Draughon v. State

• Decision Date: 13 May 1992
• Docket Number: No. 69863,69863
• Citation: 831 S.W.2d 331
• Parties: Martin Allen DRAUGHON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 331

831 S.W.2d 331

Martin Allen DRAUGHON, Appellant, v. The STATE of Texas, Appellee.

No. 69863.

Court of Criminal Appeals of Texas En Banc.

May 13, 1992.

Rehearing Denied June 24, 1992.

Roger Bridgwater, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr., and Jan Krocker, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

BENAVIDES, Judge.

After robbing the employees of a Houston restaurant at gunpoint, and while fleeing the scene of his crime, Appellant shot Armando Guerrero, a bystander, to death. For this offense he was convicted of capital murder. See Penal Code, § 19.03(a)(2). The jury answered the special punishment issues affirmatively, and the trial judge sentenced him to death. Art. 37.071(b), V.A.C.C.P. His appeal to this Court is automatic. See Art. 37.071(h), V.A.C.C.P.; Tex.R.App.Proc., rule 40(b)(1).

I.

In his first point of error, Appellant maintains that the trial judge erred in permitting the State to question prospective jurors concerning their attitudes toward the death penalty. ¹

Both parties in a criminal trial have the right to exclude from jury service for cause any veniremember whose beliefs would "render[ ] him incapable or unfit to serve on the jury." Art. 35.16, V.A.C.C.P. The parties may also exclude a limited number of qualified veniremembers for idiosyncratic reasons. ² Art. 35.15, V.A.C.C.P. Consequently, within reasonable limits both the State and the defendant must be allowed to explore any attitudes of veniremembers which might render them challengeable for cause or otherwise subjectively undesirable as jurors. Guerra v. State, 771 S.W.2d 453, 467-468 (Tex.Crim.App.1988); Mathis v. State, 576 S.W.2d 835, 836 (Tex.Crim.App.1979); Smith v. State, 513 S.W.2d 823, 826-827 (Tex.Crim.App.1974). In a death penalty case, such attitudes plainly include beliefs concerning the propriety, efficacy, and desirability of capital punishment as a component of the criminal justice system. Hafti v. State, 487 S.W.2d 745, 748 (Tex.Crim.App.1972).

Just as the accused is entitled to discover those prospective jurors who hold uncommonly harsh views of retribution and punishment, so also is the State free to search out those who might be unusually lenient. Cf. Campbell v. State, 685 S.W.2d 23, 25 (Tex.Crim.App.1985); Powell v. State, 631 S.W.2d 169 (Tex.Crim.App.1982). Such persons, even if not ultimately challengeable for cause, may prove relatively less appealing to one side or the other on account of their views. Martinez v. State, 588 S.W.2d 954 (Tex.Crim.App.1979). The fact that peremptory exclusion of these people by the State may effectively remove those who view the death penalty with disapproval is a deliberate consequence of our legal system, and gives rise to no implication of unfairness or impropriety. Certainly, challenging for cause veniremembers whose extreme opposition to capital punishment would prevent or substantially impair performance of their duties is neither legally nor constitutionally impermissible. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Holland v. State, 761 S.W.2d 307, 315 (Tex.Crim.App.1988), cert. denied 489 U.S. 1091, 109 S.Ct. 1560, 103 L.Ed.2d 863. Challenges, either for legal cause or by peremptory right, cannot be intelligently made in a vacuum. Accordingly, the trial judge did not err in refusing generally to prohibit questions on the subject.

Appellant's first point of error is overruled.

II.

In his second point of error Appellant complains that the trial judge erroneously allowed a State's challenge for cause against a veniremember who had already been accepted for jury service, sworn and empanelled. ³

The dispute arose when a previously sworn juror in this cause approached the trial judge prior to the conclusion of jury selection and before the taking of evidence with information indicating for the first time that her views regarding the death penalty would substantially impair the performance of her duties. As a result the judge permitted further examination of the juror by both parties and ultimately sustained the State's challenge for cause against her.

