Wolfe v. State

• Decision Date: 06 March 1996
• Docket Number: No. 71791,71791
• Citation: 917 S.W.2d 270
• Parties: Bryan Eric WOLFE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 270

917 S.W.2d 270

Bryan Eric WOLFE, Appellant, v. The STATE of Texas, Appellee.

No. 71791.

Court of Criminal Appeals of Texas.

March 6, 1996.

Douglas M. Barlow, Beaumont, for appellant.

John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert A. Huttash, State's Atty., Austin, for State.

OPINION

KELLER, Judge.

Appellant was convicted of the capital murder of Bertha Lemell committed on February 15, 1992, in Jefferson County. ¹ The jury answered the punishment issues in the State's favor, and appellant was sentenced to death. Direct appeal to this Court is automatic under Article 37.071 § 2(h). ² Appellant raises thirteen points of error on appeal. We will affirm.

1. Sufficiency of the evidence

a. Identity

In point of error six, appellant contends that the evidence is insufficient to prove that he perpetrated the offense.

Evidence is sufficient when, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This court's duty is not to reweigh the evidence from reading a cold record but to "position itself as a final, due process safeguard ensuring only the rationality of the factfinder." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

Evidence presented at trial established the following: The body of 84 year old Bertha Lemell was found on the floor of her home, along with a change purse and some scattered coins. A number of black-eyed peas were also strewn on the floor. According to the testimony of a medical examiner, the victim had twenty-six stab wounds to the head, trunk, and abdomen. Blood found at the crime scene was subjected to serology and DNA tests. A serologist testified that the physical characteristics found in appellant's blood matched blood found at the crime scene and that those characteristics occurred in only 0.2 percent of the African-American population. The DNA test results showed that appellant's blood and the blood found at the crime scene shared a DNA pattern that was estimated to appear in approximately 1 in 10 million Caucasians, in approximately 1 in 1.7 million African-Americans, and in approximately 1 in 8.2 million Hispanics. Testimony at trial showed that Lemell was a close friend of appellant's wife, that appellant lived in the same neighborhood, and that he was seen within a few blocks of the crime scene shortly before and shortly after the murder. The residence showed no sign of forced entry. The evidence also showed that appellant had a cut on his fingers shortly after the murder.

Viewed in the light most favorable to the verdict, the blood evidence, appellant's proximity to the crime scene, and the cut on his fingers are sufficient to support the jury's conclusion that appellant perpetrated this offense. Point of error six is overruled.

b. Underlying offense

In point of error five, appellant argues that the evidence is insufficient to support the underlying felony of robbery. Testimony showed that Lemell routinely kept money in a coin purse. She also kept black-eyed peas in her purse for good luck. Brenda Vallian, a friend of the victim, testified that she took Lemell shopping on the day of the offense and that she saw Lemell pull out sixty dollars in cash, pay for groceries with less than twenty dollars, and put the remaining money back into her coin purse. After the murder, police officers arriving at the scene found the coin purse on the floor, unlatched, and containing only a single coin. Blood was found inside the coin purse, although there was not enough to complete a DNA analysis. Coins and black-eyed peas were scattered on the floor of Lemell's otherwise tidy home. Blood was found on top of a locked armoire.

Appellant argues that this evidence is insufficient to show a robbery because it does not show a completed theft and it does not show that he intended to steal anything. He points out that more money was found at the scene than Lemell had received the day prior to the offense. He also argues that the presence of coins on the floor merely indicates that a struggle took place.

Proof of a completed theft is not required to establish a robbery. Demouchette v. State, 731 S.W.2d 75, 78 (Tex.Crim.App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987). While an intent to steal must be shown in order to prove an attempted theft, this intent may be inferred from circumstantial evidence. McGee v. State, 774 S.W.2d 229, 235 (Tex.Crim.App.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1535, 108 L.Ed.2d 774 (1990). A rational jury could believe that appellant's cut fingers, the blood in the coin purse, the fact that the purse was unlatched, and the scattered coins on the floor proved that appellant reached into the coin purse in an attempt to steal money from Lemell. The jury could also believe that the blood on the top of the locked armoire indicated that appellant had searched there in an effort to find money. Point of error five is overruled.

