Martinez v. State
| Citation | 763 S.W.2d 413 |
| Decision Date | 21 September 1988 |
| Docket Number | No. 69303,69303 |
| Parties | Raymond Deleon MARTINEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appellant was convicted of the offense of capital murder under V.T.C.A. Penal Code, § 19.03(a)(2). The jury answered all three special issues in the affirmative. Accordingly, the trial court assessed punishment at death. Appellant's conviction was automatically appealed to this Court. Article 37.071, V.A.C.C.P. Sufficiency of the evidence is not disputed.
In his first point of error appellant maintains his challenges for cause against four veniremen were erroneously denied. Each of these veniremen at some point in his voir dire indicated that upon finding appellant guilty of "intentional" murder, § 19.03(a)(2), supra, he would "automatically" respond affirmatively to special issue one, inquiring whether "the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that ... death ... would result." Article 37.071(b)(1), supra. We have held that such a position manifests an inability, once the issue of guilt has been resolved against an accused, to reconsider guilt evidence for whatever probative value it will have in the particular context of the first punishment issue, thus exposing the venireman to challenge for cause by either party for harboring a bias against the law. Article 35.16, §§ (b)(3) and (c)(2), V.A.C.C.P. Gardner v. State, 730 S.W.2d 675, 680, (Tex.Cr.App.1987).
At the time he exercised his fifteenth and last peremptory challenge, Article 35.15(a), V.A.C.C.P., appellant requested additional peremptory challenges, expressly complaining of the failure of the trial court to grant his challenges against each of the veniremen he now assails. The trial court granted him one. This he used on the next venireman, after which the trial court expressly denied him any more additional peremptory challenges. Subsequently, the very next venireman became the twelfth juror in the case, over appellant's assertion that this venireman was objectionable and he would have exercised a peremptory challenge upon him. 1 If we determine that two or more of appellant's challenges should indeed have been granted, harm would be shown in that appellant was denied the use of at least one of his allotted peremptory challenges. Bell v. State, 724 S.W.2d 780, 795 (Tex.Cr.App.1986); Hernandez v. State, 563 S.W.2d 947, 948 (Tex.Cr.App.1978); Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274 (1944). 2
On direct voir dire the prosecutor guided venireman Raymond Segura through the special issues, emphasizing that none of the three questions should "automatically" be answered affirmatively merely upon a verdict of guilty of an "intentional" capital murder. Beginning with the first special issue, she posed a hypothetical designed to illustrate how a defendant could be guilty of an "intentional" murder in the course of a robbery, under the law of parties, on facts that might not support a finding that his particular conduct was "committed deliberately." 3 She then continued:
"Q. ... So the law is saying look at the conduct of each of the individual people and see did their conduct cause the death of the deceased and was it committed deliberately with the reasonable expectation that somebody would die.
So could you see that you answer Issue One yes or no on the evidence?
A. Yes.
Q. And what's real important is that you realize that you never automatically answer Issue One yes because you found the Defendant guilty of capital murder?
A. Right, yes, okay.
Q. True, when you find somebody guilty of capital murder, it's an intentional killing; but that never means that you answer Issue One yes.
A. I understand.
Q. Okay.
Again, I hate to belabor the point, but I think it's real critical. The words sound so terrible, gosh, you found somebody guilty of an intentional killing, you didn't find that their conduct caused the death of the deceased. You say no, the 17 year-old was just a lookout inside the bank, and he was scared stiff to be there. He doesn't know those two ex-cons planned to kill the teller. And that's why it's real important as to Issue One that you always look at the conduct of the individuals, that you base your answer on the evidence and never say, well, knee-jerk reaction, intentional killing, guilty of capital murder, Issue One, yes. Okay?
A. Okay."
After briefly discussing special issues two and three, the prosecutor revisited issue one, suggesting a distinction between "deliberate" and "intentional," thus:
"Q. I want to talk a little bit about this word, deliberately, and what it means. The word deliberately does not mean premedidated [sic] or preplanned. Webster's defines it as willfully or purposefully.
