Meanes v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: TOM G. DAVIS; CLINTON
• Citation: Meanes v. State, 668 S.W.2d 366 (Tex. Crim. App. 1983)
• Decision Date: 14 September 1983
• Docket Number: No. 68901,68901
• Parties: James Ronald MEANES, Appellant, v. The STATE of Texas, Appellee.

Page 366

668 S.W.2d 366

James Ronald MEANES, Appellant, v. The STATE of Texas, Appellee.

No. 68901.

Court of Criminal Appeals of Texas En Banc.

Sept. 14, 1983.

Rehearing Denied Nov. 11, 1983.

Murry B. Cohen, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., James C. Brough, Russell Hardin and Nick Vincent, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. After finding appellant guilty of capital murder, the jury answered "yes" to the two special issues under Art. 37.071(b). Punishment was assessed at death.

Appellant was convicted of intentionally causing the death of Olivero Flores by shooting him with a gun in the course of committing and attempting to commit the robbery of Flores.

The deceased was a guard for the Purolator company. He was murdered on April 21, 1981, in the parking lot of a Sage store near the Gulf Freeway in Houston.

The deceased was walking from the Purolator van toward the store when two shots were fired by appellant or his accomplice, Carlos Santana. Only one bullet entered the deceased's body. Nobody saw whether appellant or Santana fired the fatal shot. After the deceased was killed, both robbers fired continuously into the van where the deceased's partner, Dorothy Wright, was hiding on the floor.

Witnesses to the robbery-murder testified that one of the robbers carried a shotgun and the other carried a pistol. The medical examiner could not determine whether the bullet that killed the deceased came from a shotgun or a pistol.

Two witnesses identified appellant as the robber with a pistol who shot at the van. Several witnesses stated that both robbers fired at the van.

Three witnesses testified that the robber with the pistol entered the Purolator van on the passenger side while the man with the shotgun drove the van away.

Before the deceased was killed, Wright, who is black, heard a black man say "halt." Two shots rang out and Flores fell. The man who yelled "halt," went over to the deceased, bent down, and fired nine shots at the van.

One of the robbers, a black man carrying a pistol, got into the van, pointed his gun at Wright, and said, "Bitch, get out, you're dead." Wright got out and the robbers drove off.

Crime investigator W.E. Kay of the Houston Police Department recovered nine spent shotgun shells, one live shotgun shell, and eleven spent nine-millimeter shells from the crime scene.

Appellant and his accomplice were captured in a cane patch a few blocks from the Sage store. Appellant told Officer G.W. Rainer where the guns were located and Rainer found the guns in a wooded area nearby. The sufficiency of the evidence is not challenged.

In his first ten grounds of error appellant complains that the trial court committed fundamental error by instructing and permitting the prosecutor to instruct veniremen ¹ that the law of parties could be used in answering special issue number one at the punishment stage.

Special issue number one refers to Art. 37.071(b)(1), V.A.C.C.P., which states:

"(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; "

During the voir dire the trial court discussed basic principles of law with each venireman before turning him over to the attorneys for questioning. One of the principles discussed was the law of parties as it relates to the guilt of an accused in a capital case and as it relates to an answer of "yes" to special issue number one at the punishment stage.

The trial court repeatedly used the same hypothetical in explaining the law of parties, as did the State. With one important exception, to be discussed below, the remarks of the trial court and the State on this point did not vary from venireman to venireman.

Representative of these discussions was the following colloquy between the trial court and venireman Betty Frost:

"By the court:

"...

"Now, the principle of the law of parties is usable to determine, one; is a person guilty or not guilty. It also could be utilized by the jury in answering the first question. The lawyers, in talking with some of the prospective jurors ahead of you, have indicated they believe the evidence may show there were two people involved in this robbery murder out there at the Sage Store on Gulf Freeway on April 21, I believe was the date. It is conceivable--let's think of a fact situation where two people are acting together in the commission of an offense and possibly both have guns but the deceased was only shot one time. Both were shooting but there is only one bullet hole in the deceased. Would you--could you believe that under those circumstances that the law of parties might make both of them equally liable to a yes answer under the first question and they were both acting deliberately and both should have reasonably foreseen death would result?

"A. If they were both shooting I couldn't see it any other way."

Later, the State questioned Frost as follows:

"Q. Second stage you have to answer these two questions. Now I can't give you a fact situation as to whether you would vote yes or no in that question. What I'm talking about is this. Say when the evidence was all over and you had decided both were equally guilty of the crime and you found them both guilty of capital murder. You find the one guy guilty of capital murder even though he and another guy are involved. You go to answer the questions but when you heard the evidence during the trial itself you never would decide one way or the other because of the facts and the circumstances who pulled the fatal trigger. You decided they both pulled triggers but never sure who. Would that fact alone keep you from answering these questions yes or no? Do you see what I mean?

"A. I understand.

"Q. Would you still be able to answer the question either yes--

"A. Yes. I understand you now.

"Q. It's not you. It is me. I guess one way to put it in a blunt way, like over a cup of coffee, we sometimes use the word triggerman and not only triggerman, and the question I guess I'm asking you is the mere fact you could never decide for sure which one pulled the fatal round off, would that keep you from answering one of these questions yes or could you still in some circumstances answer yes if that is what the evidence called for?

"A. Yes."

Appellant contends that, "The trial court never should have instructed any jurors that they could use the law of parties to answer Special Issue No. One at the punishment stage." He objects to the above instructions and questions, and others virtually identical to them, citing Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

Enmund, decided after appellant's trial, stands for the proposition that the death penalty cannot be imposed in the absence of proof that the defendant killed, or attempted to kill, or intended or contemplated that life would be taken.

Clearly, the trial court's instruction to venireman Frost did not authorize her to answer special issue number one "yes" in violation of Enmund.

In both the trial court's and the State's hypotheticals, it is assumed that the gunman attempts to kill his victim or intends or contemplates that life will be taken.

By way of contrast, in Enmund the evidence established only that the defendant was sitting in a car outside a farmhouse where his friends were killing an elderly couple.

Lockett stands, inter alia, for the proposition that the trier of fact in a death penalty case cannot be prevented from considering any mitigating circumstance. Lockett and Woodson also stand for the proposition that in capital murder cases the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

We see nothing in the remarks of the trial court (or the State) to venireman Frost which violates the principles of Lockett and Woodson. The trial court never informed Frost that she had to render a guilty verdict or answer special issue number one yes in the case of the hypothetical gunman who shot but did not hit his target. Instead she was asked by the court, "... could you believe that under those circumstances that the law of parties might make both of them equally liable to a yes answer under the first question ...?" (Emphasis added).

Similarly, the State asked Frost, "... could you still in some circumstances answer yes if that is what the evidence called for?" (Emphasis added).

Thus, Frost was never told that she could not consider the character and record of the offender, the circumstances of the offense, or any other mitigating factor. No violation of Lockett or Woodson can be found in the remarks to Frost.

Six of the remaining nine veniremen were instructed in the law of parties in language virtually identical to that used with Frost. There was a small but significant difference, however, with respect to the other three veniremen.

Representative of the questioning of these three was the following exchange between the trial court and venireman Leroy McCarter:

"Q. The law of parties. Two or more people act together in the commission of an offense. I may not have--we have a principle of law known as the law of parties. That is, if two or more people act together in the commission of an offense they are equally guilty. It goes so far that if one adopts the action of another as his...