Butler v. State

• Decision Date: 09 March 1994
• Docket Number: No. 70745,70745
• Citation: 872 S.W.2d 227
• Parties: Steven Anthony BUTLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 227

872 S.W.2d 227

Steven Anthony BUTLER, Appellant, v. The STATE of Texas, Appellee.

No. 70745.

Court of Criminal Appeals of Texas En Banc.

March 9, 1994.

Andrew L. Jefferson, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, George Lambright, Belinda Hill and Maria Hayes, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

A jury convicted appellant of capital murder, pursuant to TEX.PENAL CODE ANN. § 19.03(a)(2). The jury then returned affirmative answers to the three special issues [submitted to it] at the end of the punishment stage of the trial. See TEX.CODE CRIM.PROC.ANN. Art. 37.071(b)(1), (2) & (3). The trial court assessed appellant's punishment at death. Direct appeal to this Court was automatic. Id., § (h). We will affirm.

In ten points of error ¹, appellant argues: the trial court erred when it refused to dismiss the jury array; the trial court erred in granting two of the State's challenges for cause; the trial court erred when it refused to charge the jury on the issue of the voluntariness of appellant's confession; the trial court erred when it admitted the testimony of the medical examiner, Dr. Narula, during punishment; the trial court erred in refusing to instruct the jury to disregard the testimony of Franzes Hartman at punishment; the Texas Death Penalty Statutes, as applied to appellant's cause, violate the Eighth and Fourteenth Amendments of the Texas Constitution; the trial court erred when it failed to provide an instruction at punishment so the jury could give consideration to appellant's mitigating evidence; and that appellant's trial counsel were unreasonably ineffective. The majority of these points of error will be addressed in the order in which they occurred during the course of trial. Because appellant does not contest the sufficiency of the evidence, a detailed review of the facts is unnecessary.

The State proved at trial that appellant, on August 27, 1986, entered a dry cleaning store on Woodforest Boulevard in Harris County and demanded that the female cashier give him the store's money. Appellant was armed with a handgun. The cashier was Velma Clemons. Clemons resisted appellant's attempt to rob her. Appellant then threw her to the floor and shot her. The State proved that Clemons died as a result of a gunshot wound to her abdomen that penetrated her liver, destroying it. At punishment, the State proved that appellant committed seven extraneous offenses prior to the commission of the instant offense.

In his third point of error, appellant argues the trial court "committed reversible error in refusing appellant's request that the jury array be dismissed after the trial court sustained a BATSON ² challenge pursuant to Article 35.261, Texas Code of Criminal Procedure." A review of the method by which the trial court conducted voir dire supports the conclusion that the trial court did not err.

First, all of the prospective jurors who were called were divided into smaller groups. General instructions were given to these groups as they were reached. The first group consisted of six people. ³ Out of this group, one juror, Melissa McMillan, was selected to sit on the jury. The next group only consisted of two persons. One of them, Thomas Brewer, was selected to serve. The third group was comprised of five people and one, Hubert Taylor, was selected for service. After the general instructions were given to the fourth group, the first person in this group, Jimmie Lewis, was selected for service. The State then exercised a peremptory challenge against the second person in this group, Delores Hadnott. Like appellant, she happened to be African-American. The challenge to Hadnott is the focus of appellant's third point of error.

Appellant argued the State was exercising the peremptory strike on Ms. Hadnott in a racially motivated manner, in other words, against the provisions of Batson and TEX.CODE CRIM.PROC.ANN. Art. 35.261. The trial court then allowed the State to explain its motivation for using the strike. The trial court sustained appellant's Batson argument.

After he sustained appellant's Batson argument, it appears the trial court was uncertain of the proper method available to him to remedy the situation. Appellant argued that the trial court could either dismiss the six persons in the Hadnott array or seat Hadnott. The judge reserved ruling and asked appellant and the State to research the law and present it to him the next day.

The next morning, the judge entertained arguments on the available remedies for the State's violation of Batson. Instead of requesting the trial court seat Hadnott on the panel, appellant requested the trial court to call a new "array" pursuant to TEX.CODE CRIM.PROC.ANN. Art. 35.261. Appellant initially appeared uncertain of the meaning of the term "array", and asked that the court "dismiss the array, whatever the court considers the array to be."

The trial court found that this request was not specific enough and told appellant that the court believed that the array "was the last panel of eight persons of which this particular juror was a member of." ⁴ Appellant then stated that he had researched the meaning of the term and could not find a definition. In the absence of one, he requested that "the entire panel of jurors--all jurors that had been called for this case--be dismissed and we start from the beginning, regretfully."

The court then repeated its ruling that appellant had presented a prima facie case of racial discrimination, that the State had failed to give a race-neutral explanation for the strike, and that the court was then faced with the option of calling a new "array," which was the remedy chosen and requested by appellant under Art. 35.261.

However, the trial court believed that "array" meant only the eight juror group of which Ms. Hadnott was a member. The trial court then stated that he would dismiss the four remaining jurors in Ms. Hadnott's "panel," excuse the juror who had been selected for service from that group (Jimmie Lewis), and return to the parties any peremptory challenges used during voir dire of the "Hadnott group", thereby returning the State and appellant to the positions they enjoyed before the "Hadnott group" had been called.

Appellant continued to argue that "array" meant all of the jurors who had been called for service and he objected to the trial court's decision to only dismiss the Hadnott panel of eight. After noting appellant's objection, the trial court excused only the "Hadnott group" of eight jurors. It did not excuse the other three persons (McMillan, Brewer and Taylor) who were selected to sit on the jury prior to the calling of the Hadnott group. The trial court then continued with the list of jurors it had been originally given for the case and called in the next group.

The definition of an "array" for the purposes of Art. 35.261 and Batson v. Kentucky represents the issue at the heart of appellant's third point of error. Art. 35.261 sets out:

"After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call for a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race."

In the instant capital case, Art. 35.261 fails to apply to the voir dire procedure followed by the trial court. Unlike a non-capital trial, which Art. 35.261 appears to have been written to control, ⁵ appellant and the State did not wait until the completion of the voir dire of the entire venire to submit the lists of their peremptory challenges to the trial court so that all twelve jurors could be seated at one time and impanelled. Unlike a non-capital trial, the trial court did not conduct voir dire of the entire venire in only one group, so that all of the Batson challenges to the entire jury could be made, examined and ruled upon at the same time.

Instead, the trial court employed a voir dire procedure tailored to fit a capital murder trial. It split the venire into many, separate, and smaller groups so that voir dire could be conducted of each group separately and apart from the other groups. ⁶ After the general instructions were given to each of the mini-panels by the trial court, every venireperson was individually questioned by the parties. Also, if a party chose to exercise a peremptory challenge, it did so during, or immediately after, the voir dire of an individual venireperson was completed. A Batson challenge to a venireperson was resolved after the voir dire of that person. Neither party argued that this procedure was inappropriate or objectionable.

We also find that this entire procedure falls outside the scope of the remedy set down by the Legislature in Art. 35.261. We conclude that Art. 35.261 cannot control disposition of this point of error. The question remains whether the remedy fashioned by the trial court satisfied the commands of Batson.

In Batson v. Kentucky, the Supreme Court sought to require trial courts "to be sensitive to the racially discriminatory use of peremptory challenges." Batson, 476 U.S., at 99, 106 S.Ct., at 1724. However, it did not set forward a particular procedure to be followed by trial courts. The Court left open to the discretion of the trial courts of the states "how best to implement our holding." Batson, 476 U.S., at 100, fn. 24, 106 S.Ct., at 1725, fn....