Raby v. State
| Decision Date | 04 March 1998 |
| Docket Number | No. 71938,71938 |
| Citation | 970 S.W.2d 1 |
| Parties | Charles Douglas RABY, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant, Charles Douglas Raby, Jr., was convicted of capital murder in June of 1994. TEX. PENAL C ODE A NN. § 19.03(A)(2)1. Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. 2 Article 37.071 § 2(g). Direct appeal is automatic. Article 37.071 § 2(h). We will affirm.
Edna Mae Franklin, the 72-year-old complainant in this case, lived with her two grandsons, who were appellant's friends. Although Franklin had barred appellant from her home, her grandsons often snuck him in through a window and allowed him to spend the night. On the night of the offense, the two grandsons left their grandmother at home and went out. Upon their return, one of them discovered Franklin dead on the living room floor. She had been severely beaten and repeatedly stabbed, and her throat was cut. Her attacker had undressed her below the waist. The contents of her purse had been emptied onto her bedroom floor. Police concluded the attacker's point of entry was the same window through which the grandsons had previously ushered appellant. After further investigation, police arrested appellant for the offense, and he confessed to the killing.
At trial, appellant pleaded not guilty to the capital murder of Franklin. At the close of the guilt/innocence phase evidence, the jury returned a guilty verdict. At the punishment phase, the State introduced evidence of a variety of previous offenses and bad acts. Witnesses testified to a series of assaults committed by appellant, with the victims including appellant's girlfriend, his stepfather, a ten-year-old boy, a two-year-old girl, a friend's mother, and others. While incarcerated, appellant reportedly attacked jailers and sheriff's deputies, fought with other inmates, and was found in possession of weapons on more than one occasion. Witnesses also testified about appellant's involvement in several convenience store robberies. Appellant offered testimony at punishment relating to his troubled upbringing, including his mother's mental problems, his commitment to foster care and institutions, and episodes of physical abuse. Other witnesses testified that appellant had a peaceful disposition and that his problems during incarceration had been provoked by jailers. At the close of the punishment phase evidence, the jury answered the first special issue "yes" and the second special issue "no." As required by statute, the trial court then sentenced appellant to death.
In his first point of error, appellant complains that he was erroneously denied the right to voir dire prospective jurors on whether they could "consider" particular types of mitigating evidence during the capital sentencing phase. Prior to the commencement of voir dire, appellant filed a "Motion to Permit Voir Dire of Prospective Jurors on Mitigating Evidence." By that motion, appellant requested that his attorneys be permitted to question prospective jurors about "whether ... they could consider or would be willing to consider, at least in some cases, the following types of evidence in mitigation of punishment:"
(i) A capital defendant's relative youth at the time of the crime (e.g., twenty-two years old);
(ii) The fact that a capital defendant was intoxicated at the time of the crime;
(iii) The fact that a capital defendant suffers from a medically-diagnosed form of mental or emotional illness;
(iv) The fact that a capital defendant was abused or neglected as a child;
(v) The fact that a capital defendant has exhibited positive character traits, such as having engaged in acts of kindness towards family members;
(vi) Any other relevant mitigating factor that would tend to militate in favor of a life sentence rather than a death sentence.
Defendant believes that such questions would not require a prospective capital juror to "commit" to returning a life sentence if any or all of the foregoing types of mitigating evidence were in fact introduced at trial. Nor does Defendant intend for prospective jurors to "commit" that they will assign any particular mitigating weight to such evidence if it were introduced at trial. Rather, Defendant merely wishes to inquire into whether prospective jurors could "consider" such evidence, at least in some cases, it mitigating [sic] of punishment, assuming it was introduced and jurors in fact believed that such mitigating factors were found to exist.
