No. AP-74,960
Holcomb, J.,
delivered the opinion of the Court, in which
Keller, P.J., Meyers, Price, Johnson, Keasler, and Cochran, J.J.,
join. Womack and Hervey, J.J., concur in the result.
O P I N I O N
In May 2004, appellant was convicted of capital
murder. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's
answers to the special issues set forth in Texas Code of Criminal
Procedure Article 37.071, sections 2(b) and 2(e), the trial judge
sentenced appellant to death. Art. 37.071, § 2(g). Direct appeal
to this Court is automatic. Art. 37.071, § 2(h). Appellant raises
eleven points of error. We will affirm.
CHALLENGES FOR CAUSE
In his first and second points of error,
appellant claims that the trial court erred in denying his
challenges for cause of veniremembers Gary Allen and Teresa
Goldsmith. Appellant alleges that Allen was challengeable for
cause because he could not consider the full range of punishment
for the lesser-included offense of murder. Art. 35.16 (c)(2).
Appellant alleges that Goldsmith was challengeable for cause
because she had a bias or prejudice against the defendant because
of her "inflammatory life experience." Art. 35.16 (a)(9).
To preserve error for a trial court's erroneous
denial of a challenge for cause, appellant must show that: (1) he
asserted a clear and specific challenge for cause; (2) he used a
peremptory challenge on the complained-of veniremember; (3) all of
his peremptory challenges were exhausted; (4) his request for
additional strikes was denied; and, (5) an objectionable juror sat
on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex.
Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997).
Appellant has properly preserved error with respect to each of the
challenged veniremembers.
If a defendant establishes error, harm is shown
when he has used a peremptory challenge to remove a veniremember
and thereafter suffered a detriment because of the loss of that
strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex.
Crim. App. 1986), cert denied, 482 U.S. 920 (1987).
Appellant exhausted all of his fifteen peremptory challenges
granted by statute and requested additional peremptory challenges,
but that request was denied.
When reviewing a trial court's decision to deny
a challenge for cause, we look at the entire record to determine
if there is sufficient evidence to support the ruling. Feldman
v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). We give
great deference to the trial court's decision because the trial
judge is present to observe the demeanor and tone of voice of the
venireperson. Id. When a veniremember's answers are
vacillating, unclear, or contradictory, we accord particular
deference to the trial court's decision. Id.
Veniremember Allen
Appellant argues that Allen was unable to
consider the full range of punishment for the lesser-included
offense of murder. He asserts that Allen testified that he would
be unable to give probation for murder but could give it for
manslaughter. When he was first questioned by the prosecutor,
Allen indicated that he could consider the full range of
punishment, including probation, for the lesser-included offense
of murder. He agreed that he would keep an open mind while hearing
the evidence and that he would give probation in a case where it
was appropriate.
When defense counsel questioned Allen about
this issue, the following exchange occurred:
Q. How do you feel about the possibility of
considering and having to give, if you thought it was appropriate
under the circumstances, punishment as low as five years'
probation?
A. It seems pretty low for a life. If you're
considering, you know, a probation sentence for the proven death
of someone, yeah, I think that's pretty low.
Q. I understand what you're saying. A lot of
times, we'll have a lot of jurors come in and say, you know what,
to be real honest with you and be true to my oath and tell the
truth, I can't consider that. I can't consider to give that. In a
murder case, I couldn't ever consider and give five years'
probation, even if the facts -- if I thought the facts deserved it,
I just couldn't do it because we're talking about the loss of a
human life. How do you feel about that?
A. I agree with that.
Q. You just don't think you could do it, or you
think you could do it?
A. I don't think I would feel right about
probation for a life, no.
Q. Well, like I said, there are a lot of jurors
who tell us that. They say being honest with you and true to my
oath, if we're talking about a murder case, it doesn't matter to
me if the person's never been convicted of a felony before, I just
don't think I could ever give a probated sentence. Is that how you
feel?
A. Yes.
Q. Do you feel pretty strongly about that?
A. Yes, I do.
Q. Okay.
A. It's almost like saying the first one is
free, you know, if you kill someone in my personal opinion.
Q. Can I talk you out of that, or do you fell
pretty strong about that?
A. I feel pretty strong about that.
* * *
Q. You think you could [give probation] for
aggravated robbery?
A. Yes.
Q. But you just don't think you could do it for
a murder offense?
