Lewis v. State

• Decision Date: 15 May 1991
• Docket Number: No. 69854,69854
• Citation: 815 S.W.2d 560
• Parties: Andre Anthony LEWIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 560

815 S.W.2d 560

Andre Anthony LEWIS, Appellant, v. The STATE of Texas, Appellee.

No. 69854.

Court of Criminal Appeals of Texas En Banc.

May 15, 1991.

Rehearing Denied Sept. 18, 1991.

R.K. Weaver, Richard Alan Anderson (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty., and Jeffrey B. Keck, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BENAVIDES, Judge.

Appellant, Andre Anthony Lewis, robbed a convenience store in Carrollton, Texas. During the robbery Matt McKay, the victim came into the store. Appellant instructed Mr. McKay to lie on the floor. Mr. McKay did not respond. Appellant shot and killed him. For this offense he was convicted of capital murder. See Penal Code, § 19.03(a)(2). The jury answered the special punishment issues affirmatively, and the trial judge sentenced him to death. Art. 37.071(b), V.A.C.C.P. His appeal to this Court is automatic. See Art. 37.071(h), V.A.C.C.P.; Tex.R.App.Proc., rule 40(b)(1).

I.

In his first point of error, appellant claims the trial judge erred in abstractly instructing the jury over his objection regarding the theory of "transferred intent" which appears at V.T.C.A., Penal Code § 6.04(b)(1). He maintains that such theory is not available in a prosecution for Capital Murder because it authorizes conviction without requiring the jury specifically to find an intentional killing. This, he contends, is contrary to the express language of V.T.C.A., Penal Code § 19.03(a) (2).

We need not decide, however, whether § 6.04(b)(1) applies to prosecutions for Capital Murder as the jury in this cause was not authorized to convict appellant under it. The instant cause is one in which the court's application of the law to the facts necessarily limited its abstract instruction on the law of "transferred intent" so as to require a finding of all and only those elements necessary for a conviction before a guilty verdict might be returned. Here, the general statement that persons are culpable for the unintended consequences of their felonious acts, when read together with the application paragraph for Capital Murder, does not purport to authorize a conviction under any circumstances absent a finding that appellant specifically intended to kill the deceased. See Nickerson v. State, 782 S.W.2d 887 (Tex.Cr.App.1990); Garrett v. State, 749 S.W.2d 784, 801 (Tex.Cr.App.1986, 1988) (opinions on original submission & rehearing).

In a closely analogous situation, a panel of this Court held that an abstract instruction on the law of "parties," without specific application to the facts of the case, did not authorize the jury to impose criminal responsibility for the conduct of another. Accordingly, the panel held that overruling an appellant's objection to submission of the abstract instruction was not error. Mauldin v. State, 628 S.W.2d 793, 796 (Tex.Cr.App.1982) (panel opinion). In light of our subsequent opinions in Garrett and Nickerson, the same rationale applies to the imposition of criminal responsibility for the unintended consequences of intentional, felonious conduct.

Appellant's first point of error is overruled.

II.

In points of error two and three, appellant urges that we declare Art. 37.071(b)(1) and (b)(2) of the Code of Criminal Procedure unconstitutional for failure to define the terms "deliberately" and "probability." He suggests that, without more restrictive definitions, these terms are "vague and overbroad."

This Court has had occasion to address contentions such as these before and, in each instance, has held that the words in question are not so complex or technical that their common meanings would be incomprehensible to ordinary speakers of the English language. In context of the statutory punishment issues prescribed for cases of Capital Murder, we remain convinced that these terms are not so vague that persons of ordinary understanding must necessarily guess at their meaning. See Smith v. State, 683 S.W.2d 393, 410-411 (Tex.Cr.App.1984); Barefoot v. State, 596 S.W.2d 875, 888 (Tex.Cr.App.1980); Granviel v. State, 552 S.W.2d 107, 117 (Tex.Cr.App.1976); Collins v. State, 548 S.W.2d 368, 374 (Tex.Cr.App.1976).

Points of error two and three are overruled.

III.

