The Tarrant County jury returned with a verdict
against the 33-year-old Fort Worth man after less than three hours
of deliberations.
Laura Lee Crane, 77, was killed in 2004 after
she was abducted from a southwest Fort Worth store parking lot
where she had gone to shop.
Mr. Busby, convicted last week of capital
murder, said he duct taped the former Texas Christian University
professor but did not intend to kill her.
Mrs. Crane was wrapped in 37 feet of duct tape
when she was found in Davis, Okla.
Prosecutors sought the death sentence, saying
Mr. Busby "richly deserved it."
They said Mr. Busby was a career criminal with
convictions for robbery, drug-related offenses and evading arrest.
“He’s been to the Texas penitentiary twice,”
said Greg Miller, an assistant Tarrant County district attorney.
“He’s been on probation. Going to prison, he didn’t learn much
from it.”
Defense attorneys Steve Gordon and Jack
Strickland offered a sharply different portrayal of Mr. Busby.
They said his missteps could be traced to his not-so-promising
youth in Pampa, a small Texas panhandle city.
Mr. Busby, they said, was derailed by numerous
setbacks including low intelligence. Raised by a single mother, he
was enrolled in special education classes in the Pampa school
district until he dropped out, they said.
Mr. Busby did not enjoy school, his former
teacher, Jeanette Miller told the jury earlier this week.
And, he made it difficult for those who tried
to educate him.
Ms. Miller, who called Mr. Busby “Junior,” said
she had better days when he was absent.
“He didn’t want to do what I asked him to do.
He didn’t like authority. On the days that Junior didn’t show up,
I was elated.”
No. AP-75,300
Hervey, J.,
delivered the opinion of the Court in which Keller, P.J., Meyers,
Johnson, Keasler, Holcomb and Cochran, JJ., joined . Price and
Womack JJ., concurred.
O P I N I O N
A jury convicted appellant on
November 11, 2005, of capital murder. Tex. Pen.
Code Ann., §19.03(a)(7)(A). Pursuant to the jury's answers to the
special issues set forth in Tex. Code Crim. Proc. Article 37.071,
§§2(b) and 2(e), the trial judge sentenced appellant to death on
November 17, 2005. Appellant raises eleven points of error on
direct appeal. Deciding that these points have no merit, we affirm.
The evidence shows that on or about January 30,
2004, appellant and a female accomplice ("Kitty") abducted a
seventy-eight-year-old woman in Fort Worth, then robbed and
murdered her. The elderly victim suffocated from having multiple
layers of duct tape wrapped tightly over her entire face that
covered her nose and mouth. According to the medical examiner's
testimony, approximately 23.1 feet of duct tape was wrapped around
the victim's face with such force that her nose deviated from its
natural position.
On February 1, 2004, an Oklahoma City police
officer (Padgett) arrested appellant in Oklahoma City after
stopping him for committing several traffic violations while
driving the victim's car. Appellant made various statements to the
FBI, Oklahoma police, and Fort Worth detectives between February 1st
and February 3rd. Appellant initially claimed that he
and Kitty obtained the victim's car in Fort Worth from someone
named "JD" with the victim's body in the trunk and that appellant
and Kitty merely disposed of the victim's body in Oklahoma. On
February 3rd, appellant led the police to the location
of the victim's body in Oklahoma. At that location, appellant made
a tape-recorded statement to the police in which appellant
abandoned the "JD" story and admitted that he and Kitty abducted,
robbed, and killed the victim. On February 20th,
appellant gave a written statement to the police and again
admitted that he and Kitty abducted, robbed, and killed the victim.
Appellant's February 3rd tape-recorded statement and
his February 20th written statement portrayed Kitty as
the leader of their criminal enterprise, with appellant following
her instructions. However, appellant admitted in both of these
statements that he wrapped the duct tape over the victim's face
while also stating several times that he did not mean to kill her.
