Stewart v. State

• Decision Date: 19 September 1984
• Docket Number: No. 68889,68889
• Citation: 686 S.W.2d 118
• Parties: Darryl Elroy STEWART, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 118

686 S.W.2d 118

Darryl Elroy STEWART, Appellant, v. The STATE of Texas, Appellee.

No. 68889.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 19, 1984.

Rehearing Denied Feb. 6, 1985.

Will Gray, on appeal only, Simonton, for appellant.

John B. Holmes, Jr., Dist. Atty., and James C. Brough, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

OPINION

McCORMICK, Judge.

Appellant was convicted of capital murder. Punishment was assessed at death. The sufficiency of the evidence is not challenged.

In grounds of error one through three, appellant complains of the exclusion of twelve prospective jurors for cause in violation of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). ¹ In his fourth ground of error, he contends that error was committed when the trial court denied his challenge for cause to prospective juror Felts and he was forced to use a peremptory challenge.

Voir dire selection in this case commenced on June 12, 1980, some thirteen days prior to the United States Supreme Court's decision in Adams v. Texas, supra. At the time of the Adams decision, the voir dire selection in this case was still in progress. Prior to the Adams decision, all of the jurors complained of in appellant's first four grounds of error were excused by the trial court. On July 2, 1980, appellant's trial counsel, aware of the Adams decision, apprised the trial court that some of the jurors who had been previously excused might have been excused erroneously and requested one additional peremptory strike to cure the error:

"MR. MUSSLEWHITE; If it please the Court, comes now the Defendant Darryl Stewart by and through his attorneys, respectfully request the Court for additional pre-emptory (sic) challenges. The next to the last juror, that was stricken by the Defendant, whose name is Earl Felts, it is our position that we have a right to rely on the jurors to follow the law and may be able to fit into our defensive theory. He was challenged in a situation where if the State challenged him, it is my humble opinion it would have been a good challenge, but because the defense challenged him on this ground, it was overruled and we were required to strike him. Further, with regards to some, as I have it, it may not be quite correct, but some nineteen challenges were made by the State for cause concerning perspective (sic) jurors.

"In view of the recent Supreme Court opinion, I believe it is Adams vs. Texas, to the best of my recollection there were two jurors back in there, and I apologize to the Court, I cannot give their names -- I can start going back in here. But up through the first sixteen perspective (sic) jurors who were excused for cause, it is my recollection that at least two of them were put to answer the question based upon the Texas Code dealing with whether or not the fact that the death penalty was involved in this case, whether or not that would affect their deliberations on any fact issue, and with an affirmative answer, they were excused, which we submit, for the recent case, is improper.

"Further, with regard to some of these jurors, we feel that they were improperly excused, based upon the law of parties in some instances -- I honestly can't tell you how many. It is our belief that the Court improperly discussed the law of parties with reference to the answer to the first question in the punishment phase. Further, with reference to other jurors, perspective (sic) jurors, there were some who were excused because they could not answer the questions dealing in the punishment phase with respect to a party who was not the actual direct perpetrator of the offense.

"We further object to the systematic exclusion of all blacks from this jury. There were some, as I recall, that were struck by the -- I will take that back. The State has used a couple of strikes on them. I don't recall. But five of those that were struck for cause were black.

"For all of those reasons, Your Honor, we would respectfully request an additional pre-emptory (sic) challenge.

"THE COURT: Right. I think the record should reflect that the Adams vs. Texas case has been decided after we had already selected some jurors in this case. And without assigning it to any particular juror, I am going to grant your motion for that additional strike, in abundance of caution, in the matter.

"MR. MUSSLEWHITE: Thank you.

"MR. ARNOLD: Is that one additional strike, Your Honor?

"THE COURT: One additional strike." (Emphasis added)

A constitutional error may be waived by the party affected. Rogers v. State, 640 S.W.2d 248 (Tex.Cr.App.1982) (on State's Second Motion for Rehearing); Thompson v. State, 537 S.W.2d 732 (Tex.Cr.App.1976). This applies to jurors improperly removed in capital murder cases. Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1981) (on rehearing). Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976).

It is clear in the instant case with reference to those jurors who might have been improperly excused prior to July 2, 1980, and with reference to the denial of appellant's challenge for cause to prospective juror Felts which also occurred prior to July 2, 1980, that appellant received all the relief which he requested. Since appellant received the one additional peremptory strike which he requested and made no further objection concerning the court's action pertaining to these thirteen jurors, we hold that error, if any, was waived. DeRusse v. State, 579 S.W.2d 224 (Tex.Cr.App.1979); Duffy v. State, 567 S.W.2d 197, 205 (Tex.Cr.App.1978); Boulware v. State, supra. Grounds of error one through four are overruled.

In his fifth ground of error, appellant contends that Article 37.071, V.A.C.C.P., violates the Eighth and Fourteenth Amendments of the United States Constitution because it contains no provisions for directing and instructing the jury's consideration of mitigating circumstances at the punishment phase of the trial. Appellant relies upon the United States Supreme Court decisions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). All three of the cases relied upon by appellant concern situations in which the sentencers in a capital case were precluded from considering mitigating evidence in the punishment phase of each case. To meet constitutional muster, the sentencers in a capital case must be allowed to consider all relevant mitigating evidence. Lockett v. Ohio, supra; Green v. Georgia, supra; Eddings v. Oklahoma, supra; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

Article 37.071, supra, has previously passed constitutional muster in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and Quinones v. State, 592 S.W.2d 933, 947 (Tex.Cr.App.1980), where it was determined that Article 37.071 provides that "in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it." Thus, "the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a death sentence." Jurek v. Texas, 96 S.Ct. at 2957.

Appellant relies upon Spivey v. Zant, 661 F.2d 464 (5th Cir.1981), for the proposition that the jury in a capital case must be instructed in the court's charge to consider mitigating circumstances in passing upon the question of the death penalty. Spivey v. Zant, at page 471. We would remind appellant that this Court is not bound by the decisions of any lower federal court. Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972); Pruett v. State, 463 S.W.2d 191 (Tex.Cr.App.1971). Further, we held in Quinones v. State, supra, that no jury charge regarding evidence of any mitigating circumstances was necessary since the questions prescribed under Article 37.071 clearly allow the jury to grasp the logical relevance of mitigating evidence. Finally, our review of the record shows that appellant never requested the trial court to charge the jury on mitigation.

Appellant argues that, since by the time the punishment phase of the trial was reached the jury had already found that the defendant acted "intentionally or knowingly," the jury was precluded from considering mitigating circumstances when it considered appellant's "deliberateness" in answering Special Issue No. 1. Further, he argues that in a case such as the instant one, where there was evidence that the defendant was not the triggerman, but the jury was instructed on the law of parties at the guilt-innocence phase, the State's burden of proof on the first punishment issue was materially reduced, and the jury was compelled to view the first punishment question as requiring a "yes" answer.

We would note initially that there was conflicting evidence as to whether appellant was the triggerman. Thus, it is very possible that the jury convicted appellant believing that he did kill the victim. Furthermore, we have held that "deliberately" and "intentionally or knowingly" are not linquistically equivalent. Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981). We have also held that the word "deliberate[ly]" as used in Article 37.071 need not be defined in the court's charge to the jury at the penalty stage of a capital murder trial. Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983); King v. State, 553 S.W.2d 105, 107 (Tex.Cr.App.1977). Rather, the term "deliberately" is to be taken and understood in its normal use in common language. Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980); King v. State, supra.

Appellant argues that we cannot be certain that the jury reached...