Newbury v. State, 74,308

• Decision Date: 21 April 2004
• Docket Number: No. 74,308,74,308
• Citation: 135 S.W.3d 22
• Parties: DONALD KEITH NEWBURY, Appellant v. THE STATE OF TEXAS.
• Court: Texas Supreme Court

Page 1

135 S.W.3d 22

DONALD KEITH NEWBURY, Appellant v. THE STATE OF TEXAS.

No. 74,308

Court of Criminal Appeals of Texas.

Delivered April 21, 2004.

On Direct Appeal from Dallas County.

HERVEY, J., delivered the opinion of the Court in which KELLER, PJ., MEYERS, PRICE, JOHNSON, KEASLER, HOLCOMB and COCHRAN, JJ., joined. WOMACK, J., concurred.

OPINION

HERVEY, J.

A jury convicted appellant of capital murder. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase. Appellant raises twenty-three points of error in an automatic direct appeal to this Court. We affirm.

Appellant does not challenge the sufficiency of the evidence to support the jury's guilty verdict or the jury's answers to the special issues. The evidence shows that appellant and others (the "Texas 7") escaped from prison. They later murdered a Dallas police officer in a volley of gunfire during a robbery on Christmas Eve.

In point of error one, appellant claims that, during voir dire, the trial court violated Article 35.16(a)(10), Tex.Code.Crim.Proc., and Article 35.17, § 2, Tex.Code.Crim.Proc., "by failing to inquire as to whether prospective jurors had already formed an opinion as to appellant's guilt that would influence their actions in rendering a verdict in the case." In point of error two, appellant claims that this also violated the Sixth and Fourteenth Amendments to the United States Constitution by directly affecting "the determination of whether impartial jurors are impaneled." Article 35.17, § 2, provides:

In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court.

Article 35.16(a)(10) provides that a veniremember is subject to a challenge for cause when the following conditions are met:

That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged without further interrogation by either party or the court. If he answers in the negative, he shall be further examined as to how his conclusion was formed, and the extent to which it will affect his action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case. If the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged.

(Emphasis added).

The record reflects that the trial court submitted the following as part of the juror questionnaire form.

Although neither side is permitted to tell you their version of the facts in this case, both sides have agreed to summarize the allegations as follows, to see if you know anything about this case:

It is alleged that on December 24, 2000, Irving police officer Aubrey Hawkins was shot to death outside of an Oshman's Sporting Goods Store.

There has been news media coverage regarding this case. If chosen as a juror you will have taken an oath that requires you to return a verdict, whatever that verdict is, on the basis of the evidence that you hear in the courtroom and not from some outside source. Therefore, there is nothing wrong with a prospective juror, such as yourself, having heard of this case, or having heard of this defendant. However, it is not permissible if what you have heard causes you to have a preconceived conclusive opinion that the defendant is guilty or not guilty, or a preconceived conclusive opinion as to what punishment the defendant should receive, if found guilty. A juror is not qualified to serve if there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the jurors action(s) in reaching a verdict.

All defendants are presumed to be innocent. This presumption requires the State to prove a defendant's guilt beyond a reasonable doubt before a jury would be authorized in finding the defendant guilty of an offense. Only evidence presented in court, under oath, and subject to cross examination is to be considered by a jury in determining whether the State has satisfied its burden of proof in a particular case. A juror, to be qualified, must set aside any opinion held concerning a defendant's guilt that was formed by the reading of newspaper accounts, by seeing or hearing other media reports, or through rumor or hearsay.

The record also reflects that appellant filed a written motion to delete this language from the juror questionnaire form and to submit, among other things, the following:

It is alleged that, on or about December 24, 2000, the Defendant, Donald Keith Newbury, killed Aubrey Hawkins, an Irving Police Officer, at an Oshman's Sporting Goods Store, during the course of a robbery, by shooting him with a firearm. These allegations have been reported by the media.. . .

Based upon anything you have heard or read, have you formed an opinion of the guilt or innocence of the Defendant which would influence your verdict? Yes No.

Appellant's written motion, in relevant part, asserted the following reasons for submitting his requested language in the juror questionnaire:

In an effort to "qualify" those jurors who would be disqualified under [Article 35.16(a)(10)], the language of the questionnaire misstates the law by instructing the prospective jurors that one is disqualified only if one has "a preconceived conclusive opinion that the defendant is guilty or not guilty or a preconceived conclusive opinion as to what punishment the defendant should receive, if found guilty."

Furthermore, Defendant objects to the attempt to instruct the prospective jurors what they must say if they wish to serve on the jury, even if they have reached an opinion which would influence their verdict.

The record further reflects that the trial court denied this motion just after appellant pled to the indictment and prior to the beginning of the voir dire of the jury panels.

[THE COURT]: Mr. Parks, what is your client's plea to that indictment?

[APPELLANT]: Not guilty, Your Honor.

[THE COURT]: Thank you. You may be seated.

Mr. Parks, let me ask you, are there further motions that need to be handled at this time?

[APPELLANT]: Uh, the only other motion that needs to be handled at this time, Your Honor, would be the motion that I have filed objecting to the language regarding publicity in the questionnaire.

Uh, that has been discussed, I believe Mr. Shook conferring with Judge Francis prior to the time she left the bench. We have not had a hearing on that motion. However, she did indicate both to myself and Mr. Shook that she intended to deny that motion. It just needs to be put on the record.

I am not sure if you have the motions there. It would be—those motions are categorized by subject. It is going to be one of the motions dealing with voir dire. And it will be a motion objecting to language in the questionnaire. I can't remember exactly how I titled it.

[THE COURT]: Would be that the motion to substitute language in the questionnaire?

[APPELLANT]: Yes, ma'am.

[THE COURT]: All right. That objection is denied.

This Court has held that a trial court does not violate Article 35.17, § 2, under circumstances almost identical to those presented here. See Freeman v. State, 556 S.W.2d 287, 294 (Tex.Cr.App. 1977), cert. denied, 98 S.Ct. 1284 (1978).¹ In Freeman, this Court decided that the trial court did not err to refuse the defendant's requested instruction like the one here where, among other things, the record reflected "that the judge gave extensive instructions to the jury panel" on "matters of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and prejudice and opinion" and thereafter "the State and [the defendant] were given the opportunity ... to examine each member of the panel on voir dire individually and apart from the entire panel." See id.

And, assuming that appellant preserved the constitutional claim that he raises in point of error two, appellant provides no United States Supreme Court authority, and we are aware of none, holding that the United States Constitution requires the submission of appellant's requested language in the juror questionnaire form. We are unpersuaded that this record presents a colorable claim of any constitutional violation, particularly since appellant had the opportunity to examine each veniremember individually during voir dire on the issue of whether that veniremember had formed an opinion of appellant's guilt which would influence the veniremember's verdict. Cf. Freeman, 556 S.W.2d at 294.

Appellant also claims in these points that during individual voir dire the veniremembers should have been asked only whether they had formed any conclusions that would influence their verdict. Appellant argues that it not only violated Article 35.16(a)(10) to accurately explain the law to the veniremembers in the juror questionnaire form but it also violated Article 35.16(a)(10)...