Cannady v. State
| Decision Date | 05 January 2000 |
| Citation | 11 S.W.3d 205 |
| Parties | (Tex.Crim.App. 2000) ROGELIO CANNADY, Appellant v. THE STATE OF TEXAS NO. 73,011 |
| Court | Texas Court of Criminal Appeals |
Rogelio Cannady was convicted of capital murder and sentenced to death.1 Direct appeal to this Court is automatic.2 Cannady raises nine points of error in his original brief and ten additional points in his supplemental brief. He does not challenge the sufficiency of the evidence to support his conviction or his punishment. We affirm.
On January 22, 1991, Cannady was convicted for two murders he committed on June 29, 1990. He received a life sentence for each conviction. On October 10, 1993, Cannady killed a fellow inmate while in prison and was charged with committing capital murder under Texas Penal Code 19.03(a)(6). The version of the statute under which Cannady was indicted read as follows:
(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
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(6) the person, while serving a sentence of life imprisonment or a term of 99 years for the commission of any offense listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure, murders another; . . . .
This statute became effective September 1, 1993, and the "3g(a)(1)" offenses included murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, and aggravated robbery. Murder and indecency with a child were both added to Art. 42.12 effective September 1, 1993.
Before trial, Cannady filed a motion alleging that the offenses for which he received his life sentences, and on which the capital murder indictment relied, were committed before September 1, 1993. Because serving a life sentence for a particular crime is an element of capital murder under Texas Penal Code 19.03(a)(6), and because the offenses for which he received his life sentences were committed before September 1, 1993, but were not "3(g)(1)" offenses until September 1, 1993, Cannady asserted that he was not subject to a capital murder charge. Therefore, Cannady argued, the allegations in the indictment should be quashed. On January 27, 1995, the trial judge agreed with Cannady's assessment and quashed the aggravating elements in the indictment, leaving the murder charge intact.
The State appealed the trial court's ruling and the Thirteenth Court of Appeals reversed.3 The Court of Appeals held that the date on which the prior offenses were committed was not an element of capital murder, nor was Cannady deprived of notice that he could be charged with capital murder.4 So application of the statute to Cannady did not violate the ex post facto laws. Cannady's petition for discretionary review to this Court was refused, as was his petition for writ of certiorari in the United States Supreme Court.5 Cannady was tried and convicted of capital murder and sentenced to death on December 5, 1997.
The basic contention underlying Cannady's first four points of error is his assertion that the date he committed the offenses for which he received his two life sentences is an element of capital murder under Texas Penal Code 19.03(a)(6). The Thirteenth Court of Appeals rejected this precise contention and we adopt the reasoning of that opinion in resolving these four points.6 Points of error one through four are overruled.
In points of error six through eight and supplemental point of error one, Cannady complains that the trial court erred in denying his challenges for cause to four different veniremembers. To preserve error on this issue, Cannady must demonstrate on the record that he asserted a clear and specific challenge for cause, that he used a peremptory challenge on the complained-of veniremember, that all his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury.7 Cannady asserts in his fifth point of error that he did preserve error with regard to the four points he raises concerning erroneously denied challenges for cause. But whether any error is preserved is a preliminary question to be answered within the analysis of the challenge and not as a wholly separate question. Because this point does not assert alleged error, it is overruled.
The record shows that, some time after the parties accepted the ninth juror, Cannady exhausted his fifteenth peremptory challenge. Cannady then requested five additional challenges and received two. After using those challenges, Cannady again requested additional challenges, but the request was denied. The twelfth juror was seated shortly thereafter over Cannady's objection. We find Cannady has preserved error with regard to these points.
When the trial judge errs in overruling a challenge for cause against a veniremember, the defendant is harmed only if he uses a peremptory strike to remove the veniremember and then suffers a detriment from the loss of the strike.8 Because the record reflects that Cannady received two extra strikes in addition to the fifteen he is granted by statute, he did not suffer the loss of two strikes. So for Cannady to demonstrate harm and, therefore, reversible error, he must show that challenges for cause on at least three different veniremembers were erroneously denied.9
In his sixth point of error, Cannady asserts that his challenge for cause against prospective juror Herring should have been granted because Herring stated that Cannady's being in prison would affect his ability to presume Cannady innocent. Article 35.16(a)(10) provides in pertinent part that a challenge for cause may be made by either the State or the defense when:
there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict.
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[I]f the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case.
In order for a challenge for cause to be sustained under Article 35.16(a)(10), the challenging party must show that the veniremember has established in his mind a conclusion as to the guilt or innocence of the defendant and that this conclusion will influence his verdict.10
Herring initially stated that he "can't help but think [Cannady's] guilty if he's already killed two people." But he subsequently said on a number of occasions that he would follow the law. We cannot say the trial judge abused his discretion in denying Cannady's challenge for cause to the veniremember. Point of error six is overruled. Cannady would have this Court review his sixth point under Article 35.16 (a)(9), that the veniremember had a bias against the defendant; but given the record, Cannady fails under this provision as well.11
In his eighth point of error, Cannady asserts that his challenge for cause against prospective juror Christensen should have been granted because Christensen evinced a clear bias against the law of self-defense. Article 35.16(c)(2) provides in pertinent part that a challenge for cause may be made by the defense when:
he 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 offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.
When reviewing a challenge for cause based upon a veniremember's alleged bias against the law, we must determine whether the veniremember's beliefs would prevent or substantially impair him from following the law as set out in the trial court's instructions and as required by the juror's oath.12 Additionally, we must give great deference to the trial court's ruling on the issue.13
The record reveals that Christensen was a correctional officer in a federal prison. Furthermore, he was acting in his official capacity when a prisoner in his unit killed another prisoner. At the trial on that case, the defendant pleaded self-defense. Although he did not see the entire event as it occurred, Christensen was called as a witness and expressed his view to the jury that the defendant had not killed in self-defense. Christensen commented during voir dire that he "was one of the first [persons] at the scene" of the killing in the unit where he was a guard (implying that he did not see the incident from the beginning). But he admitted that he did not hear the other evidence presented at trial. The jury acquitted the inmate of the offense and, although Christensen expressed his dissatisfaction with that outcome, he replied that he had not formed an opinion about Cannady's guilt or innocence. He stated that even as a correctional officer, he would listen to the case and make a determination based solely on the facts and the law.
Given the totality of Christensen's voir dire and the fact that, despite his occasional confusion on an issue, he consistently said that he would listen to the facts and follow the law, we cannot say the trial judge abused his discretion in denying Cannady's challenge for cause. Point of error eight is overruled.
Because we hold the trial court did not abuse its discretion in refusing to strike Herring and Christensen, Cannady cannot show that his challenges for cause to at least three different veniremembers were erroneously denied.14 Point of error seven (regarding veniremember Rohr) and supplemental point one (regarding veniremember Gomez) are overruled.
In his ninth point, Cannady alleges the trial court did not allow him to question veniremember Rohr about her...
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