Fuller v. State

• Decision Date: 25 March 1992
• Docket Number: No. 70881,70881
• Citation: 827 S.W.2d 919
• Parties: Tyrone Leroy FULLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 919

827 S.W.2d 919

Tyrone Leroy FULLER, Appellant, v. The STATE of Texas, Appellee.

No. 70881.

Court of Criminal Appeals of Texas En Banc.

March 25, 1992.

Carol Hammond, Webb Biard, Judy Hodgkiss, Paris, for appellant.

Tom Wells, City Atty. and Kerye Ashmore, Asst. City Atty., Paris, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

OVERSTREET, Judge.

In March of 1989, appellant was convicted, in the 59th District Court of Grayson County, Texas, after a change of venue from Lamar County, of capital murder pursuant to TEX.PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp.1988). The indictment alleged in separate paragraphs that the murder was committed on or about January 20, 1988, during the course of committing or attempting to commit burglary of a habitation, robbery, and aggravated sexual assault. ¹ After the jury returned affirmative findings to the special issues submitted pursuant to TEX.CODE CRIM.PROC.ANN. art. 37.071 (Vernon Supp.1989), the trial judge assessed punishment at death. On direct appeal, appellant raises a total of twelve points of error (eleven in his original brief plus one additional in a supplemental brief).

I. SUMMARY OF PERTINENT FACTS

The testimony and evidence introduced at trial, including appellant's grand jury testimony ² and multiple written statements, indicate that on the morning of January 20, 1988, the complainant was found dead outside the Paris, Texas apartment which she shared with her sister. She had been beaten, stabbed several times, and sexually assaulted. A subsequent inventory of the house revealed several articles missing including credit cards, some of which were in the complainant's name and some of which were in the name of each of her parents, videocassette tapes, and jewelry. The credit cards were thereafter used to make purchases at various stores. The complainant's car was also missing. Fingerprint and handwriting analysis testimony, along with eyewitnesses, connected appellant with the possession and use of those cards and the car. Bloody sock prints found inside the apartment were later found to be consistent with inked sock impression exemplars taken from appellant. DNA comparison evidence was also introduced to connect appellant to the sexual assault. Appellant's several written statements and grand jury testimony admitted various degrees of involvement in the offense.

II. JURY SELECTION

Appellant's points of error numbers eight and nine complain of challenges for cause granted to the State at jury selection. Point eight avers such error in violation of the United States and Texas Constitutions and Article 1.05 of the Texas Code of Criminal Procedure. Appellant alleges that the veniremember in question was excused because he indicated a lack of acceptance of and had a problem with the death penalty.

The record reflects that the veniremember in question initially confirmed that he had indicated on his juror questionnaire form that he did not believe in the death penalty and felt that "only God should decide life." We observe that on the form the statement, "I could never, under any circumstances, return a verdict which resulted in the death penalty[,]" was circled while the statement, "Although I do not believe that the death penalty ever ought to be invoked, as long as the law provides for it, I could assess it, if I believed that the facts warranted it[,]" was scratched out. ³

In response to questioning from both parties, the veniremember consistently indicated severe reservations about the prospect of being involved in the assessment of death. On one occasion, he explicitly stated that he would "have a hard time accepting the death penalty as a viable answer for crime[,]" and "would be more or less determined to vote [']no['] for the life sentence." He then indicated that he could not ever bring himself to answer the special issue questions "yes" knowing that it would result in the imposition of the death penalty. However, he did later indicate that he could answer both questions "yes" if he found that the evidence called for such an answer. When informed that he seemed to have changed his position, the veniremember stated, "The only thing that I understand as we are talking is that we are talking about these particular questions here[,]" and that he "would have no particular problem in assessing guilt/innocence." The trial court then reminded him that they were discussing punishment. The veniremember then stated, "I am still opposed to the death penalty and that doesn't go away no matter how it's stated." He immediately repeated, "I am still opposed to the death penalty." Then, when explicitly asked if he could ever answer the special issue questions "yes" knowing that the death penalty would be the result, the veniremember answered that he could not because he "already knew what the result would be." The trial court asked him if he was going to stick with that, whereupon the veniremember responded, "I will stick with that." The State then immediately challenged that veniremember for cause, whereupon the trial court granted said challenge. Appellant then objected, noting his "exception to th[at] challenge" stating that he "d[id] not think it's proper."

The proper standard to be used in disqualifying a prospective juror in death penalty cases is whether that juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851 (1985); Moody v. State, 827 S.W.2d 875, 888 (Tex.Cr.App.1992); DeBlanc v. State, 799 S.W.2d 701, 716 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Montoya v. State, 810 S.W.2d 160, 169 (Tex.Cr.App.1989), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991). On appeal we recognize that great deference must be given to the trial court who is in the best position to see and hear the prospective jurors and to evaluate their responses, thus we will reverse a trial court's ruling only when the record shows a clear abuse of discretion on the trial court's part. Moody, supra, 827 S.W.2d at 889; Davis v. State, 782 S.W.2d 211, 216 (Tex.Cr.App.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990). Based upon the veniremember in question's responses, there was certainly no abuse of discretion in granting the State's challenge for cause. We therefore overrule point of error number eight.

Point number nine avers error in the trial court's granting of another State's challenge for cause to a veniremember "on the basis of bias [when] no sufficient bias or impartiality was exhibited to support such an excusal." Apparently because his wife was a former clinical psycholigist and was at the time of the questioning a psychology teacher, that particular veniremember was questioned about the feasibility of a psychologist or psychiatrist determining future dangerousness. He mentioned that he and his wife had on one occasion casually discussed a newspaper article about "a psychiatrist who has a reputation of being someone who makes cases for prosecutors." He then indicated that he did not have an opinion about that particular doctor, though he later said that he had "kind of a negative opinion," though such was based on what he had read on that single occasion and he did not know whether what he had read was even true. He also indicated that he did not think that he had ever heard of Dr. James Grigson, who was expected to testify for the State in the instant cause, and did not know if he was the doctor referred to in the article. The State eventually challenged the veniremember for cause "based on the fact that he could not consider the testimony of Dr. Grigson as he would any other person in that the article and discussions that he and his wife ha[d] had concerning Dr. Grigson would require him to put a different consideration and weight on that testimony." There was further questioning by the State and appellant regarding the veniremember's ability to consider the testimony of Dr. Grigson. Finally, the trial court sustained the State's challenge. The veniremember was thereupon excused. The record does not reflect an objection, or any other comment, by appellant regarding the excusal at that time.

After that veniremember was excused, a new veniremember was called and questioning of him began and proceeded to a lunch recess. The record reflects that it was only after everyone had returned from lunch that appellant objected to the above-discussed challenge for cause. As this Court stated in Purtell v. State, 761 S.W.2d 360, 365 (Tex.Cr.App.1988), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989), an objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it; and additionally, the objection should afford opposing counsel an opportunity to remove the objection or supply other testimony. ⁴ Appellant's objection after the veniremember in question had already been excused and questioning of the next veniremember had begun was far too late to meet the above-noted requirements. ⁵ Because appellant's belated objection was untimely we overrule point of error number nine.

III. EVIDENCE AT GUILT/INNOCENCE

A. Evidence Admissibility

Points of error numbers one, two, three, four, five, and ten allege errors at guilt/innocence. Point number ten avers error in the trial court overruling appellant's motion for mistrial as to a nonresponsive answer from a police officer which implied that appellant had previously been convicted of a felony. The record reflects that during the State's direct examination of one of the investigating detectives there was questioning about various notations and signatures made on an exhibit which was a Miranda warning form which had been read to appellant prior to being questioned....