Morrow v. State

Decision Date30 March 1988
Docket NumberNo. 69263,69263
Citation753 S.W.2d 372
PartiesRicky Eugene MORROW, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

CLINTON, Judge.

Appellant was convicted of the offense of capital murder under V.T.C.A. Penal Code, § 19.03(a)(2), and, the jury having answered special issue numbers one and two affirmatively, Article 37.071(b), V.A.C.C.P., his punishment was assessed death. Appellant does not challenge sufficiency of the evidence in any respect.

In his fifteenth point of error appellant complains of a hypothetical question posed to a number of veniremen during the early portions of the voir dire which was intended to demonstrate the difference between a murder that is committed intentionally and one that is done deliberately. For reasons developed in Lane v. State, 743 S.W.2d 617 (Tex.Cr.App.1987), and Gardner v. State, 730 S.W.2d 675 (Tex.Cr.App.1987), we find this hypothetical to have been improper. Furthermore, under the circumstances presented here, we agree with appellant that the use of the hypothetical so infected the voir dire process as to violate his guarantees of due course of law and representation of counsel under Article I, §§ 19 and 10, respectively, of the Texas Constitution.

Each of the first ten veniremen was questioned extensively on direct voir dire by the State concerning his or her ability to understand and apply the Article 37.071 special issues. During the course of this, each was informed that the law requires the factfinder to recognize a distinction between its duty to determine, at the guilt/innocence phase of trial, whether the murder was intentional, and its duty to undertake at punishment the discrete inquiry whether the killing was "committed deliberately and with the reasonable expectation that ... death ... would result." By way of explanation of the difference between an intentional and a deliberate murder the prosecutor presented substantially the same hypothetical to eight of these veniremen, 1 the gist of which was as we find in the voir dire of venireman Charles Race:

"[PROSECUTOR:] Let me give you an example of how they differ from finding a person guilty of capital murder. Let's say that I go in and rob [Co-counsel] in the 7-Eleven store. He gives me the money and, for whatever reason I have, I'm leaving and I--it is my conscious objective or desire to engage in the conduct of pulling the trigger on the gun that I have and shoot him. And I shoot him. I just so happen to shoot him in the knee and medical complications set in and he dies. That is a murder that occurred during the course of a robbery because he wouldn't have died if I hadn't shot him. You may very well go out and find me guilty of capital murder, you see? I committed the crime in Dallas County, January the 19th, had a gun, caused his death by shooting him with a gun during a robbery--

[Defense counsel]: We're going to object to that hypothetical as not being substantial and the facts that would be required to substantiate a capital murder. The fact that he leaves out that he intentionally committed the murder in the course--he said he shot him. There's no requisite intent to commit the murder as required in the Capital Murder Statute. All he's given is a hypothetical that comes under the third circumstance of the statute [V.T.C.A. Penal Code, § 19.02(a)(3) ] and, therefore, is a death caused by an act committed in the course of a felony. We would object to that hypothetical as not being proper.

THE COURT: Overruled.

[Defense Counsel]: Note our exception.

[Prosecutor] You see how you can find me guilty of that offense?

Switch number one has been answered 'yes.'

Now you come to switch number two, that first question up there. You see that there's a different inquiry being made of you than whether I committed the crime?

A. (Nods head.)

Q. Now you're asked: Was my act deliberate and with a reasonable expectation that death would result? You might say, if he got shot in the knee, he didn't reasonably expect that he's going to die, and I'm going to answer that 'no.'

A. Right.

Q. Contrast that with the situation, Mr. Race, where I go into the 7-Eleven to rob it. I finish robbing. I intentionally fire the gun. This time I do it right at his head and pull the trigger and blow his brains out. Can you see how that is a deliberate act with a reasonable expectation that death would result?

A. Yes, I can see that."

Appellant objected unfailingly each time this hypothetical was repeated and expressly challenged each of the eight veniremen for cause on account of its use. The objections were overruled and the challenges were denied. Of those eight veniremen, two were excused by agreement of appellant and the State, one was peremptorily challenged by the State, and one, venireman Race, sat on the jury. Appellant excercised a peremptory strike on each of the remaining four.

