Montoya v. State

Decision Date18 February 1987
Docket NumberNo. 69186,69186
Citation744 S.W.2d 15
PartiesRamon MONTOYA, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

WHITE, Judge.

Appellant was convicted in Dallas County of capital murder. See V.T.C.A., Penal Code Sec. 19.03(a)(1). After the jury made an affirmative finding of the special issues in Art. 37.071, V.A.C.C.P., the trial court imposed the penalty of death by lethal injection. This case is before us on direct appeal.

The appellant advances seventeen points of error. A review of the facts is necessary.

The testimony revealed that Officer John Pasco of the Dallas Police Department was shot and killed while trying to apprehend appellant. On January 16, 1983, at approximately 4:00 p.m., appellant and others were drinking beer in the vicinity of 1800 Park in the City of Dallas. When Pasco arrived, appellant began to move away from the group of people. Then Pasco began to pursue appellant individually, and appellant started to run. Pasco chased him. Appellant testified that while Pasco was chasing him, he attempted to remove a pistol from his waistband and throw it away so Pasco would not catch him with it. The weapon discharged and Pasco, who according to appellant had grabbed appellant's arm, was shot in the head. He died a few hours later.

Officer Jerry Loudermilk testified that, while on patrol duty, he received a call from Officer Pasco to "cover" him. 1 When Loudermilk arrived at the scene, he saw that Pasco had been shot. Several other Dallas police officers were already at the scene: trying to help Pasco and interviewing witnesses. Loudermilk was informed that there was no description yet of the suspect.

Loudermilk returned to his patrol car and began to search the immediate area. While searching, he received information by radio describing the suspect as a short Latin male with a tatoo of a panther on his chest. He continued to search until 6:05 p.m. when he saw the appellant and stopped to talk to him "just for information." At the time, Officer Loudermilk "didn't have any idea" that the appellant was a suspect in the shooting. When Officer Loudermilk stepped out of his car and spoke in Spanish twice to the appellant, the appellant said nothing in response, but turned and started to run away. Officer Loudermilk pursued and detained the appellant. Loudermilk then lifted up the appellant's shirt, and saw the tatoo of a panther on the appellant's chest. He asked the appellant his name. After the appellant responded, Loudermilk placed him under arrest.

A subsequent search of appellant's home uncovered a .25 caliber automatic pistol. Ballistics determined it to be the weapon that fired the fatal shot.

In his first point of error, appellant alleges that the trial court ignored the provisions of the Code Construction Act during his general remarks to the prospective jurors about the special issues in a capital murder trial. In those remarks, the trial court advised the jury panel that they should give the word "deliberately" its common meaning and usage. Appellant's second point of error applies the same allegation to a second panel of prospective jurors. We will consider the two points together.

It is appellant's claim that the word "deliberately", as used in the capital murder sentencing statute, Art. 37.071, (b)(1), V.A.C.C.P., has acquired a technical or particular meaning. Therefore, the Code Construction Act, sec. 311.011(b), requires that "deliberately" be defined to the jury with a particular meaning. Appellant cites Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981), Fearance v. State, 620 S.W.2d 577 (Tex.Cr.App.1981), and the dissenting opinion of Judge Clinton in Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983) in support of his contention. Appellant claims the failure of the trial court to define "deliberately" during his general remarks to the jury panels requires a reversal of his conviction.

We point out that appellant failed to object to the trial court's instruction on the word "deliberately" to either of the jury panels. Appellant did not request that a different instruction be given to the panels. Appellant did not argue to the trial court that the Code Construction Act required him to define the word "deliberately."

Appellant raises these two points of error for the first time on appeal. Nothing has been preserved for our review. Tex.Cr.App.R. 52(a). The errors, if any, are waived. Points of error one and two are overruled.

Appellant's third point of error is that the errors committed by the trial court in points one and two rendered imposition of the death penalty violative of State and federal proscriptions against cruel and unusual punishment. Based on our disposition of points one and two, we find appellant's third point of error unmeritorious. It is overruled.

