Lewis v. State
Decision Date | 25 October 1995 |
Docket Number | No. 71718,71718 |
Citation | 911 S.W.2d 1 |
Parties | David Lee LEWIS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Appellant pled guilty to the offense of capital murder for intentionally causing the death of an individual during the course of a burglary. 1 Tex.Penal Code Ann. § 19.03(a)(2). The jury affirmatively answered the submitted issues prescribed by Article 37.071(b) of the Texas Code of Criminal Procedure and the trial court assessed punishment at death. Tex.Code Crim.Proc.Ann. art. 37.071(e). 2 Appeal to this Court is automatic. Article 37.071(h). Appellant raises sixteen points of error. We will affirm.
Appellant does not challenge the sufficiency of the evidence. Therefore, we will address only the facts necessary to resolve each point of error.
In points of error one and three, appellant alleges trial error in the denial of his challenges for cause. However, we note that appellant failed to use all of his peremptory strikes.
When the trial court errs in overruling a challenge against a venireperson, the defendant is harmed only if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986), cert. denied-- , 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987). Error is preserved only if appellant used all his peremptory strikes, asked for and was refused additional peremptory strikes, and was then forced to take an identified objectionable juror whom he would have struck had the trial court granted his challenge for cause or granted him additional peremptory strikes so that he might strike the juror. Adanandus v. State, 866 S.W.2d 210, 220 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994); Satterwhite v. State, 858 S.W.2d 412, 415 (Tex.Crim.App.), cert. denied, 510 U.S. 970, 114 S.Ct. 455, 126 L.Ed.2d 387 (1993); Demouchette, 731 S.W.2d at 83.
The record reflects that appellant used only six of his peremptory strikes by the time the final juror was seated. Therefore, he can show no harm and has failed to preserve any error for our review. Demouchette, 731 S.W.2d at 83. We overrule points of error one and three.
By way of point of error two, appellant complains that the trial court erred in allowing the State to use peremptory challenges against prospective jurors Owens and Boyett because of their views on the death penalty. Appellant incorrectly contends that it is a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), for the State to utilize peremptory strikes to exclude prospective jurors who are not in favor of the death penalty. Peremptory challenges may be made for any reason so long as they are not exercised in a racially discriminatory manner. Article 35.261; Batson v. Kentucky, supra. Further, subject to the constraints of Article 35.261, we have held that a party need not assign a reason for exercising his peremptory strikes, even where the discernable purpose of the strike is to exclude a prospective juror who is not in favor of the death penalty. Barnes v. State, 876 S.W.2d 316, 325 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); Hernandez v. State, 819 S.W.2d 806, 818 (Tex.Crim.App.1991), cert. denied, 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992); May v. State, 738 S.W.2d 261, 267-68 (Tex.Crim.App.), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 158 (1987). We overrule appellant's second point of error.
In appellant's fourth and fifth points of error, he claims that the trial court erred by admitting his two written confessions into evidence. He argues their admission violated his right to avoid self-incrimination and his right to counsel under the Fifth Amendment because they were not made knowingly, voluntarily, and intelligently or with benefit of counsel. In his sixth point of error, he asserts that the trial court erred by admitting various evidentiary items 3 because they were the "fruits" of the illegal confessions, thereby violating his rights under the Fifth, Sixth, and Fourteenth Amendments. He specifically argues that he was harmed because the State "ha[d] almost no evidence to implicate [him] outside the confession and its fruits" and, therefore, the confessions contributed to his conviction.
Before trial, appellant filed a motion to suppress the oral 4 and written confessions and physical evidence. The trial court held a pre-trial hearing on the motion outside the presence of the jury as required by Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 1782-83, 12 L.Ed.2d 908, 917 (1964), and Article 38.22 § 6. The judge ruled the confessions were obtained legally and would be admissible. Appellant concedes that if the confessions were admissible then so were the "fruits."
