Wheatfall v. State

• Citation: 882 S.W.2d 829
• Decision Date: 29 June 1994
• Docket Number: No. 71390,71390
• Parties: Daryl Keith WHEATFALL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 829

882 S.W.2d 829

Daryl Keith WHEATFALL, Appellant, v. The STATE of Texas, Appellee.

No. 71390.

Court of Criminal Appeals of Texas,

En Banc.

June 29, 1994.

Robert A. Morrow, Janet Morrow, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Carol M. Cameron, Keno Henderson and Joan Huffman, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted of the capital murder of an elderly couple, both murders committed in the same criminal transaction. Tex.Penal.Code Ann. § 19.03(a)(6)(A). After the jury answered the three special issues in the affirmative, the trial court sentenced appellant to death. Tex.Code Crim.Proc.Ann. art. 37.071(b). Appeal to this Court is automatic. Tex.Code Crim.Proc.Ann. art. 37.071(h). We will affirm.

In a dispute over $50.00, appellant shot an elderly couple in their home in Harris County. Appellant does not challenge the sufficiency of the evidence to support his conviction or sentence of death. He presents fourteen points of error for our review.

VOIR DIRE

In his fifth point of error, appellant complains the trial court erred in overruling his challenge for cause of veniremember Traylor. Specifically, appellant asserts Traylor was unable to follow the law and nullify his answers to the special issues as instructed where he believed that due to mitigating circumstances the defendant should receive a life sentence rather than the death penalty. We have commonly referred to this instruction as a "nullification" instruction. See n. 11, infra. Essentially this instruction to the jury, notifies the jury that if they believe, due to sufficient mitigating evidence, that the defendant should receive a life sentence rather than death, they are to answer one of the special issues in the negative. See Robertson v. State, 871 S.W.2d 701, 710-711 (Tex.Crim.App.1993).

A defendant may challenge a potential juror for cause where that individual has a "bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offenses for which the defendant is being prosecuted or as a mitigation therefore or of the punishment therefore." Tex.Code Crim.Proc.Ann. art. 35.16(c)(2). When reviewing a court's ruling on a challenge for cause, we review the record as a whole to determine whether there is support for that ruling. Satterwhite v. State, 858 S.W.2d 412, 415 (Tex.Crim.App.1993); Moody v. State, 827 S.W.2d 875, 884 (Tex.Crim.App.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). As the court is in the best position to view the demeanor of the veniremember and to determine his or her credibility, we give great deference to the court's ruling. Satterwhite, 858 S.W.2d at 415. And absent an abuse of discretion, such a ruling will not be disturbed. Ibid.; Williams v. State, 773 S.W.2d 525, 536 (Tex.Crim.App.1988), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 207 (1989). In this instance, no abuse of discretion is shown.

Either as a result of the questions or the complexity of these questions, Traylor indicated a misunderstanding as to his ability to change the answers to the special issues based upon mitigating evidence. However, after being informed of the law and questioned by the court Traylor indicated that he would change his answer to the special issues if based upon that mitigating evidence he believed the defendant should be sentenced to life rather than death. This contradicted his original answers to questions by appellant. We are therefore unable to conclude that the court abused its discretion in its ruling. Appellant's fifth point of error is overruled.

In the fourth point of error, appellant also contends the trial court erred in attempting to commit veniremember Traylor to a specific set of facts. We need not address appellant's complaint as he failed to properly preserve error. Again, this questioning concerned Traylor's ability to "nullify" his answers to the special issues. After questioning by appellant, Traylor indicated an inability to change his answers to the special issues based upon a personal belief the defendant should not be sentenced to death. Appellant challenged Traylor for cause "because I know the judge wants to talk to you right now." In an attempt to explain the applicable law, the trial court posed several hypothetical questions to Traylor. After a considerable amount of questioning by the trial court (encompassing forty pages of the statement of facts), appellant objected to the trial court's hypothetical and to its attempt to commit Traylor to a particular set of facts. Appellant's objection was not timely. The objection must be made at the earliest possible opportunity. Martinez v. State, 867 S.W.2d 30, 35 (Tex.Crim.App.1993); Zimmerman v. State, 860 S.W.2d 89, 100 (Tex.Crim.App.1993); Tex.R.App.Proc. 52(a). Appellant's fourth point is overruled.

