Allridge v. State

• Decision Date: 13 November 1991
• Docket Number: No. 69838,69838
• Citation: 850 S.W.2d 471
• Parties: James Vernon ALLRIDGE, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 471

850 S.W.2d 471

James Vernon ALLRIDGE, III, Appellant, v. The STATE of Texas, Appellee.

No. 69838.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 13, 1991.

Rehearing Denied Jan. 27, 1993.

George Gallagher, William S. Harris, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Delonia A. Watson, Michael Parrish and Stanley Hatcher, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code, § 19.03(a)(2). After the jury made an affirmative finding on both of the special issues submitted under Art. 37.071(b)(1) and (2), V.A.C.C.P., the trial court imposed the penalty of death. This case is before us on direct appeal.

Appellant brought a total of twenty-one points of error to this Court, including an argument that the evidence at trial was insufficient to support the jury's affirmative answer to the second special issue. We will affirm the judgment of the trial court. A review of the evidence admitted at appellant's trial is necessary.

On Sunday night, February 3, 1985, appellant and his brother, Ronald Allridge, left their apartment to rob a Circle K convenience store on Sycamore School Road in Fort Worth. Appellant took his chrome Raven .25 calibre semi-automatic pistol with him. Ronald Allridge was driving appellant's car. Appellant and his brother selected a Circle K store because appellant, due to his past experience as an employee with Circle K, was familiar with the store's procedures and appellant also knew where the combination to the safe was kept at a Circle K store. Ronald dropped appellant off and went around the corner to wait for him.

It was close to midnight, and the attendant, Brian Clendennen, had already closed the store for the evening. Clendennen was working there on that evening as a substitute for another clerk. Appellant and Clendennen knew each other from when appellant had worked for Circle K from December, 1984 through January, 1985. Appellant knew Clendennen by name, and asked for change for a dollar to use the phone. Clendennen unlocked the door and made change for appellant. Appellant pretended to use the phone and left to rejoin his brother.

Appellant's brother accused him of chickening out of the robbery. He dropped appellant off at the store a second time. Appellant went to the door and knocked. Clendennen opened the door and appellant pulled his gun, forcing Clendennen to admit him into the store. Appellant took Clendennen to the back storeroom and tied the clerk's hands behind his back. Appellant then emptied the register and safe of their money, placing it in a sack. Some of the change fell to the floor. Appellant heard movement in the storeroom, went there and found that Clendennen had moved. Appellant made Clendennen get back on his knees and shot him twice in the back of the head. Appellant left with the bills and some of the change taken from the store.

When appellant rejoined his brother, he discovered that his pistol had jammed on the second shot. Appellant decided to return to the store to be certain that Clendennen was dead. When appellant got to the front of the store, he saw a woman waiting in a car in the parking lot. Without entering the store, appellant turned around and ran from the scene and rejoined his brother. Appellant and his brother returned to their apartment and counted the money. They got $336 in the robbery.

The woman waiting in the car was Brian Clendennen's mother. After appellant fled the scene, Mrs. Clendennen opened the door and looked in. She saw a bunch of change laying on the floor, but did not see her son. She ran back to her car and went to the Whataburger on Sycamore School Road to get help. Someone called the police. Other people ran down to the Circle K to try to help. When the police arrived, they found Brian Clendennen in the back storeroom of the Circle K, his hands still tied behind his back. He was barely breathing. He died the next day. An autopsy confirmed that he died from the gunshot wound to the head he received during the course of the robbery. The police retrieved an intact slug from the victim's head. They had no leads in this robbery-murder for six weeks.

On March 25, 1985, three men pulled a robbery-murder at the Whataburger Restaurant on Sycamore School Road. A witness positively identified appellant's brother, Ronald, as the shooter in the robbery-murder. The police arrested appellant and his brother at their apartment on March 25, 1985. After the arrest, appellant was taken outside the apartment to the parking lot. The police testified that appellant was not threatened, promised, or physically abused. Appellant then signed a consent to search his room in the apartment. During the search, the police recovered the Raven .25 calibre pistol appellant used in the Circle K offense.

