Clark v. State

• Decision Date: 09 March 1994
• Docket Number: No. 71251,71251
• Parties: Jack Wade CLARK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 682

881 S.W.2d 682

Jack Wade CLARK, Appellant, v. The STATE of Texas, Appellee.

No. 71251.

Court of Criminal Appeals of Texas,

En Banc.

March 9, 1994.

Rehearing Denied June 22, 1994.

Travis S. Ware, Dist. Atty. & Michael West, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Gary A. Taylor, Austin, David R. Dow, Houston, David L. Botsford, Austin, Gerald H. Goldstein, San Antonio, Roderique S. Hobson, Jr., Lubbock, for appellant.

Amicus brief filed for appellant by Carlton McLarty, Ralph H. Brock, Joe A. Adamcik, Lubbock.

Before the court en banc.

OPINION

OVERSTREET, Judge.

In February of 1991, appellant was convicted, in the 364th District Court of Lubbock County, Texas, of capital murder pursuant to V.T.C.A. Penal Code § 19.03(a)(2), specifically murder during the course of committing and attempting to commit aggravated sexual assault. The indictment alleged that the offense occurred on or about the 16th day of October 1989. After the jury returned affirmative answers to the special issues submitted pursuant to Article 37.071 subd. 2(b)(1)(2), V.A.C.C.P., the trial court assessed punishment at death. On direct appeal, appellant raises sixty-two points of error.

I. SUMMARY OF PERTINENT FACTS

Appellant's written confession was admitted into evidence. It described how he had, during the early morning hours, observed the decedent at a pay phone, stabbed her in the shoulder, forced her into her own car and driven away, sexually assaulted her, and then stabbed her in the heart. The pathologist's testimony confirmed the two stab wounds and injuries indicating sexual assault.

II. JURY SELECTION

A. Duty to Follow Instructions and § 12.31(b) Oath

Points of error five through twenty-seven allege that the prosecutor misled veniremembers about their duties under the trial court's jury charge by telling them that they would violate TEX.PENAL CODE ANN. § 12.31(b) (Vernon 1974), if they gave false answers to the special issues to avoid the death penalty. ¹ The relevant language in § 12.31(b) is that a juror state that the mandatory penalty of death or life imprisonment will not affect his deliberations. Appellant is not complaining about veniremembers not complying with § 12.31(b) or being improperly excused because of such, but rather that the prosecutor's questioning contaminated the veniremembers as in Morrow v. State, 753 S.W.2d 372 (Tex.Cr.App.1988) (which involved an erroneous hypothetical attempting to explain the difference between "intentional" and "deliberate"), and hindered him in the exercise of his challenges. He suggests that the veniremembers were in effect told that it was improper for them to make an individualized determination of the appropriate punishment because the prosecutor told them that their oath prohibited any consideration of the sentence that appellant deserved.

We disagree. § 12.31(b) was not facially unconstitutional, but rather its broad application in excluding veniremembers from the jury because of feelings about the death penalty was held unconstitutional. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Penry v. State, 691 S.W.2d 636, 656 (Tex.Cr.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986); White v. State, 610 S.W.2d 504, 508 (Tex.Cr.App.1981). As noted above, appellant is not claiming any veniremembers were improperly excused because of § 12.31(b). § 12.31(b) simply directs that jurors deliberate on issues of fact without being affected by the mandatory penalty of death or life imprisonment. Deliberating issues of fact at punishment involve answering the special issues in light of the evidence. If all of the evidence can be fully considered and acted upon via the special issues, there is no unconstitutional imposition of a death sentence. Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). If there is mitigating evidence which is outside the scope of the special issues, then some additional method must be included to allow the jury to consider and give effect to that evidence also. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Thus the prosecutor's questioning, in-and-of-itself, did not mislead or contaminate the veniremembers about their consideration and application of the evidence. The jury was still required to answer the special issues in light of the evidence, and if there was evidence outside the scope of the special issues, the trial court was required to provide a method for considering and applying that evidence. ² The prosecutor's questioning did not abrogate the requirement for such consideration and application of the evidence. Accordingly, points five through twenty-seven are overruled. ³

Points of error number twenty-eight through forty claim that by administering, over objection, the § 12.31(b) oath to each juror the trial court "erroneously misled the entire jury about its duty to follow the Penry instruction which required false answers to the special issues to avoid the death penalty[.]" ⁴ He insists that the oath minimizes the jury's duty to make an individualized determination of the appropriate punishment and precludes the jury from giving effect to mitigating evidence with relevance beyond its tendency to disprove the special issues. He adds that this resulted in a tribunal organized to return a verdict of death.

