Montgomery v. State
| Decision Date | 27 April 2006 |
| Docket Number | No. 2-04-400-CR.,2-04-400-CR. |
| Citation | 198 S.W.3d 67 |
| Parties | Frank Allen MONTGOMERY, Jr., Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Arch C. McColl, III, Dallas, for appellant.
Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Sharon A. Johnson, Jay Lapham, Christy Jack, Asst. Crim. Dist. Attys., Fort Worth, for state.
PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.
Appellant Frank Allen Montgomery, Jr. appeals his conviction and life sentence for capital murder. In ten points, appellant complains that the trial court erred by (1) allowing the State's improper commitment questions during voir dire, (2) denying his Batson challenge, (3) and (4) admitting prejudicial photographs and prejudicial and extraneous evidence from a prior burn the victim received, (5) allowing a witness who lacked personal knowledge to testify, (6) overruling his motion for mistrial, (7) allowing an expert witness to testify as to a legal conclusion, (8) denying his motion for instructed verdict, (9) denying his jury charge instructions on criminally negligent homicide and manslaughter, and (10) allowing the State to make an improper jury argument during closing arguments. We affirm.
This case involves the death of S.K., a sixteen-month-old child. S.K.'s parents were Robert K. and Roxane L.1 In November 2001, Roxane, a student at Tarrant County College, met appellant, a student at Texas Christian University, while she was working as a cashier at a Ross store. In December 2001, Roxane moved in with appellant, leaving S.K. with Robert.2 In March 2002, Roxane took S.K. to live with her at appellant's apartment, and Roxane and Robert shared custody of S.K.
On July 1, 2002, at approximately 2:20 p.m., Roxane went home after she received a phone call from appellant while she was at work saying that S.K. was hurt.3 When she arrived home, Roxane saw that appellant was holding S.K. over his shoulder and that he was talking on the phone. When Roxane went over to S.K. and looked at her, she noticed that S.K. had a "big burn" on her back. Roxane then called S.K.'s pediatrician, Dr. Walter Halpenny, to determine if she should take S.K. to the hospital, and Dr. Halpenny told Roxane to bring S.K. to his office. Roxane arrived at Dr. Halpenny's office at approximately 3:00 p.m. After examining S.K., Dr. Halpenny prescribed some ointment for the burn, but he did not call Child Protective Services.
On July 2, 2002, Roxane stayed at home with S.K. because of the burn.4 Roxane testified that they lay in bed all day, that S.K. acted normally, and that she drank milk and ate Vienna sausages. Appellant was at class during the day. When he arrived home that afternoon, Roxane left S.K. with appellant at approximately 4:00 p.m. to study for a test she had at 6:00 p.m. that night. At approximately 6:50 p.m., appellant called 911 because S.K. had stopped breathing. Roxane arrived home when the paramedics were at the apartment. An ambulance then took S.K. to Cook Children's Medical Center. When S.K. arrived at the hospital, she did not have a heartbeat or pulse, and Dr. Michael Cowan, a doctor in pediatric emergency medicine, told Roxane that he did not expect S.K. to survive. However, after administering epinephrine, Dr. Cowan was able to get a pulse. At approximately 9:30 p.m. that night, S.K. was admitted to the intensive care unit (ICU). While S.K. was in the ICU, doctors performed neurological tests on her brain to see if there was any brain activity. Despite all the medical care, S.K. was pronounced dead the next day, on July 3, 2002, at 1:45 p.m.
On August 27, 2004, a jury found appellant guilty of capital murder, and the trial court assessed his punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice.5
In his first point, appellant contends that the trial court abused its discretion by overruling his objection to four questions asked by the State during voir dire examination.
The trial court has broad discretion over the process of selecting a jury. Ewing v. State, 157 S.W.3d 863, 866 (Tex. App.Fort Worth 2005, no pet.); see Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim. App.2002). Appellate courts should not disturb a trial court's ruling on the propriety of a particular question during voir dire absent an abuse of discretion. Barajas, 93 S.W.3d at 38; Lydia v. State, 117 S.W.3d 902, 904 (Tex.App.Fort Worth 2003, pet. ref'd).
In Standefer, the court of criminal appeals held that during voir dire a trial court should first determine if a question is a commitment question. Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App. 2001); accord Lydia, 117 S.W.3d at 905. If it is a commitment question, the next inquiry is whether the question was nevertheless a proper question. Standefer, 59 S.W.3d at 181-82. A commitment question is proper if one of the possible answers to that question gives rise to a valid challenge for cause. Id. at 182; Ewing, 157 S.W.3d at 866. However, even if a question meets the "challenge for cause" requirement, the inquiry does not end there. Lydia, 117 S.W.3d at 905. A proper commitment question must also contain only those facts necessary to test whether a prospective juror may be challengeable for cause. Id.; see Standefer, 59 S.W.3d at 182.
Appellant points to four questions asked by the prosecutor as commitment questions. We will address each question in order. The first question that appellant contends is a commitment question is, "What are some circumstances that would assist you maybe in determining whether [the death] was knowing?" To preserve error regarding improper voir dire questions, a party must make a timely, specific objection at the earliest possible opportunity. Ross v. State, 154 S.W.3d 804, 807 (Tex.App.Houston [14th Dist.] 2004, pet. ref'd); accord Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991). Appellant did not object to this particular question until after a veniremember had answered the question. Thus, appellant did not object at the earliest possible opportunity and has not preserved his complaint regarding this questions. See Halprin v. State, 170 S.W.3d 111, 119 (Tex.Crim.App.2005); Ross, 154 S.W.3d at 807.
The second question that appellant contends is a commitment question is, Appellant sought a running objection to this line of questioning. The trial court granted the running objection but denied appellant's objection to this particular question.
Before asking this question, the prosecution had defined the term "knowingly" to the veniremembers and then asked the veniremembers what evidence they would be looking at to determine if appellant acted knowingly. Assuming that appellant's objection was sufficient to alert the trial court to a claim that the prosecutor's question was an improper commitment question, we hold that the prosecutor's question was not an improper commitment question. See Halprin, 170 S.W.3d at 120. The question did not attempt to bind the veniremembers to resolve or refrain from resolving an issue (i.e., appellant's mental state) on the basis of one or more facts in the questions. See id.; Standefer, 59 S.W.3d at 180.
The third question that appellant complains about is, Appellant objected to this question, and the trial court sustained the objection. Appellant did not request any additional relief from the trial court regarding this question. Thus, appellant obtained all the relief he requested when the trial court granted his objection. See Turner, 805 S.W.2d at 432.
The final question that appellant argues is a commitment question is, The State argues that this question is a permissible hypothetical question. It is proper to use hypothetical fact situations to explain the application of the law. See Cuevas v. State, 742 S.W.2d 331, 353 (Tex.Crim.App.1987), cert. denied, 500 U.S. 929, 111 S.Ct. 2043, 114 L.Ed.2d 127 (1991), overruled on other grounds, Hughes v. State, 878 S.W.2d 142 (Tex. Crim.App.1992). However, questions may not be asked to commit veniremembers to a position based on a set of circumstances analogous to the case in question. Rivera v. State, 82 S.W.3d 64, 66 (Tex.App.San Antonio 2002, pet. ref'd); see Atkins v. State, 951 S.W.2d 787, 789 (Tex.Crim.App. 1997); Cuevas, 742 S.W.2d at 353.
Here, the prosecutor was using hypothetical questions to explain to the jury the concept of reasonable certainty. Directly after this question, the prosecutor asked another veniremember, We determine that the prosecutor was explaining the law by asking the veniremembers what would be reasonably certain to occur in a given situation rather than...
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