Rogers v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: TEAGUE; CLINTON; Early on in Texas, as a republic and then a state, without guidance of legislatively enacted specific challenges for cause; DUNCAN
• Citation: Rogers v. State, 774 S.W.2d 247 (Tex. Crim. App. 1989)
• Decision Date: 03 May 1989
• Docket Number: No. 69598,69598
• Parties: Patrick F. ROGERS, Appellant, v. The STATE of Texas, Appellee.

Page 247

774 S.W.2d 247

Patrick F. ROGERS, Appellant, v. The STATE of Texas, Appellee.

No. 69598.

Court of Criminal Appeals of Texas En Banc.

May 3, 1989.

Rehearing Denied June 7, 1989.

David W. Holmes, Paris, for appellant.

Tom D. Wells, Dist. Atty., Paris, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TEAGUE, Judge.

On September 21, 1985, Patrick F. Rogers (henceforth "appellant") and Willis Cooper, a companion, left Oklahoma, drove across the border to Paris, Texas, and robbed two women at gunpoint in Braum's store. A short time later, while still driving around town, they were pulled over by Officer David Roberts, a Paris patrolman. Immediately after bringing his car to a complete stop, appellant exited the vehicle, approached the patrol car on foot, and shot Officer Roberts six times, causing his death. Appellant then returned to his own vehicle and drove away at high speed. After an intense search of the area in and around Paris, appellant was apprehended by the authorities and later indicted for the capital murder of Officer Roberts. V.T.C.A., Penal Code § 19.03(a)(1). After a jury found him guilty of capital murder and returned affirmative answers to the special issues submitted pursuant to Art. 37.071(b), V.A.C.C.P., appellant was sentenced to death. See Art. 37.071(e), V.A.C.C.P. His appeal to this Court is automatic. See Art. 37.071(h), V.A.C.C.P.; Tex.R.App.Proc., rule 40(b)(1). Appellant neither challenges the sufficiency of the evidence on guilt nor the jury's affirmative answers to the special issues.

I.

The indictment in this cause charged appellant with "intentionally and knowingly" causing the death of a police officer. The trial court's charge to the jury authorized conviction upon a finding that he "intentionally or knowingly" caused such result. In his first point of error, appellant complains that the trial judge improperly permitted conviction on a theory other than that alleged in the indictment.

This Court has long approved the practice of prosecuting authorities to plead culpable mental states conjunctively and submit them for jury consideration disjunctively whenever the statutory language is disjunctive. Ely v. State, 582 S.W.2d 416, 421 (Tex.Cr.App.1979) (on original submission); Cowan v. State, 562 S.W.2d 236, 240 (Tex.Cr.App.1978) (rehearing denied en banc). But cf. Hunter v. State, 576 S.W.2d 395 (Tex.Cr.App.1979) (holding that disjunctive pleading of culpable mental states is permissible); Montgomery v. State, 639 S.W.2d 949 (Tex.Cr.App.1982) (holding that conjunction of culpable mental states in jury charge requires jury to find both).

Indeed, as a general rule it is not objectionable for the State to plead alternative theories of culpability conjunctively, while authorizing conviction if any one or more of such theories is sufficiently proven at trial. E.g., Garrett v. State, 682 S.W.2d 301, 309 (Tex.Cr.App.1984), cert. denied 471 U.S. 1009, 105 S.Ct. 1876, 85 L.Ed.2d 168 (allegation of "choking and strangling" in capital murder indictment will support conviction when either "choking or strangling" is proven; Vaughn v. State, 634 S.W.2d 310, 312 (Tex.Cr.App.1982) (allegation "threaten and place in fear" in robbery indictment will support conviction when proof shows that accused did either "threaten or place in fear"); Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976) (allegation that accused was "arrested for, charged with, and convicted of" an offense in an escape indictment will support conviction when either "arrested for, charged with, or convicted of" is proven).

We decline to reconsider this body of well-settled authority in the instant context. Accordingly, appellant's first point of error is overruled.

II.