In points of error one through three, appellant
claims that, during closing jury arguments at the guilt phase, the
State made three direct comments on appellant's failure to testify.
The record reflects that appellant made three separate objections
to these comments, and the trial court overruled all three
objections.
During its closing jury arguments at the guilt-innocence
phase, the defense relied heavily on portions of appellant's
February 3rd and February 20th statements to
the police in support of its argument that appellant did not
intend to cause the victim's death. For example, the defense
argued:
[DEFENSE]: Something very interestingly [sic]
happened in the case. Maybe it is only interesting to a lawyer who
has spent a lot of time in cases, but I submit to you it is
interesting. And that is that the State's very own evidence,
specifically State's Exhibit No. 62, being the oral recording, the
tape-recording made by the officer and the Defendant back on
February 3rd of 2004, and State's Exhibit No. 99, being
the written statement signed by the Defendant on February the 20th
of 2004, the State's very own evidence which they supported, which
they vouched for, which they brought to you, raised the issue of
intent. Because replete throughout those statements there is
reference after reference, after reference by Busby saying that
was not my intent. That is not what I wanted. That is not what I
desired. That is not what I planned. Replete in the State's
evidence, not the Defense evidence, which you could be expected to
cast a jaundice eye upon, but the State's evidence brought to you
by a police officer of great experience. And then the Defendant's
own words saying, that was not my intent. That is very important I
submit to you.
The State made the following arguments (the
emphasized portions of which appellant claims are direct comments
on his failure to testify): [STATE]: And I'll mention a few things
that I think are particularly interesting, but with regard to some
things that Mr. Strickland said, when you boil it all down, they
want you to take his word for it. There's Exhibit 62, the tape-recorded
statement, Detective Johnson says now, you really haven't told us
the whole story, have you, Mr. Busby? And he said, no, I haven't.
He admits to lying right there on the spot.
Remember when Officer Padgett stopped him on
the street? He said where did you get this car? He said, well, my
Aunt Geneva Coleman gave it to me. Well, do you know Laura Crane?
No, I don't know her.
This is the man they want you to take his word
for. And he is lying to cops right there on the street. And when
it comes to find out, they figure out, hey, this car is a car that
he don't belong to be in, they take him in. They arrest him, do
all of the things that you have heard about.
Is he telling the truth? No. Did he tell
Detective Johnson on the side of the road that he hadn't told him
the whole story? No. He says, well, I haven't told you the whole
story.
Now, on February the 20th,
he again says, well, I still haven't told you the whole story. And,
folks, I submit to you that it's a pretty logical deduction that
he still hasn't told the whole story.
* * *
Oh, yeah, he wants you to take his word for it
that Kitty made him do it. Kitty made me do this. Kitty made me do
that. I couldn't resist Kitty.
Well, now he can't even keep his story straight,
because in the statement that he first gave on the side of the
road, they asked him why did you take her car? Well, Kitty told
her [sic] that if I loved her, I would take somebody's car for her.
And then he comes along later, and why did you
tape her up? I was afraid of Kitty. I was afraid Kitty was going
to turn me into the police and tell everybody I did it all by
myself. He can't keep it straight as to why he did it in the first
place.
* * *
The most interesting thing is he keeps saying
Kitty made me do it. Kitty made me do it.
Well, you know, ladies and gentlemen, well, I
love Kitty. I had to do all of these things because I love Kitty.
I had to steal this poor woman's car who had just gone to the
grocery store in the middle of the daytime two blocks from her
house, but I had to because I love Miss Kitty.
Well, I guess if you are married and you have
got a husband or wife who gets mad at the neighbor because they
make too much noise when they are having a party and you tell your
spouse to go over and kill them because they are making too much
noise, if you love them, I guess that would be okay with Mr. Busby;
or go steal their car, that would be okay with Mr. Busby.
Now, ladies and gentlemen, this
business of Kitty made me do it, that is not a defense, that is an
excuse. It is high time that Mr. Busby took some responsibility
for his own conduct instead of blaming it on everybody else.