Appellant pled guilty in front of the jury during the guilt/innocence phase of his trial. The plea was not negotiated. His two written confessions and the physical evidence were subsequently admitted. Appellant does not challenge the voluntariness of his guilty plea.
A nonnegotiated guilty plea is conclusive as to the defendant's guilt and waives all nonjurisdictional defects occurring prior to the guilty plea. Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972); Wheeler v. State, 628 S.W.2d 800, 802 (Tex.Crim.App.1982); see also Jack v. State, 871 S.W.2d 741, 743 (Tex.Crim.App.1994). Because appellant does not fall within the confines of allowing a possible appeal under Texas Rule of Appellate Procedure 40(b)(1), 5 we need not pass upon appellant's claim that the trial court erred in denying his pre-trial motion to suppress. See Wheeler, supra; Cleveland v. State, 588 S.W.2d 942, 944 (Tex.Crim.App.1979). Points of error four through six are overruled. 6
Next, in points of error seven through ten, appellant posits that the admission of evidence during the punishment phase regarding various unadjudicated extraneous offenses 7 violated his rights to equal protection, due process, and a fair trial. Specifically, he complains that capital defendants should be governed by Article 37.07 § 3(a), and that his rights under the Eighth and Fourteenth Amendments to the U.S. Constitution were violated under Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
Article 37.07 § 3(a) is inapplicable to capital cases. Gentry v. State, 770 S.W.2d 780, 792 (Tex.Crim.App.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1013 (1989). The legislature and this Court have long held that unadjudicated offenses are admissible during the punishment phase of a capital murder trial. Article 37.071; Kemp v. State, 846 S.W.2d 289, 307 (Tex.Crim.App.1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361, 124 L.Ed.2d 268 (1993); Smith v. State, 676 S.W.2d 379, 390 (Tex.Crim.App.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2173, 85 L.Ed.2d 490 (1985). Further, this Court has consistently held that admission of extraneous unadjudicated offenses does not violate an accused's constitutional rights to due process and equal protection. Kemp, 846 S.W.2d at 307; Williams v. State, 622 S.W.2d 116, 120 (Tex.Crim.App.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982). Appellant raises no novel arguments to persuade us to revisit these holdings. Therefore, appellant's seventh through tenth points of error are overruled. 8
In appellant's eleventh point of error, he maintains that the trial court erred by denying his requested instruction defining "deliberately." 9 He argues that he made a clear showing "on voir dire that such an instruction would not only be helpful but necessary to the jury's understanding of the punishment issues." 10
This Court has previously held that no definition of "deliberately" is required. See Banda v. State, 890 S.W.2d 42, 64 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995); Johnson v. State, 853 S.W.2d 527, 537 (Tex.Crim.App.1992), cert. denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993). Therefore, the trial court did not err in overruling appellant's requested definition.
Additionally, in the instant case, the trial court did instruct the jury that "deliberately:"
in accordance with common usage, means something more than intentional and something less than premeditation. It contemplates a conscious decision involving a thought process which embraces more than mere will to engage in the conduct.
We have previously held that this definition is sufficient to apprise the jury that the terms "intentional" and "deliberate" are distinct and different. Bigby v. State, 892 S.W.2d 864, 890 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995); see also Fearance v. State, 620 S.W.2d 577, 584 (Tex.Crim.App.1980), cert. denied, 454 U.S. 899, 102 S.Ct. 400, 70 L.Ed.2d 215 (1981). The trial court did not err by providing more than what this Court requires. Point of error eleven is overruled.
In point of error twelve, appellant argues that the trial court erred in failing to submit a requested Penry issue to the jury. 11 See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The trial court gave a nullification instruction, but refused to give a separate special issue. 12
We have previously held that a trial court does not err in submitting a "nullification instruction" rather than a separate special issue. Rodriguez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App.1995); Smith v. State, 898 S.W.2d 838, 854 (Tex.Crim.App.1995); Robertson v. State, 871 S.W.2d 701, 710-11 (Tex.Crim.App.1993), cert. denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994). Further, ...
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