Lawton v. State

• Decision Date: 06 December 1995
• Docket Number: No. 71759,71759
• Parties: Stacey Lamont LAWTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 542

913 S.W.2d 542

Stacey Lamont LAWTON, Appellant, v. The STATE of Texas, Appellee.

No. 71759.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 6, 1995.

Rehearing Overruled Jan. 17, 1996.

Donald Killingworth, Tyler, Brent Newton, Houston, for appellant.

Matthew W. Paul, Asst. State's Attorney, Austin, Edward J. Marty, Asst. Dist. Atty., Tyler, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MEYERS, Judge.

In July 1993, appellant was tried and convicted of capital murder under Texas Penal Code § 19.03(a)(2). The offense, murder in the course of robbery/burglary, was committed on December 24, 1992. The jury affirmatively answered the special issue submitted under Article 37.071 § 2(b)(1). ¹ Appellant was sentenced to death as mandated by Article 37.071 § 2(g). Article 37.071 § 2(h) provides direct appeal to this court. Appellant raises twenty-eight points of error. We affirm.

A brief review of the facts will be useful in considering the issues raised. Reviewed in the light most favorable to the verdict, the evidence established the following: On the night of December 23, and early morning of December 24, 1992, appellant, Karlos Fields, and Carlos Black conspired to and did burglarize several vehicles in Smith County. Using a stolen shotgun, appellant stood guard while his coconspirators burglarized the vehicles. Witnesses testified that appellant would stand at a distance from the vehicles being burglarized, pointing the shotgun at the windows and doors of the houses near which the vehicles were parked. Appellant had informed his coconspirators that he would "bust on" (shoot) anyone who might attempt to interfere in the burglary spree. In the pre-dawn hours of Christmas Eve, the victim was awakened by his daughter, who informed him that his truck was being burglarized. The victim ran out into his front yard and was there gunned down by appellant; he died shortly thereafter of the injuries sustained. Appellant and his coconspirators were apprehended after a high-speed car chase.

In points of error one and two appellant charges the trial court reversibly erred in conducting a voir dire examination and a pre-trial hearing in his absence in violation of Articles 33.03 and 28.01, respectively. The same incident gives rise to both of appellant's allegations.

According to the record, after the morning voir dire on June 18, 1993, the trial judge, Judge Kent, recessed the proceedings but asked to speak with counsel for both sides in her chambers. The court reporter was present for the in camera discussion, but appellant was excluded. The court apprised the parties that veniremember Jackson had informed the bailiff that on the preceding night, she had received a collect telephone call from the Smith County jail. The caller had asked to speak with Jackson by her first name and had identified himself as "Stacey." Judge Kent informed the parties that for appellant's own protection and that of the venire, she intended to order that a record be kept of telephone calls placed by appellant. Neither party objected.

Expressing "concern," the State then asked how the telephone calls impacted upon Jackson and the voir dire proceedings. The Defense echoed the State's "concern." Judge Kent responded that she would not dismiss Jackson without evidence that the incident had prejudiced her. The State offered to agree to excuse Jackson, but Judge Kent resisted this offer on grounds that it would create an incentive for defendants to call veniremembers they wanted excused from jury duty. Expressing concern that Jackson was prejudiced, Defense counsel offered to use a peremptory challenge to remove Jackson. The State again suggested that both parties agree to dismiss the veniremember to avoid having to examine her in open court. Judge Kent consented to the agreed excusal of Jackson, but insisted that she be brought into chambers and herself recount the incident for the record. Agreeing to this, the Defense stated that under the circumstances, they felt the unusual resolution was necessary to "maintain the integrity of the jury system." Defense counsel added that this course of action was better than losing a peremptory challenge. Jackson was then called into the judge's chambers and asked to relate the incident for the record. She reported the facts of the incident and added that she did not know anyone named Stacey or anyone in jail. Both parties declined to question Jackson. Jackson was thanked and dismissed from jury duty. Immediately following Jackson's testimony, the parties returned to the court room. Judge Kent asked if either party wished to make a statement for the record. Defense counsel responded that he wished the record to reflect that they had discussed the matter with appellant, that appellant denied placing the telephone call, and that appellant was highly agreeable to the resolution of the matter and agreed that the excusal of Jackson was the best way to protect his interest in the integrity of the trial.

