Penry v. State, 71130

Citation903 S.W.2d 715
Decision Date22 February 1995
Docket NumberNo. 71130,71130
PartiesJohnny Paul PENRY, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

PER CURIAM. *

In July 1990, a Walker County 1 jury found appellant, Johnny Paul Penry, guilty of the capital offense of murder in the course of committing aggravated sexual assault. 2 See Tex.Penal Code § 19.03(a)(2). The jury answered the special punishment issues affirmatively, and the trial court assessed punishment at death. See Tex.Code Crim.Proc. art. 37.071(b). 3 Appeal to this Court is automatic. See Article 37.071(h). On appeal, appellant raises 135 points of error, but he does not challenge the sufficiency of the evidence to support the jury's finding of guilt. 4 We will affirm.

COMPETENCY TRIAL

Appellant maintains in points of error 121-123 that the trial court abused its discretion when it denied his motion for change of venue raised at the competency trial. 5 The motion and accompanying affidavits alleged that appellant could not get a fair trial in Walker County due to pretrial publicity. He argues that the trial court's failure to change venue violated his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

At the venue hearing, appellant presented evidence of various articles appearing in four Texas newspapers, The Houston Chronicle, The Houston Post, The Dallas Morning News, and The Huntsville Item. The majority of the articles appeared in January and February 1989, when appellant's original case 6 was before the Supreme Court, and again in June and July 1989, when the Supreme

Page 727

Court issued its opinion reversing his original conviction. This was more than six months prior to the May 1990 competency trial. Only three articles were printed in February and March of 1990. Two of those articles dealt with the original change of venue from Polk to Walker County; the third article was a letter to the editor.

Hal Ridley, a criminal-defense lawyer practicing in Walker County, testified for appellant. He suggested that the public was already familiar with the case and was familiar with the fact that appellant had already received a death sentence which had been overturned. Ridley did admit, however, that many of the newspaper articles were favorable to appellant. He further stated that because so many potential jurors were connected with the Texas Department of Criminal Justice (T.D.C.J.), 7 the potential jurors could not help being prejudiced against appellant. The State presented only its controverting affidavit to rebut appellant's assertions.

The trial court took judicial notice of the voir dire examination of the competency venire. During voir dire, it was determined that twenty-one veniremembers had heard something about the case, most having read about it in their local newspaper. Only two veniremembers stated that the information they had obtained would bias their opinions, and they were excused for cause. 8 Of the remaining panelists who were questioned about their knowledge, three were aware that appellant was a death-row inmate but did not know any details of his offense; three others knew only that he had killed someone; one knew there had been a change of venue; another knew appellant's name and was aware that he had done something "against the law;" and one thought he may have seen appellant as an inmate in the prison in Huntsville.

Article 31.03(a) provides that a change of venue may be granted on a defendant's motion if "there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial." However, merely because a case has been well publicized in the media does not automatically establish prejudice so as to require a change of venue; due process does not require that jurors be completely ignorant of the facts of the case. Narvaiz v. State, 840 S.W.2d 415, 428 (Tex.Crim.App.1992); Ransom v. State, 789 S.W.2d 572, 579 (Tex.Crim.App.1989). Due process requires only that a juror lay aside his impression or opinion and render a verdict based on the evidence presented in court. Morris v. State, 488 S.W.2d 768, 771-72 (Tex.Crim.App.1973).

A defendant seeking a change of venue on grounds of pretrial publicity must show the existence of such prejudice in the community that the likelihood of obtaining a fair trial is doubtful. Narvaiz, 840 S.W.2d at 428. An appellate court will not reverse a trial court's decision to deny a change of venue absent an abuse of discretion. Id.; Hathorn v. State, 848 S.W.2d 101, 109 (Tex.Crim.App.1992).

Appellant has shown us nothing in the record that demonstrates that the trial court's denial of his motion to change venue was outside the realm of reasonableness. See Narvaiz, 840 S.W.2d at 428. No member of the competency venire not struck for cause had formed an opinion as to appellant's competency or guilt. Points of error 121-123 are overruled.

Points of error 124 and 125 aver that the trial court erred in refusing to conduct individual voir dire and in refusing to sequester the jurors at the competency phase even though "a large number of the panel members had been exposed to extensive publicity." However, because appellant has provided no argument or authority regarding these issues, we consider the points inadequately briefed and as presenting nothing for our review. Tex.R.App.Proc. 74(f); Robinson v. State, 851 S.W.2d 216 n. 4 (Tex.Crim.App.1991)

Page 728

. Points of error 124 and 125 are overruled.

In points of error 126-131, appellant alleges that the trial court made numerous reversible errors during jury selection at the competency trial. Specifically, he contends the trial court erred in overruling his challenges for cause because the veniremembers had biases or prejudices against him. See Article 35.16(a)(9).

The denial or grant of a challenge for cause is within the discretion of the trial court and will not be overturned absent an abuse of that discretion. Mooney v. State, 817 S.W.2d 693, 701 (Tex.Crim.App.1991). We examine the record as a whole to determine whether there is support for the trial court's decisions, and, in doing so, we give great deference to the trial court. Satterwhite v. State, 858 S.W.2d 412, 415 (Tex.Crim.App.1993). The trial court is able to consider such factors as demeanor and tone of voice that do not come through when reviewing a cold record. Mooney, 817 S.W.2d at 701. Appellant was granted no additional peremptory strikes.

