Thompson v. State

• Court: Texas Court of Appeals
• Writing for the Court: Tim Taft
• Citation: Thompson v. State, 95 S.W.3d 537 (Tex. App. 2002)
• Decision Date: 05 December 2002
• Docket Number: No. 01-99-01381-CR.,No. 01-99-01383-CR.,No. 01-99-01382-CR.,01-99-01381-CR.,01-99-01382-CR.,01-99-01383-CR.
• Parties: Byron THOMPSON, Appellant, v. The STATE of Texas, Appellee.

95 S.W.3d 537

Byron THOMPSON, Appellant, v. The STATE of Texas, Appellee.

No. 01-99-01381-CR.

No. 01-99-01382-CR.

No. 01-99-01383-CR.

Court of Appeals of Texas, Houston (1st Dist.).

December 5, 2002.

Rehearing Overruled February 14, 2003.

Charles Freeman, Houston, for Appellant.

Shirley Cornelius, Assistant District Attorney-Harris County, Houston, for Appellee.

Panel consists of Justices TAFT, ALCALA, and PRICE.^*

OPINION

TIM TAFT, Justice.

A jury found appellant, Byron Thompson, guilty of first-degree felony injury to a child,¹ third-degree felony injury to a child,² and second-degree felony aggravated assault.³ The jury assessed punishment at 40, two, and 15 years in prison and fines of $4,000, $2,000, and $4,000, respectively. We address whether the trial court erred in (1) overruling appellant's objections to the State's misstatement of the law during voir dire, (2) overruling appellant's challenges for cause, (3) refusing to allow appellant to repeat a question to three venire members, (4) denying appellant's motion to discharge the venire because of cumulative, "fundamental" error, and (5) including a good-conduct-time instruction in the two injury-to-a-child charges after having granted appellant's request to omit the same instruction from the aggravated-assault charge. We also consider whether appellant was harmed by the alleged lack of a constitutional good-conduct-time instruction for the aggravated-assault charge. We affirm.

Facts

The three victims — appellant's sister, T.T., his brother, C.T., and his mother — testified against appellant.

Seventeen-year-old appellant was kicked out of his home for stealing his mother's car. On December 13, 1999, appellant returned home. He threatened his mother and his three siblings, nine-year-old C.T., 13-year-old T.T., and younger brother J.T. Appellant and his friends tried to set the house on fire that same day. The mother called the police three times, but eventually allowed appellant back home. The next morning, everything seemed normal again, and the mother left all four children at home while she went to work.

While the mother was gone, appellant attacked T.T., choking her. T.T. ran to a bathroom, but could not close the door before appellant knocked the door in and stabbed her hand with a knife. Appellant then squeezed T.T.'s head between his legs so tightly that she could hardly breathe and punched her in the face several times. Appellant told J.T. and C.T., who were watching, that he would kill them next. T.T. got away and locked herself in another bathroom. When she opened the door a few minutes later, appellant threw in a t-shirt that he had set on fire. The fire drew T.T. out of the bathroom, and appellant began choking her again. When appellant stopped choking T.T., she and J.T. ran to the bathroom and locked themselves in.

After T.T. and J.T. had hidden in the bathroom, appellant hit C.T. on the head "a lot" of times with a hammer, cut C.T.'s arm with the hammer's claw so deeply that his bone showed, and stabbed him in the chest "a lot" with a knife. C.T. ran away to the bathroom, and T.T. and J.T. let him in. Appellant set fire to another shirt with lighter fluid and pushed it into the bathroom. The children inside could hardly breathe and began choking, but appellant, who was laughing, prevented their coming out for air by holding the door. When appellant finally released the door, T.T. ran out, and appellant struck her on the head with the hammer.

Appellant then made his siblings sit in the living room without treating their wounds. While the children were sitting there, appellant grabbed C.T., squeezed his head and neck, and pulled his neck back until C.T. could not breathe. Appellant made the other children watch as he attacked C.T. After C.T. passed out, appellant made the others help him drag C.T.'s body to a bedroom. Once in the bedroom, appellant continued attacking C.T. by stomping hard on C.T.'s head "a lot" of times. Appellant then left C.T. in the room, began listening to the radio, and declared, "You see? I don't care." Appellant returned once to C.T. to kick him again.

After finishing his attack on C.T., appellant told T.T. and J.T. to hold their mother down when she came home so that he could stab her. Appellant threatened to kill T.T. and J.T. if they did not help him. Appellant turned down the house lights in anticipation of his mother's return.