2. Voir dire

a. Death penalty scruples

In points of error one and two, appellant complains that the trial court erroneously granted two State's challenges for cause, against John Sells and Dana Lewis respectively, in violation of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The State challenged both Sells and Lewis on the bases of Art. 35.16(b)(1) (death penalty scruples) and (b)(3) (prejudice against a law upon which the State is entitled to rely). The trial court excused the prospective jurors and overruled appellant's objections.

The United States Constitution prohibits excusing a prospective juror for holding conscientious scruples against the death penalty unless his views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Witt, 469 U.S. at 424, 105 S.Ct. at 852. It is not enough that the prospective juror's views would "affect" his deliberations. Ex parte Williams, 748 S.W.2d 461 (Tex.Crim.App.1988).

A prospective juror is challengeable as having a bias or prejudice against a law upon which the State is entitled to rely if he would always answer the mitigating circumstances punishment issue, Art. 37.071, § 2(e), ³ in favor of the defendant. Staley v. State, 887 S.W.2d 885, 893-894 (Tex.Crim.App.1994). Likewise, a prospective juror is challengeable under (b)(3) if he would never answer the "future dangerousness" issue, Art. 37.071, § 2(b)(1), ⁴ in favor of the State. Chambers v. State, 568 S.W.2d 313, 323 (Tex.Crim.App.1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1264, 59 L.Ed.2d 484 (1979).

Because the trial judge has the opportunity to observe a prospective juror's demeanor, we defer to the trial court if there is any adequate basis in the record to support its decision. Narvaiz v. State, 840 S.W.2d 415, 426 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). White v. State, 779 S.W.2d 809, 822 (Tex.Crim.App.1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990). When the record supports both the ability and inability of a prospective juror to follow the law then we must defer to the trial court's determination. Goodwin v. State, 799 S.W.2d 719, 731 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991).

The record in this case very clearly shows that the prospective jurors were challengeable for cause. Sells stated that, because of his opposition to the death penalty, he would always answer "no" (in favor of the defendant) to the future dangerousness issue even if he were convinced by the evidence that the answer should be "yes." He further stated that, because of his views, he would always answer "yes" (in favor of the defendant) to the mitigation issue even if he were convinced by the evidence that the answer should be "no." He also insisted that he would violate his oath in order to avoid imposing the death penalty. Even under questioning from defense counsel, Sells continued to maintain that he would automatically vote "yes" on the mitigation issue.

Lewis, a juvenile probation officer, stated that she believed that her views would substantially impair her ability to follow the court's instructions in accordance with her oath. While she had at first expressed an inability to answer "yes" to the future dangerousness issue, after further questioning she indicated that she could answer "yes" if enough proof were advanced. But she stated that, if she answered the future dangerousness issue "yes," and she was convinced that the answer to the mitigation issue should be "no," then she would refuse to answer the mitigation issue because a "no" answer would mean the death penalty. She maintained this position in the face of defense questioning, and when the judge asked her what she would do if he told her that she would be held in contempt of court unless she answered the question, she stated that she would be in contempt and would just have to deal with that.

The responses from Sells and Lewis show that their views concerning the death penalty would prevent them from following the law or their oaths as jurors. Their answers regarding the punishment issues show also that they were biased against laws upon which the State was entitled to rely. As the prospective jurors were challengeable under both (b)(1) and (b)(3) of Art. 35.16, the trial court did not err in granting the State's challenges for cause. Points of error one and two are overruled.

b. Felony disqualification

In point of error three, appellant complains that the trial court erroneously granted the State's challenge for cause against venireman Bubba Andrew. The State challenged Andrew on the ground that he was disqualified from jury service by a prior felony conviction. ⁵ The voir dire testimony showed that Andrew had been convicted of burglary of a building...