Robison v. State

• Decision Date: 29 June 1994
• Docket Number: No. 69976,69976
• Citation: 888 S.W.2d 473
• Parties: Larry Keith ROBISON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 473

888 S.W.2d 473

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

No. 69976.

Court of Criminal Appeals of Texas En Banc.

June 29, 1994.

John C. Beatty and Allan K. Butcher, Fort Worth, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall, David L. Richards, and Greg Pipes, Asst. Dist. Attys., Fort Worth, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MEYERS, Judge.

Appellant was convicted of Capital Murder for intentionally killing Bruce Gardner in the course of committing robbery. Tex.Penal Code Ann. § 19.03(a)(2). After the jury returned an affirmative answer to both special issues, the judge assessed a sentence of death. Tex.Code Crim.Proc.Ann. art. 37.071(b). The judgment of the trial court is affirmed.

We have seen appellant's case before. In 1986, we reversed appellant's first conviction for this offense because of jury selection error. Robinson (sic) v. State, 720 S.W.2d 808 (Tex.Crim.App.1986). Appellant was retried, and his second conviction is the basis of this opinion.

Appellant does not challenge the sufficiency of the evidence.

I.

Appellant presented an insanity defense at trial. In his first three points of error, appellant complains of article 46.03, section 1(e), of the Texas Code of Criminal Procedure, which provides that where such a defense is presented, neither the judge, defense attorney, nor the prosecutor may inform the veniremembers of the consequences of a finding of not guilty by reason of insanity.

In appellant's first point of error, he complains the trial court erred by not permitting him to tell the veniremembers of this prohibition. As early as the fourth veniremember, appellant's counsel attempted to inform the potential juror that, "[if] you find the Defendant not guilty by reason of insanity, then unfortunately, the law--we're not able to tell you what the procedure is." The State's objection to this comment was sustained. The veniremember was excused, and a discussion between the court and the attorneys took place at the bench. Appellant's counsel informed the court that he did not wish to inform the venire of the consequences of a finding of not guilty by reason of insanity, but rather, "[he wanted] to be able to tell each and every juror that the law does not allow us to inform them as to what the result will be." The trial court again sustained the State's objection.

Our legislature has seen fit to prohibit informing potential jurors of the procedures which follow a finding of not guilty by reason of insanity. Tex.Code Crim.Proc.Ann. art. 46.03 § 1(e). The underlying notion of the insanity defense is that it "excuses criminal responsibility." Graham v. State, 566 S.W.2d 941, 952-953 (Tex.Crim.App.1978). ¹ Because insanity is an affirmative defense, we allow the attorneys to question the veniremembers during voir dire concerning their feelings about such a defense. Tex.Code Crim.Proc.Ann. art. 35.16(c)(2). Ironically, it was the trial court's failure to allow this questioning that resulted in the reversal of appellant's first conviction. Robinson (sic), supra.

To support his proposition, appellant directs our attention to a case before the Indiana Supreme Court, where the state had argued that an accused goes "scot free" if found "not guilty by reason of insanity." Dipert v. State, 259 Ind. 260, 286 N.E.2d 405 (1972). ² The Indiana Supreme Court required an instruction be given informing the jurors of the effect of a finding of not guilty by reason of insanity. However, in this case the State never explicitly stated that the defendant would go free. Often the State confronts the premise of the insanity defense, that is, a defendant is excused of the criminal responsibility for his actions and that the jurors responsibilities end at that point. Appellant contends these statements insinuate that the defendant will go free. But appellant's argument goes both ways. The fact there is a finding of not guilty by reason of insanity and a finding of not guilty would also indicate that the results are different in some manner, that you would go free with an acquittal but possibly not with a finding of not guilty by reason of insanity. For whatever reasons, the legislature has determined the jury will not be informed of the differences between these two findings. ³

Because the State in this case did not erroneously indicate appellant would be released into society, appellant's first point of error is overruled.