In his second, third and fourth points of error, appellant contends that three veniremen were erroneously excluded for cause on account of their opposition to the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), prohibits exclusion of a prospective juror merely because he expresses conscientious scruples regarding the penalty of death. However, such veniremen may be excluded when their views concerning capital punishment are such that they would be prevented or substantially impaired in the performance of their duties as jurors. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Sharp v. State, 707 S.W.2d 611, 620 (Tex.Cr.App.1986). The question is one of fact for the trial judge, and his conclusions concerning the qualifications of a prospective juror will not be disturbed on appeal so long as the record discloses sufficient evidence to support a rational finding that the venireman in question was, indeed, impaired in his ability to discharge the legal responsibilities of a juror. Hernandez v. State, 757 S.W.2d 744 (Tex.Cr.App.1988). Cf. e.g., Vanderbilt v. State, 629 S.W.2d 709, 729 (Tex.Cr.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (when prospective juror is equivocal in his answers, trial judge usually does not err in finding him substantially impaired); Briddle v. State, 742 S.W.2d 379, 384-385 (Tex.Cr.App.1987) (when prospective juror vacillates between inconsistent answers, trial judge usually does not err in finding him substantially impaired). In a capital case, the responsibilities of a juror include a willingness to resolve certain factual issues honestly even though an honest resolution of the issues might result in the imposition of a death sentence. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Johnson v. State, 698 S.W.2d 154, 165 (Tex.Cr.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164. By these standards, it is reasonably clear that the trial judge did not err in sustaining the State's challenges for cause to the three veniremen here in question.

Sarah Jane Casey averred from the outset, in response to questions of the trial judge, that "under no circumstances could [she] ever return a verdict that had the affect [sic] of assessing the death penalty." It soon became apparent that she had been opposed to capital punishment on religious grounds for many years. The prosecuting attorney then explained the procedure prescribed by Texas law at the penalty phase of a capital murder trial, including the legal effect of affirmative answers to the special jury issues. Casey continued to insist that her beliefs would make it impossible to serve on a capital jury, responding affirmatively to a wide variety of leading questions from the prosecutor, such as "And so I assume that your belief would have a profound and disabling affect [sic] on your deliberations." When reminded by defense counsel that she would only be called upon to answer questions of fact, she nevertheless responded, "I would like to think that I could tell the truth about it but I'm not sure that the death penalty wouldn't influence my decision." The trial judge intervened at this point to suggest that, rather than lie, she might simply refuse to answer one or more of the special issues. In the end, and without ever indicating otherwise, Casey affirmed that she was "absolutely sure" that she "couldn't overcome [her] belief against the death penalty to answer these questions yes, even if [she] were supposedly convinced beyond a reasonable doubt[.]"

Things proceeded in much the same way with prospective juror Jean A. Griffin, except that the trial judge initially explained to her the procedure in a capital case wherein the jury must answer special issues at the punishment phase of trial. Griffin's opposition to capital punishment appears to have been based upon a moral conviction of recent vintage. Even so, after first expressing some uncertainty about the probable effect of her new beliefs on her performance as a juror, she affirmed "that regardless of the state of the evidence, [she] could never answer [a] question yes, knowing that the death penalty would be inflicted as a result of [her] answer[.]" The prosecutor's questions essentially provided an opportunity for her to reaffirm this position, although she did indicate at one point, "I really don't think I could lie." Griffin ultimately responded to questions from defense counsel by insisting that she would refuse to answer the special issues at all rather than give an answer that might result in imposition of the death penalty.

Finally, venireperson Gella Ross stated from the beginning that she could not vote to impose capital punishment even for the most heinous of crimes. Indeed, she felt that the possibility of a death sentence might affect her determination of a defendant's guilt or innocence. Yet, when the trial judge explained that a capital jury is only called upon to answer certain questions of fact, Ross unequivocally stated, "I think I could vote honestly" even though she admitted that the possibility of an impending death sentence "would greatly influence me." Under questioning by defense counsel, she gave assurance that she would never be influenced to the point of lying in her answers. But, upon further interrogation by the trial judge and prosecuting attorney, she opined that her judgment might be impaired by her opposition to capital punishment such that "I don't think I would be fair ... I don't think I would even be able to answer that correctly."

Clearly, a venireman is not disqualified from service on a capital jury merely because his views regarding the death penalty might influence his decision-making process. See Adams v. Texas, supra; Durrough v. State, 620 S.W.2d 134, 142 (Tex.Cr.App.1981). And it is possible that each prospective juror here in question might merely have been more critical in her evaluation of the evidence, more exacting in her understanding of reasonable doubt, or more circumspect in her interpretation of the special issues on account of opposition to capital punishment than would otherwise have been ...