Gonzales v. State , AP–76176.

• Decision Date: 28 September 2011
• Docket Number: No. AP–76176.,AP–76176.
• Citation: 353 S.W.3d 826
• Parties: Michael Dean GONZALES, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

353 S.W.3d 826

Michael Dean GONZALES, Appellant,

v.The STATE of Texas.

No. AP–76176.

Court of Criminal Appeals of Texas.

Sept. 28, 2011.

David P. Zavoda, Odessa, for Appellant.

Wesley H. Mau, Asst. A.G./Ector County Da Pro Tempore, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, PRICE, KEASLER, COCHRAN and ALCALA, JJ., joined.

Appellant was convicted in December 1995 of capital murder. Tex. Penal Code § 19.03(a)(2). Based on the jury's answers to the special issues set forth in the Texas Code of Criminal Procedure, Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced Appellant to death. Art. 37.071, § 2(g).¹ His conviction and sentence were affirmed on direct appeal. Gonzales v. State, No. AP–72,317 (Tex.Crim.App. June 3, 1998) (not designated for publication). Appellant's state application for habeas corpus relief was denied. Ex parte Gonzales, No. WR–40,541–01 (Tex.Crim.App. March 10, 1999) (not designated for publication). Appellant's federal petition for habeas corpus relief was denied as to his conviction but granted as to punishment, and the case was remanded for a new punishment hearing. Gonzales v. Cockrell, No. MO–99–CA–073 (W.D.Tex. December 19, 2002) (not designated for publication). The United States Court of Appeals for the Fifth Circuit affirmed the federal district court's judgment. Gonzales v. Quarterman, 458 F.3d 384 (5th Cir.2006) (not designated for publication).

The trial court held a new punishment hearing in May 2009. Based on the jury's answers to the special issues, the trial judge sentenced Appellant to death. Art. 37.071, § 2(g). Direct appeal to this Court is automatic. Art. 37.071, § 2(h). After reviewing Appellant's five points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment.

I. JURISDICTION

In point of error one, Appellant claims that the trial court lacked jurisdiction to hold a new punishment hearing. He argues that the trial court lost jurisdiction over the case when it filed the record with the appellate court after his conviction and sentence, and thus, it lacked jurisdiction to hold a new punishment hearing unless jurisdiction was returned to it by the federal district court's order granting habeas corpus relief as to punishment. He reasons that, because the clerk's record does not demonstrate that this order was received by the trial court, the trial court never obtained jurisdiction to hold the instant punishment hearing.

Appellant cites no authority directly on point for his position that the trial court lacked jurisdiction to commence a new punishment hearing unless the federal court's order was transmitted to the trial court. He analogizes the federal district court's order to an appellate court's mandate, which he contends must be received by the trial court before that court can assume jurisdiction over the case. See Tex.R.App. P. 25.2(g); ² Green v. State, 906 S.W.2d 937, 939–40 (Tex.Crim.App.1995). More specifically, Appellant relies on Drew v. State, 765 S.W.2d 533 (Tex.App.-Austin 1989), pet. dism'd as improvidently granted, 805 S.W.2d 451 (Tex.Crim.App.1991), in which the court of appeals emphasized that, once the case is appealed, the trial court's jurisdiction is lost until it receives a mandate from the appellate court. However, Appellant's reliance on that case is misplaced. First, Drew occurred in the context of an appeal in the state courts, not writ applications in federal court. Drew, 765 S.W.2d at 534–35. In a federal writ application, such as that here, the case is not filed with the state court, nor is the state court a party to the suit; a separate action is filed in federal court, and the respondent is the “person having custody of the person detained.” 28 U.S.C. § 2243. Second, Drew discusses what a trial court may do while the appeal is pending, and in this case, there was no appeal pending when the trial court held a sentencing hearing. Third, in Drew, the State, before mandate had been issued on the previous indictment, obtained a new indictment for the same attempted capital murder charge upon which the defendant was tried and convicted. Drew, 765 S.W.2d at 534–35. Here, there was no new indictment; all of the proceedings were based upon the same indictment.

