Long v. State

• Decision Date: 04 December 1991
• Docket Number: No. 69781,69781
• Citation: Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991)
• Parties: David Martin LONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 259

823 S.W.2d 259

David Martin LONG, Appellant, v. The STATE of Texas, Appellee.

No. 69781.

Court of Criminal Appeals of Texas En Banc.

Dec. 4, 1991.

Rehearing Denied Feb. 5, 1992.

E. Brice Cunningham, Dallas, for appellant.

John Vance, Dist. Atty., A. Wetherholt, A. Beach, J. Whittier & W. Scott, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted by a jury of capital murder. V.T.C.A. Penal Code § 19.03(a)(6). The trial judge assessed appellant's punishment at death by lethal injection after the jury returned affirmative answers to the three special issues submitted pursuant to Art. 37.071(b). Appellant raises thirty-five points of error in this direct appeal. Finding no reversible error in those points, we affirm the judgment of the trial court.

Appellant does not challenge the sufficiency of the evidence to support the jury's guilty verdict or its affirmative findings on the special issues. Thus, we proceed to only a brief recitation of the facts with further development of them as is necessary for addressing the points of error.

Dalpha Jester, her daughter Donna Jester, and Laura Lee Owens all died as a result of numerous chopping wounds to their heads and faces which appellant inflicted with a hatchet. Their bodies were discovered by Donna's boss on September 27, 1986, at the women's home in Lancaster. Laura's body was found in the front yard, while Donna and Dalpha were found laying on the bed in the back bedroom of the house. The murder weapon was found rinsed off and wrapped in a towel in a bathroom sink in the victims' home. Through entries in a diary kept by Donna, police were able to focus on appellant as their prime suspect. According to the diary and appellant's subsequent confession, Donna met appellant when she picked him up as he was hitchhiking on September 19, 1986. Since appellant "had no place to go" Donna allowed him to stay in her home in exchange for house repairs. Donna also agreed to supply appellant with cigarettes and wine, specifically MD 20/20 ¹, while he worked on her home.

According to testimony from appellant and police, the women's home was filthy and smelled of dog hair and feces from several dogs who roamed freely through the home. Although he initially slept outside in Donna's car, appellant lived with Donna, Dalpha, and Laura for approximately one week during which time he developed an apparently loving and sexual relationship with Laura. During that week appellant began to fear that Donna had dead bodies, possibly of other hitchhikers, buried in her backyard. Appellant testified that on the day of the murders, September 27, 1986, he experienced these fears and a lot of unexplained emotions. Also, the filth and the smell in the house adversely affected him. ² He did several repairs on the house that day and did not consume any alcohol until Donna and Laura arrived home from their jobs. When Donna and Laura went to the back bedroom to talk with Dalpha, appellant thought they were conspiring against him. Appellant then retrieved and hid the hatchet. When Laura returned to the living area to watch television, he told her to go outside because he needed to talk to her, but instead he attacked her with the hatchet. Appellant then went into the back bedroom of the house and killed Donna and Dalpha. Appellant returned to the front yard and repeatedly struck Laura. ³

After cleaning off the ax, appellant fled in Donna's car drinking MD 20/20 all the while. He was arrested that night in Buffalo for driving while intoxicated, but was later released. Appellant was eventually arrested on a felony warrant (from Dallas County) on October 24, 1986, in Austin where he had also been arrested for public intoxication. ⁴ Lancaster authorities took appellant back to Dallas County.

In his first three points of error, appellant complains of the trial court's refusal to excuse three prospective jurors upon his challenges for cause. The State contends appellant failed to preserve these points for review, or, alternatively, that each point is without merit. After reviewing the record from voir dire, we agree with the State's former contention.

