Satterwhite v. State

• Decision Date: 10 March 1993
• Docket Number: No. 70951,70951
• Citation: 858 S.W.2d 412
• Parties: John T. SATTERWHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 412

858 S.W.2d 412

John T. SATTERWHITE, Appellant, v. The STATE of Texas, Appellee.

No. 70951.

Court of Criminal Appeals of Texas,

En Banc.

March 10, 1993.

Rehearing Denied June 9, 1993.

George Scharmen (Court appointed), San Antonio, for appellant.

Steven C. Hilbig, Dist. Atty., and Bill Harris, Anne Kelley & Edward F. Shaughnessy, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

PER CURIAM.

Appellant's first conviction for the offense of murder in the course of committing robbery, a capital offense under V.T.C.A. Penal Code, § 19.03(a)(2), was reversed by the United States Supreme Court for error committed during the punishment phase. Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). Appellant has now been tried and convicted a second time. Once again the jury answered special issues affirmatively and punishment was assessed accordingly at death. Article 37.071(b), V.A.C.C.P. Appeal to this Court is automatic. Id., § h.

On March 12, 1979, Mary Frances Davis was found dead in the restroom of the Lone Star Ice & Food Store No. 18 in San Antonio. Davis, the day manager of the store, was the victim of two .22 caliber gunshot wounds to the head. An audit of the store's receipts revealed a shortage of $629 and some cents. Appellant raises seventeen points of error but does not contest the sufficiency of the evidence to establish he committed the offense. We will affirm.

In his first eight points of error, appellant complains of error which he contends occurred during jury selection. Although the alleged errors occurred during the individual questioning of the prospective jurors, due to their similarity, and for the sake of brevity, we have combined some of appellant's arguments. In each of these points of error, appellant argues the trial court erred in denying his challenge for cause because the venireman in question held prejudices against an aspect of the law upon which he was entitled to rely. See Article 35.16(c)(2), V.A.C.C.P. In each instance, the trial court overruled his challenge for cause and appellant used a peremptory strike to exclude the venireman. Appellant exhausted all of his peremptory challenges and his request for additional strikes was denied. He identified a number of objectionable jurors who sat as a consequence. Thus, error, if any, was preserved. See Felder v. State, 758 S.W.2d 760 (Tex.Cr.App.1988).

At the outset, it is important to recognize that this Court reviews jury selection from a cold record. It is the trial judge who has the opportunity to view each venireman's demeanor, evaluate his credibility and, ultimately, who is in the better position to pass on the challenges for cause presented. Smith v. State, 676 S.W.2d 379, 387 (Tex.Cr.App.1984). Thus, in analyzing a trial court's denial of a challenge for cause we must examine the record as a whole to determine whether there is support for the trial judge's decision, and in doing so we give great deference to the trial court's actions. Holland v. State, 761 S.W.2d 307 (Tex.Cr.App.1988); Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986). This rule is particularly true when we are faced with an "equivocating" or "vacillating" venireman. Perillo v. State, 758 S.W.2d 567, 577 (Tex.Cr.App.1988); Holland, supra. In reviewing challenges for cause, an appellate court will not disturb the decision of the trial court absent a showing of an abuse of discretion. Williams v. State, 773 S.W.2d 525 (Tex.Cr.App.1988).

By way of four points of error appellant contends the trial court erred in failing to grant his challenges for cause to veniremen Ashcraft, Seuferer, Rodriguez and Harper. Specifically, appellant argues these veniremen were unable to distinguish between the concepts of "intentionally" and "deliberately." Therefore, they would automatically answer statutory special issue number one in the affirmative. See Article 37.071(b)(1), V.A.C.C.P.

The first substantive discussion with veniremen Ashcraft and Harper concerning the interplay between the concepts of "intentionally" and "deliberately" occurred in the questioning by appellant's counsel. Ashcraft initially stated that deliberate and intentional sound "a little bit alike" and that there was "not much" difference. Similarly, Harper stated that "deliberate and intentional are ... similar or the same" and based upon his understanding, he would have a tendency to answer the first special issue "yes" based on the bare fact of a guilty verdict. However, in addition to expressing difficulty with the distinction, both Ashcraft and Harper expressed confusion with defense counsel's questions. Through additional questioning by the trial court and the prosecutor some of the confusion was removed. Ultimately, both veniremen stated they saw a distinction between intentional and deliberate and neither would automatically answer the first special issue "yes." ¹ Furthermore, Harper assured defense counsel that he would require more from the State in the way of proof in order to find beyond a reasonable doubt that whatever intentional act they have proven is also a deliberate act, and he clearly stated "deliberate and intentional are different."

