Hankins v. State
| Decision Date | 21 April 2004 |
| Docket Number | No. 74369.,74369. |
| Citation | 132 S.W.3d 380 |
| Parties | Terry Lee HANKINS, Appellant v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted in May 2002 of capital murder. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises five points of error with numerous subpoints. We affirm.
In point of error one, appellant complains that the trial court erred by improperly restricting voir dire on the topics enumerated in appellant's offer of proof. During voir dire, after the questioning of venireperson Audrey Marie Lawrence and before she was selected as a juror, appellant made the following offer of proof regarding additional matters he sought to raise with Lawrence:
[Defense counsel]: Judge, before you inquire about our status on this venireperson, if you allowed me, I would call Ms. Lawrence back in and I would first ask her would or could you consider and follow the following definition of reasonable doubt and I would incorporate the reasonable doubt definition that was included in my motion on that very topic, pretrial. I would ask her that question.
Two, I would ask her could you consider and give full deliberation to the parole board requirements for release on parole. And I would ask that question in the context of reading her this passage as far as determination of parole eligibility. The law says that to parole an inmate that's been convicted of a capital felony, all members of the board must vote on the release on parole of the inmate and at least two-thirds of the members must vote in favor of the release on parole. Then the member of the board may not vote for release unless the member first receives a copy of a written report on the probability that the inmate would commit an offense after being released on parole.
I would next ask her, Judge, could she consider that information in deliberating and answering the mitigation issue.
Fourth, I would ask Ms. Lawrence could you follow the following instruction if you had answered the future dangerousness in the issue [sic] in the affirmative and were then ready to consider the special mitigation issue. And I would voir dire on this proposed instruction or theory. You are instructed to disregard any finding you make beyond a reasonable doubt against the mitigation issue related to future dangerousness. In considering the special mitigation issue, you may not consider any negative finding previously made on the issue of mitigation.
Five, I would voir dire on the special mitigation issue with the beyond a reasonable doubt instruction applied to it, Judge. And the language would read, do you find beyond a reasonable doubt, inserting the language of the special mitigation issue, that there is no or there are none, sufficient circumstances, et cetera, to justify imposition of a life sentence.
Appellant objected on the basis of the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, and the due course of law and due process provisions of the Texas Constitution. Lawrence was selected for the jury. Appellant sought to raise these issues with six additional venirepersons who were also selected.2 We will separately address each of the issues on which appellant sought to question the seven prospective jurors.
A trial court has broad discretion over the voir dire process. Sells v. State, 121 S.W.3d 748, 755-56 (Tex.Crim.App. 2003). Without allowing a trial court the discretion to impose reasonable limits, voir dire could go on indefinitely. Thus, we leave to the trial court's discretion the propriety of a particular question and will not disturb the trial court's decision absent an abuse of discretion. Id.
Reasonable doubt instruction
Appellant sought to ask the venirepersons whether they could "consider and follow" the definition of reasonable doubt mandated in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991). But the Geesa instruction was disapproved in Paulson v. State, 28 S.W.3d 570, 573-74 (Tex.Crim. App.2000). There, after concluding that the Geesa instruction was redundant and confusing and was not constitutionally or statutorily required, we overruled the portion of the Geesa opinion requiring the instruction, and stated that "the better practice is to give no definition of reasonable doubt at all to the jury." Id. at 573. Because the Geesa instruction is no longer required, the trial court did not abuse its discretion in refusing appellant's request to ask the venireperons whether they could consider and follow it.
Parole board consideration
Appellant wanted to inform the prospective jurors that two-thirds of the members of the parole board must vote in favor of releasing an inmate on parole, after first receiving a copy of a report on the probability that the inmate would commit another offense upon release. Tex. Gov't Code § 508.046. Appellant then sought to ask the prospective jurors whether they could "consider and give full deliberation to the parole board requirements for release." Appellant argues that the recent legislative changes now allow the jury to be informed that a capital-murder inmate is not eligible for parole until he has served forty calendar years, which opens the door for full consideration by the jury of any procedures relating to parole and the parole board. Art. 37.071 § 2(e)(2)(B). Appellant argues that without full information regarding the parole process, "a juror lacks the basis to make a meaningful decision on whether life without parole is a suitable punishment."3
This Court has historically held that parole is not a proper matter for jury consideration and therefore the trial court does not abuse its discretion by refusing to allow voir dire inquiries regarding parole. Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim.App.2002); Wright v. State, 28 S.W.3d 526, 537 (Tex.Crim.App.2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001). Effective September 1, 1999, Article 37.071 was amended to provide that a jury may now be instructed on a capital defendant's eligibility for parole, as follows:
Under the law applicable in this case, if the defendant is sentenced to imprisonment in the institutional division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without consideration of any good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted.
Art. 37.071 § 2(e)(2)(B). However, this provision is narrowly drawn and does not render every aspect of parole law an issue for jury consideration. The provision expressly discourages speculation on the parole process by providing that application of the parole laws cannot be accurately predicted "because the application of those laws will depend on decisions made by prison and parole authorities." Id. The legislature could have written the 1999 amendments more broadly to impart more information but chose not to. Accordingly, precedent maintaining that parole is not a proper issue for jury consideration remains in effect except to the extent explicitly provided for in Article 37.071 § 2(e)(2)(B).
Parole board information as mitigating factor
At trial, appellant sought to question the prospective jurors about whether they could "consider [the parole board release] information in deliberating and answering the mitigation issue." Because appellant does not provide any argument or authority in support of this contention, it is inadequately briefed. Tex.R.App. P. 38.1.
Instruction to disregard affirmative finding on future-dangerousness issue
Appellant sought to ask the venirepersons whether they could adhere to the following instruction if they answered the future-dangerousness question in the affirmative: Appellant argues that consideration of all evidence that mitigates either for or against imposition of the death penalty is at odds with an affirmative finding on the future-dangerousness issue, thereby calling for the requested instruction to disregard the future-dangerousness finding.
The future-dangerousness issue asks the jury to consider all the evidence and determine whether there are certain aggravating factors beyond a reasonable doubt. Although consideration of aggravating circumstances in deliberating on the mitigation issue is permitted, it is not required. Mosley v. State, 983 S.W.2d 249, 263 n. 18 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Even when aggravating circumstances are considered in the context of the mitigation issue, the fact finder's purpose differs when considering those same circumstances on the question of future dangerousness. In the context of future dangerousness, aggravating circumstances are considered in determining whether to "impose" the death penalty; in the context of the...
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