Points of error four and five allege error in excusing prospective jurors, on the State's motion for cause, because it was not shown that either prospective juror could not vote affirmative answers if the State sustained its burden of proof. Appellant contends that the standard for excusing potential jurors is "only when a juror 'regardless of his own [sic] standards of reasonableness, would insist that the State offer proof ... beyond all doubt, whether reasonable or not' can the court properly excuse him", citing Woolls v. State, 665 S.W.2d 455, at 465 (Tex.Cr.App.1983). Appellant misinterprets our holding. Woolls, supra, did not state that is the only time a juror can be excused. Woolls simply held that was why that particular juror was excused and in that instance the excusal was proper. See Woolls, supra, at 465.

The proper standard for excusing a prospective juror on the State's motion for cause is where the record viewed as a whole supports the finding that the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and oath. Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct. 844, 851, 83 L.Ed.2d 841, 851 (1985). In adopting this standard, the Court dispensed with Witherspoon's reference to automatic decision making and the requirement that a juror's bias be proved with unmistakable clarity. 2 Wainwright, supra.

Instead, the Court stated there would be situations where the trial court would be left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. That is why deference must be paid to the trial court who heard and saw the juror and observed that juror's demeanor. Wainwright, supra. This Court had adopted this standard for reviewing the voir dire of a prospective juror who was successfully challenged for cause. Bird v. State, 692 S.W.2d 65 (Tex.Cr.App.1985, reh. denied).

On point of error four we will review the voir dire of prospective juror Ferguson to determine if she was properly excused for cause. During that voir dire, the following exchanges occurred:

"Q. (State) Could you share with us your personal feelings about the death penalty? How do you feel?

"A. When I wrote that down on Monday I thought there are probably situations in which I would think the death penalty was acceptable. I've had about two days to think about it and I have not come up with any situations in which I would vote for it. I guess, I'm going purely on a gut reaction because I don't know any of the facts of the case. Just I'm sure--I don't know how old the Defendant is. He looks so young. I think to myself I cannot picture a situation in which I would probably vote for the death penalty.

* * *

"Q. I gather you're not in favor overall as a proposition of the death penalty?

"A. Right.

* * *

"Q. Let me ask you: Has there ever been a time in your life, when you can recollect, you have ever been in favor of the death penalty?

"A. No.

"Q. ... Are you of such a mind or are your feelings so strong against the death penalty you feel you could not realistically in any case, regardless of the facts, ever return a verdict, realistically, that's going to result in the death of another human being or can you?

"A. It's impossible for me to say I would never do it my reaction is to say it would be unlikely for me to do it, to answer questions that would result in a death penalty.

* * *

"Q. Right, because of the strong feelings you have in opposition to the death penalty?

"A. I'm saying that it would be difficult for me to say yes, he is going--it would be impossible for me to say yes he's going to be a threat to society unless the proof was so overwhelming like a confession. I'm saying that what you said was probably right.

"Q. ... In essence what you're saying you would automatically be answering the second question no, vote against the imposition of the death penalty regardless of whatever evidence would be adduced at the trial by the State, find some way to rationalize?

"A. I can't say regardless of. I can't even picture what the situation is. I'll have to say that you're probably right.

* * *

"THE COURT: ... would you be able to take that oath to render a true verdict according to the law and the evidence in this case?

"THE JUROR FERGUSON: I tell you how difficult this is. I guess--I guess now that I've been through this I can say no, I don't want to be put in that position to have to do that.

"THE COURT: ... are you telling us you would have to violate the oath because of your feelings about the death penalty?

"THE JUROR FERGUSON: Yes.

"Q. (Defense): Are you saying that you would automatically answer that question no, despite the evidence?

"A. I'm not saying I automatically would say no, but I'm saying there is a possibility even though they have proved all three things, I have...

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