* * *
Now, I would suggest to you, ladies and
gentlemen, an interesting thing that we need to remember about the
Kitty made me do it defense, the statement, State's Exhibit 99 --
and I want to read just briefly to you a paragraph that I thought
was particularly pertinent.
Remember all of the chances that he had to
leave and get away from Miss Kitty?
* * *
Here he is again. Let's believe him. Let's take
his word for it.
"When I got back in the motel, I let the seat
down in the back to be sure the woman was still alive and she was
fine." And you heard Dr. Gofton say that with that kind of duct
tape on somebody's nose, they would live about a minute. You want
to believe him again? "She was alive and well when we got back to
the motel."
If he really wanted her to live, why didn't he
bring her inside the motel room, take her inside out of the cold?
Remember this, Miss Kitty made him do it. But
he taped her up when he was away from Miss Kitty. Here is
statement 99. Did Miss Kitty make him do it? It's time he
takes responsibility in these statements to the police. He doesn't
do it. He doesn't avail himself -
* * *
Okay. Ladies and gentlemen, they say that we
want-they-we want you to have our cake and eat it too. No, we want
you to use your common sense. We want you to look at all of the
evidence we brought you and decide what portion you choose to
believe and what portion you don't.
The test for determining whether prosecutorial
argument is a comment on a defendant's failure to testify "is
whether the language used was manifestly intended or was of such a
character that the jury would necessarily and naturally take it as
a comment on the defendant's failure to testify." See Cruz v.
State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). It is not
sufficient that the language used might impliedly or indirectly be
so construed. See id.
We decide that the emphasized portions of the
State's jury arguments were not manifestly intended, or of such a
character that the jury would have necessarily and naturally taken
them, as comments on appellant's failure to testify. See id.
The State's closing arguments referred to inconsistencies between
statements given to authorities by appellant and referred to
specific statements made by appellant such as, "I still haven't
told you the whole story." It was reasonable and proper for the
prosecutor to comment on the shifting nature of appellant's
custodial statements that were admitted into evidence. See
Cruz, 225 S.W.3d at 549-50 (record clearly showed that
prosecutor's closing jury arguments referred to defendant's own
written statement which had been admitted into evidence and was,
therefore, not a comment on defendant's failure to testify);
Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004) (when
a defendant makes a statement which is admitted into evidence, the
State's references to the statement and comparison between the
statement and the other evidence collected is not a comment on the
defendant's failure to testify or his right to remain silent).
Appellant claims it is significant, if not
dispositive, that the State used present tense verbs that "clearly
and directly refer[red] to the here and now" and that, if "the
prosecutor had been referring to some time in the past, he would
have used the past tense" of those words. We disagree that the
State's use of the present tense is dispositive and requires a
holding that the State directly commented on appellant's failure
to testify. See Cruz, 225 S.W.3d at 549 ("There is,
however, no particular 'trigger' word or phrase that makes any
jury argument automatically improper. Rather, any objectionable
argument should be evaluated on a case-by-case basis for what it
would 'necessarily and naturally' mean to a jury when taken in
full context of its utterance."). We agree with the State that the
emphasized portions of its arguments referred to "specific
statements Appellant had made well before trial." Points of error
one through three are overruled.
Appellant claims in point of error four that
the trial court erroneously overruled his motion to declare the
"10-12" provision of Article 37.071, § 2(f)(2), Tex. Code Crim.
Proc., unconstitutional. Appellant argues that the "10-12"
provision of the article violates the Eighth and Fourteenth
Amendments of the United States Constitution, and that the jury
should have been instructed as to the results of a failure to
answer either special issue under the Texas statutory scheme.
Appellant relies primarily on Mills v. Maryland, 486 U.S.
367 (1988). We have previously rejected this claim. See
Resendiz v. State, 112 S.W.3d 541, 548-49 (Tex. Crim. App.
2003). Point of error four is overruled.
