

"Q: And is it based at least in part upon the opposition to the death penalty that you expressed earlier?

"A: Yes.

"Q: Now, there are some situations where you might say that I can give you an example of somebody who killed a hundred people and who has been in the penitentiary a thousand times and give you some fact situation like that, if the State proved to you beyond a reasonable doubt that the question should be answered yes, can we rely upon you to answer them yes?

"A: In some situations the death penalty is appropriate. I don't question that. That is not why I would say that I couldn't always answer it. In some situations I just feel like that the death penalty, as far as I was concerned, wouldn't be appropriate even if both of these, even if I could answer yes to both of these, I feel that these criteria are just--I mean there is something that's more intangible needs to be considered rather then you can't put two rules down and say okay these are the rules that determine it and that is it. Has to be something deeper or more intangible when it comes down to a question of deciding whether or not you would impose a death sentence or take someone's life from him.

"Q: And so at least part of your dissatisfaction is with the limitations placed upon the jury by those two special issues; is that right?

"A: Yes.

* * * * * *

"Q: ... So, would you be unable to take an oath as a juror to render a true verdict based upon the law in the State of Texas as it has been represented to you in that situation where the State proved to you beyond a reasonable doubt that the question should be answered yes? Could you take an oath to follow the law which would require you to answer the questions yes if they are proven to you beyond a reasonable doubt?

"A: No, I don't believe I could.

"Q: Beg your pardon?

"A: I don't believe I could, no.

"Q: You don't believe you could take that oath?

"A: No.

* * * * * *

"A: I can look at either issue separately.

"Q: Okay, that is what the law requires you.

"A: I can in fact look at both and feel whatever the particulars of the case might be I can say I find yes to both of these; but knowing by doing that the death penalty will be imposed, then if my conscious or if my feelings about the case were that it was not warranted, then I would not be able to. I wouldn't be able to do it. Wouldn't be able to say--

"Q: Would your conscience or feelings about the case lead you to believe that the State had not proven one of these two questions?

"A: No, I just don't feel the criteria aren't--I just--I might say yes both of these criteria have been met in my mind but I still feel like looking at whatever any one particular case I might say, my conscience will not allow me or I don't feel that the death penalty is proper. So how do I get around that? Well, then I would have to vote no to one of those or have to say no to issue two or more.

* * * * * *

"A: They might prove to me both of them--that I might say yes to both of them, but still the particulars of the case in my own mind might be such that I didn't feel the death penalty was warranted.

"Q: Even though the State--

"A: Proved both of them, I still would vote no to whatever on one of them or say no to one of them.

"Q: Okay, Mr. Shelby, thank you for your time. I appreciate your candor and honesty.

"THE COURT: Thank you. Challenge is granted. Mr. Shelby I am going to excuse you as a juror."

In light of the foregoing exchanges, we hold that veniremember Shelby was excludable under Adams v. Texas, supra, and Wainwright v. Witt, supra. His inability to deal with his feelings about the death penalty within the bounds of the law manifested themselves with clarity. Mr. Shelby did not equivocate in his answers as he explained that his personal beliefs would so affect his judgment that he would be unable to follow the law or take the oath required of jurors in a capital case. There was no error in excusing him from service as a juror in this cause. Appellant's first point of error is overruled.

Appellant raises similar contentions in his third point of error regarding veniremember Wilhelmina Johnson. Point of error number three states:

"The trial court erred in excusing veniremember Wilhelmina Johnson for cause because the record does not show that she was unfit to serve on a capital murder jury and this error denied appellant his right to an impartial jury under the United States and Texas Constitution."

While the point of error is directed solely at the veniremember's exclusion for cause, the record reveals that the only objection made at trial went to the limitation of defense counsel's questioning of the veniremember:

"Q: As I understand it, what you're telling me is if you find somebody guilty of capital murder and you go to the punishment stage, just because you found they intentionally acted or you found they're guilty of capital murder, you wouldn't automatically answer question number one "yes" in every case, would you?

"A: Yes.

"Q: You understand there's a difference between--

"A: Yes, I understand.

"THE COURT: I'm going to cut you off. I'm going to sustain the motion.

"DEFENSE: We object to the court not giving us a chance to rehabilitate the juror.

"THE COURT: Okay. Mrs. Johnson, we're going to excuse you as a juror." (Emphasis added).

A proper and timely objection must be made to preserve alleged error for appellate review. This Court has long held that failure to object to an improper ruling during voir dire can waive the error. Bridge v. State, 726 S.W.2d 558 (Tex.Cr.App.1986); Jordan v. State, 707 S.W.2d 641 (Tex.Cr.App.1986); Phillips v. State, 701 S.W.2d 875 (Tex.Cr.App.1985); Barney v. State, 698 S.W.2d 114 (Tex.Cr.App.1985). Moreover, the trial objection must comport with the point of error on appeal. Richardson v. State, 744 S.W.2d 65 (Tex.Cr.App.1987); Hernandez v. State, 643 S.W.2d 397 (Tex.Cr.App.1982); Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980). Finding that the objection that was made fails to comport with the point of error on appeal and that there was a total failure to object to the exclusion of the juror, we overrule appellant's third point of error.

Appellant's second point of error states:

"The trial court erred in refusing appellant's trial counsel's request to question venireperson Cedric Anthony Nix in violation of Perillo v. State, 656 S.W.2d 78 (Tex.Cr.App.1983). This error denied appellant his right...