Curry v. State
| Decision Date | 22 November 1995 |
| Docket Number | No. 71630,71630 |
| Citation | 910 S.W.2d 490 |
| Parties | Alva CURRY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant was indicted for the offense of capital murder pursuant to V.T.C.A.P.C. § 19.03(a)(2), alleging murder in the course of committing robbery alleged to have occurred on or about October 16, 1991 in Travis County. In a trial by jury, appellant was convicted as charged on October 29, 1992. The jury, pursuant to article 37.071, V.A.C.C.P., returned an affirmative answer to the first two special issues, and a negative answer to the special issue regarding mitigation. The trial court assessed punishment at death. Appeal is automatic to this court pursuant to article 37.071 § 2(h) V.A.C.C.P. Appellant raises seventeen points of error.
On October 16, 1991, at 2:00 in the morning, appellant and his accomplice entered a convenience store, and immediately drew their guns. Appellant jumped over the counter and held his gun against the head of the store clerk. Although the clerk complied with the robbers' instructions, he was eventually shot in the temple by appellant, at close range. Thereafter, appellant and his accomplice shot the clerk four additional times, took a cash register drawer, and then shot out the glass door to escape.
The store's video camera recorded the robbery, including the distinctive clothing of the two robbers. A few weeks later, the police received information from a confidential informant, which lead to an arrest and search warrant. On November 8, 1991, appellant was arrested and his home was searched. In this search, the police found the clothing that was worn by the two men during the robbery, one of the guns that was used to shoot the clerk, and the cash register drawer that was missing from the convenience store. Eventually, appellant confessed to both the robbery and the murder.
In point of error number fourteen, appellant contends that the trial court erred in refusing to allow appellant to videotape the voir dire proceedings. There is no statute or caselaw to support appellant's argument that the trial court was obligated to allow the videotaping of the court proceedings. This court has held that "the conduct of the voir dire examination rests largely within the sound discretion of the court." Felder v. State, 758 S.W.2d 760, 766 (Tex.Cr.App.1988). Consequently, refusing to allow the videotaping of the voir dire proceedings by appellant was not an abuse of discretion by the trial court. Appellant's point of error number fourteen is overruled.
In point of error number nine, appellant contends that the trial court erred in overruling appellant's challenge for cause to venire member Wilson based on Wilson's bias against the law regarding considerations of parole. Appellant claims that venire member Wilson was biased against the law regarding the inability to consider parole during jury deliberation. Initially, venire member Wilson did express concern about the parole law and the fact that there was no life without parole, but this was before he was informed that he could not consider parole. Once he understood that as a juror he would be required to follow the instructions of the judge, including the instruction to not consider parole, venire member Wilson stated, In viewing this statement along with the rest of his answers during voir dire, it is clear that although venire member Wilson had strong feelings regarding parole, he stated he would follow the law and not consider parole. Appellant's point of error number nine is overruled.
In point of error number ten, appellant contends that the trial court erred in overruling appellant's challenge for cause to venire member Wilson based on Wilson's conclusion as to appellant's guilt. Venire member Wilson stated that "already some picture of guilt" had been created by the proceedings of the court. 1
In order for a challenge for cause to be sustained under 35.16(a)(10) of the Texas Code of Criminal Procedure, the challenging party must show that the venire member has established in his mind a conclusion as to the guilt or innocence of the defendant and that this conclusion will influence his verdict. Harris v. State, 784 S.W.2d 5 (Tex.Cr.App.1989), cert. denied, 494 U.S. 1090 (Tex.1990). In Richardson v. State, 744 S.W.2d 65, 68 (Tex.Cr.App.1987), this Court held that it was error to excuse a venire member who had told the trial court that he had formed an opinion as to the guilt or innocence of the accused when the venire member had not been asked whether that opinion would influence his verdict. In order for error to be preserved under Art. 35.16(a)(10), there must be a showing that the venire member has stated that his conclusions on the defendant's guilt or innocence would indeed affect his decision during deliberation. In this case, appellant concedes that the defense attorney failed to question whether venire member Wilson's conclusion would in fact affect his verdict. Because there is no evidence adduced from the venire member that his conclusion would have affected his verdict, error was not preserved under Art. 35.16(a)(10). Appellant's point of error number ten is overruled.
In point of error number eleven, appellant contends that the trial court erred in overruling appellant's challenge for cause to venire member Gauthier based upon her inability to reconsider guilt evidence within the context of the special issues at punishment. Appellant bases his allegation on the fact that at one point during voir dire, this venire member stated that capital murderers should automatically be punished by death. The standard for review is whether the trial court abused its discretion when it overruled appellant's challenge for cause. In order to make this determination, we must examine the voir dire of the venire member as a whole, and decide whether the record shows that her convictions would interfere with her ability to serve as a juror and uphold her oath. Johnson v. State, 773 S.W.2d 322, 327-328 (Tex.Cr.App.1989).
It is clear from the record that initially, venire member Gauthier did state that defendants who are convicted of capital murder should be given the death penalty, but once questioned by defense counsel, she acknowledged that there are some instances where she would not automatically answer "yes" to the first special issue because the death penalty would not be appropriate. Moreover, she answered affirmatively when directly asked if she could follow the law that compels the answers to the special issues to be "no" unless proven beyond a reasonable doubt by the State. Taken as a whole, the voir dire of venire member Gauthier established that she was indeed capable of following the instructions of the judge and her oath. Appellant's point of error number eleven is overruled.
In point of error number twelve, appellant contends that the trial court erred in overruling appellant's challenge for cause of venire member Middleton based on his inability to consider certain factors in mitigation of punishment. Appellant contends that this venire member was incapable of being a fair and impartial juror, and thus should have been excused for cause. Appellant points to the fact that venire member Middleton answered that he would not consider certain factors such as physical abuse, sexual abuse, or an economically deprived childhood as mitigating factors. When venire member Middleton was asked by the prosecutor whether or not he would consider evidence if in fact Mr. Middleton found such evidence to be mitigating, the venire member responded in the affirmative, and that he was capable of following the judge's instructions.
We have previously held that it is the sentencer who must decide what if any weight is given to "mitigating evidence". Johnson, 773 S.W.2d at 331 (Tex.Cr.App.1989); Cuevas v. State, 742 S.W.2d 331, 346 (Tex.Cr.App.1987); Cordova v. State, 733 S.W.2d 175 (Tex.Cr.App.1987). In this case, counsel for the defense did not question whether the venire member would consider a defendant's history of abuse and deprived childhood, but rather whether he would consider these facts as mitigating in nature. The law requires only that evidence that is considered mitigating by appellant must be presented in such a way as to allow the jury to determine if appellant's moral blameworthiness should be decreased. Jurors are responsible for determining the weight such evidence has on their final decision. Taking the record as a whole, this venire member's responses only show that he did not consider the factors named as mitigating. In other words, in his mind, this evidence warranted no weight at all. There is sufficient evidence to demonstrate that venire member Middleton was capable of adhering to his oath as a juror, and the trial court did not err in overruling appellant's challenge for cause. Appellant's point of error number twelve is overruled.
In point of error number thirteen, appellant contends that the trial court erred in overruling appellant's challenge for cause of venire member Middleton based on his belief that murderers were more likely than not to kill again. Appellant asserts that venire member Middleton was biased against the defendant because he was of the opinion that the majority of people who committed murder would murder again. According to appellant, the statements of the venire member indicated that the venire member prematurely decided special issue one because he...
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