The federal district court's judgment, as affirmed by the Fifth Circuit, remanded the case for a new punishment hearing. Appellant concedes that the federal district court granted the writ as to “all sentencing issues” and remanded the cause to the “358th District Court in Odessa, Ector County, Texas.” Appellant also included a copy of the Fifth Circuit Court of Appeals's Judgment in the federal writ case, which affirmed the judgment of the District Court and explicitly stated, “ISSUED AS MANDATE: AUG 30, 2006.” ³ Article 44.29(c) provides, in relevant part,

If any court sets aside or invalidates the sentence of a defendant convicted of an offense under Section 19.03, Penal Code, and sentenced to death on the basis of any error affecting punishment only, the court shall not set the conviction aside but rather shall commence a new punishment hearing under Article 37.071 or Article 37.0711 of this code, as appropriate, as if a finding of guilt had been returned.This statutory provision makes no mention of the transmittal or receipt of a court order. The mandate for the court to commence a new punishment hearing is not conditioned on such receipt, and we do not read that condition into the statute today. So long as the federal district court's order set aside or invalidated the death sentence, then the trial court's action was authorized.

Appellant does not dispute that the order set aside or invalidated the sentence. Consequently, the trial court's jurisdiction was restored as to the issue of punishment, and the trial court had no choice but to conduct a trial on punishment—it was required to commence a new punishment hearing “as if a finding of guilt had been returned.” Art. 44.29(c).

Appellant argues in the alternative that the federal district court's order did not confer jurisdiction to hold a new punishment hearing because the order “is void on its face.” Appellant asserts only that the federal district court did not have the power to grant a new sentencing hearing. Appellant is apparently complaining about the language used in the order commanding the trial court to hold a new sentencing hearing.

Appellant cites to Moore v. Johnson, 194 F.3d 586, 622 (5th Cir.1999), for its holding that when federal habeas relief in a capital case is limited to punishment, the proper course is to permit the state court a reasonable time in which to decide whether to hold a new trial limited to punishment or to vacate the death sentence and impose a life sentence. Similar to Moore, Appellant's case was appealed to the United States Court of Appeals for the Fifth Circuit after Appellant obtained habeas corpus relief limited to punishment in the district court. See id. However, unlike in Moore, the parties in this case did not complain about the language of the federal district court's order in the appeal to the Fifth Circuit. See id. Appellant also failed to call this alleged error to the attention of the trial court. In any event, this assertion fails to demonstrate that the order is void.⁴ As discussed above, so long as the federal district court's order set aside or invalidated the sentence, Article 44.29(c) authorized the trial court's action. Point of error one is overruled.

II. CHALLENGES FOR CAUSE

In points of error two and three, Appellant claims that the trial court erred when it denied his challenges for cause to venirepersons Sarah Murdock and Randall Phillips.

The issue is whether the trial court's rulings on Appellant's challenges for cause harmed Appellant by effectively depriving him of one of his statutorily allotted peremptory challenges. See Newbury v. State, 135 S.W.3d 22, 30–31 (Tex.Crim.App.2004); Johnson v. State, 43 S.W.3d 1, 6 (Tex.Crim.App.2001). Harm from the erroneous denial of a defense challenge for cause focuses on whether a peremptory challenge “was wrongfully taken from” the defendant. Johnson, 43 S.W.3d at 6. Such harm occurs “(1) when a defendant exercises a peremptory challenge on a veniremember whom the trial court should have excused for cause at the defendant's request, (2) the defendant uses all of his statutorily allotted peremptory challenges, and (3) the defendant unsuccessfully requests an additional peremptory challenge which he claims he would use on another veniremember whom the defendant identifies as ‘objectionable’ and who sits on the jury.” Newbury, 135 S.W.3d at 31. When these conditions are met, we have stated that the trial court's erroneous denial of a defense challenge for cause harms the defendant by effectively depriving him of one of his statutory peremptory challenges because “he had to use a peremptory challenge to remove a veniremember who should have been removed for cause.” Id.

When a defendant has been granted one additional peremptory challenge, then he could not have been effectively deprived of a statutorily allotted peremptory challenge from the trial court's erroneous denial of only one defense challenge for cause. Id. Under these circumstances, the defendant must show that the trial court erroneously denied his challenges for cause to two veniremembers to demonstrate harm. Id.

The record reveals that after his challenges for cause were denied, Appellant used peremptory strikes to exclude Murdock and Phillips. He exhausted all of his peremptory strikes and was granted one additional strike. After using the additional strike, Appellant requested additional peremptory strikes against venirepersons he identified as objectionable. His requests were denied, and those venirepersons were seated on the jury. Still, because the trial court granted one additional strike, Appell...