Powell v. State
| Decision Date | 07 December 1994 |
| Docket Number | No. 71399,71399 |
| Citation | 897 S.W.2d 307 |
| Parties | David Lee POWELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Upon retrial 1 in November 1991, appellant was convicted under Texas Penal Code § 19.03(a)(1) for the capital murder, committed on May 18, 1978, of a law enforcement officer. The jury affirmatively answered the two special issues submitted under Article 37.071(b). 2 Appellant was sentenced to death as mandated by Article 37.071(e). Article 37.071(h) provides direct appeal to this court. We affirm appellant's conviction, but vacate and remand his sentence for further proceeding in accordance with Article 44.29(c).
Appellant does not challenge the sufficiency of the evidence. However, a brief factual context is usually helpful.
On the night of May 17, 1978 appellant called Sheila Meinert, an ex-girlfriend, and in a slightly hysterical manner asked her to drive him to south Austin. As Meinert got into the driver's seat of appellant's Mustang, she noticed a machine gun on the back floor. Appellant also had a rifle, a pistol, a live hand-grenade, ammunition and a knapsack containing about 2.25 ounces of methamphetamine, literature about weapons and radical politics, and written accounts of his drug dealings.
A uniformed police officer in a marked car, Ralph Ablanedo, pulled appellant and Meinert over and asked for Meinert's driver's license. When she told him that she had lost it, he asked to see appellant's license and attempted to run a computer check. The dispatcher informed Officer Ablanedo that the computers were down. Ablanedo therefore issued Meinert a summons and allowed her and appellant to proceed.
Momentarily, the dispatcher informed Officer Ablanedo that there was possibly an outstanding theft warrant against appellant. Ablanedo pursued the Mustang in his patrol car and ordered Meinert to again pull over. Parking behind the Mustang, he exited the patrol car. As Meinert walked toward the car, shots were fired. Meinert ran back to the Mustang and drove off.
Bobby Bullard, a bystander, testified that Officer Ablanedo and Meinert were walking toward each other, when he heard two to four gunshots and saw Ablanedo fall. Ablanedo stood up but was downed by another round of gunfire. When Bullard looked at the Mustang, the back windshield was shattered, and appellant was inside the car holding a rifle and someone's head was visible below the dashboard in the driver's seat.
Appellant mortally wounded officer Ablanedo with ten gunshots to his chest, arm, abdomen, and leg.
In his fifth point of error appellant alleges that the trial court erred in denying his timely motion to shuffle the jury. The State argues that appellant failed to obtain a ruling from the trial court, and thus, has failed to preserve error. We agree; appellant has failed to preserve error. Not only is there no final ruling, but the record also fails to establish that appellant made a clear, unequivocal request for a jury shuffle. See Tex.R.App.P. 52(a).
According to the record defense counsel objected to the trial court's voir dire procedure. Objecting to the procedure, he stated:
I had no idea you were going to be excusing jurors on the voir dire while we were--we haven't even had a chance to shuffle them yet. I would ask for a shuffle before we even start eliminating juror.... It was my understanding judge, so the record is clear, that you were going to do nothing more than to get them to fill out their information sheet and tell them to come back, and we could determine our shuffle after that.
(XI, 57-58). These remarks, along with counsel's failure to pursue a final ruling, force us to conclude that either counsel did not actually motion for a shuffle or the trial court did not understand that defense counsel was requesting a shuffle. This type of ambiguity and misunderstanding is precisely what the requirement of a final ruling seeks to avoid.
To preserve error for review a defendant must receive an adverse ruling on his objection, and the ruling must be conclusory; that is, it must be clear from the record that the trial judge in fact overruled the defendant's objection; otherwise error is waived. See e.g. Ramirez v. State, 815 S.W.2d 636, 643 (Tex.Crim.App.1991) (); Tex.R.App.P. 52(a). See also and compare Martinez v. State, 867 S.W.2d 30, 35 (Tex.Crim.App.1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994); Chappell v. State, 850 S.W.2d 508, 510 (Tex.Crim.App.1993) (). Having failed to make his request clear and to obtain a final ruling, appellant has not preserved error for review. Appellant's fifth point of error is overruled.
In point of error Six, appellant avers that the trial court erred in denying his timely motion for a jury shuffle and then granting the State's untimely motion to shuffle the jury. Again we must agree with the State that no error was preserved.
The question of appellant's "request" for a jury shuffle has been disposed of in point of error five, supra. The record also reveals that defense counsel was offered and declined to shuffle the venire (XI, 294-95), and then failed to object when the trial court granted the State's motion for a shuffle. (XI, 298). Without a specific timely objection no error is preserved for review. See Martinez v. State, 867 S.W.2d at 35; Chappell, 850 S.W.2d at 510; Tex.R.App.P. 52(a). Appellant's sixth point of error is overruled.
Appellant urges, in points of error seven and eight, that the trial court denied him the effective assistance of counsel and violated Article 35.17 by limiting the individual voir dire of fourteen venirepersons to Witherspoon issues. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Appellant does not allege that the trial court completely denied him the individual voir dire of these veniremen, but merely that the trial court erred in forcing him to begin voir dire with questions about the veniremembers' attitudes toward the death penalty. Appellant asserts that the Texas Constitution and Article 35.17 guarantee that he be permitted to ask proper questions in any order he chose; he alleges this is crucial to voir dire strategy.