You can go in and plan to rob a U-Totem. You didn't plan it before you went to kill the man. You didn't deliberately intend to kill the man. During the course of the robbery, he may have come in, and that customer knows you, and in a second the Defendant shoots because he knows the man can recognize him, and he kills the customer.
Can you see that his crime was not premeditated or preplanned, but his act in killing the customer was willful and purposeful?
A. Yes.
Q. Now, the law again, and this question with deliberately is trying to go to the different states of mind of Defendant's. You may have a Defendant that goes in with a gun and fires the gun in the air to scare everyone, to get them on the ground so they won't see. And the bullet hits a beam and strikes the teller or the clerk, and the teller dies. Capital murder, intentionally during the course of the robbery. He intended to pull the trigger, intended for the gun to be fired, intended for the gun to go off; but was that act deliberate? Did he willfully or purposefully want the death of the clerk? You see the distinction?
A. Yes, I see the distinction.
Q. And the state of minds we are talking about?
A. Yes.
Q. So you're going to have situations were [sic] there was an intentional killing, intentionally pulling the gun and pulling the trigger, but it will not be a deliberate act?
A. Yes.
Q. Okay.
That's real important because you're going to find the Defendant guilty of an intentional killing by finding him guilty of capital murder, because all capital murders are intentional killing; but obviously, not all intentional killings are deliberate, okay?
A. Okay.
Q. So again, you're going to have to look to the facts and circumstances surrounding the situation to decide and answer Issue One. And could you do that if selected as a juror?
A. Yes."
For reasons we have explicated elsewhere, this "shooting into the ceiling" hypothetical does not illustrate the difference between intentional and deliberate. Gardner v. State, supra at 686-87; Lane v. State, 743 S.W.2d 617, 627 (Tex.Cr.App.1987); Morrow v. State, 753 S.W.2d 372, 375, n. 3 (1988).
On cross voir dire the appellant also broached the subject of special issue one, as follows:
"Q. Now, the first question, I think you would agree with me, talks about you found the Defendant guilty of the intentional murder of another human being committed during the course of a robbery, okay? Whatever the facts were, you have determined that he intentionally murdered another human being during the course of a robbery, all right?
A. Yes.
Q. Now, that issue has passed. I think you would agree with me that the first issue that he do so deliberately knowing that the deceased was going to die is talking about the evidence that you heard during the trial, right?
A. Right.
Q. In other words, what was his state of mind, based upon what you determined was the person's state of mind on two things as far as I know, what they say and what they do.
Got any argument with that?
A. No.
Q. All right.
They are talking about using the word deliberately there and the law. The Judge will define to you what intentionally means as far as having found him guilty of the intentional murder during the course of a robbery. To you, is there any difference between intentionally and deliberately doing something? Are the words synonymous with you? Or how do you feel?
The law doesn't define deliberately, and you have a right to believe whatever you think deliberately is. It's one of the terms that the Legislature hasn't defined in addition to some of th [sic] other terms they use in those questions, but we are talking about Question No. 1 only.
A. The difference between intentional and deliberate?
Q. Yes.
A. Intentional, I intended to do it. Deliberate, I did it. There is a little difference.
Q. Okay.
Well, let me ask you this then as far as if you had found a person guilty, whatever the facts may have been used to find him guilty of capital robbery-murder, and you found--obviously you found that the person acted intentionally--intentionally murdered the person during the course of a robbery. If you found that, would you answer that, as far as the first question alone is concerned, would you answer that question yes automatically, or always answer it yes?
A. I wouldn't say always.
Q. Okay.
Under what circumstances would you not, type of circumstances?
A. Well, without a total definition of deliberate, that's a very hard statement to answer.
* * *
* * *
Q. And what I am asking is that if you found a person guilty of intentionally murdering another human being in the course of a robbery, found that and believed that beyond a reasonable doubt, then it would be your duty, and you said you would find such a person guilty.
What I am trying to find out now, if you have found a person guilty as stated, would you answer this question yes?
A. Yes.
Q. And would you...
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