Prystash v. State
| Decision Date | 15 September 1999 |
| Citation | 3 S.W.3d 522 |
| Parties | (Tex.Crim.App. 1999) JOSEPH ANDREW PRYSTASH, Appellant v. THE STATE OF TEXAS NO. 72,572 |
| Court | Texas Court of Criminal Appeals |
Page 522
v.
THE STATE OF TEXAS
OF TEXAS
APPEAL FROM HARRIS COUNTY
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Before the court en banc
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WOMACK, J., delivered the opinion of the Court, in which MCCORMICK, P.J., and MANSFIELD, KELLER, and KEASLER, JJ., joined.
The appellant, who had agreed to murder Robert Fratta's wife for remuneration, engaged Howard Guidry to do the shooting. He provided Guidry with a gun, and on November 9, 1994, he transported Guidry to and from Fratta's house where the killing was done. The appellant was convicted of capital murder in July 1996. Penal Code 19.03(a). Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure article 37.071, sections 2(b) and 2(e), the trial judge sentenced the appellant to death. Article 37.071, 2(g).1 Direct appeal to this Court is automatic. Article 37.071, 2(h). The sufficiency of the evidence is not challenged. The appellant raises seventeen points of error and a "point for review." We shall affirm.
I. Voir Dire
In point of error number seventeen, the appellant complains that the trial court erroneously denied a challenge for cause against Venire Member William Brittain. The appellant claims that Mr. Brittain was biased against a phase of the law in violation of article 35.16(c)(2). He argues that Mr. Brittain refused to acknowledge that the society in the future dangerousness special issue2 includes prison society. A close reading of the voir dire transcript, with the relevant parts underscored, reveals that Mr. Brittain understood that the appellant might be less of a threat while in prison.
Q: You have a forty-year-old man gets a life sentence. You know Judge is telling you that he's going to do 40 years minimum. So, now he's eighty years old. You think, I don't really want him out as my neighbor. I think he might be a threat to me out here. But if he's in the penitentiary for the next forty years, he may not be a threat in that society in there?
A: Right.
Q: So, I might answer the question one way for a 17-year-old kid. And I might answer it the opposite way for a guy when he's 40 when he goes in. See that way of thinking?
A: Yes.
Q: Does that make sense to you?
A: It makes sense.
From this portion of the voir dire, it is clear that the venire member understood the prison versus free-world dichotomy that the appellant complains the venire member refused to consider. However, the voir dire questions that the appellant was asking involved more than the distinction between prison society and civilian society. His inquiry also included the idea that the advanced age of the prisoner would lessen his future dangerousness after release.
Q: Would you be willing to consider that here's my 20 minute question. When you look at society would you be willing to consider the age of the person and the length of sentence when you're deciding if somebody is a threat to society or not?
A: No, not on the age if they've committed it.
Q: And tell me why you wouldn't?
A: Why I wouldn't?
Q: Right.
A: I think that they should have thought about that before they committed the crime. I wouldn't worry about the age.
Q: Okay. And that's what you're deciding in the first phase, guilty or not guilty?
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A: Right.
Q: But now I'm talking about in the context of the first special issue. And you are trying to decide whether that person is a threat to society. What would you want to know about when you look at whether they are a threat or not to society.
A: Their background, you know. If they committed crimes or things before.
Q: Okay. And what are you thinking about when you think about society? What, were you analyzing that threat?
A: Just want him on the street or not.
Q: Exactly. He ain't going to be on the street.
A: Right.
This part of the voir dire shows that the venire member understood that some offenders may be older than others when they go to prison, but that he refused to acknowledge the age of the offender to be relevant to an assessment of guilt. It does not reflect that he had discarded the prison versus free-world dichotomy. When the defense counsel focused the venire member's attention onto the punishment issues, he maintained that he would not consider age in deciding future dangerousness.
Q: So, that's what, the point I'm trying to get across to you. And I know it's a new concept and I appreciate you working through it with me. But he's not coming back on the street for 40 calendar years minimum. So, it wouldn't be fair, would it, for you to answer that first special issue thinking he's going to get out tomorrow that he may be a threat but wouldn't be in the penitentiary? See what I'm saying?
A: I see what you are saying.
Q: Would you be willing to consider society to include the penitentiary in this context?
A: No, I still have to listen to the case, you know.
