holding an oral motion for continuance properly overruled because all motion for continuance must be in writing and sworn to
How later courts described this case
- holding an oral motion for continuance properly overruled because all motion for continuance must be in writing and sworn to
- in a capital prosecution, “proof was offered at the penalty stage of 5 prior felony convictions”; these rendered harmless the improper admission of an attempted escape by defendant.
- “It has been consistently held that evidence of unadjudicated extraneous offenses are admissible at the penalty phase of a capital murder trial absent showing of unfair prejudice.”
- proof need not show accused "carefully weighed or considered” or "studied” situation
Written by the judges who cited it.
The opinion
CAMPBELL, Judge,
concurring.
I find myself today concurring in the majority opinion for the reasons that I expressed in my dissenting opinion in Mead v. State, 656 S.W.2d 494 (Tex.Cr.App.1983).
The plight of venireperson Freeman in the case sub judice has become the rule rather than the exception in capital murder voir dire. At various times in various cases, this Court has labeled venirepersons, caught in the same plight as Freeman, as “equivocating jurors.” Freeman’s ultimate frustration with the entire process was never more succinctly addressed than in her answer to a prosecution question:
“A. I am so confused by the terminology and the way you are speaking things I thought I, answers that question no, and I am sitting here thinking may be it’s a different question.” [At 386].
The attorneys representing the State and the appellant were understandably attempting to elicit differing answers from Freeman in their quest to either qualify or disqualify her. As was the case in Mead, supra, each attorney succeeded in getting conflicting answers from the venireperson, and appellant’s counsel contended that she was “rehabilitated” at one point.
The majority ultimately throws in the towel and finds that Freeman was an “equivocating juror” in the beginning [P. 387, even though she made her views on the death penalty expressly known to anyone who would listen.
As Presiding Judge Onion correctly notes, however:
“It must be remembered that the trial judge heard the tone of her voice and observed her demeanor and was in the better position to pass on the challenge for cause presented.” Slip Opinion at p. 12, citing Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972) and Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978).
I write this concurring opinion primarily to put an exclamation point on Presiding Judge Onion’s language in the majority, and to urge my brethren to breathe new life into the trial judge’s role in the conduct, of capital murder voir dire.
We need only look back six years, to Hughes v. State, 563 S.W.2d 581 (Tex.Cr.App.1978), cert. den. 440 U.S. 950 , 99 S.Ct. 1432 , 59 L.Ed.2d 640 , wherein a majority of this Court, speaking through Judge Tom Davis, opined:
“We must be mindful that where we only have a cold record before us the trial judge in passing on the answers of the ‘equivocating venireman’ has the opportunity to observe the tone of voice and demeanor of the prospective juror in determining the precise meaning intended.” at 585, citing Tezeno, supra.
Though I would have preferred that the majority address the issue of what quantum of deference this Court would accord the trial judges of this state in the arena of capital murder voir dire, see Mead, supra [Dissenting opinion at p. 16], I join the reasoning and judgment of the Court.
McCORMICK, J., joins in this concurring opinion.