Appellant's fourth and fifth points of error allege that the trial judge should have defined the words "deliberately" and "probability" in his charge to the jury. We have consistently rejected such claims for the past 13 years, and decline to reconsider our settled precedents in the instant cause. Tucker v. State, 771 S.W.2d 523, 536-537 (Tex.Cr.App.1988) ("deliberately"); Fearance v. State, 771 S.W.2d 486, 512-513 (Tex.Cr.App.1988) ("deliberately"); Rector v. State, 738 S.W.2d 235, 244 (Tex.Cr.App.1986) ("deliberately"); Cannon v. State, 691 S.W.2d 664, 677-678 (Tex.Cr.App.1985) ("deliberately"); Morin v. State, 682 S.W.2d 265, 270 (Tex.Cr.App.1983) ("deliberately"); Wicker v. State, 667 S.W.2d 137, 143 (Tex.Cr.App.1984) ("probability"); Russell v. State, 665 S.W.2d 771, 779-780 (Tex.Cr.App.1983) ("deliberately"); Barefoot v. State, 596 S.W.2d 875, 887 (Tex.Cr.App.1980) ("probability"); King v. State, 553 S.W.2d 105, 107 (Tex.Cr.App.1977) ("probability" & "deliberately").

Points of error four and five are overruled.

IV.

The trial jury in this cause was selected from a panel drawn in imperfect compliance with a plan adopted by the Dallas County Commissioners Court. Appellant's sixth point of error complains of the imperfections.

Among other things, the Dallas County Jury Selection Plan provides that jury venires be assembled from certified voter registration lists. It appears that the lists used to select the venire from which appellant's jury was chosen were not certified. Other procedural irregularities of this kind were also established by the testimony at trial.

"Noncompliance with the mode and manner of service or summoning the venire constitutes error only when injury has been shown." Miers v. State, 157 Tex.Cr.R. 572, 251 S.W.2d 404, 409 (1952). Accordingly, we hold that a successful challenge to a criminal conviction based upon noncompliance with jury selection procedures set out in V.T.C.A., Government Code §§ 62.001 et seq., or in a local government plan adopted pursuant thereto, requires the defendant to establish that such noncompliance compromised the fairness of his trial. Because there is nothing in the record to suggest, nor does appellant contend, that he was prejudiced by the administrative shortcomings here alleged, his sixth point of error is overruled.

V.

Appellant next complains that five black veniremembers in this case were struck by the prosecuting attorney because they were of the same race as he. When a black defendant is convicted by a jury from which black persons have been deliberately excluded on account of their race, then such conviction is unconstitutional. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). If he can make a prima facie case of purposeful discrimination, the State must then offer racially neutral explanations for all peremptory challenges exercised against members of his race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See also Art. 35.261, V.A.C.C.P. When neutral explanations are offered it then becomes the defendant's burden to persuade the court that such challenges were racially motivated in fact. Williams v. State, 804 S.W.2d 95, 97 (Tex.Cr.App.1991).

Here, the prosecutor articulated reasons for his exclusion of each black veniremember in question. These reasons were invariably based upon factors other than race. Accordingly, proof of racially motivated strikes in violation of the Fourteenth Amendment fell ultimately to appellant.

The record discloses that five of eleven peremptory challenges actually exercised by the State were against black veniremembers, but we do not know what proportion of the jury panel was black. Consequently, it is not possible on the record before us to determine whether the State struck black veniremembers at a disproportionately high rate. We do know that one black person actually served as a juror in this cause and that the State did not use all of its peremptory strikes. A black member of the panel was selected before any black venireman was struck.

The State's racially neutral explanations for its peremptory elimination of the five black veniremembers were all plausible; none seem patently contrived or artificial. In many cases, it appears that the prosecutors simply elected to use peremptory challenges on prospective jurors whose views nearly rendered them ineligible for cause and who were in fact challenged for cause, or examined on their views of the trial court. Certainly, the trial court's reliance or ruling based on the explanations made by the prosecutor cannot be viewed as clearly erroneous. Cf. Whitsey v. State, 796 S.W.2d 707 (Tex.Cr.App.1990).

Appellant, for his part, made no attempt to cross examine the prosecuting attorneys, nor did he offer any evidence of his own. Rather than attack the reasonable explanations by the prosecutor it perhaps because they could not be attacked, it appears that he regarded the burden of proof as residing entirely with the State, and so was content to argue that the lack of a racial motivation had not been adequately proven. In this belief he was, of course, mistaken. Because the State offered neutral explanations, the burden to show racial bias was on appellant. It was his responsibility to persuade the trial judge of an impermissible motive on the part of the prosecutors. Williams, 804 S.W.2d at 97.

While appellant's brief does direct our attention to portions of the voir dire which may support argument which undermines the prosecutor's explanations, we do not find such evidence or argument so persuasive that a contrary opinion would be unreasonable. Accordingly,...