In point of error 126, appellant complains that prospective juror Taylor was biased because he knew appellant was a death-row inmate and felt psychologists were trying to run a "con game" to help appellant avoid the consequences of his actions.

There is no requirement in our law that jurors be completely ignorant of the facts of a case. Cockrum v. State, 758 S.W.2d 577, 589 (Tex.Crim.App.1988); Nethery v. State, 692 S.W.2d 686, 694 (Tex.Cr.App.1985). The sole question is whether a juror can put aside prior knowledge and opinion and render an impartial verdict. Cockrum, 758 S.W.2d at 589; see also Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975). During voir dire, Taylor stated that he knew appellant was an inmate on death row, but also that he knew no facts about the crime. Moreover, Taylor assured the trial court and the attorneys that he had formed no opinion as to appellant's competency and was not affected by his knowledge of appellant's death-row status.

Next, Taylor initially stated that he believed psychiatrists were trying to run a "con game" by testifying that defendants are incompetent. He believed that the "business of competency" was a way for a defendant to avoid being prosecuted. However, Taylor also stated that he would be able to put that opinion behind him and render a competency verdict strictly on the evidence, including psychiatric evidence, presented.

There is a distinction between prejudice on the part of a juror and the mere entertaining of an opinion. Kemp v. State, 846 S.W.2d 289, 299 (Tex.Crim.App.1992). Simply because Taylor stated he felt some defendants might attempt to feign incompetence did not mean he had formed a conclusion as to appellant's competency. Taylor was not disqualified as a matter of law from serving as a juror in this case. We see no abuse of discretion on the part of the trial court. Point of error 126 is overruled.

In point of error 127, appellant asserts that prospective juror Watkins should have been disqualified as a juror because he knew appellant was a death-row inmate through a bulletin he received at work. Appellant argues in points of error 128 through 131 that, due to media coverage, prospective jurors Moore, Massey, Weinzierk, and Ritchey each knew that appellant had killed someone and, therefore, they should also be disqualified. Massey also knew that appellant was on death row and that venue had been changed from Polk County.

All these jurors stated unequivocally that they had formed no opinions regarding appellant's competency. They all stated that they could set aside their knowledge and render a verdict based strictly on the evidence. As we have previously stated, the mere fact that a prospective juror has received some information about the accused's case through the news media does not automatically disqualify him from serving as a juror. Cockrum, 758 S.W.2d at 589. Because each of these jurors assured the trial court that he or she could put aside prior knowledge and render an impartial verdict, the trial court did not abuse its discretion. Id. Points of error 127 through 131 are overruled.

Page 729

In...

To continue reading

Request your trial
467 cases
  • Ex parte Davis
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 17, 1997
    ...Id., at 236, n. 13. In this Court we have simultaneously used both terms with no distinction in their meaning. See, Penry v. State, 903 S.W.2d 715 (Tex.Cr.App.1995); Higginbotham v. State, 807 S.W.2d 732 (Tex.Cr.App.1991); State v. Yount, 853 S.W.2d 6 (Tex.Cr.App.1993); State v. Frye, 897 S......
  • McGinn v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 21, 1998
    ...defendant produced no evidence that any member of the venire harbored unshakable prejudices against him); Penry v. State, 903 S.W.2d 715, 727 (Tex.Crim.App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995)(record must demonstrate prejudice in community making likelihood o......
  • Rhoades v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 2, 1996
    ...portion of the trial; rather, appellant was asking whether the veniremember believed it to be mitigating. See Penry v. State, 903 S.W.2d 715, 736 (Tex.Crim.App.1995). Indeed, the evidence adduced at trial indicated that appellant was intoxicated when he committed the murders. In this contex......
  • Johnson v. State
    • United States
    • Court of Appeals of Texas
    • May 28, 2008
    ...170 L.Ed.2d 278 (2008); see TEX.R.APP. P. 33.1(a); McCarthy v. State, 65 S.W.3d 47, 49 n. 2 (Tex.Crim.App.2001); Penry v. State, 903 S.W.2d 715, 727 (Tex.Crim.App. 1995). Inadequately briefed issues should be overruled. See Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App.2000) (op. on orig.......
  • Request a trial to view additional results
41 books & journal articles
  • Punishment phase
    • United States
    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 2
    • May 5, 2022
    ...witnesses are not allowed to give their opinion about the defendant, the alleged crime or the appropriate sentence. Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995); Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003). Where photographs of the victim and family are introduced as vi......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Forms. Volume II - 2014 Contents
    • August 12, 2014
    ...330, 54 L.Ed.2d 331 (1977), §3:25 Pennsylvania v. Muniz , 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), §5:03 Penry v. State , 903 S.W.2d 715 (Tex.Cr.App. 1995), §§6:15, 6:16 People v. Loomis , 156 Cal.App.3d, 1 (1984), Form 10-13 Perea v. State, 870 S.W.2d 314 (Tex.App.—Tyler 1994,......
  • Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2021 Contents
    • August 16, 2021
    ...charged offense. Boston. The opening statement requirements of CCP Chapter 36 are inapplicable to punishment proceedings. Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995); Love. Similarly, since the right of an accused to make an opening statement is derived solely from statute, and Ar......
  • Punishment Phase
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2014 Contents
    • August 17, 2014
    ...witnesses are not allowed to give their opinion about the defendant, the alleged crime or the appropriate sentence. Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995); Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003). Where photographs of the victim and family are introduced as vi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT