Kemp v. State

• Decision Date: 16 September 1992
• Docket Number: No. 70403,70403
• Citation: Kemp v. State, 846 S.W.2d 289 (Tex. Crim. App. 1992)
• Parties: Emanuel KEMP, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 289

846 S.W.2d 289

Emanuel KEMP, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 70403.

Court of Criminal Appeals of Texas En Banc.

Sept. 16, 1992.

Rehearing Denied Dec. 9, 1992.

John C. Beatty, Allan K. Butcher, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, J. Rex Bennett, Gary Medlin and Bob Gill, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for State.

Before the Court en banc.

OPINION

CAMPBELL, Judge.

Appellant, Emanuel Kemp, Jr., was convicted of capital murder. Tex.Penal Code § 19.03(a)(2). At the punishment phase of appellant's trial, the jury answered affirmatively the special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure. ¹ The trial judge then sentenced appellant to death as required by Article 37.071(e). Direct appeal to this court is automatic. Tex.Code Crim.Proc. art. 37.071(h).

Appellant raises twenty-one points of error. Eleven of appellant's points complain of error in the voir dire process. Appellant specifically challenges: (1) the sua sponte excusal of a "disqualified" (i.e., challengeable) venireperson; (2) the sua sponte excusal of a venireperson after his acceptance by both sides and swearing in; (3) the refusal to excuse for cause a venireperson who was racially biased against appellant; (4) the refusal to excuse for cause a venireperson incapable of considering the full range of punishment; (5) the granting of the State's challenge for cause of two venirepersons whose views on the death penalty did not disqualify them; (6) the refusal to excuse for cause a venireperson who would require a diminished burden of proof before assessing death; (7) the granting of the State's challenge for cause of a venireperson for the alleged inability to distinguish between "intentionally" and "deliberately"; (8) the refusal to excuse for cause two venirepersons who had already reached conclusions about one element of the offense, thereby diminishing the State's burden of proof; and (9) the refusal to excuse for cause a venireperson who stated she had a bias against appellant. Appellant also alleges Batson error during the voir dire process.

Appellant asserts various error during his trial, as follows: (1) Judge Don Leonard violated the Code of Judicial Conduct by failing to recuse himself on the basis that he was the judge who initially signed appellant's search and arrest warrants; (2) Judge Joe Drago erred by failing to recuse Judge Leonard, in that Judge Leonard was biased against appellant; (3) the trial judge erred in admitting two extraneous offenses because the State never "linked" appellant thereto; and (4) the trial judge erred by refusing to grant a mistrial after one of the State's witnesses violated a motion in limine by referring to appellant's prior felony conviction.

Appellant's remaining points of error challenge the constitutionality of the capital punishment statute. He specifically argues that: (1) the second special punishment issue is unconstitutionally vague and decreases the State's burden of proof to only "probable"; and (2) appellant's sentence was unconstitutional under Penry v. Lynaugh. We will affirm.

Appellant was convicted of the intentional murder of Johnnie Gray, committed during the course of aggravated sexual assault against Ms. Gray. Because appellant does not challenge the sufficiency of the evidence, either at guilt-innocence or at punishment, no further explication of the facts is necessary.

VOIR DIRE ERROR

In point of error two, appellant alleges that: "The Court erred in its sua sponte excusal of a disqualified [i.e., challengeable] venireman, Dorothy Williams." The record indicates that when venireperson Williams was called for individual voir dire, she asked to make a statement to the trial court. At that time, the venireperson testified that she cared for six emotionally disturbed foster children, who required medication and round-the-clock supervision. Over defense counsel's objection, the trial judge excused the venireperson on the ground that, although otherwise qualified, the circumstances indicated that jury service would cause an undue hardship for her.

Appellant argues that the trial judge's actions constituted the improper sua sponte exclusion of a disqualified venireperson (i.e., one challengeable for cause), which constitutes error under Green v. State, 764 S.W.2d 242, 246 (Tex.Cr.App.1989) and Nichols v. State, 754 S.W.2d 185 (Tex.Cr.App.1988). Appellant claims that the trial judge excused venireperson Williams for cause, under Tex.Crim.Proc.Code art. 35.16, based on the nonenumerated ground that she was incapable or unfit for service. See Nichols, supra at 193-194.

