Rhoades v. State

Decision Date02 October 1996
Docket NumberNo. 71595,71595
PartiesRick Allan RHOADES, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Page 113

934 S.W.2d 113
Rick Allan RHOADES, Appellant,
v.
The STATE of Texas, Appellee.
No. 71595.
Court of Criminal Appeals of Texas,
En Banc.
Oct. 2, 1996.
Rehearing Denied Nov. 20, 1996.

Page 118

James Staffored, Houston, for appellant.

Dan McCrory, Asst. District Attorney, Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MANSFIELD, Judge.

A Harris County jury convicted appellant, Rick Allan Rhoades, of capital murder. 1 At the punishment phase of the trial, the jury unanimously found appellant to be a future danger under Article 37.071 § 2(b), 2 and, further, declined to find mitigating circumstances under Article 37.071 § 2(e). The trial court sentenced appellant to death. We will affirm the judgment of the trial court.

Appellant raises eighteen points of error in his brief on appeal. There are no evidentiary insufficiency points of error. Hence, we will address his points in chronological order where appropriate.

In point number one, appellant contends the trial court impermissibly restricted his right to intelligent and effective use of peremptory challenges, when it prohibited voir dire discussion of the statutory thirty-five year minimum for individuals sentenced to life imprisonment. The substance of appellant's argument is that his right to counsel--as guaranteed by Article I, Section 10, of the Texas Constitution--was impinged when the trial court precluded voir dire discussion of the minimum calendar years appellant would have to serve before being eligible to parole were he sentenced to life imprisonment instead of death. See Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App.1990); Shipley v. State, 790 S.W.2d 604 (Tex.Crim.App.1990).

We have held that a trial court commits error if it prohibits defense counsel from asking "proper" voir dire questions. Caldwell v. State, 818 S.W.2d 790, 793 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992). A natural corollary to the preceding rule is that a trial court commits no error if it precludes improper voir dire questioning. A "proper" question is one which seeks to discover a veniremember's views on an issue applicable to the case. Id. When an appellant challenges a trial court's voir dire limitation, the reviewing court must analyze the claim under an abuse of discretion standard, the focus of

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which is whether the appellant proffered a proper question. Id.

We have held that parole, and the issues surrounding the minimum prison term necessary for parole eligibility, are not matters for jury consideration in a capital murder prosecution. Smith v. State, 898 S.W.2d 838, 846 (Tex.Crim.App.1995) (plurality opinion), cert. denied, --- U.S. ----, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Broxton v. State 909 S.W.2d 912, 919 (Tex.Crim.App.1995); Sonnier v. State, 913 S.W.2d 511, 521 (Tex.Crim.App.1995). Given that juries are not to consider any aspect of parole, a reasonable trial court could find that parole was not an issue applicable to the case. If parole was not an issue applicable to the case, a reasonable trial court could correctly conclude that parole was not a "proper" area of voir dire inquiry. Ford v. State, 919 S.W.2d 107, 116 (Tex.Crim.App.1996). Point of error number one is overruled.

In his second point, appellant avers that his Sixth Amendment right to counsel was impinged when the trial court precluded him from discussing, with the veniremembers, the statutory thirty-five year minimum for individuals convicted of capital murder who are given a life sentence. Appellant simply declares that his right to counsel was violated, and presents no argument or authority for this contention.

It is not sufficient that appellant globally cite the "Sixth Amendment," and nothing else, in support of his request for reversal. See Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.1992), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). It is incumbent upon counsel to cite specific legal authority and to provide legal argument based upon that authority. Id.; Tex.R.App.Proc. 74(f) and 210(b); Ex parte Granger, 850 S.W.2d 513, 515, fn. 6 (Tex.Crim.App.1993). This is especially important where, as in the case at bar, the relevant area of law is not well defined. 3 This Court will not make novel legal arguments for appellant. Point of error two is inadequately briefed, and it is, therefore, overruled.

In point three, appellant claims the trial court committed error by providing false and misleading information about parole eligibility, during the jury selection process. We note that, in appellant's brief, the argument and authority for this point was combined with the argument and authority for points one, two, and four. Hence, it is difficult for this Court to ascertain what information appellant believes the trial court erroneously provided to the veniremembers. Nevertheless, appellant apparently complains of two instances.