As noted above, § 12.31(b) was not facially unconstitutional. As this Court discussed in Granviel v. State, 723 S.W.2d 141, 155 (Tex.Cr.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987), "the oath does not prohibit jurors from considering all mitigating factors in arriving at answers to the special issues at the punishment phase." We also find no conflict between the oath and the so-called Penry instruction which the trial court included in the punishment jury charge. ⁵ The jury was not instructed to give "false" answers to the special issues, but rather to answer them "no" in response to mitigating evidence. The trial court did not err in administering the § 12.31(b) oath. Points twenty-eight through forty are therefore overruled.

B. Denying Questioning

Points number forty-one through fifty claim that appellant was denied the opportunity to question 10 veniremembers about the definition of "deliberately" that the trial court decided to include in the jury charge after it had ordered his attorney and the prosecutor to tell them that the term might not be defined. The trial court displayed some ambivalence about whether it was or was not intending to include a definition of "deliberately" in the punishment jury charge. However, it is very well-settled that there is no requirement that any such definition be included. Lewis v. State, 815 S.W.2d 560, 563 (Tex.Cr.App.1991), cert. denied, 503 U.S. 920, 112 S.Ct. 1296, 117 L.Ed.2d 519 (1992). And in the instant cause, the trial court did indeed include such a definition.

The gist of appellant's complaint is that because he was not sure of the particulars of any definition that would be given, he was unable to properly question the ten veniremembers-in-question. However, there is no requirement that the trial court during jury selection voir dire formulate or specify definitions to be included in the jury charge. In fact, Articles 36.14, 36.15 and 36.16, V.A.C.C.P., contemplate development and submission of the jury charge after the close of evidence and before jury argument begins. Our review of the record does not reveal that appellant was denied the opportunity to question any of the ten veniremembers-in-question about the concept of "deliberately." We therefore overrule points forty-one through fifty.

C. Other Points Regarding Voir Dire

Point fifty-three claims that the trial court denied appellant the opportunity to make intelligent use of his challenges against 15 veniremembers who were accepted or struck by the defense after the trial court "ordered counsel to question them about an instruction about the burden of proving mitigating circumstances" where such instruction was materially different from the one included in the jury charge. The gist of appellant's complaint is that the trial court did not disclose to him the precise particulars of an instruction on mitigating evidence that would be included in the punishment jury charge. However, as noted above, there is no requirement that the trial court during jury selection voir dire formulate or specify an instruction to be included in the jury charge. Also, there is no showing that the trial court "ordered" appellant to question veniremembers in a particular manner about mitigating circumstances, but rather indicated that it tried to give both parties some guidelines on what it anticipated the charge would be; however, it refused "to get locked down" as there was no charge at that time. The trial court did say that there definitely would not be an extra special issue on mitigation. Point of error fifty-three is therefore overruled.

Point fifty-one avers error in the trial court granting a State's challenge to Veniremember Patrick on a ground that was not listed in Article 35.16, V.A.C.C.P. Point fifty-two claims that the trial court erred in denying appellant's motion for mistrial when Dr. Patrick was retroactively removed for cause after having been accepted as a juror.

Dr. Patrick was initially questioned and accepted as a juror by both parties. During questioning, she had expressed concerns about her job as a pediatrician treating indigent children at a local health clinic possibly being affected by her jury service. She had indicated that the clinic's administrator would have the responsibility of finding a replacement for her, and that it would be difficult but probably manageable. Several days later, after several more veniremembers had been questioned and four had been accepted and sworn, Veniremember Patrick reappeared before the court. The trial court...