Broxton v. State

• Citation: 909 S.W.2d 912
• Decision Date: 04 October 1995
• Docket Number: No. 71488,71488
• Parties: Eugene BROXTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 912

909 S.W.2d 912

Eugene BROXTON, Appellant, v. The STATE of Texas, Appellee.

No. 71488.

Court of Criminal Appeals of Texas En Banc.

Oct. 4, 1995.

Rehearing Denied Nov. 15, 1995.

Ken J. McLean, Roy G. Romo, Houston, for appellant.

Rikke Burke Graber, Assistant District Attorney, Houston, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

KELLER, Judge.

Appellant was convicted of capital murder. Tex.Penal Code Ann. § 19.03(a)(2). After the jury affirmatively answered the first and second Special Issues and negatively answered the third Special Issue, the trial court assessed the death penalty. ¹ Direct appeal to this Court is prescribed by article 37.071(h) of the Texas Code of Criminal Procedure. Appellant raises eight points of error.

I. First Point of Error

In his first point of error, appellant claims he is entitled to a new trial because the jury questionnaire forms do not appear in the appellate record. See Perez v. State, 824 S.W.2d 565 (Tex.Crim.App.1992) (ordering new trial where court reporter's tapes and notes lost); Payne v. State, 802 S.W.2d 686 (Tex.Crim.App.1990) (ordering new trial where testimony of three witnesses missing from record); Emery v. State, 800 S.W.2d 530 (Tex.Crim.App.1990) (ordering new trial where pretrial hearing notes lost); Dunn v. State, 733 S.W.2d 212 (Tex.Crim.App.1987) (ordering new trial where portion of pretrial hearings, voir dire, and testimony of witness missing). According to appellant, these forms should have been included in the record on appeal because they were admitted into evidence and were the subject of a timely request for inclusion. Appellant contends that a new trial is required because he exercised due diligence in requesting the forms, and neither he nor his counsel caused the appellate record to be incomplete.

The State argues that the forms were not admitted into evidence and not designated to be included in the record on appeal. The State further contends that appellant failed to exercise due diligence in securing the questionnaires for inclusion in the record.

Texas Rule of Appellate Procedure 50(e) ² provides that, in order to prevail, an appellant must show (1) he made a timely request for a statement of facts and (2) the court reporter's notes and records have been lost or destroyed without the appellant's fault. See Culton v. State, 852 S.W.2d 512, 514 (Tex.Crim.App.1993). Under Rule 53(a), ³ a "timely request" is a request made in writing to the official court reporter on or at the time prescribed for perfecting the appeal. Id.

In addition to the stated requirements of Rules 50(e) and 53(a), this Court has historically required defendants to demonstrate due diligence in attempting to secure a complete statement of facts. Id.; Dunn, 733 S.W.2d at 214; Austell v. State, 638 S.W.2d 888, 890 (Tex.Crim.App.1982); Timmons v. State, 586 S.W.2d 509, 512 (Tex.Crim.App.1979). Appellants demonstrate due diligence if they (1) obtain the missing portion of the record and file a motion to supplement the record, or (2) obtain an affidavit from the court reporter explaining the absence of the missing portion of the record and file a motion to supplement the record supported by the affidavit. Culton, 852 S.W.2d at 515; see Tex.R.App.P. 55.

Appellant in the instant case has not complied with the requirements of Rules 50(e) and 53(a) nor demonstrated due diligence. First, there is no evidence in the record that appellant made a written request to the court reporter designating the portions of the evidence to be included in the appellate record. In his brief, appellant claims he filed a designation letter with the Harris County District Court Clerk wherein he requested the clerk to include all exhibits introduced into evidence at trial in the record on appeal. Appellant also claims that the designation letter was the subject of a Motion to Supplement the Transcript filed with this Court. However, no such letter or motion appears in the transcript or among the papers filed with this Court. Second, even if appellant made a timely written request, he did not file a motion to supplement the record supported with either the missing portions of the record or an affidavit from the court reporter explaining the absence of the missing portions. Therefore, appellant is not entitled to a new trial. ⁴ Appellant's first point of error is overruled.