As we have held on several occasions in the past, a trial court does not lack authority to reconsider the qualifications of a prospective juror. McManus v. State, 591 S.W.2d 505, 521-522 (Tex.Crim.App.1979); Bodde v. State, 568 S.W.2d 344, 350 (Tex.Crim.App.1978); Lee v. State, 164 Tex.Cr.R. 532, 301 S.W.2d 114 (1957) (plurality opinion by Woodley, J.); Houston v. State, 162 Tex.Cr.R. 551, 287 S.W.2d 643, 652 (1956) (opinion on motion for rehearing), cert. denied 351 U.S. 975, 76 S.Ct. 1042, 100 L.Ed. 1492; Black v. State, 46 Tex.Cr.R. 590, 81 S.W. 302, 303-304 (1904) (opinion on original submission). See also Thompson v. State, 168 Tex.Cr.R. 320, 327 S.W.2d 745, 746 (1959) (opinion on original submission). At least where, as here, the entire jury has not yet been selected and no evidence received in trial of the cause, the judge is permitted general discretion to allow further examination and to entertain additional challenges when it comes to his attention that a previously selected juror may be objectionable for cause, excusable, or otherwise disqualified from jury service. ⁴ We, therefore, perceive no error in allowing the prosecutor a meritorious challenge for cause under the circumstances presented here. ⁵

Appellant's second point of error is overruled.

III.

At the punishment phase of trial in this cause, the State offered proof that Appellant had previously committed a number of other offenses, including the unlawful carrying of a weapon. See V.T.C.A., Penal Code § 46.02. The officer who arrested him on the weapon charge was permitted to testify, over objection, that he seized a woman's stocking from Appellant's shirt pocket at the time of arrest. In his third point of error, Appellant contends that such testimony should not have been received in evidence.

Because Appellant wore a stocking over his head while committing the offense for which he was convicted in this cause, and had done so while committing other aggravated robberies in the past, both parties agree that reference to the stocking implies Appellant was planning to commit yet another robbery at the time he was arrested for carrying a weapon. Thus we first inquire whether the State may prove at the punishment phase of a capital trial that the accused has planned other offenses. We think it abundantly clear that the State is indeed entitled to do this.

In many capital prosecutions the most significant punishment issue in the case is whether the defendant will likely commit "criminal acts of violence" in the future. Art. 37.071(b)(2), V.A.C.C.P. We think proof that he was planning such acts even at the time of his arrest for another offense clearly has a "tendency to make the existence of [this] fact ... more probable ... than it would be without the evidence." Tex.R.Cr.Evid. 401. McManus, 591 S.W.2d at 526. ⁶ Certainly, we are unwilling to hold that the trial judge erred in thinking so. See Green v. State, 587 S.W.2d 167, 169 (Tex.Crim.App.1979), cert. denied 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (the trial judge has broad discretion to determine relevance of evidence at the punishment phase of a capital murder prosecution).

Since both parties agree that the challenged testimony is relevant to this question, its admissibility is assured unless there is a legal policy for excluding it. Tex.R.Cr.Evid. 402. Here, Appellant merely contends that the testimony should have been disallowed because possession of a woman's stocking does not in itself constitute a crime, nor does it definitely establish that he was preparing to commit one.

Of course, we agree that the testimony is not conclusive. Yet relevant evidence is often inconclusive, standing alone, and the parties are free to debate its inferential significance and probative weight before the jury in their closing arguments. The weakness of this evidence does not, however, render it inadmissible unless it has a relatively strong potential for unfairly prejudicing the defendant. See Tex.R.Cr.Evid. 403. Otherwise, its admissibility is not affected by the fact that it may be inconclusive or unpersuasive upon the significant matter to which it relates.

Because Appellant does not suggest any specific legal policy for exclusion of the testimony, nor does he maintain that it was unfairly prejudicial to him, his third point of error is overruled. ⁷

IV.

Appellant's fourth point of error alleges that the trial court should not have permitted the prosecuting attorney, during the voir dire examination of prospective jurors, to characterize the victims and their families in this case as her "clients." No objection was interposed on behalf of Appellant at the time.

The prosecuting attorney in a criminal action does not represent a private interest. See Arts. 2.01, 2.02, V.A.C.C.P. Any contrary suggestion, communicated to a juror or prospective juror in the case, is therefore erroneous, whether it occurs during voir dire, final argument, or some other important stage of the trial. Rougeau v. State, 738 S.W.2d 651, 657 (Tex.Crim.App.1987), cert. denied 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 901.

Nevertheless, we do not regard the objectionable implication as so threatening to the fairness of a criminal trial that the judge must intervene to correct it even when not asked to do so by the defendant. As is usually the case, failure to complain of a matter at trial forfeits the right to complain of it on appeal. There are few exceptions to this rule, and we can divine none, to excuse Appellant's default in the present context. Here, a curative instruction could easily have dissipated any potential for prejudice visited upon Appellant. And, since the statement complained of occurred at voir dire, the Appellant could even have inquired of...