A. Right.
The trial judge later explained the range of
punishment applicable to capital murder cases. He explained that
if a defendant has never been convicted of a felony offense before,
the available punishment range could be anywhere from probation
for up to ten years to life in the penitentiary, and a fine not
exceeding $10,000. When asked if he could consider the entire
punishment range, Allen answered: "I could. Is that including like
manslaughter?" The trial judge explained that the range is applied
to knowing as well as intentional murders. The trial judge then
asked Allen if he could consider the applicable punishment range
in the following exchange:
Q. The ultimate decision is left to the jury.
Therefore, you have to be able to consider the full range of
punishment.
Is that something you could do, or is that
something you could not do?
A. I think I could.
Q. Okay. You could keep your mind open and
fairly consider any potential punishment range that could come up
before you?
A. Yes.
Defense counsel challenged Allen for cause,
stating that Allen's responses indicated that he could not
consider a probated sentence for murder but only for manslaughter.
The trial judge denied the challenge for cause. The trial court's
ruling is supported by the record. Allen ultimately agreed that he
could consider the full range of punishment applicable to the
case, including probation, when the trial judge explained the law
to him.
Veniremember Goldsmith
Appellant argues that Goldsmith's "life
experiences" were so inflammatory that she could not set them
aside and judge the facts fairly and impartially. The "life
experiences" in question were that Goldsmith's grandfather had
been the victim in a capital murder case, that Goldsmith's mother
had suffered a "near nervous breakdown" because of that murder,
and that Goldsmith's father had witnessed the defendant's
execution.
When she was first questioned by the prosecutor,
Goldsmith acknowledged that the information she had provided in
her questionnaire, that her grandfather had been a victim in a
capital murder case, was accurate. When asked if she could put
that experience aside and base this case on the evidence,
Goldsmith answered, "Yes." The prosecutor later questioned her
further on the issue:
Q. I asked you, you know, could you put that
aside and judge this case.
A. Uh-huh.
Q. And I just want to make sure, because I know
it is a tough thing to have a victim in the family. And I'm not
sure how long ago that happened, but the law is going to require
you to set any personal feelings aside and then look at just the
evidence on this case and decide if this person is guilty of this
crime. And then, of course, on the punishment, decide death or
life, or answer these questions based on the evidence you hear in
the courtroom. Is that something you feel comfortable with?
A. Yes, I do, because I've spent a lot of time
trying to reconcile the fall out from my grandfather's murder and
have done a lot of reading and have tried to understand from
someone's point of view who has committed murder. And I think I've
looked at both sides.
Q. And you think that - -
A. I think I could be objective.
Q. And you could sit as a juror in this type of
case?
A. I believe so.
Defense counsel then asked Goldsmith about the
details underlying her grandfather's murder. Goldsmith explained
that the murder took place when she was three years old and that
she did not remember much from that time. She explained that her
maternal grandfather, who owned a liquor store, had been shot in a
robbery of that store and the shooter received the death penalty.
She explained her mother was thirty-three years old at the time
and had experienced a "near nervous breakdown" because of the
murder. She further explained that her father had witnessed the
killer's execution.
When further questioned on this issue,
Goldsmith still maintained that she could be a fair juror and
impartial in judging the case:
Q. Some people would say, you know, I'm past
that. I can be a fair juror. You've said I think I can, and I've
got to press you a bit harder here, obviously. I have to know. Can
you do it or can you not do it as far as being fair and impartial
in judging this case and this case alone, or will that be a
problem for you?
A. Well, of course, it won't be easy. I could
do it because I do believe in forgiveness and the basic goodness
of man.
Q. Okay. And that's - - you know, we hope
everybody feels that way. Sometimes people in your situation don't
feel that way.
A. Uh-huh.
Q. And I - - you know, I appreciate you being
candid and telling us about it. But my main concern is this, this
type offense is almost- - - no, it's not. I can't say its
identical, but it has the same elements as murder plus robbery.
A. Right.
Q. [G]iven the fact, the elements in the
indictment are similar to what happened with your grandfather, do
you feel like that because of that, that could cause a problem for
you? I mean, you say I think I can, I believe I can. But can you
tell me today, yes, I can, or can you only say, I'm not sure?
A. I can.
Q. Okay. You think you can?
A. (Nods head.)
Q. Can you say yes or no?
A. Yes, I can.
Goldsmith unequivocally stated that she could
put the experience of her grandfather's capital murder aside and
could be fair and impartial in judging the case. Appellant has not
shown that Goldsmith had a bias that would substantially impair
her ability to carry out her oath and instructions in accordance
with law. Feldman, 71 S.W.3d at 744. Appellant's first
and second points of error are overruled.