Appellant claims in point of error five that
the trial court erroneously denied his motion to declare Article
37.071, Tex. Code Crim. Proc., unconstitutional on its face
because: (1) the mitigation special issue fails to place a burden
of proof on the State regarding aggravating evidence, (2) the
mitigation special issue permits the type of open-ended discretion
condemned in Furman v. Georgia, 408 U.S. 238 (1972), (3)
the mitigation special issue does not permit "meaningful appellate
review," (4) the mitigation special issue fails to require that
mitigation be considered, (5) the definition of "mitigating
evidence" in the mitigation special issue is too narrow, (6) "various
terms and phrases used in the three special issues" are not
defined "in ways that would permit the jury to give full
mitigating significance to those terms," (7) it permitted
appellant to be sentenced to death as a result of "arbitrary and
unchecked discrimination amounting to a denial of equal protection
under the law," and (8) it is so vague as to be fundamentally
unfair. Article 37.071 is not unconstitutional on its face.
Appellant's multifarious arguments presented in this point of
error have been rejected. See Saldano v. State, 232 S.W.3d
77, 104-09 (Tex. Crim. App. 2007) (and cases cited therein),
cert. denied, 2008 U.S. LEXIS 2119 (Feb. 25, 2008). Point of
error five is overruled.
Appellant claims in point of error six that
Article 37.071 is unconstitutional on its face. He claims that
Article 37.071 violates the Equal Protection Clause of the
Fourteenth Amendment under the Supreme Court's decision in
Bush v. Gore, 531 U.S. 98 (2000), because there "are no
uniform, statewide standards to guide prosecutors in deciding"
when to seek the death penalty so as to "prevent the arbitrary and
disparate treatment of similarly situated people." We have
previously rejected this claim. See Threadgill v. State,
146 S.W.3d 654, 671-72 (Tex. Crim. App. 2004). Point of error six
is overruled.
In point of error seven, appellant claims that
the trial court "committed reversible error by failing to appoint
appellant a lawyer in a timely manner." And, in point of error
eight, appellant claims that the failure to appoint him "a lawyer
in a timely manner" requires suppression of all of his "written
and oral custodial inculpatory statements."
Officer Padgett testified at the suppression
hearing that, after he arrested appellant in Oklahoma City on
February 1st, Oklahoma state charges were filed against
appellant for unauthorized use of a motor vehicle, improper right
turn, and driving with a suspended license.
(1) Padgett also
testified at the suppression hearing that "within 48 hours," a "judge
initial[ed] off [that] there was probable cause to make the arrest."
Q. [STATE]: Tell Judge Salvant what that
document is, please.
A. [PADGETT]: This is the probable cause
affidavit that I filled out for Edward Busby and it was for the
unauthorized use of a motor vehicle, the improper right turn, and
then driving suspension, and all of those were state charges.
Q. Now, on the bottom part of the form actually
some writing that is not yours, I take it?
A. No, this here is-whenever we do a state
charge, they have a notary at the jail. We have a notarized-that
we signed it in front of a notary, and then Lieutenant Foreman at
that point, he was the jail supervisor, so he signed it and then
at the bottom, the next day it goes to the judge, the next day or
that day, within 48 hours, and then the judge initials off there
was probable cause to make the arrest.
(2)
After being informed of and waiving his rights,
appellant voluntarily made the February 1st through
February 3rd custodial statements in Oklahoma City. On
February 6th, a warrant was issued by a district judge
in Fort Worth for appellant's arrest based on a capital-murder
complaint filed that day by the Tarrant County District Attorney's
Office. On Thursday, February 19th, Fort Worth
detectives brought appellant from Oklahoma City to Fort Worth.
That same day, appellant appeared before a Texas magistrate and
requested appointment of counsel after being informed of his
rights. Appellant made the February 20th written
statement, after initiating contact with Fort Worth detectives by
repeatedly asking to speak to them. Appellant also held a press
conference on February 20th during which he repeated
the claim that he did not mean to kill the victim when he wrapped
duct tape around her face. Appellant was appointed counsel on
Monday, February 23rd. He was indicted on March 31st.