The State counters that the procedure employed by the trial court, limiting the initial voir dire to death qualification issues, is indistinguishable from the procedure upheld in Martinez, 867 S.W.2d at 35; see also Bernard v. State, 730 S.W.2d 703 (Tex.Crim.App.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988).
In Martinez, we stated that questions about a veniremember's views regarding legal procedures and capital punishment are best addressed through individual voir dire. 867 S.W.2d at 35; see also Art. 35.17(2). But, we also emphasized that the conduct of voir dire rests within the sound discretion of the trial court, and only abuse of such discretion calls for reversal. Martinez, 867 S.W.2d at 35. We concluded that Article 35.17 does not in any way purport to restrict the discretion of the trial judge in conducting voir dire. Id.
In Martinez, veniremembers were summoned in panels and briefed on the capital sentencing scheme. The parties were then allowed to examine each individual concerning their attitudes regarding the death penalty. When a sufficient number of veniremembers was "death qualified" a general voir dire was conducted. After the general voir dire, the parties exercised their peremptory challenges and the jury was selected. Id. at 35.
In appellant's case it appears that the one-hundred-seventy-one prospective jurors were assigned to the trial court. This array was divided into two panels. The trial court began the voir dire of each panel by explaining general legal concepts such as the presumption of innocence. The judge then asked questions designed to evoke responses suggesting potential challenges for cause. In this vein the trial court explained the different attitudes towards the death sentence and the legal significance of each of the attitudes under Witherspoon and its progeny. The court then asked any veniremember inclined toward one of the attitudes described to raise his or her hand. Those who raised their hands were individually examined regarding the issue by each of the parties. The trial court did not require the parties to exercise any peremptory challenges based on this abbreviated examination; they were required only to make any challenges for cause based on the potential jurors' attitudes toward the death penalty.
Martinez is indistinguishable from appellant's case. The trial court in no way interfered with appellant's rights in its attempt to streamline the labyrinthical process of selecting a jury in a capital murder case. 3 The procedure employed by the trial judge in this case satisfies Article 35.17(2) and in no way interfered with appellant's right to counsel. How best to conduct voir dire remains a determination for the trial court, not appellant's voir dire strategies. Points of error seven and eight are overruled.
In point of error twenty-eight, appellant avers that the trial court erred in granting the State's challenge for cause against venireperson Hodgkins on grounds not specifically listed in Article 35.16. Appellant argues that Article 35.16 contains "an exclusive list" of all the grounds for removing a juror for cause.
In Allridge v. State, 850 S.W.2d 471, 484-485 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 ...
To continue reading
Request your trial
-
Amos v. Scott
...mentioned procedural default), cert. denied, 502 U.S. 1077, 112 S.Ct. 981, 117 L.Ed.2d 144 (1992).22 Amos' reliance on Powell v. State, 897 S.W.2d 307 (Tex.Crim.App.1994), cert. filed, (May 1995), is misplaced. Amos asserts that the TCCA in Powell excused the defendant's failure to comply w......
-
Matchett v. State
...provisions "the right of trial by jury" can only be waived if the State forsakes the death penalty. See Powell v. State, 897 S.W.2d 307, 318 (Tex.Cr.App.1994) (Clinton, J., concurring). Either way, the right to a jury verdict on special issues is purely a creature of statute. There is no ri......
-
U.S.A v. Johnson
...feel implicit pressure to return a verdict favorable to law enforcement interests or sentiment.” Id. at 1137. See also Powell v. State, 897 S.W.2d 307 (Tex.Crim.App.1994). In light of the above, the Court recognizes that it erred and should have granted the defense motion and insisted that ......
-
Powell v. Quarterman, 06-70008.
...sentencing trial, because the trial court had not instructed the jury to answer the special issue on deliberateness. Powell v. State, 897 S.W.2d 307 (Tex.Crim.App.1994). By that time, Texas law had changed and no longer required a retrial of the entire case when reversal was only for senten......
-
Jury Selection and Voir Dire
...harmless). Complaints about jury shuffle error must be preserved. Sanders v. State, 942 S.W.2d 3 (Tex. Crim. App. 1997); Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994). To prevail on appeal, a defendant must raise a specific objection about the jury shuffle at trial. James v. State,......
-
Jury Selection and Voir Dire
...harmless). Complaints about jury shuffle error must be preserved. Sanders v. State, 942 S.W.2d 3 (Tex. Crim. App. 1997); Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994). To prevail on appeal, a defendant must raise a specific objection about the jury shuffle at trial. James v. State,......
-
Jury Selection and Voir Dire
...harmless). Complaints about jury shuffle error must be preserved. Sanders v. State, 942 S.W.2d 3 (Tex. Crim. App. 1997); Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994). To prevail on appeal, a defendant must raise a specific objection about the jury shuffle at trial. James v. State,......
-
Jury Selection and Voir Dire
...harmless). Complaints about jury shuffle error must be preserved. Sanders v. State, 942 S.W.2d 3 (Tex. Crim. App. 1997); Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994). To prevail on appeal, a defendant must raise a specific objection about the jury shuffle at trial. James v. State,......