In appellant's second point of error, he argues the State "opened the door" concerning the effect of a finding of not guilty by reason of insanity. During the State's examination of Dr. Griffith, he commented that occasionally individuals feigned insanity, and "if they can play crazy and convince somebody of this, at least temporarily, they are sidetracked from the legal system into the mental health system." In cross-examination of the doctor, defense counsel attempted to question the witness on the effect of a not guilty by reason of insanity. The court sustained the State's objection. Appellant argues, similar to his first argument, that under the Rule of Optional Completeness when the State opened the door he should be able to cross-examine the mental health professional on the effect of a finding of not guilty by reason of insanity. See Tex.Crim. Rule Evid. 107. The Rule of optional completeness applies to parts of an "act, declaration, conversation, writing or recorded statement..," none of which are applicable in this instance. Nor do we believe the State's witness "indicated the accused would be released into society" thus necessitating an instruction by the trial judge. Supra. Appellant's second point of error is overruled.

Finally, appellant complains that failure to instruct the jury on the consequences of a finding of not guilty by reason of insanity violates his constitutional right to due course of law and due process under article 1, section 19 of the Texas Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. Appellant's basis for this argument is premised upon other jurisdictions. We will address these decisions however, as none of those jurisdictions relied on a constitutional rationale, we decline to reach appellant's constitutional challenge. Appellant acknowledges this argument is identical to the defendant in Zwack v. State, 757 S.W.2d 66, 69 (Tex.App.--Houston [14th Dist.] 1988, no pet.). ⁴

Appellant urges this Court to adopt the so-called "Lyles rule." Lyles v. United States, 254 F.2d 725 (U.S.App.D.C., 1957) (joint opinion by Prettyman and Burger, JJ.), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958); accord State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975); Roberts v. State, 335 So.2d 285 (Fl.1976). In Lyles, the D.C. Circuit Court of Appeals held that where a defense of insanity is raised the trial court shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity, unless it is affirmatively shown on the record that the defendant does not desire such an instruction. 254 F.2d at 728-729. The prior practice for not instructing the jury was based upon the well established doctrine that the jury has no concern with the consequences of a verdict. 254 F.2d at 728. In departing from the established practice, the D.C. Circuit Court of Appeals believed this was not true in the case of the insanity defense.

The rationale for providing such an instruction is persuasive, that is, such an instruction prevents confusion by jurors and prevents jurors from finding an individual guilty where the clear weight of the evidence indicates the defendant was insane at the time of the commission of the offense. However, we fail to see where the policy decisions of our sister courts throughout the union are ever raised to the level of a due process right or a due course of law right. We agree with the Fourteenth Court of Appeals' opinion in Zwack, supra, and the State that such a policy decision should be left to the Legislature where they have spoken on such matters. Accordingly, appellant's third point of error is overruled.

II.

Appellant's fourth through eighth points of error and his eleventh point of error concern the trial court's decision to refuse or grant one party's challenge for cause. In his fourth and fifth points of error, appellant argues the trial court erred in refusing his challenges for cause based on a venireperson's bias or prejudice against the law. Tex.Code Crim.Proc.Ann. art. 35.16(c)(2). In his sixth, seventh and eighth points of error, he argues the trial court erred in granting the State's challenges for cause based on the venirepersons' opinion as to the defendant's guilt or innocence. Tex.Code Crim.Proc.Ann. art. 35.16(a)(10). The eleventh point of error concerns whether the state improperly "educated" a prospective juror on how to avoid an article 35.16(a)(10), supra, disqualification.

This Court will not disturb a trial court's ruling on a challenge for cause absent an abuse of discretion. Adanandus v. State, 866 S.W.2d 210, 222 (Tex.Crim.App.1993). We have consistently deferred to the trial court's ruling on these matters, as the judge is in the best position to see and hear the veniremembers. McCoy v. State, 713 S.W.2d 940, 945 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987).

Appellant's sixth, seventh and eighth points of error concern the trial court's alleged error in sustaining the State's challenge for cause based on venireperson Tadlock. ⁵ When Tadlock was asked by the State whether she had heard anything about the case, she responded she only knew what she had read in the paper. The State then asked, "[from] hearing that, have you formed any opinion or conclusion as to the guilt of this man, either his guilty (sic) or innocence?" She responded "no, not really." When the State asked her what she meant by "not...