Robinson v. State

• Decision Date: 16 April 1986
• Docket Number: No. 69211,69211
• Parties: Larry Keith ROBINSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 808

720 S.W.2d 808

Larry Keith ROBINSON, Appellant, v. The STATE of Texas, Appellee.

No. 69211.

Court of Criminal Appeals of Texas,

En Banc.

April 16, 1986.

Allan K. Butcher, J.R. Molina, Fort Worth, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall, David Chapman and Larry M. Moore, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

Appellant does not contest the sufficiency of the evidence.

Appellant relied on the defense of insanity. In his thirteenth ground of error, appellant contends that the trial court erred by sustaining the State's objection to a question appellant sought to ask venireman Eula Winslett. The question was: "In any case where a Defendant raises the issue of insanity, would you hold it against him because of your feelings on the issue of insanity as an affirmative defense?"

The prosecutor had explained the insanity defense and the defendant's burden of proving by a preponderance of the evidence his insanity at the time of the conduct charged. The prosecutor then questioned the venireman about her feelings concerning the defense of insanity. The venireman responded, "I don't understand how anyone could claim that they were insane at the time and they are not insane now." The prosecutor discussed the preponderance burden further with the venireman. The venireman was then asked twice whether, if appellant satisfied his burden of proof, she could give him the benefit of "that law" and find him not guilty by reason of insanity. She answered first, "I don't know whether I could or not." On further questioning she answered, "If I was completely satisfied, I could."

When the venireman was passed to the defense, counsel questioned her further concerning the insanity defense and the concept of preponderance of the evidence. The following then took place:

"Q. ... Do you have a bias or prejudice against the law of insanity as an affirmative defense in a criminal case?

"A. Yes, I think I do.

"Q. And because of your thinking, in any criminal case in which a person accused raises that issue, do you have a bias or a prejudice against that accused?

"[PROSECUTOR]. I will object to that, unless he also includes in it, where the defense is proved by a preponderance of the evidence that the defense exists.

"THE COURT: That last question is repetitious. I'll sustain it."

Defense counsel objected to the Court's ruling, and stated that the second question "wasn't the same question." Counsel nevertheless withdrew the second question and challenged for cause. The trial court allowed the State to take the venireman on voir dire again, and ultimately overruled the defense challenge for cause. The venireman was again passed to the defense. The following then took place:

"Q. ... In any case where a Defendant raises the issue of insanity, would you hold it against him because of your feelings on the issue of insanity as an affirmative defense?

"[SECOND PROSECUTOR]: Your Honor, I'll object to that as being repetitious.

"THE COURT: Sustained. We are not going to get in a Ping-Pong match here. We have settled your challenge for cause and I overruled you, and you have your bill in the record.

"[SECOND DEFENSE COUNSEL]: Note our exception to the Court's ruling, as not being allowed to ask this question to the venireman in order that we may properly exercise a peremptory challenge.

"THE COURT: Overruled."

In Mathis v. State, 576 S.W.2d 835, 836-37 (Tex.Cr.App.1979) this court wrote:

"The right to be represented by counsel, guaranteed by Article 1, Section 10 of the Texas Constitution, encompasses the right of counsel to question the members of the jury panel in order to intelligently exercise his peremptory challenges. [citations omitted.] The trial court, in its sound discretion, can and should control the voir dire examination of the venire; however, the permissible areas of questioning the panel in order to exercise peremptory challenges are broad and cannot be unnecessarily limited. [citation omitted.]

"... When the contention is that the trial court erred in denying a challenge for cause, no reversible error is shown unless the defendant exhausted his peremptory challenges and one or more objectionable juror sat on the jury. However, when the question is asked for the purpose of exercising peremptory challenges, the test for injury is entirely different. If the question is proper, an answer denied prevents intelligent use of the peremptory challenge and harm is shown. [citation omitted.]"

The State argues that the question was repetitious, reasoning as follows:

"This Court recently stated that two basic principles--the right of counsel to question venire members and the right of the trial court to control the voir dire examination and impose reasonable restrictions--'co-exist and must be harmonized.' [citing Ratliff v. State, 690 S.W.2d 597 (Tex.Cr.App.1985).] Among those reasonable restrictions is the trial court's right to prevent repetitious questions. [citing Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974), and McManus v. State, 591 S.W.2d 505 (Tex.Cr.App.1979).]

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