Morris v. State, 71799

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation940 S.W.2d 610
Docket NumberNo. 71799,71799
PartiesKenneth Wayne MORRIS, Appellant, v. The STATE of Texas, Appellee.
Decision Date11 September 1996

KELLER, Judge.

In December of 1993, appellant was convicted of capital murder under Texas Penal Code 19.03(a)(2). The offense, the murder of James Moody Adams in the course of robbery, was committed in May of 1991. The trial court submitted to the jury the special issues set out in Article 37.0711, subsections 3(b)(1), (2) and (3)(e) of the Texas Code of Criminal Procedure. 1 In accordance with the jury's answers to those issues, the trial court assessed the appellant's punishment at death. Article 37.0711(3)(j) provides direct appeal to this Court. Appellant raises nineteen points of error. We will affirm.


In points of error one and two, appellant asserts that the trial court erred in overruling his objection to the State's peremptory challenge of prospective juror Robert Dreannan. Appellant contends that the challenge was racially motivated in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

We review the record of the Batson hearing and the voir dire examination in the light most favorable to the trial court's ruling. Adanandus v. State, 866 S.W.2d 210, 223 (Tex.Crim.App.1993); Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). We will not disturb a trial court's ruling on a Batson issue unless it is clearly erroneous. Id.

On his jury questionnaire, venireman Dreannan indicated that he was strongly in favor of the death penalty. During voir dire however, he said he had spent a sleepless night worrying about his answer to that question. When asked whether youth would improperly factor into his consideration of the punishment issues, venireman Dreannan refused to answer:

Q: [A]re you saying that youth--you would never, never return a verdict that would cause a young person to be put to death?

A: That's too hard of a question to ask. I'm not going on it because I have an 18-year-old son.

At the Batson hearing, the prosecutor said he thought venireman Dreannan had been deceptive in answering the youth question. The trial court noted for the record that its observations of Dreannan's demeanor were consistent with the prosecutor's explanation. She also commented that the prosecutor had seated a large number of blacks in a recently completed capital murder trial. The trial judge found the prosecutor's reasons to be racially neutral and denied the Batson challenge. According due deference to the decision of the trial court, we find that its decision was not clearly erroneous. Point of error one is overruled.

In point of error two, appellant claims the trial judge improperly based her ruling upon the absence of purposeful discrimination by this prosecutor in a separate criminal trial. A ruling on a Batson objection is a credibility determination. Because the trial judge determines the issue of the prosecutor's credibility, it is not error for the court to consider its past experiences with a prosecutor in determining his credibility. See Fowler v. State, 863 S.W.2d 187, 189 (Tex.App.--Houston [14th] 1993, pet. ref'd). Point two is overruled.


In points of error three through eight, appellant asserts that the trial court erred in disallowing questions on voir dire concerning the minimum time a convicted capital murderer sentenced to life in prison must serve before he is eligible for parole. Appellant claims this information is relevant to the issue of future dangerousness. He further asserts that the trial court violated both the United States and Texas Constitutions in refusing to allow such questions on voir dire.

Appellant claims he should have been allowed to inform prospective jurors that if sentenced to life, he would serve a minimum of 15 years before becoming eligible for parole. He asserts that without this knowledge, jurors might entertain the mistaken belief that he would be released much earlier, and respond by handing down a sentence of death instead of life. Appellant contends in point of error three that knowledge of the parole law is therefore necessary to an accurate determination of future dangerousness.

This Court has held that parole is not a matter for a jury's consideration in a capital murder trial. Smith v. State, 898 S.W.2d 838, 846 (Tex.Crim.App.) (plurality opinion), cert. denied --- U.S. ----, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Broxton v. State, 909 S.W.2d 912, 919 (Tex.Crim.App.1995); Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992). As to future dangerousness, we have held that in deciding whether a defendant poses a continuing threat to society, a jury considers not only free society, but also prison society. Because the length of appellant's incarceration does not reduce or increase his future dangerousness, it is not relevant to that issue. Id at p. 495. Point of error three is overruled.