Appellant then continued in his motion to state that he recognized that this Court has held such questions to be improper. 3 He also recognized that this Court has held that, if such questions should be allowed and a prospective juror states that he would not consider a particular type of evidence as mitigating, that prospective juror cannot be removed for cause on that basis. See Morrow v. State, 910 S.W.2d 471 (Tex.Crim.App.1995), cert. denied 517 U.S. 1192, 116 S.Ct. 1683, 134 L.Ed.2d 784 (1996). However, appellant propounded in his motion, as he propounds on appeal, that these cases were erroneously decided and should be revisited.
We reiterated in Green v. State, 912 S.W.2d 189 (Tex.Crim.App.1995), pet. for cert. filed (Jan. 2, 1996) (No. 95-7651), that the law does not require a juror to consider any particular piece of evidence as mitigating; all the law requires is that a defendant be allowed to present relevant mitigating evidence and that the jury be provided a vehicle to give mitigating effect to that evidence if the jury finds it to be mitigating. A trial court does not abuse its discretion by refusing to allow a defendant to ask venire members questions based on facts peculiar to the case on trial (e.g. questions about particular mitigating evidence). Coleman v. State, 881 S.W.2d 344 (Tex.Crim.App.1994), cert. denied, U.S. , 513 U.S. 1096, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995). Appellant has given us no compelling reason to revisit our precedent on this issue. We overrule point of error one.
In point of error two, appellant claims that the trial court erred in denying him an evidentiary hearing on his claim that the death penalty is administered in a racially discriminatory manner. 4 Specifically, he argues that defendants are more likely to be given the death penalty when the victim is white. Appellant's argument is purely based on existing statistical studies allegedly showing that, in Texas, the death penalty is more likely to be assessed when the victim is white than when the victim is a member of a racial minority. Appellant offers no evidence specific to his own case that would support an inference that racial consideration played a part in his sentence. This argument has been addressed and rejected by both this Court and the United States Supreme Court and, without more, we will not revisit it here. Robinson v. State, 851 S.W.2d 216, 232 (Tex.Crim.App.1991), cert. denied, U.S. , 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994); McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). We overrule point of error two.
Appellant avers in his third point of error that the trial court erred in denying his motion to voir dire prospective jurors regarding evidence of voluntary intoxication. Specifically, at trial, appellant requested the following:
Defendant intends to offer, during both the guilt-innocence and punishment phases of trial, evidence that he was highly intoxicated at the time of the alleged offense.
Section 8.04(a) of the Texas Penal Code provides that evidence of voluntary intoxication cannot be used as a defense to the commission of a crime. Section 8.04(b) provides that voluntary intoxication that rises to the level of "temporary insanity"--as defined by § 8.01 of the Penal Code--may be considered in mitigation of punishment, but only if it rises to the level of "temporary insanity." Defendant believes that both § 8.04(a) and § 8.04(b), and any instructions submitted pursuant to those statutory provisions, are unconstitutional. Accordingly, Defendant wishes to voir dire the members of the array in a manner that would, admittedly, be inconsistent with § 8.04's statutory commands. However, Defendant believes that such voir dire questions are permitted by both the federal and state Constitutions.
The motion then proceeds to set out argument and authorities for why the trial court should declare §§ 8.04(a) and (b) unconstitutional and allow him to ask venire members two different questions. 5 In his brief, which is simply a restatement of his trial motion, appellant conclusorily states that his proposed questions were proper simply because §§ 8.04(a) and (b) allegedly operate in an unconstitutional manner.
In his argument concerning the constitutionality of § 8.04(a), appellant claims that Texas is in the distinct minority of states that do not allow evidence of voluntary intoxication at guilt/innocence for the purpose of showing whether a defendant had the capacity to form the requisite intent for a specific intent crime. In urging us to follow the lead of these other jurisdictions, appellant claims that § 8.04(a) suffers from the same constitutional defect that plagued the trial court's jury instruction in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
In Sandstrom, the United States Supreme Court reversed a conviction for "deliberate homicide," or murder committed "purposely or knowingly," because the trial court charged the jury that "the law presumes...
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