Drew v. State, 69249

• Citation: 743 S.W.2d 207
• Decision Date: 30 September 1987
• Docket Number: No. 69249,69249
• Parties: Robert N. DREW v. The STATE of Texas, Appellee. En Banc
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 207

743 S.W.2d 207

Robert N. DREW v. The STATE of Texas, Appellee.

No. 69249.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 30, 1987.

William M. Kunstler, Ronald L. Kuby, New York City, Rita Lucido, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and J. Harvey Hudson, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03(a)(2). The death penalty was imposed by the court after the jury affirmatively answered the special issues submitted under Article 37.071, V.A.C.C.P.

On appeal appellant raises twelve points of error. Appellant contends the trial court erred in denying his out-of-time motion for new trial on the basis of a lack of jurisdiction because the "new available" evidence warranted a new trial and because jury misconduct occurred when parole was discussed.

Appellant further challenges the sufficiency of the evidence to prove that the murder was committed in the course of committing robbery of the deceased, and challenges the sufficiency of the evidence to support the affirmative finding to the second special issue submitted--that appellant would commit future acts of violence that would constitute a continuing threat to society.

In four points of error appellant complains of improper jury argument of the prosecutor, and in two other points of error appellant urges the trial court erred in sustaining challenges for cause to veniremen Grover Smith and Archie Cotton.

We shall examine the points of error in the order in which they were alleged to have occurred.

VOIR DIRE EXAMINATION

Appellant complains in one point of error that "a prospective juror, Grover Smith, was improperly excused for cause based on his reluctance to impose the death penalty." The State's challenge for cause to Smith was sustained because Smith would require a stricter standard of proof than "beyond a reasonable doubt" in a capital murder case. When first questioned by the trial court, Smith stated he did not have any conscientious scruples against the infliction of death as a punishment for a crime in a proper case after earlier saying he didn't know whether he could or not. When the prosecutor asked about his feelings on the death penalty Smith replied that it would have been shown that "the man did without questionable doubt," that it would have to be "one hundred percent sure," that the testimony must be such that it "erased all doubt in my mind," that the burden of proof must not just be beyond a reasonable doubt but "one hundred per cent," that he would require a higher degree of burden of proof in capital murder cases than other types of criminal cases, and that proof must be "beyond a shadow of doubt." Upon examination by appellant's counsel Smith twice stated he would require a "stricter burden of proof than the strongest required by law" but that the State could prove to him that death was an appropriate penalty for a crime. Upon further examination by the State he made clear his standard was different in capital murder cases than for other types of criminal cases and it would be a stricter burden. The challenge for cause was sustained over objection.

Article 35.16(b)(3), V.A.C.C.P., provides that a challenge for cause may be made by the State, if the juror "has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." This Court has applied said statute in upholding the excusal for cause of a prospective juror who would hold the State to a more stringent burden of proof than beyond a reasonable doubt. See Sawyers v. State, 724 S.W.2d 24 (Tex.Cr.App.1986); Goodman v. State, 701 S.W.2d 850, 861 (Tex.Cr.App.1985); Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985), cert. den. 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986); Woolls v. State, 665 S.W.2d 455, 465 (Tex.Cr.App.1983); Hawkins v. State, 660 S.W.2d 65, 76 (Tex.Cr.App.1983); Bodde v. State, 568 S.W.2d 344, 349 (Tex.Cr.App.1978). Appellant's point of error is overruled.

In another point of error the appellant contends prospective juror, Archie Cotton, was improperly excused for cause, "based upon his refusal to impose the death penalty unless he saw a probability that the appellant would commit future murders."

In response to the initial inquiry by the court Cotton said he had no conscientious scruples against the infliction of death as a punishment for a crime in a proper case, and that he would affirmatively answer the special issues yes if the State sustained the burden beyond a reasonable doubt.