CONSTITUTIONALITY AND RELATED ISSUES
In his third point of error, appellant claims
that the lethal injection as it is currently administered in Texas
violates the Eighth Amendment because it produces unnecessary pain,
torture, and lingering death. Appellant raised this issue in a
motion to set aside the indictment, but he failed to provide any
evidence or further argument on the motion at trial. We have
previously concluded that we cannot address this type of claim
when the record is not sufficiently developed. Bible v. State,
162 S.W.3d 234 (Tex. Crim. App. 2005). We decline to reconsider
our holding in Bible.
Even if appellant's trial record had been fully
developed, we still cannot address appellant's claim because it is
not ripe for review on direct appeal. In Colburn v. State,
966 S.W.2d 511 (Tex. Crim. App. 1998), appellant claimed that his
sentence was unconstitutional because he was mentally ill. We held
that because appellant's execution was not imminent, his claim was
not ripe for review. We noted that the fact that the appellant had
a mental illness when he was tried and sentenced was not
determinative of whether he will have a mental illness at the
moment of his execution. Similarly, the method in which the lethal
injection is currently administered is not determinative of the
way it will be administered at the moment of appellant's execution.
Thus, appellant's claim is not ripe for review. Appellant's third
point of error is overruled.
In his fourth point of error, appellant claims
that the administration of the death penalty violates the Eighth
and Fourteenth Amendments of the United States Constitution
because it is contrary to our "evolving standards of decency."
Appellant claims that the fact that innocent people who were
subsequently exonerated have been sentenced to death makes the
death penalty an unconstitutional form of punishment, per se.
While the execution of an innocent person would violate federal
due process and be considered cruel and unusual punishment,
appellant does not claim that he is innocent or that he will be
exonerated. He therefore fails to demonstrate that his
due process rights or his right to be free from cruel and
unusual punishment has been violated. Herrera v. Collins,
506 U.S. 390 (1993); Paredes v. State, 129 S.W.3d 530,
540 (Tex. Crim. App. 2004). Appellant's fourth point of error is
overruled.
In his fifth through eleventh points of error,
appellant makes various claims challenging the validity of the
Texas death-penalty scheme. In his fifth point of error, appellant
claims that "[t]he trial court erred when it relieved the state of
its constitutional burden to prove insufficient mitigating factors
beyond a reasonable doubt." He argues that the death penalty
scheme violates the United States Constitution because it does not
require the State to prove the mitigation special issue beyond a
reasonable doubt. Appellant cites to Apprendi v. New Jersey,
530 U.S. 466 (2000), Ring v. Arizona, 122 S. Ct. 2428,
2440 (2002), and Blakey v. Washington, 124 S. Ct. 2531
(2004). In his sixth point of error, appellant claims that the
"12/10 rule" of the mitigation special issue violates various
provision of the United States Constitution. In his seventh point
of error, appellant claims that the death penalty statute is
unconstitutionally vague because it fails to define "probability
of committing future criminal acts of violence" in the future
dangerous special issue. In his eighth point of error, appellant
claims that the death penalty scheme is unconstitutional because
its definition of mitigating evidence limits the factors that
jurors are to consider when answering the mitigation question,
citing Tennard v. Dretke, 542 U.S. 274 (2004). In his
ninth point of error, appellant claims that the death penalty
scheme is unconstitutional because it does not require the jury to
consider evidence of mitigation. In his tenth point of error,
appellant claims that the death penalty scheme is unconstitutional
because it provides the exact type of unfettered discretion
prohibited in Furman v. Georgia. In his eleventh point of
error, appellant claims that the death penalty scheme is
unconstitutional for its failure to provide "meaningful appellate
review."
This Court has previously rejected all of these
claims, and appellant gives us no reason to revisit these issues
here. See Perry v. State, 158 S.W. 3d 438, 446-7 (Tex.
Crim. App. 2004), cert. denied, 126 S.Ct. 416 (2005);
Blue v. State, 125 S.W.3d 491 (Tex. Crim. App. 2003),
cert. denied, 543 U.S. 853 (2004); Ladd v. State, 3
S.W. 547 (Tex. Crim. App. 1999), cert denied, 529 U.S.
1070 (2000); Escamilla v. State, 143 S.W.3d 814, (Tex.
Crim. App. 2004), cert. denied, 125 S.
Ct. 1697 (2005); Williams v. State, 692 S.W.2d 671 (Tex.
Crim. App. 1984). Appellant's fifth through eleventh points of
error are overruled.
We affirm the judgment of the trial court.
DELIVERED MAY 10, 2006.
DO NOT PUBLISH
