Shannon v. State
| Decision Date | 11 December 1996 |
| Docket Number | No. 71805,71805 |
| Parties | Willie Marcel SHANNON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant, Willie Marcel Shannon, was convicted of capital murder in November, 1993. T EX. P ENAL C ODE A NN. § 19.03(A)(2)1. During the punishment phase, the jury affirmatively answered the special issue set forth in Texas Code of Criminal Procedure art. 37.071 § 2(b) and negatively answered the special issue set forth in Article 37.071 § 2(e). The trial judge sentenced appellant to death as required by Texas Code of Criminal Procedure art. 37.071 § 2(g). Direct appeal is automatic. TEX. CODE C RIM. P ROC. A NN. art. 37.071 § 2(h). We will affirm.
Appellant raises sixteen points of error, but does not challenge the sufficiency of the evidence at either stage of trial. Therefore, we shall dispense with a recitation of the facts. We will address the points of error in the order they are presented.
In points one through four, appellant complains that the trial court erred in refusing to instruct the jury that appellant would be "parole ineligible" until he had served thirty-five (35) calendar years in prison if sentenced to "life" imprisonment. He alleges that this was in violation of the due process clause of the Fourteenth Amendment; the Eighth Amendment; the due course of law provision under Article I, § 19 of the Texas Constitution; and Article I, § 13 of the Texas Constitution. Appellant relies primarily on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), as his authority.
In Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.1995)(plurality opinion), cert. denied, --- U.S. ----, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), the same issues were presented to this Court. Pursuant to the presentation of those issues, we engaged in a comprehensive discussion of Simmons as it relates to the law in Texas. We reiterated that parole is traditionally not a matter for jury consideration in a Texas capital murder trial. And, thus, it is not error for a trial court to refuse to admit testimony concerning parole. Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992), cert. denied 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Further, we "absolutely reject[ed]" the premise that Simmons has been extended to parole eligible defendants. Smith, 898 S.W.2d at 848. As such, we hold that the requested instruction which is the subject of these points was appropriately refused by the trial court. Smith, supra.
Appellant has given us no reason to revisit our analysis of Smith, nor has he shown us any distinguishing evidence in the record 2 or provided us with any other reason why Smith should not control in this case. See Broxton v. State, 909 S.W.2d 912(Tex.Crim.App.1995). Points of error one through four are overruled.
In related points five and six, appellant advances that the trial court erred in refusing to instruct potential jurors on the length of appellant's "parole ineligibility," because "the prosecutor opened the door to that subject." In point seven, appellant maintains that this failure to instruct potential jurors on the length of appellant's "parole ineligibility" prevented him from asking relevant questions which violated his rights under Article I, § 10 of the Texas Constitution.
Appellant notes that, throughout voir dire, the prosecutor informed venirepersons that a "life" sentence does not mean "life without parole." However, his basic complaint seems to be that the judge should have elaborated on this. Specifically, in point of error five, appellant contends that the prosecutor "opened the door" to the subject of appellant's "parole ineligibility" when he said to venireperson A. Smith:
This last statement then caused the venireperson to ask, "What is ... the law as far as when someone can be released?" Appellant asked that the venireperson be instructed as to the law in that area and the trial court denied the request.
In point six, appellant complains that the prosecutor again "opened the door" to the subject of appellant's "parole ineligibility" when questioning venireperson J. Ford.
[THE STATE:] So, before you get [to the punishment stage] you've had very horrible facts presented to you. You've made a decision someone intentionally killed someone with the specific intent to kill during the course of a robbery. Now you must determine the answer to those questions.
Some people say, I am so upset with violence and the prospect that people who get out on early release, and we just have a revolving door--I think one of the jurors before you said, in a situation where they go in, they get out, they go in, they get out, that if I find someone intentionally killed someone with the specific intent to kill during the course of a robbery and I know if they get life imprisonment, there's a possibility that they may parole at some point in time, I don't have control over that, that I'm going to automatically give that person the death penalty or vote for the death penalty regardless of anything else. I've heard enough.
Sometime later when appellant was questioning the venireperson, the following occurred:
At this point, appellant requested that the judge give the venireperson an instruction concerning the minimum time a person would have to serve in prison, which request was denied. The juror was asked to step out into the hallway and appellant elaborated on his request, stating that:
Judge, at this time I am requesting that you give the juror an instruction that if a life sentence is returned in a capital murder such as this that the defendant would be required to serve 35 calendar years prior to becoming eligible, even becoming eligible, for consideration for parole. I'm asking that because in order to exercise an intelligent decision as to strike or accept this juror, I think it's imperative to know her feelings concerning that and whether or not it would affect her decision in assessing or answering these questions and in assessing either the death penalty or life in prison.
The trial court denied the request. For the reasons set out under points one through four, we hold that the trial judge did not abuse his discretion in failing to give the above requested instructions. 3 Smith, supra and Broxton, supra. Furthermore, given that the subject of parole was frequently and freely alluded to by both parties throughout voir dire, we do not see that this "opens the door" to a discussion of the specifics of parole eligibility. Smith, supra. Points of error five and six are overruled.
Appellant's allegation in point seven is that he was prevented from asking relevant questions by the trial court's refusal to instruct veniremembers on appellant's "parole eligibility." This Court stated in McCarter v. State, 837 S.W.2d 117, 121-22 (Tex.Crim.App.1992), that the trial court must not restrict proper questions of venirepersons on voir dire. We held that a question is proper if its purpose is to discover a juror's views on an issue applicable to the case. Since parole is not a proper area of inquiry in Texas capital cases, we hold that the judge did not abuse his discretion in denying questions pertaining to this topic. See Smith, supra. Also, because appellant never set out a specific question he wanted to ask, we cannot determine whether that particular question would have been proper. Caldwell v. State, 818 S.W.2d 790, 794 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992). Point of error seven is overruled.
Appellant avers in point eight that the trial court erred in allowing jurors to take individual notes during trial. After the jury was sworn, but prior to trial, the judge gave the following admonition to the jurors:
[T]his Court will allow you to take your personal notes regarding this matter, but follow these instructions: If you wish to take notes, and you're not obligated to, those are your notes. Those are for your personal use only and not to be shared with anyone else.
At deliberations if you have a disagreement as to what may have actually been said by a witness, the official note keeper is the court reporter. What she takes down are the official records of this court. And under some circumstances testimony of witnesses may be read back to jurors. But, understand, if there is a disagreement about any testimony, the official court reporter takes down the official records of this court. But if you want to take notes for your own use, that is agreeable with the...
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