First, appellant complains the trial court, in response to a question from a veniremember, informed the veniremember that the decision regarding parole eligibility was within the exclusive jurisdiction of the Board of Pardons and Paroles. The exchange follows:

THE COURT: Did you have a question?

VENIREMEMBER: Yes. When will they be eligible for parole?

THE COURT: I can't answer that.

APPELLANT: I ask the court to answer that.

THE COURT: I am not going to answer it. It's within the exclusive jurisdiction of the Board of Pardons and Paroles and the governor of the State of Texas.

PROSECUTOR: Shall I continue?

THE COURT: Please.

Appellant contends that the time for parole eligibility is not within the jurisdiction of the parole board at all. Rather, appellant avers, under the current statutory scheme, parole eligibility is within the jurisdiction of the Legislature. See Article 42.18. However, whether the trial court's response constituted error is not an issue before this Court because appellant failed to object to the statement. We have long held that, for an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for that objection. Rezac v. State,

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782 S.W.2d 869, 870 (Tex.Crim.App.1990). Since, appellant is raising this argument for the first time on appeal, any error is waived. 4

As his second basis for error, appellant contends the trial court misled veniremember Adams when it told her that a person sentenced to death was not eligible for parole, while also stating that a defendant sentenced to life in prison was eligible for parole. The relevant voir dire exchange follows:

VENIREMEMBER: ... is he eligible for parole?

THE COURT: Well I think it's obvious if somebody is assessed the death penalty you don't get paroled on a death penalty.

VENIREMEMBER: That doesn't seem to be what is happening, though. Or are we not knowing the full story when we hear things?

THE COURT: You probably don't know the full story, but you aren't paroled on a death penalty. I think that is obvious. I don't think anybody is going to object at this point to my telling you that, which leaves you with the other option, a life sentence.

VENIREMEMBER: And that's the one that you are eligible for parole at some stage, perhaps?

THE COURT: Yes.

APPELLANT: I would request that you overrule the State's motion [in limine regarding parole questions] and inform her fully as to the full ramifications of it.

THE COURT: No.

At no time during this exchange did appellant lodge an objection claiming the trial court misled Adams. Rather, appellant simply asked the trial court to overrule the State's motion in limine. In his brief, appellant now seems to argue that the trial court misled Adams by apprising her of the existence of parole without then informing her of the intricacy of its operation.

We do not have to address the merits of this point because the State exercised a peremptory challenge against veniremember Adams. The alleged error could not have influenced the trial in any conceivable manner. Point of error three is overruled.

In his fourth point, appellant claims that Article 37.071 is unconstitutional if it is interpreted to deny a jury information of the thirty-five year minimum before parole eligibility. Appellant specifically claims that his due process rights protected under both the Fourteenth Amendment, and Article I, Section 19 of the Texas Constitution, were violated when the trial court refused to provide the jury with information of the minimum sentence before parole eligibility. See Smith; Broxton; Sonnier, supra.

Appellant also contends, under this point, that his Article I, Section 13 rights guaranteed by the Texas Constitution were violated. As to the latter argument, appellant is presumably referring to the Texas right against cruel or unusual punishment. In any event, appellant does not designate in his brief, and we cannot find in the record, where appellant lodged his Article I, Section 13 objection in the trial court. Without such an objection, any error in this regard has been forfeited. Rezac v. State, 782 S.W.2d at 870.

As to appellant's federal due process claim, this Court has settled the issue unfavorably to appellant. Broxton, supra. With regard to his Texas due course of law contention, appellant presents no argument or authority as to how the protection offered by the Texas Constitution differs from the protection guaranteed by the Federal Constitution. His claim is, therefore, inadequately briefed and presents nothing for our review. Tex.R.App.Proc. 74(f) and 210(b); Smith v. State, supra, at 847; Ex parte Granger, supra, at 515, fn. 6.

Appellant finally claims, under this point, that his right to equal protection, as protected by the Fourteenth Amendment, was violated. Appellant specifically claims that capital defendants are treated disparately from non-capital defendants. Appellant's argument

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was rejected in Smith v. State, supra....

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