Eldridge v. State

• Decision Date: 20 November 1996
• Docket Number: No. 71863,71863
• Citation: 940 S.W.2d 646
• Parties: Gerald Cornelius ELDRIDGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 646

940 S.W.2d 646

Gerald Cornelius ELDRIDGE, Appellant, v. The STATE of Texas, Appellee.

No. 71863.

Court of Criminal Appeals of Texas,

En banc.

Nov. 20, 1996.

Rehearing Denied March 19, 1997.

Henry K. Oncken, Houston, for appellant.

Rikke Graber, Assistant District Attorney, Houston, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

OPINION

PER CURIAM.

Appellant was convicted of the offense of capital murder. The indictment charged that appellant killed Chirissa Bogany while committing the felony of burglary of a habitation owned by Cynthia Bogany, see V.T.C.A. Penal Code § 19.03(a)(2), and alternatively, that he killed Chirissa and Cynthia Bogany during the same criminal transaction and/or scheme or course of conduct, see V.T.C.A. Penal Code § 19.03(a)(7)(A) and (B). All three theories were submitted to the jury, which found appellant guilty in a general verdict. At punishment, the jury answered the first special issue affirmatively and the second in the negative. Punishment was assessed accordingly at death. Article 37.071 § 2(b) and (e), V.A.C.C.P. ¹ Appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises eleven points of error, all relating to the special issues at the punishment phase of the trial. He does not challenge the sufficiency of the evidence at either phase of trial. We will affirm.

Briefly, the evidence established that around 5:00 a.m. on the morning of January 4, 1993, appellant went to the apartment of Cynthia Bogany, his ex-girlfriend and mother of his son Terrell. Appellant kicked in the door and shot Cynthia's daughter, Chirissa Bogany, at point blank range between the eyes, killing her instantly. After then shooting at Wayne Dotson and shooting Terrell Bogany at close range, ² he chased Cynthia Bogany, who had fled the apartment. Appellant caught Cynthia when she tripped and fell on some stairs outside a neighbor's apartment. Despite Cynthia's pleas for her life, appellant shot her twice in the side of the head, also killing her instantly.

In his first point of error, appellant contends that the trial court erred in informing members of one of the venire panels that appellant would automatically receive at least a life sentence upon his conviction for capital murder. ³ According to appellant, this violates Article 37.071 § 2(a), which prohibits any mention by any participant in a capital murder trial, to a juror or prospective juror, of the effect of a failure of the jury to agree on either of the special issues submitted to it (i.e., the effect of a hung jury at punishment).

Appellant directs us to the following statements of the trial judge during preliminary comments to one of the panels:

" Court: Immediately upon being found guilty of the offense of capital murder, the defendant is going to receive a life sentence. That's automatic.

* * * * * *

"Court: A life sentence in the context of a capital murder case means he does not receive the death penalty. That's what it means in the context of a capital murder case. He gets a life sentence the minute he is found guilty. That's automatic, that's automatic, and only if the State can prove beyond a reasonable doubt that the answer to issue number one should be yes and they prove that the answer to issue number two should be no, only then does the defendant receive the death penalty. If they cannot prove it, he has got that automatic life sentence he got the second he got found guilty. So, for the context of this trial, a life sentence means he does not receive the death penalty. All right?"

By categorically stating a capital defendant will receive at least a life sentence upon a guilty verdict, no matter what might happen at the punishment phase, the trial court necessarily, if implicitly, communicated to the panel that even in the event of a hung jury, a life sentence will be imposed. Informing the jury of this contingency would indeed seem to violate Article 37.071 § 2(a).

In practical effect, however, it is unlikely that the trial judge's comments actually conveyed to the lay jury panel any message whatsoever about the result of a hung jury at the punishment phase of trial. His comments were framed more or less along the lines of V.T.C.A. Penal Code, § 12.31(b), which does not even mention a hung jury situation. ⁴ We think it would take a considerable stretch to conclude that capital jury panel members, unsophisticated in the law, would glean information about the results of a hung jury from those comments.