II. Second Point of Error

Appellant's second point of error concerns the voir dire examination of venireperson Dwayne Edward Nolan. Appellant complains that the trial court improperly sustained the State's challenge for cause of Nolan.

At the onset of his voir dire examination, Nolan indicated to the court that he did not have any conscientious, religious, or moral scruples against the infliction of death as a punishment in a proper case. The State inquired about Nolan's juror questionnaire form in which Nolan checked a statement that he was opposed to capital punishment under any circumstances as the one statement that best summarized his general views about capital punishment. In response to the State's questions, Nolan initially stated that he was opposed to capital punishment under any circumstances, but then stated that it would depend on the circumstances of the case. ⁵ Nolan later indicated that he believed life imprisonment was a more effective punishment than the death penalty.

The State questioned Nolan extensively about how he would answer the third special issue. Nolan responded that he would have a tendency to answer the issue "yes" so that a life sentence would be imposed. ⁶ When questioned by the trial court regarding this testimony, Nolan testified repeatedly that he absolutely could not put aside this bias in answering the issue.

After this line of questioning, the State challenged Nolan for cause. Then, after defense counsel explained the presentation of evidence and the requirement of affirmative answers to the first and second special issues before reaching the third, Nolan's voir dire examination continued as follows:

Q: [Defense counsel] If we get to here, and in applying your own reasoned moral judgment, you believed that there were not sufficient mitigating circumstances or one circumstance that was sufficient to warrant a sentence of life in prison rather than death, would you put aside any feelings you had, any bias you might have against the death penalty, and answer that the way you honestly believe?

A: [Nolan] I would answer it the way I honestly believe it, yes.

* * * * * *

Q: [Court] Could you put aside any bias you have towards your feelings against the death penalty in answering that or not?

A: [Nolan] No.

Q: [Court] You could not put aside the bias?

A: [Nolan] Not the--no, not the bias.

Nolan further discussed whether he would have a tendency to answer "yes" to the third issue before he heard any evidence. He indicated that he could not set aside any bias and prejudice and decide the answer to the third issue based solely on the evidence that he heard. The trial court thereafter sustained the State's challenge for cause, and Nolan was excused from jury service.

Appellant complains that the trial court abused its discretion by applying the incorrect legal standard in sustaining the State's challenge for cause to venireperson Nolan. According to appellant, Nolan's testimony as a whole demonstrated that Nolan was qualified, notwithstanding his expressed bias toward answering the third special issue such that a defendant would receive a life sentence rather than the death penalty. Appellant contends that because Nolan also expressed a willingness to answer the third special issue based upon the evidence presented at trial, his bias would not have prevented or substantially impaired the performance of his duty as a juror.

In Vuong v. State, 830 S.W.2d 929, 943 (Tex.Crim.App.1992), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992), we held that an appellant complaining of an erroneously excluded juror must demonstrate one of two things: (1) the trial judge applied the wrong legal standard in sustaining the challenge for cause, or (2) the trial judge abused his discretion in applying the correct legal standard. The correct legal standard was articulated in Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985), in which the United States Supreme Court held that a prospective juror may be excluded for cause only when the juror's views on capital punishment are such that they would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." See also McFarland v. State, 845 S.W.2d 824, 833 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993); Jones v. State, 843 S.W.2d 487, 497 (Tex.Crim.App.1992), cert. denied 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). However, the State is not required to prove a prospective juror's bias or prejudice with "unmistakable clarity." Witt, 469 U.S. at 424; McFarland, 845 S.W.2d at 833; DeBlanc v. State, 799 S.W.2d 701, 717 (Tex.Crim.App.1990), cert. denied 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Bird v. State, 692 S.W.2d 65, 75 (Tex.Crim.App.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986). Here, the questions asked by appellant's counsel, the prosecutor, and the trial judge indicate that the trial judge applied the correct legal standard, articulated in Witt, in attempting to ascertain whether Nolan would be prevented or substantially impaired in performing his duties as a juror. We now turn to the issue of whether the trial judge abused his discretion in applying the correct legal standard. Goodwin v. State, 799 S.W.2d 719, 731 (Tex.Crim.App.1990), cert. denied 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991). In reviewing the trial judge's decision to sustain the State's challenge of Nolan, we must...