The prosecutor then explained there were groups of individuals with different views on the death penalty, one group who believed it to be the only penalty if the accused is found guilty of capital murder, another group who could not assess the death penalty, regardless of the facts, who would vote against it in an election on the issue, etc., and a third group who contended it depended upon the facts of each case whether the death penalty is proper, etc. The prosecutor then inquired about Cotton's feelings about the death penalty, what group he was in. Cotton then explained that he would vote against the death penalty as an issue in an election "but talking about in a trial, if I feel a man deserves the death penalty I give it to him.... I am against the death penalty but if it came out in the trial I vote guilty on both of those questions I can do that." He explained his feelings were based on his religion and "Thou shall not kill." The record then reflects:

"Q. What would make you able to vote for it if you are against it?

"A. Well, after hearing some evidence, you know, at a trial.

* * *

* * *

"Q. ... First of all ... we know you are against that by your religion but you can do it if you have to?

"A. Yeah."

Later the prosecutor inquired whether he (Cotton) could answer the special issue [Article 37.071(b)(2) ] "yes" if he was convinced a defendant was probably going to commit criminal acts of violence but not convinced the defendant was "going to murder again." Cotton answered, "no," that the State had to show him "a whole lot of proof" and include proof of murder, that a defendant "might rob and rape and beat up on people, etc.," but without probability of more murder he would not vote "yes" on the special issue.

The court, upon further explanation of the law, inquired,

"Q. In other words, the only way they could possibly do that as far as your mind is concerned is to show you that he is liable to commit another murder, not some rape or robbery or assault but another murder, another taking of a person's life intentionally. That's what they would have to show you before you would vote yes to that. Is that what you are saying?

"A. Yeah. That's what I am saying.

"Q. So, you are telling the State that there is no way that you can prove beyond a reasonable doubt to me that there is a probability he will commit future acts of violence that will be a continuing threat to society unless you show me he is going to do a murder; is what (sic) what you are telling us?

"A. It is something like that. Yes.

"Q. Is that what you are saying?

"A. That's what I am saying.

"Q. All right. And then there is no way that you could answer that question any other way?

"A. Not at this time." (Emphasis supplied.)

Appellant's counsel attempted to explain that in offering evidence in support of special issue two the State was not restricted to murders, and attempted to rehabilitate Cotton. He succeeded to the extent of getting Cotton to state that based on the evidence he could answer special issue two yes or no.

The record then reflects:

"Q. And if the State satisfied you the defendant would commit criminal acts of violence that would constitute a continuing threat to society and you heard all of the evidence and that was your conclusion, you would answer it yes. Right?

"A. Yes."

The prosecutor then followed with these inquiries:

"Q. ... you told him [defense counsel] if the evidence was right you could answer that second question yes. Is that right?

"A. Yeah.

"Q. To make the evidence right would you have to see a probability of more murders in the future?

"A. Yeah. In my mind I have to.

"Q. No matter how violent you think the defendant may be in the future, if you don't see a murder down the road you are not going to vote yes, is that correct?

"A. If I don't see a murder down the road I am not going to vote yes?

"Q. If you don't think he is going to commit another murder down the road you are not going to vote yes?

"A. Uh uh." (Emphasis supplied.)

The State's challenge for cause was sustained over objection.

Article 37.071(b)(2), supra, requires jurors in a capital murder case to determine whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Although the phrase "criminal acts of violence that would constitute a continuing threat to society" is not defined in the Code of Criminal Procedure, there is nothing in our case law to limit this portion of Article 37.071(b)(2), supra, to future murders. The Government Code requires that words and phrases which are not defined "shall be read in context and construed according to the rules of grammar and common usage." Tex.Gov't.Code Ann., § 311.011(a) (Vernon Supp.1986).

This Court has determined that the following offenses constitute crimes of violence per se: arson [Hamilton v. State, 676 S.W.2d 120, 121 (Tex.Cr.App.1984) ]; robbery [Mena v. State, 504 S.W.2d 410, 414 (Tex.Cr.App.1974) ]; robbery by assault [Scott v. State, 571 S.W.2d 893, 895 (Tex.Cr.App.1978) ]; rape [Wisdom v. State, 708 S.W.2d 840, 845 (Tex.Cr.App.1986) ]. ¹

We do not interpret the phrase "criminal acts of violence that would constitute a continuing threat to society" as by any means...