In Harris v. State, 790 S.W.2d 568, 581 (Tex.Crim.App.1989), Judge Duncan, writing for the majority, clearly explicated the necessary steps to preserve error due to the trial court's denial of a defense challenge for cause to a prospective juror. Also see Jacobs v. State, 787 S.W.2d 397, 405 (Tex.Crim.App.1990). In order to warrant a reversal by this Court for the trial court's erroneous denial of that challenge for cause, it must be shown that:

1. the voir dire of the individual venireperson was recorded and transcribed;

2. the defendant asserted a clear and specific challenge for cause clearly articulating the grounds therefor;

3. after the challenge for cause is denied by the trial court, the defendant uses a peremptory challenge on that venireman;

4. all peremptory challenges are exhausted;

5. when all peremptory challenges have been exhausted, the defendant makes a request for additional peremptory challenges; and

6. finally, the defendant must assert that an objectionable juror sat on the case; i.e., the defendant must point out to the trial court that he is being forced to try the case with a juror seated whom he would have exercised a peremptory challenge had he had one.

In these first three points of error, appellant contends the trial court failed in granting his challenge for cause to prospective jurors Barnett, Gener, and Richardson because of their views on punishment ranges for lesser included offenses. Appellant exercised a peremptory challenge on each prospective juror after his challenge for cause was denied, but he failed to exhaust all peremptory challenges or request any additional ones. ⁵ During the prosecutor's voir dire of juror Burchett, who was selected as the twelfth juror, he asked Burchett whether there was anything he should know about her background "before I choose you on this jury." Defense counsel objected to this remark, and the objection was sustained. Defense counsel's challenge for cause on this basis was denied, and the trial judge instructed Burchett to disregard the comment. At the conclusion of Burchett's voir dire, the State accepted her as a juror, but defense counsel reurged his challenge for cause which was again denied. Defense counsel then accepted Burchett "under protest" as a juror since they only had one remaining peremptory challenge and the next venireman was a Dallas police officer. The State responded that this venireman, Wallace, had already made comments ⁶ which would subject him to a challenge for cause. ⁷ Voir dire concluded shortly thereafter without defense counsel ever using their fifteenth peremptory challenge.

Although appellant accepted Burchett "under protest," arguably making her an "objectionable juror," appellant did not use his final peremptory challenge to excuse this juror. Under this record, appellant has failed to preserve any error. Appellant's first three points of error are overruled.

In the fourth point of error, appellant avers the trial judge erred in excusing seven venirepersons upon the State's challenges for cause on the basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Before addressing the merits of each challenge for cause, we note appellant has not preserved error for review in regard to three of these venirepersons. In Crane v. State, 786 S.W.2d 338, 345 (Tex.Crim.App.1990), this Court held that if an appellant does not object when a venireperson is excused for cause, he may not challenge that ruling on appeal. After reviewing the record, we find appellant failed to object to the excusal of venirepersons Wade, Ledbetter, and Striplin, and, therefore, nothing is preserved for our review. We will address the merits of this point of error concerning the remaining four venirepersons. Appellant presents one argument applicable to all four.

Appellant asserts that the beliefs regarding the death penalty of the prospective jurors who were excused were not so strong that they would disregard the evidence with respect to appellant's guilt and the special issues or that those beliefs would substantially impair or prevent their performance as jurors. The proper inquiry for the trial court in disqualifying jurors in death penalty cases under Witherspoon, Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), is whether a prospective juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with the trial judge's instructions and the juror's oath. McGee v. State, 774 S.W.2d 229, 235 (Tex.Crim.App.1989). The trial judge's decision to excuse a prospective juror under this principle will be reversed only upon a clear abuse of discretion, and, in reviewing this decision, this Court considers the prospective juror's voir dire as a whole and accords due deference to the trial judge's ruling. Crane, 786 S.W.2d at 344. A review of the prospective jurors' voir dire follows.

Venireman Rodriguez indicated on his juror questionnaire form that he did not believe in the death penalty. Upon questioning from the court and defense counsel, Rodriguez stated that he could follow the law at the guilt/innocence stage but under no circumstance could he vote to impose capital punishment because of his religious beliefs. Rodriguez stated further that even if there was sufficient evidence to support "yes" answers to the special issues at punishment, he would have to vote "no" because he could not be part of a jury which "would send a man to death."

As to the next venireperson, when asked on the questionnaire whether she believed in the death penalty, venireperson Himbert answered "I cannot answer a simple...