Cuevas v. State

• Decision Date: 01 July 1987
• Docket Number: No. 69178,69178
• Citation: 742 S.W.2d 331
• Parties: Ignacio CUEVAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 331

742 S.W.2d 331

Ignacio CUEVAS, Appellant, v. The STATE of Texas, Appellee.

No. 69178.

Court of Criminal Appeals of Texas,

En Banc.

July 1, 1987.

Will Gray, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Frank Blazek, William J. Delmore, III and Bert Graham, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appeal is taken from a third conviction for capital murder. ¹ Appellant was convicted of intentionally and knowingly causing the death of Julia Standley. Her death occurred while appellant and others were attempting to escape from a penal institution. V.T.C.A., Penal Code Sec. 19.03(a)(4). After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071, V.A.C.C.P. Punishment was for the third time assessed at death. This cause is before us on direct appeal pursuant to Art. 37.071(h), V.A.C.C.P. We affirm.

Appellant initially raises five points of error. He challenges: the excusal of one venireman; the denial of fourteen of his challenges for cause; the procedures used in selecting the jurors; and the court's refusal to instruct the jury that the law of parties does not apply to special issue number one. Appellant does not contest the sufficiency of the evidence to support his conviction or the affirmative findings on the special issues. However, a brief review of the facts is necessary to provide the context for three of appellant's points of error.

On July 24, 1974, three inmates of the Texas Department of Corrections seized control of a third floor educational area in the Walls Unit at Huntsville. For eleven days the armed inmates, Frederico Carrasco, Rudolpho Dominguez, and appellant, held hostages taken at the time of the seizure. The original hostages included eleven employees of the TDC and Windham School District, a TDC guard, and a number of inmates. Eventually, two teachers were released and only four inmates remained as hostages. Joseph O'Brien, a prison chaplain who had been acting as a messenger, chose to remain as a hostage.

The eleven-day ordeal was marked by negotiations and threats of violence. As a result of the negotiations, TDC officials provided the inmates with certain materials for their escape. The inmates built a shield by taping law books around chalkboards. The inmates planned to escape by moving along, while inside the shield, to a waiting armored car. Several hostages were handcuffed to the exterior of the shield by the inmates, who wore heavy metal helmets. For additional protection each inmate handcuffed a female hostage to himself, with the announced intention of shooting the hostages if an attempt to stop the escape was made. The inmate-hostage pairings were as follows: Mrs. Novella Pollard was handcuffed to appellant; Mrs. Julia Standley to Dominguez; Mrs. Vonne Beseda to Carrasco. O'Brien was also inside the shield with the three inmates and their hostages.

On the evening of August 3, 1974, the inmates attempted their escape. When law enforcement officers acted to prevent the escape, gunfire erupted. In the end, appellant's two co-conspirators and two of the female hostages were dead. Appellant, his female hostage, and O'Brien survived. Appellant was indicted for the death of Standley. The bullets that killed Standley were fired from Dominguez' pistol, which was found on his body.

In his third, fourth, and fifth points of error, appellant complains about the jury selection process. The voir dire took thirty (30) courtroom days during March 21, 1983 to May 11, 1983. ² The interrogation of the veniremen covers approximately 5800 pages in the record.

I.

In his third point of error, appellant contends the trial court erred by granting the State's challenge for cause to venireman Glenda Davis. The State challenged Davis because of her opposition to the death penalty. Art. 35.16(b)(1), V.A.C.C.P. Appellant objected to her excusal as a violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

In other opinions we have discussed the United States Supreme Court's modification of the standard to be used for these situations. See, e.g., Ex parte Russell, 720 S.W.2d 477, 481-485 (Tex.Cr.App.1986); Sharp v. State, 707 S.W.2d 611, 620 (Tex.Cr.App.1986). Thus, we state the standard here without embellishment. In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court instructed that the standard is whether the venireman's views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Witt, 105 S.Ct. at 852. Moreover, the venireman's bias need not be shown with "unmistakable clarity" because appropriate "deference must be paid to the trial judge" who had the opportunity to observe the demeanor of the venireman. Id. at 852-53.