For veniremen Seuferer and Rodriguez, the discussion of the distinction between intentionally and deliberately was initiated by the prosecution. In response to various questions both Seuferer and Rodriguez stated that they saw the distinction and would not automatically answer special issue number one in the affirmative merely because they had found the accused had committed an intentional murder. Nevertheless, when later questioned by appellant's counsel, both veniremen appeared to change their minds. Seuferer expressed his feelings that intentionally and deliberately were the "same thing." Likewise, Rodriguez "guessed" that having found an act to be intentional would make him automatically find it was a deliberate act as well. ² Consequently, appellant asserted his challenges for cause. Before ruling, the trial court allowed the prosecutor to question further. The questioning of Seuferer went as follows:

"Q: I tried to be very careful awhile ago to illustrate for you that the answer to Question No. 1 should not be automatic, that there is a difference between intentional and deliberate conduct. And you told me you saw the distinction.

Now you are telling Mr. Scharmen that there is no distinction. Have you changed your mind? Or do you feel you do not fully understand it yet?

A: I fully don't understand it."

By way of example the prosecutor attempted to show the distinction. After this explanation, Seuferer stated again that he would not automatically answer "yes" to the first special issue just because he found the person guilty of intentionally causing the death.

As for Rodriguez, the prosecutor questioned him as follows:

"Q: I was trying to emphasize awhile ago that the first question should not be answered automatically, that there is a difference between deliberate conduct and intentional conduct, and that you can have intentional conduct without deliberate conduct.

I think Mr. Scharmen just asked you, if you had found a person had intentionally caused the death, would you automatically vote that the conduct was deliberately committed?

And you said, "Yes." Did you mean that or--

A: Well, I guess just the way you worded the question sort of answered for me. If I go either way--"

At this point the court stepped in:

"THE COURT: We don't want these lawyers answering questions for you. We want you to answer the question.

THE PANELIST: Like I said sir, I would have to wait and hear the case, the evidence, before I came to any conclusion, any answer.

THE COURT: Well, Mr. Scharmen told you that if you found that the individual did act intentionally, would you automatically find that he did it deliberately? And I understood you to say--

THE PANELIST: Yes, I understand. Sorry.

THE COURT: What is your feeling now? Do you want to think about it?

THE PANELIST: If he intentionally did it, automatically did he deliberately do it?

THE COURT: Yes.

THE PANELIST: No. Sir.... I guess the way I heard the question, I just didn't understand what you were saying. I do not agree that if he intentionally did it, did he deliberately do it."

It is readily apparent from the record that veniremen Ashcraft, Seuferer, Rodriguez and Harper were confused and equivocating in their response to counsel's questions. However, in his challenges for cause, appellant elevates confusion and equivocation to the level of inability to follow the law. Sattiewhite v. State, 786 S.W.2d 271 (Tex.Cr.App.1989). In support of his challenges to these four veniremen, appellant cites Gardner v. State, 730 S.W.2d 675 (Tex.Cr.App.1987), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987), as authority. As we stated in Sattiewhite, Gardner "is instructive in that it shows the difficulty jurors have in understanding the difference between 'deliberate' and 'intentional.' However, the Gardner Court points out that a juror who fails to understand the difference between the two terms may be subject to challenge for cause absent rehabilitation or clarification of the responses." 786 S.W.2d at 281. As the excerpts above reveal, with further questioning, the veniremen's confusion was cleared up, their responses clarified and each stated he recognized the distinction between intentional and deliberate conduct. Furthermore, each stated he would follow the law and would not automatically answer the first special issue in the affirmative. These answers support a rational finding that the veniremen could follow the law. On such a record, we cannot say the trial court abused its discretion in overruling appellant's challenges for cause. Appellant's first four points of error are overruled.

In his fifth point of...