Appellant appears to claim on appeal that he
should have been appointed counsel when he was arrested in
Oklahoma City on February 1st. He further claims that "appointment
of counsel, coming as it did some 22 days after his arrest for
this unusually high-profile crime, was far too late to allow that
lawyer an opportunity to assist him in any meaningful way." The
legal basis of appellant's claim (in the trial court and on
appeal) that he should have been appointed counsel sooner than he
was is not clear. On appeal, appellant cites to various state and
federal constitutional provisions (without providing any argument
or authority on why these parallel federal and state
constitutional provisions should be construed differently) and to
various provisions of the Texas Code of Criminal Procedure,
particularly Article 26.052(e), which requires the appointment of
counsel to an indigent defendant in a death-penalty case "as soon
as practicable after charges are filed."
We note that appellant had no Sixth Amendment
or statutory right to counsel when he voluntarily spoke to the
authorities between February 1st and February 3rd
because no adversary judicial proceedings in Texas for this
capital offense had been initiated against appellant during this
period of time.
(3) And, assuming
attachment of appellant's Sixth Amendment right to counsel to this
capital offense at the Texas magistrate hearing on February 19th,
(4) suppression of
appellant's February 20th statement is not required
because appellant initiated contact with the authorities and
voluntarily waived any Sixth Amendment right to counsel he may
have had at the time.
(5) In addition,
appellant's February 20th statement did not violate any
statutory right to counsel because appellant freely and
voluntarily made this statement only one day after his request for
appointment of counsel at the Texas magistrate hearing.
(6) Points of error
seven and eight are overruled.
In point of error nine, appellant claims that,
after denying his pretrial motion to suppress, the "trial court
erred by failing to submit findings of fact and conclusions of law
as requested by appellant." The record, however, reflects that the
trial court dictated its detailed findings and conclusions into
the appellate record. This was done in open court at a time when
appellant's counsel was present and did not object to the trial
court's method of satisfying appellant's request for findings and
conclusions. See Murphy v. State, 112 S.W. 3d 592, 600 (Tex.
Crim. App. 2003) (trial court complies with statutory requirements
to file findings and conclusions on issue of voluntariness of a
defendant's confession when "it dictates its findings and
conclusions to the court reporter, and they are transcribed and
made a part of the statement of facts, filed with the district
clerk and made a part of the appellate record"). Point of error
nine is overruled.
In point of error ten, appellant claims that "the
trial court committed reversible error by failing to submit [appellant's]
requested jury charge regarding the voluntariness of his custodial
statements." Appellant claims that, under Article 38.23(a), Tex.
Code Crim. Proc., the trial court erred in not submitting his
requested charge instructing the jury not to consider his "alleged
written confession" if appellant "was deprived of the assistance
of counsel" prior to the "alleged written confession." Article
38.23(a) provides:
No evidence obtained by an officer or other
person in violation of any provisions of the Constitution or laws
of the State of Texas, or of the Constitution or laws of the
United States of America, shall be admitted in evidence against
the accused on the trial of any criminal case. In any case where
the legal evidence raises an issue hereunder, the jury shall be
instructed that if it believes, or has a reasonable doubt, that
the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such
evidence so obtained.
There is, however, no "affirmatively contested"
evidence that raises any disputed fact issues on whether any of
appellant's "alleged written confession[s]" were obtained in
violation of any statutory or constitutional right to counsel;
therefore, he was not entitled to his requested Article 38.23(a)
jury instruction. See Madden v. State, 242 S.W.3d 504,
509-10 (Tex. Crim. App. 2007) (defendant entitled to Article
38.23(a) jury instruction only when evidence raises "affirmatively
contested" fact issue that is material "to the lawfulness of the
challenged conduct in obtaining the evidence"). As indicated in
our discussion of points of error seven and eight, it is
undisputed that appellant provided the February 1st
through February 3rd statements before any statutory or
constitutional right to counsel attached. It is also undisputed
that his February 20th statement resulted from
appellant initiating contact with the police, thus constituting a
waiver of any statutory or constitutional right to counsel with
respect to this statement. Point of error ten is overruled.