With this standard in mind we examine the interrogation of Davis. As with all reviews of a ruling on a challenge for cause, we look to the record of the voir dire as a whole. McCoy v. State, 713 S.W.2d 940, 951 (Tex.Cr.App.1986). Initial questioning by the trial court was as follows:

"Q: Do you have any moral, conscientious or religious scruples against the assessment of death as punishment for crime in a proper case?

"A: I do not believe in the death penalty. ³

"Q. Under any circumstances?

"A: No, sir."

* * *

* * *

"Q: ... [Y]ou are convinced beyond a reasonable doubt that the defendant is guilty as charged. Would you find him guilty?

"A: Yes, I would.

"Q. You know, when you find him guilty, he is either going to get life or death. You are finding him guilty of capital murder. Would your conscience allow you to find him guilty, knowing that?

"A: I don't believe it would, no.

"Q: What would you do, just refuse to vote?

"A: I could give the verdict, but I would feel guilty if he did get charged or get the death penalty.

"Q: What would be your action at that time? Could you put your personal feelings aside and follow the law as I give it to you?

"A: Yes, I believe I could. Knowing it is the law, there is nothing I could do about the law.

"Q: But depending on how strong you are in that regard. See, at the conclusion, if you are selected to serve as a juror, you will be asked to take an oath as a juror that you will a true verdict render according to the law and the evidence submitted to you, so help you God. We don't want you to take that oath unless you can follow it.

"A: I don't believe I could, then.

"Q: All right, then, taking you back to that situation then. Even though you were convinced beyond a reasonable doubt that the defendant was guilty, would your conscience allow you to find him guilty because of the consequences of that?

"A: No, sir, I don't believe so.

"Q: Would you deliberately find him not guilty to avoid that consequence?

"A: No.

"Q: What would you do?

"A: It would be tough.

"Q: I know, but what would you do?

"A: Well, I guess I would just rather not be picked at all."

Davis returned to her original position when questioned by the prosecutor.

"Q: [Prosecutor]: So no matter how bad a defendant might be or how bad an act he had committed or how bad a background he may have had, you still feel like you could never vote for the death penalty? Would that be accurate?

"A: That is correct.

"Q: So, if you were on a--so it would be impossible for you to ever take the oath to be a juror in a capital murder case and also be true to your conscience?

"A: That is correct.

* * *

* * *

"Q: ... [Y]ou wouldn't be able to say yes to the questions, even though the State proved it, is that right?

"A: That's right."

Appellant's attorney reminded Davis that she had said she could set her feelings aside. He then asked her to explain the change. She responded that "after [the prosecutor's] explanation and the more I thought about it, I would probably be tempted to say 'No', to one of those questions just to keep from him [sic] dying with the death penalty." Appellant's attorney asked no other questions.

Appellant concedes that "it may appear that [his] complaint against the Davis exclusion is invalid under the new ground rules established by the Supreme Court." Nonetheless, he contends we should not defer to the trial court ruling because the judge "was not impartial."

Appellant's claim of lack of impartiality is not supported by the record, thus, it would be appropriate to show deference to the trial court. Even without relying on such deference, though, the record clearly shows that Davis' views would have prevented or substantially impaired the performance of her duties as a juror. Her first response was that she did not believe in the death penalty under any circumstances. After giving equivocating responses about her ability to set aside her personal feelings, Davis returned to her original position and indicated she could never vote for the death penalty. The court did not abuse its discretion in sustaining the State's challenge for cause. Appellant's third point of error is overruled.

II.

In his multifarious point of error number four, ⁴ appellant contends the trial court erred by denying fourteen of his challenges for cause. The challenges in issue are all raised as a "bias or prejudice against the law" but can be divided into three categories: law of parties (9); consideration of mitigating factors (3); other biases against the law (2). Except for those instances noted below, appellant took the steps necessary to preserve for review the denial of his challenges for cause.

A. LAW OF PARTIES

Discussion of the concept of the law of parties ⁵ began with the second venireman and continued with the majority of the other veniremen called. Although the examination relating to the law of parties varied considerably from one venireman to...