On the night of March 25, 1985, appellant was arraigned by Municipal Court Judge Bernal for the Whataburger offense. At trial Bernal testified that she did not recall if appellant requested an attorney to be appointed to represent him. Her bailiff, A.D. Marshall, testified that appellant did not request an attorney at his arraignment. At 10:00 a.m. on March 26, 1985, appellant gave the police a written confession admitting that he killed Brian Clendennen in the course of robbing him at the Circle K store. The detective who took the confession testified that appellant did not invoke any rights or request the assistance of counsel during the interrogation.

Testimony at trial revealed that appellant purchased the Raven .25 calibre pistol at a pawn shop on September 11, 1984. A ballistics expert testified that the bullet retrieved from the head of the victim was fired from the Raven .25 calibre pistol.

In his first point of error, appellant argued the trial court erred by excusing venireperson Martin Osborn for cause in violation of the Witherspoon ¹ doctrine. According to appellant, Osborn's opinion of the death penalty merely involved his emotions and would only affect his view of the seriousness of his task as a capital juror. Appellant argued that Osborn's answers on voir dire implied that he could follow the law and not be controlled by his feelings.

The State replied that Osborn was a venireperson whose beliefs about the death penalty would substantially impair his performance as a capital juror. The State explained that Osborn's entire voir dire revealed strong feelings that would impair him from fairly and impartially carrying out his oath as a capital juror. Also, the State alleged that Osborn's scruples indicate he would hold the State to a higher burden of proof than required by law.

In order to assess Osborn's capacity to obey his oath and follow the trial court's instructions, we will not focus on only one answer or passage from his voir dire. This Court must examine Osborn's testimony as a whole. Fearance v. State, 771 S.W.2d 486, at 500 (Tex.Cr.App.1988) cert. denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989); Porter v. State, 623 S.W.2d 374 (Tex.Cr.App.1981); Pierce v. State, 604 S.W.2d 185 (Tex.Cr.App.1980); Vigneault v. State, 600 S.W.2d 318 (Tex.Cr.App.1980); and Cuevas v. State, 575 S.W.2d 543 (Tex.Cr.App.1978). We will review the entire record of Osborn's voir dire to determine if it shows that Osborn's opposition to the death penalty would prevent or substantially impair his performance of his duties as a juror in accordance with his instructions and oath. Fearance, 771 S.W.2d at 500-501; 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).

This review is an assessment of whether the record of voir dire supports the trial court's decision that a venireperson was substantially impaired in his or her ability to perform the duties of a juror in accordance with their instructions and oath, rather than an analysis of whether or not this Court would have excused the venireperson for cause. Perillo v. State, 758 S.W.2d 567, at 577 (Tex.Cr.App.1988). This is a task which a trial court is uniquely capable of performing. Fearance, 771 S.W.2d at 501.

When the record of voir dire is unclear, as it is in the instant case with venireperson Osborn, "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Wainwright v. Witt, 105 S.Ct. at 852. This results in a finding by the trial court concerning the venireperson's state of mind. This finding will be based upon many factors, including determinations of the credibility and demeanor of the venireperson. Wainwright v. Witt, at 854; Bird v. State, 692 S.W.2d 65 (Tex.Cr.App.1985) cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986). If the entire record contains sufficient evidence to support a trial court's determination that a juror would be prevented or substantially impaired from obeying his oath and following his instructions, deference must be paid to that determination. Fearance v. State, 771 S.W.2d at 501-502.

In the instant case, Venireperson Osborn explained that as a result of his experiences in Viet Nam, he did not believe that he could make a decision on the death penalty. Osborn stated that he had a "gut" feeling that he could not assess the death penalty, and that he'd be very uncomfortable casting the final vote of "yes". He acknowledged his feelings were strong and would tend to prevent him from answering the special issues affirmatively. He also stated that he could not sign the verdict as foreman. The state then submitted Osborn to the trial court to be excused for cause. Appellant requested an opportunity to rehabilitate Osborn.

Appellant's trial counsel asked Osborn if he could follow the oath and answer the questions honestly. Osborn replied that he...