Following voir dire of the first ten veniremen, the prosecutor invoked the faulty hypothetical during questioning of four of the remaining 46 veniremen. 2 Appellant objected each time and challenged each of the four veniremen for cause on the basis of use of the hypothetical. Two were peremptorily struck. The other two, including veniremen Gary Woods, ultimately served on the jury, though appellant had peremptory challenges remaining at those points. The voir dire of Woods proceeded as follows:

Let me try a different example. I go into a Seven-Eleven. I take the gun and I get the money from [Co-counsel]. I take the gun and I fire at [Co-counsel] and leave. The bullet hits [Co-counsel] in the leg and as a result of that, he bleeds to death. I've intentionally caused his death because I've engaged in the conduct. Okay? Conscious objective or desire to engage in the conduct. I pulled that trigger.

[Defense Counsel]: We would object to that as not being a proper definition of 'intentional'. It's not just pulling the trigger, it's a mental state and an act together. If you're intentionally causing the death, that has to be your intentional objective or desire to engage in the conduct to cause results. If you just meant to shoot him in the leg, that's not an attempt to kill.

THE COURT: Overruled.

Q. [Prosecutor] You've got that first example. I walk in the store, get the money, take the gun--it's my conscious objective or desire to pull the trigger on the gun. The bullet hits [Co-counsel]. He bleeds to death. That's an example of when I intentionally caused the death of an individual while in the commission of a robbery.

Here's example number two. I go into the Seven-Eleven. I get the money from [Co-counsel]. I take the gun. I don't just fire at him, I take it and put it right up to his head. It's just an inch away from the side of his temple, and I pull the trigger and I blow his brains out. Under that fact scenario, the first part of intentionally engage in the conduct, conscious objective or desire to engage in the conduct, you bet. Second question: deliberately engage in the conduct with a reasonable expectation that death would occur, second example. Does that, perhaps, draw the distinction for you a little better?

A. I see the distinction that you tried to get to, yes, sir. He deliberately shot him in the head knowing he was going to die or should die.

Q. That's right. As opposed to just shooting at him and having the bullet hit him somewhere and then bleeding to death-- [Defense Counsel]: If that's the example they're using of just shooting at him and him ended up bleeding to death, that's not capital murder and we would object to that example being used. He could confuse this prospective juror, and we would ask that he be instructed to disregard that as even an example.

THE COURT: Disregard the statement of the prosecutor about shooting at somebody. It is not a capital murder.

Q. [Prosecutor] I didn't mean to change my example. The first example I gave you is where I shoot the gun. It's my conscious objective or desire to engage in the conduct. I pull the gun, the gun fires and hits [Co-counsel] in the leg and then he bleeds to death. That's the example I meant for the first one.

[Defense Counsel]: Your Honor, we're going to object to that as, further, not being intentionally causing the death if all he's doing is shooting the gun and he doesn't intend to cause the death.

THE COURT: Overruled.

* * *

* * *

Q. [Prosecutor] I've got these two examples. The first example was where I walk in and I take the gun and I fire the gun. It's my intent to fire the gun to engage in that conduct or fire the gun. The bullet hits [Co-counsel] in the leg and he bleeds to death, and I go out with the money. It answers the first question 'intentional'. It might or might not answer the second question of whether it was done deliberately with a reasonable expectation that death would occur.

The second example--

[Defense Counsel]: Your Honor, as to that first example, we would, again, that it's not an intentional act and not a proper definition. Same objection.

THE COURT: Overruled.

[Prosecutor] When the Judge says 'overruled', that means the example I used, you can use or consider it.

The second example, he walks into the Seven-Eleven. He takes the gun an inch from [Co-counsel]'s head and pulls the trigger. That's intentional and deliberately with a reasonable expectation that death would occur. Okay?"

Here, as we said in Gardner v. State, supra at 687:

"The scenario posed by the prosecutor certainly presented facts which could constitute the offense of murder under either V.T.C.A. Penal code, § 19.02(a)(2) or (3); or even under § 19.02(a)(1), supra inasmuch as it may show a 'knowing' killing. But the shooting of a robbery victim in the leg in order, e.g., to prevent...

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