As their mother came through the door that night, T.T. ran past her and over to a neighbor's house for help. `When their mother reached for the light switch, appellant grabbed her from behind, spun her around, climbed over her after she fell, and stabbed her seven times in the chest and face with a long kitchen knife, knocking out her tooth, piercing her mouth through, and slashing her tongue. Appellant called his mother "awful names" and said he was going to kill her. After appellant bent the knife blade, he beat his mother's face with his hands, blackened her eyes, and choked her. A neighbor came, and appellant ran outside. The neighbor stopped and held appellant.

Houston Police Department Officer Mark Medina came to the scene first. The officer saw appellant and another male standing in the front yard as he approached and found appellant's mother in the house. The mother told Officer Medina that appellant had caused her injuries. Officer Medina also found C.T. inside: C.T. was barely conscious, was breathing shallowly, and had a faint pulse. When the officer went outside again, he saw T.T., who appeared in shock, had a cut hand, and had blood dripping from the back of her head. Other officers arrived and arrested appellant.

There was blood in various places throughout the house. A kitchen-knife handle lay on the counter, with its blade on the floor nearby. Another bloody kitchen knife lay outside the door. One bathroom's door had been ripped off. Burned debris was in the other bathroom. A nearly empty charcoal-lighter can lay on the floor. A few days later, the police recovered from the garage a hammer with a bit of blood on it.

C.T. remained in intensive care for several days because of the resulting severe head trauma. T.T.'s head wound had to be stapled together.

Appellant took the stand in his defense. He did not deny attacking his family. Rather, he claimed that he (1) did not remember doing anything that he had been accused of doing the day before the attacks or hitting T.T. with the hammer, stabbing C.T. or his mother as many times as he did, or squeezing C.T.'s head between his legs; (2) did not kick in the bathroom door; (3) accidentally struck T.T.'s hand with the knife while they were playing; (4) became "frustrated" and lost his temper when C.T. panicked and started accusing appellant of trying to kill the others; (5) hit, kicked, and stabbed C.T. because of this frustration; (6) did not intend to kill his siblings or his mother or to hurt C.T.; (7) did not know what he was doing when he hurt C.T.; and (8) attacked his mother because "that was the only way out" of various family problems, including his mother's allegedly abusive behavior.

Voir Dire

A. Misstatement of Law During Voir Dire

In his first issue, appellant contends that the State misstated the law during voir dire by using a hypothetical, designed to determine whether members of the venire panel could consider the full punishmerit range, that included a hypothetical witness's punishment recommendation. Appellant claims the misstatement could have led the jury to believe that punishment-recommendation evidence was admissible. Appellant further argues that the jury could then have inferred from the absence of such evidence during punishment that appellant did not present punishment-recommendation evidence because it was unfavorable to him. Appellant's issue challenges the trial court's overruling his objections to this hypothetical.

After explaining the minimum and maximum punishments for the first-degree felony offenses, the State asked whether the venire members could consider the full punishment range "from probation to life in prison." Some venire members indicated that they could not consider community supervision. Pursuing this line of questioning, the State gave a hypothetical that would likely implicate the minimum: a 13-year-old boy and his father, who is a good parent, but who one day gets angry at his son and loses control, punches his son in the mouth. The State continued:

State: In my hypothetical, consider you had [a] dad [who] did this. He meant to hit him. He was mad, which wasn't a defense. The kid did sustain the injury but dad's been a good dad. Mother admits I don't care if he gets probation.

Appellant: Objection. That is inadmissible. Punishment recommendations are inadmissible in court included in hypothetical. Inadmissible evidence. Court: Overruled.

State: In this hypothetical situation, once again the mother wants the dad to get probation.

Appellant: Again, objection. That's objection[able]. She's including a punishment recommendation [that is] prohibited — it is prohibited to give punishment recommendations as part of [the] evidence in a case.

Court: That's overruled.

State: In any event, I throw out this hypothetical as a potential hypothetical of a case involving intentional injury to a child with serious bodily injury. That's just one of many that may be the type of case — may be the only case you would ever consider a probation for. But I throw that out because to be a fair and impartial juror you have to be able to keep an open mind and consider.

(Emphasis added.)

The law allows the parties to use hypotheticals during voir dire to ascertain prospective jurors' views. Pineda v. State, 2 S.W.3d 1, 10 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). However, voir dire questions or hypotheticals that misstate the law are improper. See Middlebrook v. State, 803 S.W.2d 355, 360 (Tex.App.-Fort Worth 1990, pet. ref'd); Parker v. State, 792 S.W.2d 795, 798-99...