In point of error eleven, appellant asserts
that the trial court erroneously denied seven defense challenges
for cause. This Court has stated that harm from the erroneous
denial of a defense challenge for cause occurs: (1) when a
defendant uses a peremptory strike to remove a veniremember whom
the trial court should have excused for cause at the defendant's
request, (2) the defendant uses all of his statutorily allotted
peremptory strikes, and (3) the defendant unsuccessfully requests
an additional peremptory strike which he claims he would use to
remove another veniremember whom the defendant identifies as "objectionable"
and who actually sits on the jury. See Saldano, 232 S.W.3d
at 91; Newbury v. State, 135 S.W.3d 22, 30-31 (Tex. Crim.
App. 2004); Johnson v. State, 43 S.W.3d 1, 5-7 (Tex. Crim.
App. 2001). In these circumstances, the trial court's erroneous
denial of a defense challenge for cause harms the defendant by
depriving him of a statutory peremptory strike that he otherwise
would have had to remove the "objectionable" juror. See
Saldano, 232 S.W.3d at 91.
Appellant argues that the trial court
erroneously denied his challenges for cause to veniremembers Chang,
Hedger, Mahan, Sickles, Crossman, Fielding, and Battershell. The
State argues that appellant can complain only about the trial
court's rulings on his challenges for cause to Chang, Hedger, and
Mahan because appellant did not have to use any of his statutory
peremptory strikes to remove the other four veniremembers (Sickles,
Crossman, Fielding, and Battershell). See Saldano, 232
S.W.3d at 91 (harm from erroneous denial of defense challenge for
cause occurs when, among other things, the defendant uses a
peremptory strike to remove a veniremember whom the trial court
should have excused for cause at the defendant's request).
We agree that the record reflects that the
State (not appellant) used a peremptory strike on Sickles. The
record also reflects that appellant did not use peremptory strikes
on Crossman, Fielding or Battershell. Appellant accepted Crossman
as the eighth juror and Fielding as an alternate juror.
Battershell was not reached when the parties were exercising their
peremptory strikes. We, therefore, agree with the State that
appellant "can complain only about the strikes he expended upon"
Chang, Hedger and Mahan.
The record also reflects that both sides
exercised only their challenges for cause during individual voir
dire, leaving forty-nine veniremembers from whom the twelve jurors
and two alternate jurors were chosen at the time the parties
exercised their peremptory strikes.
(7) After eleven
jurors had been seated and appellant had exhausted his fifteen
statutory peremptory strikes, the trial court granted appellant's
request for another peremptory strike, which appellant used on a
veniremember named Burnett. Immediately after this, when the
parties reached veniremember Williams, the trial court denied
appellant's request for what would have been appellant's
seventeenth peremptory strike, after which Williams was seated as
the twelfth juror.
(8)
Appellant identified as "objectionable" a juror
named White, whom appellant had accepted as the seventh juror when
he had nine of his statutory peremptory strikes remaining.
(9) Appellant,
however, stated that he was not requesting an additional
peremptory strike to remove White.
[DEFENSE]: Mr. White is an objectionable juror.
I do not believe the law requires us to state the reasons for our
objections. Although we have earlier indicated to the Court that
we were particularly concerned by the fact that he has previously
served on a capital murder jury. Further, that he has had a son
that was murdered.
And for those, as well as a number of other
reasons, which are not stated at this time, we are now in the
position of having seated a juror objectionable to the Defense
which we would not have had to seat but for the fact that the
strike situation progressing as it did.
[THE COURT]: Does the State have any response?