Appellant argues in points of error four and five that Due Process and the Eighth Amendment require that a jury be informed of his "parole ineligibility." These issues have been resolved contrary to appellant's position. Smith, 898 S.W.2d at 853; Broxton, 909 S.W.2d at 919. Points of error four and five are overruled.

In points of error six through eight appellant claims the trial court's refusal to inform the jury about parole violated Article I, Sections 10, 13 and 19 of the Texas Constitution. Appellant points out that this Court can interpret the Texas Constitution more broadly than the Federal Constitution. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). Appellant argues that the Texas Constitution guarantees a party the right to use his peremptory and for-cause challenges intelligently. As appellant points out, a voir dire question is proper if its purpose is to disclose a juror's views on an issue applicable to the case. See, e.g., Shipley v. State, 790 S.W.2d 604, 608 (Tex.Crim.App.1990). A Texas jury must determine future dangerousness. Parole ineligibility as it relates to future dangerousness is thus, appellant argues, a proper subject for voir dire.

As noted above, parole is not a matter for a jury's consideration in a capital murder trial. Broxton, 909 S.W.2d at 919. For this reason, parole ineligibility is not "an issue applicable to the case," and questions about it are not proper questions. The Texas Constitution thus does not give an accused the right to ask prospective jurors in a capital murder trial questions regarding parole ineligibility. Points six through eight are overruled.


In point of error nine, appellant contends that the trial court erred in excluding evidence that the State chose not to seek the death penalty against his two co-defendants. Appellant claims his co-defendants' lighter punishment is constitutionally relevant mitigating evidence which should have been admitted during the punishment phase of trial.

Appellant argues that his personal culpability in the murder was equal or similar to that of his co-defendants who did not receive the death penalty. In response to this we must point out that appellant's role in the crime was not identical to his co-defendants' roles. The evidence shows that while three men were involved in the robbery, it was appellant who held the gun and shot the victim four times. In any case, it is possible for two people who have committed identical murders to receive different sentences based on differing degrees of mitigating character and background evidence.

Moreover, this Court has held that evidence of a co-defendant's conviction and punishment is not included among the mitigating circumstances which a defendant has a right to present. In Evans v. State, 656 S.W.2d 65, 67 (Tex.Crim.App.1983), we stated:

"We do not see how the conviction and punishment of a co-defendant could mitigate appellant's culpability in the crime. Each defendant should be judged by his own conduct and participation and by his own circumstances."


Appellant relies upon Parker v. Dugger, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), in which the United States Supreme Court recognized evidence that the defendant's accomplices were not sentenced to death as part of the mitigating evidence which was admitted at trial. However, Parker did not address whether evidence of disparate sentencing is mitigating evidence which must be considered under the standard set out in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The punishment which appellant's co-defendants received relates neither to appellant's character, nor to his record, nor to the circumstances of the offense. Point of error nine is overruled.


In point of error ten, appellant asserts that the evidence was insufficient to support the jury's negative finding on the mitigation issue. Because the weighing of mitigating evidence is a subjective determination undertaken by each juror, we will not review mitigating evidence for sufficiency. Colella v. State, 915 S.W.2d 834 (Tex.Crim.App.1995). Point of error ten is overruled.


In point of error nineteen, appellant claims the mitigation issue violates the Eighth Amendment to the United States Constitution because "meaningful appellate review of the jury's answer to that special issue is impossible." We have recently decided this contention adversely to appellant's position. McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App.1996) at 498-500 (Keller, J. concurring at 524-525). Point of error nineteen is overruled.

In point of error fourteen, appellant claims Article 37.0711(3)(e) is unconstitutional...

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    • United States
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    • January 21, 1998 the punishment issues of Tex.Code Crim. Proc. Ann. art. 37.071. I. For the reasons stated in Morris v. State, 940 S.W.2d 610, 621 (Tex.Cr.App.1996) (BAIRD and Overstreet, JJ., dissenting), I would hold the future dangerousness punishment issue of art. 37.071, § 2(b)(1) is subject to a fa......
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1 books & journal articles
  • An actuarial risk of assessment of violence posed by murder defendants.
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    • Journal of Criminal Law and Criminology Vol. 90 No. 4, June 2000
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