In point of error six, appellant contends the trial court erred in overruling his challenge for cause to veniremember Hill because she equated proof beyond a reasonable doubt with proof by a preponderance of the evidence. A potential juror is challengeable for cause if she is unable to require the State to prove each element of the offense beyond a reasonable doubt. ¹ Cantu v. State, 842 S.W.2d 667, 682-685 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993); Lane v. State, 822 S.W.2d 35, 46-48 (Tex.Crim.App.1991), cert. denied, 504 U.S. 920, 112 S.Ct. 1968, 118 L.Ed.2d 568 (1992).

During examination by the State, Hill indicated that to her proof beyond a reasonable doubt means, "[y]ou have to have a lot of proof." She further stated that she didn't just have to be satisfied but rather she would have to be "convinced." Later veniremember Hill stated, in response to a question by appellant, that she would find them guilty if a defendant were only "fifty-one" percent guilty. Based upon this response, appellant challenged Ms. Hill for cause.

The State again questioned potential juror Hill. During this exchange the following questions and answers were elicited:

Q: Ms. Hill, I think one of the very first questions that, or things that we talked about was I was talking to you about beyond a reasonable doubt. I recall you telling me something to the effect that you have to be convinced and you have to be sure; and I think you said real sure, if I recall what you said. Is that basically what you said?

A: That's what I said. Yeah, I have to be sure before I can.

Q: Yeah, you have to be sure.

A: Yeah.

Q: Mr. Cossum was explaining to you the difference between what they do over in the civil court, that's just a preponderance of the evidence. That just means that, you know, you may have some doubts, they may be real big doubts, but if you think one side has given you more evidence than the other, then you vote for the side that has the most credible evidence, okay. Remember when we talked about in a criminal case this side doesn't have to do anything at all. You may not hear one word from them. They may never open their mouth, they may not even cross examine the witnesses that I put on. They don't have to do anything; okay? So that might mean that they have zero on their side as far as evidence, okay? I may be the only one who puts on testimony that you believe. That doesn't mean that I win the case. It means you listen to the evidence that was presented and then you decide whether you believe, whether you are sure, real sure, like you said, or whether I prove to you beyond a reasonable doubt that the defendant committed the crime that I allege he has committed in the indictment. You see how that works?

A: Uh-hum.

Q: So it's not a matter of, okay, they got this much on this side, on the State side, and they have this much on the Defense side, I'm just going to see which one weighs the most. You see how it's not that process?

A: (Nodded).

Q: It's something more than that. It's likening at what I did and determining from what I did if I've proven my case to you. And it doesn't matter what they do. Do you see the difference in the two systems?

A: Uh-hum.

Q: Can you assure us that you will listen to all the evidence, because it may be the Defense puts on no evidence, and if they do, you have to consider that, but that never takes away from what I have to do, and that's proving to you beyond a reasonable doubt that he committed the crime.

A: Uh-hum.

Q: Can you assure us that whatever beyond a reasonable doubt means to you--and we can't ask you to give us a certain percentage. As long as you realize that I have to prove to you beyond any reasonable doubt, as long as you understand that and assure us that you will do that, then that's all you have to be able to do to qualify as a juror. Can you assure us that you can do that?

A: I can.

At this point, the trial court overruled appellant's challenge for cause, and appellant continued his voir dire of Hill. During further examination though, the veniremember again stated that she would have to be more than "half sure" to convict someone, indicating that she equated proof beyond a reasonable doubt with proof by preponderance of the evidence, that is, both meant greater than fifty percent. Appellant renewed his objection. Again the trial court overruled this objection.

Veniremember Hill's final testimony equating proof beyond a reasonable doubt with proof by a preponderance of the evidence is troubling. Had there been no other testimony on the subject, she would have been challengeable for cause. However, reviewing the entire voir dire, we cannot hold that the trial court abused its discretion in overruling appellant's challenge for cause. Hill stated that she would have to be "real sure" or "convinced" before she would find the defendant guilty. Additionally, when the State explained the differing standards of proof to Hill,...