[STATE]: Yes, I suppose I do, Your Honor. While
I suppose it is true that [the defense] doesn't have to articulate
a reason now as to why he finds [White] objectionable, I would
just like the record to reflect, and I think the Court will recall,
that he was questioned extensively about his prior jury service
and also the situation involving his son. And he was-he was
acceptable to both sides. Neither side tried to disqualify him in
any manner.
* * *
[THE COURT]: Was that your request? An extra [peremptory]
strike at this point?
[DEFENSE]: No. All I'm doing, Judge, is stating
on the record that [White], number 46 is objectionable to us.
* * *
And with all-all respect to [the State], I
think he is attempting to blur the line between a challenge for
cause and an objectionable juror.
Mr. White was not challenged for cause. He was
not challenged for cause because he did not appear to be
challengeable for cause. But he is nonetheless objectionable to us.
And under the procedure that we have used here,
that is, instead of striking as we go along, the mini-panel
procedure, this is the only opportunity we have to state our
objection. We could have made a spurious challenge for cause which
the Court would not have entertained.
But at any rate, I think the record speaks for
itself. But we have exhausted our strikes. We have not got an
additional strike. And this man that is on the jury is
objectionable to us for a plethora of reasons.
[STATE]: Could I just point one thing out for
the record?
In light of [the defense] claim that Mr. White
is objectionable, I would point out that on juror 18, they used
their sixth strike. They didn't use their seventh strike until
juror number 24, which means there was ample opportunity to use a
strike on Mr. White if they indeed intended to do that, if he was
so objectionable.
[DEFENSE]: He was just one of many people that
were objectionable to us, Judge. And we used-we used 16 strikes on
people that were equally, if not more, objectionable to us. We
just ran out of strikes for all of the objectionable people that
showed up for this panel. It is what it is. I just wanted-
[THE COURT]: That is right. It is what it is.
The record will reflect, it is what it is.
Appellant argues on appeal that the "unique way
in which this jury was selected" makes it irrelevant that
appellant had an opportunity to remove White with one of his nine
remaining statutory peremptory strikes when he accepted White as
the seventh juror.
(10) Assuming that
appellant could have used an extra peremptory strike from the
trial court to retroactively remove White under these
circumstances,
(11) we are not
persuaded that the "unique way in which this jury was selected"
excused appellant's failure to request an additional peremptory
strike to use on White after appellant had exhausted his
peremptory strikes and identified White as the "objectionable"
juror. See Saldano, 232 S.W.3d at 91 (harm from erroneous
denial of defense challenge for cause occurs when, among other
things, defendant unsuccessfully requests an additional peremptory
strike that he claims he would have used to remove a veniremember
whom the defendant identifies as "objectionable" and who actually
sits on the jury). In fact, the record reflects that the trial
court specifically asked appellant if he was requesting an extra
peremptory strike when appellant identified White as "objectionable,"
and appellant responded, "No. All I'm doing, Judge, is stating on
the record that [White], number 46 is objectionable to us."
We also set out the entirety of appellant's
argument with respect to the merits of the trial court's rulings
on appellant's challenges for cause:
Appellant challenged the seven enumerated
venire persons for a variety of disqualifying answers given in
response to questions from both the State and the defense. In each
instance, the trial court incorrectly denied the challenge.
(12)
This portion of appellant's eleventh point of
error is inadequately briefed. See Tex. R. App. Proc.
38.1(e), (f), (h). This Court has no obligation to construct and
compose appellant's issues, facts, and arguments "with appropriate
citations to authorities and to the record." See id.
Assuming, therefore, that appellant could establish that he was
deprived of a statutory peremptory strike from any erroneous
rulings on his challenges for cause, he still presents nothing for
review. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.
Crim. App. 2000) (appellate court has no obligation to consider
inadequately briefed points of error). Point of error eleven is
overruled.
The judgment of the trial court is affirmed.
Hervey, J.