Q: Right.
A: To me, age doesn't make the difference.
Q: You would not be willing to consider it in answering the first special issue?
A: No.
The venire member repeated that he understood the dichotomy the defense had presented, but he rejected the notion that the age of the offender when he went into prison would be relevant. When he answered the question of whether he would be willing to consider society to include the penitentiary, he simply reserved the right to make his determination of future dangerousness based on the particularized facts with which he would be presented. Considering the entirety of his testimony on the topic, it seems clear that he understood that society included prison, but that he refused to consider the age of an offender when determining future dangerousness.
A juror is not challengeable for cause because he refuses to give mitigating effect to particular evidence. Morrow v. State, 910 S.W.2d 471, 473 (Tex. Cr. App. 1995), cert. denied, 517 U.S. 1192 (1996). In Soria v. State, 933 S.W.2d 46, 65-66 (Tex. Cr. App. 1996), cert. denied, 520 U.S. 1253 (1997), we held that although a juror in a capital case "would give no weight to age in considering punishment [that] does not subject him to a challenge for cause." Id. at 66; see also Massey v. State, 933 S.W.2d 141, 150 (Tex. Cr. App. 1996) (holding that venire members were not challengeable for cause based on a refusal to consider age as mitigating evidence in capital case). Point of error number seventeen is overruled.
II. Guilt Phase
In a "point for review," the appellant asks us to review employment records of a witness, which the trial court sealed after inspecting them in camera. The witness was a sheriff's deputy who participated in the custodial interrogation that led to the
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appellant's written statement. The appellant subpoenaed the records because he thought they would contain favorable evidence about the witness's "interrogation practices." The trial court, finding no evidence favorable to the appellant, ruled that the records would not be given to him. We have examined the records, and we find that the trial court did not abuse its discretion in denying the appellant access to them.
III. Punishment Phase Testimony
In the appellant's third point of error, he argues that the trial court erred by excluding from the jury during the punishment phase of his trial the prosecutor's plea offer of 55 years. He argues that a plea offer of 55 years, as opposed to an offer of life, is mitigating evidence relevant to the jury's determination of special issue number two in that it reflects that the prosecutor did not believe the appellant to be a continuing danger to society. The State counters that the plea offer was solely motivated by the State's desire for evidence against the appellant's co-defendants, and the offer did not reflect the prosecutor's evaluation of the appellant's death-worthiness.
The trial judge excluded the evidence without reference to any particular rule of evidence, nor did he require the prosecutor to state the specific grounds for the State's objection to the introduction of this evidence. The trial judge excluded the evidence because he was concerned that if the plea agreement was made public, it might affect the trial of the appellant's co-defendant. Concern for the impact on a subsequent trial should be dealt with in that case through the voir dire of prospective jurors, see Rideau v. Louisiana, 373 U.S. 723 (1963); Adami v. State, 524 S.W.2d, 693, 704 (Tex. Cr. App. 1975), a continuance, see Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Cr. App. 1983), cert. denied, 462 U.S. 1144 (1983), or a venue change, see, e.g., Brimage v. Texas, 918 S.W.2d 466, 508 (Tex. Cr. App. 1996).
However, if the trial court's decision was correct on any theory of law applicable to the case, we will sustain it. McFarland v. State, 845 S.W.2d 824, 846 n.15 (Tex. Cr. App. 1992), cert. denied, 508 U.S. 963 (1993). This is true even if the trial judge failed to give any reason or used the wrong reason for the ruling. Romero v. State, 800 S.W.2d 539, 543 (Tex. Cr. App. 1990). Our standard of review for evidentiary decisions by the trial judge is the abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Cr. App. 1990); Marras v. State, 741 S.W.2d 395, 404 (Tex. Cr. App. 1987).
In Smith v. State, 898 S.W.2d 838 (Tex. Cr. App.), cert. denied, 516 U.S. 843 (1995), this Court upheld the trial court's exclusion of the State's plea bargain offer of life imprisonment. The State had argued in Smith that the excluded evidence of the plea bargain was inadmissible under Rule 408.3 After ruling that Rule 408 is inapplicable to plea offers, we evaluated the trial court's decision under Rule 403. Id. at 843. We admitted that the plea bargain "may be minimally relevant to a State
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District Attorney's office belief that the defendant was not a future danger." Id. at 844. However, we...
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