Under Article 33.03 a defendant must be present during all voir dire proceedings. Adanandus v. State, 866 S.W.2d 210, 216-220 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994). But, we do not believe that the in camera proceedings of which appellant complains present voir dire proceedings within the meaning of Article 33.03. The in camera meeting lacked the traditional adversarial elements of a voir dire proceeding. Jackson was not instructed or examined in the traditional sense of a voir dire examination; neither party desired to question her. She was dismissed upon the suggestion, agreement, and by request of both parties without challenge for cause or peremptory challenge. Both parties and the trial court stated that their purpose in the dismissal was to protect the integrity of the trial proceedings. Compare Adanandus, 866 S.W.2d at 217 (a full day of voir dire proceedings were conducted during which eight veniremembers were examined by both parties and three were dismissed for cause by defense, and five were kept as potential jurors.) Under these facts appellant's reliance on Article 33.03 and Adanandus is misplaced. Article 33.03 neither purports to govern nor was intended to govern the peculiar situation which arose in this case.

Similarly, we are convinced that the in camera meeting cannot be accurately described as a pre-trial proceeding within the meaning of Article 28.01, which mandates appellant's presence at all pretrial proceedings. In Riggall v. State, 590 S.W.2d 460, 461 (Tex.Crim.App.1979), an order overruling Riggall's motion to dismiss stated that the motion had been heard on a specified day, and recited findings of fact and conclusions of law. We held that the entry of an order, along with the recitations indicating that there had been some adversarial hearing on the matter from which the court made conclusions of fact and law, constituted a proceeding under Article 28.01. ² Id. By contrast, in Malcom v. State, 628 S.W.2d 790, 792 (Tex.Crim.App.1982), we held that because the record was devoid of any evidence that some type of adversarial hearing was held which led to findings-of-fact and conclusions-of-law supporting the granting or overruling of a pleading, it contained no evidence of a proceeding within the meaning of Article 28.01. Malcom's motion had been overruled by a mere notation on the docket sheet. Id. at 792.

Again, we note that the situation confronting the parties in this case was most unusual. Realizing that she needed to protect appellant's, the State's, and the venire's interests, Judge Kent called an in camera meeting to apprise the parties of the incident and to develop a strategy to deal with the problem of the telephone call without conducting a public trial-within-a-trial or otherwise creating a public scandal which would jeopardize the integrity of the trial. The parties themselves raised the issue of what to do about Jackson, and they, not the court, suggested the best resolution of the issue was an agreement to excuse her. While initially showing some misgiving about this solution, Judge Kent ultimately consented to dismiss Jackson. When informed of this resolution of the problem, appellant consented in open court. ³ As with Article 33.03, we are convinced that the in camera meeting, during which Jackson's dismissal was suggested by and agreed to by the two parties, was not a proceeding under the governance of Article 28.01. The resolution of the Jackson issue was the result of negotiation not of an adversarial proceeding. The resolution was one to which the trial court consented, not one which it ordered. Thus, the proceeding of which appellant complains was not within the scope of Article 28.01. ⁴ Appellant's first and second points of error are overruled.

In points three, four, and five, appellant alleges and argues together various grounds for reversal each of which is premised on his assertion that murder committed in the course of burglary of a vehicle is not a capital offense. Tex.Penal Code §§ 19.03(a)(2) and 30.04. ⁵ Assuming for argument's sake that appellant is correct and that capital murder as defined in section 19.03(a)(2) excludes burglary of a vehicle, upon careful review of the entire record, we find that appellant presents no reversible error. The alleged errors are ultimately harmless because the jury also unanimously convicted appellant of capital murder in the course of robbery.

The verdict form, in three separate paragraphs, allowed the jury to find appellant guilty of capital murder in the course of robbery and burglary of a vehicle, or of capital murder in the course of robbery, or of capital murder in the course of burglary of a vehicle. It was under the first paragraph that the jury found appellant guilty, stating:

WE, THE JURY, find the Defendant, STACEY LAMONT LAWTON, GUILTY, of Capital Murder, that is murder committed in the course of...