Delivered: May 14, 2008
Publish
*****
1. A Fort Worth detective (Johnson)
also testified at the suppression hearing that, before her arrival
in Oklahoma City on February 1st, she had "been made
aware that a probable cause arrest warrant for Edward Lee Busby,
Jr., for the offense of aggravated kidnapping had been issued
earlier on February 1st of 2004." The record, however,
contains no such warrant.
2. Johnson also testified at
trial that she had reason to believe that appellant had been "through
the magistrate's warning" in Oklahoma City.
Q. [DEFENSE]: Did you have any reason to
believe that he had been taken before any judge in Oklahoma City?
A. [JOHNSON]: I believe he had been through the
magistrate's warning, yes.
3. See McNeil v.
Wisconsin, 501 U.S. 171, 175 (1991) (Sixth Amendment right to
counsel is offense specific); United States v. Gouveia,
467 U.S. 180, 187-88 (1984) (Sixth Amendment right to counsel "attaches
only at or after the initiation of adversary judicial proceedings
against the defendant"); Brewer v. Williams, 430 U.S.
387, 398-99 (1977); Green v. State, 872 S.W.2d 717, 720 (Tex.
Crim. App. 1994) (discussing "what events may serve to initiate
adversary judicial proceedings for Sixth Amendment purposes" and
assuming, without deciding, that defendant's Sixth Amendment right
to counsel attached at magistrate's hearing); Article 26.052(e) (requiring
appointment of counsel in death-penalty cases "as soon as
practicable after charges are filed").
4. See Green, 872
S.W.2d at 720.
5. See Michigan v.
Jackson, 475 U.S. 629, 630-33 (1986) (defendant's waiver of
attached Sixth Amendment right to counsel is invalid in response
to police-initiated interrogation); Fuller v. State, 829
S.W.2d 191, 205 (Tex. Crim. App. 1992) (defendant may unilaterally
waive attached Sixth Amendment right to counsel during defendant-initiated
contact with the police); see generally Cross v. State,
144 S.W.3d 521 (Tex. Crim. App. 2004).
6. See Article
26.052(e) (requiring appointment of counsel in death-penalty cases
"as soon as practicable after charges are filed"); see also
Article 1.051 (c), Tex. Code Crim. Proc., ("if an indigent
defendant is entitled to and requests appointment of counsel and
if adversarial judicial proceedings have been initiated against
the defendant," the defendant shall be appointed counsel "as soon
as possible, but not later than the third working day after" the
date of the defendant's request for appointment of counsel).
7. This appears to be the
same procedure followed in another case entitled Busby v.
State, in which we noted that this procedure did not comply
with the "non-absolute" statutory requirement for exercising
challenges in capital cases. See Busby v. State, 990 S.W.2d
263, 268 (Tex. Crim. App. 1999). Appellant does not complain on
appeal about the procedure the parties used for exercising their
peremptory strikes in this case. See id. (suggesting that
"non-absolute" statutory requirement for exercising challenges in
capital cases is procedurally defaulted by failure to object).
8. Appellant did not claim
that he would have used his seventeenth peremptory strike to
remove Williams.
9. The record reflects that
appellant did not challenge White for cause during individual voir
dire. When appellant later accepted White as the seventh juror
when the parties were exercising their peremptory strikes,
appellant claimed that White was "not acceptable" but that he had
"no choice" but to accept White, even though appellant had nine of
his statutory peremptory strikes remaining. The record, therefore,
does not necessarily support the assertion that appellant had "no
choice" but to accept White, since appellant could have used one
of these nine peremptory strikes to remove White.
10. See Footnote
9.
11. See Newbury,
135 S.W.3d at 32 n.2.
12. We note that, assuming
the conditions for establishing harm are met, appellant would have
to show that the trial court erroneously denied his challenges for
cause to two of the three veniremembers (Chang, Hedger, and Mahan),
since appellant received an extra peremptory strike. See
Newbury, 135 S.W.3d at 31.