In any event, even if we assume that the venire members could make the unlikely leap of logic, that the trial court thus erred, and that appellant properly preserved this error for appeal, we are constrained to conclude there was no harm in the error. For our harm analysis, we look to Sattiewhite v. State, 786 S.W.2d 271, 278 (Tex.Cr.App.1989), and to Clark v. State, 881 S.W.2d 682, 692 (Tex.Cr.App.1994). Both cases involved substantially the same error as appellant alleges here, viz: prospective jurors informed of the effect of a failure to agree on a special issue. ⁵ In both Sattiewhite and Clark, the jury charge made it clear that the jury could only answer "yes" or "no" to the special issues, and that a "yes" answer must be unanimous while a "no" answer requires ten votes. We found in Sattiewhite and Clark that this jury instruction "attenuated" any harm. Sattiewhite, 786 S.W.2d at 278; Clark, 881 S.W.2d at 692. The trial court gave a similar instruction in this cause, to which appellant did not object. As we have said, we must assume that the jury followed the trial court's instructions and conducted itself accordingly. Clark, 881 S.W.2d at 692. If the instructions in Sattiewhite and Clark served to "attenuate" harm in those cases, then so did the instruction here.

Moreover, there is no indication that the jury experienced any confusion in reaching a unanimous verdict. Sattiewhite, 786 S.W.2d at 279. The record shows no communication between the jury and the court during the jury's deliberations at punishment. Id. Nor does appellant allude to any further mention during voir dire or elsewhere in the trial of other inappropriate comments by the court or any party to the proceeding. Given the existence in this cause of the same circumstances as those that led the Court in Sattiewhite and Clark to find harmlessness, and given the unlikelihood the panel members would actually have calculated the consequences of a hung jury at punishment from the trial court's comments, we conclude that any resulting harm was attenuated. Accordingly, we hold that the trial court's error, if any, did not contribute to the punishment verdict beyond a reasonable doubt. ⁶ Tex.R.App.P., Rule 81(b)(2); Sattiewhite, 786 S.W.2d at 279. Appellant's first point of error is overruled.

In his tenth point of error, appellant alleges that the trial court violated the Eighth and Fourteenth Amendments to the United States Constitution by failing to instruct the jury that a "no" vote by a single jury member would result in a life sentence instead of death despite the statutory requirement of 10 votes for a "no" answer to Article 37.071 § 2(b)(1) or for a "yes" vote to Article 37.071 § 2(e). In his eleventh point of error, appellant argues that the same failure also violates Article I, §§ 10, 13, and 19 of the Texas Constitution. We reject both of these arguments.

We have consistently upheld the constitutionality of Article 37.071 § 2(a) against the challenge that appellant raises in his tenth point of error. Draughon v. State, 831 S.W.2d 331, 337-8 (Tex.Cr.App.1992); Emery v. State, 881 S.W.2d 702, 711 (Tex.Cr.App.1994). We continue to believe that there is "nothing in the statute here challenged that operates to diminish the seriousness of jury deliberations or to suggest that ultimate responsibility for determining the propriety of a death sentence rests elsewhere." Draughon, 831 S.W.2d at 337. Appellant does not offer any new arguments or reasons why we should change our view. Thus, we decline to reconsider this precedent. Appellant's tenth point of error is overruled.

We do not address appellant's eleventh point of error. In his brief, appellant cites the same authority he argued for his tenth point of error. He supplies no additional argument or authority for the proposition that the alleged error also violated the Texas Constitution. As we stated in Corwin v. State, 870 S.W.2d 23, 27 n. 2, "it has been the Court's practice to 'decline to pursue appellant's Texas Constitutional arguments for him.' " Id., citing Johnson v. State, 853 S.W.2d 527, 533 (Tex.Cr.App.1992); see also McCambridge v. State, 712 S.W.2d 499, 501-2 n. 9 (Tex.Cr.App.1986). Appellant's eleventh point of error is overruled.

In points of error two and seven, appellant alleges that the trial court's refusal to instruct the jury on the parole implications of a life sentence violated the Fourteenth and Eighth Amendments, respectively, to the United States Constitution. Appellant relies on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). In Texas, unlike in South Carolina, a life sentence does not mean life without parole. For this reason, we recently held in Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995) (plurality opinion), that the mandate in Simmons, that the jury be told of parole ineligibility when the prosecution argues future dangerousness in support of the death penalty, does not apply in Texas. Smith, 898 S.W.2d at 853. Moreover, the holding in Smith as to the admissibility of parole eligibility information was more extensive than the Supreme Court's holding in Simmons. Whereas the Court in Simmons did not reach the Eighth Amendment claim, in Smith the plurality held that it did not violate the Eighth Amendment to prohibit mention of parole eligibility information to the jury. Id. at 853; see also Broxton v. State, 909 S.W.2d 912, 918-9 (Tex.Cr.App.1995) (adopting for the Court...