The State characterizes the actions of the trial judge as falling within the discretionary authority afforded him under Tex.Crim.Proc.Code art. 35.03, which provides in relevant part:

(1) Except as provided by Sections 2 and 3 of this article, the court shall then hear and determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror's service to a date specified by the court.

The State asserts that the venireperson was not dismissed for incapacity or unfitness under Article 35.16; rather, she was excused because service would pose an onerous burden on her. Consequently, argues the State, under this Court's decision in Harris v. State, 784 S.W.2d 5, 19 (Tex.Cr.App.1989), the trial court's sua sponte excusal of venireperson Williams, pursuant to Article 35.03, was not error, absent a clear abuse of discretion. See also, Johnson v. State, 773 S.W.2d 322 (Tex.Cr.App.1989).

In our recent decision in Butler v. State, 830 S.W.2d 125 (Tex.Cr.App.1992), we held that, pursuant to Article 35.03, a trial judge has broad discretion in excusing prospective jurors on any proper basis, either with or without the prompting of counsel. Regarding the excusal of venireperson Williams, the record clearly indicates that the trial judge was relying on his inherent authority under Article 35.03, and not on Article 35.16. ² Because the trial judge's decision to excuse venireperson Williams for personal hardship was an appropriate exercise of his discretionary authority under Article 35.03, we hold that he did not abuse his discretion in excusing Williams. Appellant's point of error two is overruled.

In point of error number three, appellant asserts: "The trial court erred in excusing sua sponte venireman Gale Keith Maenius after he had been accepted by both sides and sworn as a juror." The record reveals that on March 31, 1988, venireperson Maenius was brought in for individual voir dire. After a few admonitory remarks, the trial judge asked the venireperson if his jury service and sequestration would cause him "any unusual or unique problems." The venireperson answered in the negative. After being questioned at length by both the defense and State, the venireperson was accepted by both sides. He was then sworn as a juror by the trial court.

Some two weeks later, on April 11, 1988, the trial judge advised both sides of "the possible inability of Juror No. 6 to serve, Mr. Maenius." Later that day a hearing was conducted, at which juror Maenius testified that the previous week his wife was scheduled to have a biopsy done on April 21, 1988. The juror stated that if the biopsy was malignant, his wife would then undergo further surgery and radiation treatment. He also testified that during the time of his wife's incapacitation, he would have to care for their eleven- and twelve-year-old children, as they had no family in the geographic area. Juror Maenius further testified that his ability to be a fair juror would be impaired if he were required to serve prior to his wife's surgery, but that he could be fair if the trial were to commence after the surgery. After hearing this testimony, the trial judge stated he would take Mr. Maenius' request to be excused under advisement.

Four days later, on April 15, 1988, the trial judge indicated that he was going to excuse the juror because of the exigent circumstances:

[L]ooking at the calendar, it appears that about the time we will have this jury is about the time his wife will have exploratory surgery and a biopsy. And I feel like that to continue carrying him as a juror in that case, with that sort of problem on he and his wife and the small children, that I am going to prevent the interruption of this trial and for the good order of justice to discharge G.K. Maenius, Juror No. 6.

Appellant objected to the juror's dismissal and requested a mistrial. The trial court denied this request; however, "in an abundance of caution," the trial court awarded appellant three additional peremptory strikes.

Relying on Nichols v. State, 754 S.W.2d 185 (Tex.Cr.App.1988), appellant argues that the trial court erred in sua sponte excusing a disqualified juror under Tex.Crim.Proc.Code art. 35.16. Specifically, appellant asserts that: "The parties--and not a trial judge--have exclusive power to cause the exclusion of a "disqualified" but seated and sworn juror and action by a trial court that usurps this authority is error." The State counters by asserting that the trial judge's excusal of this venireperson was proper under Tex.Crim.Proc.Code art. 35.03.

Upon close examination, it is clear from the record that the trial judge based his decision to excuse juror Maenius on the discretionary authority inherent in Article 35.03--not pursuant to Article 35.16. ³ As stated in our disposition of appellant's preceding point of error, the trial court has great latitude in granting excusals of prospective jurors under Article 35.03. See Butler v. State, supra. Given the fact that the commencement of appellant's trial was at hand and juror Maenius was apparently plagued with personal problems so exigent as to potentially inhibit his ability to concentrate on the trial, we hold that...