Opinion

Raby v. State

  • 970 S.W.2d 1
  • 1998 Tex. Crim. App. LEXIS 27
  • 1998 WL 89214
Court
Court of Criminal Appeals of Texas
Filed
Mar 4, 1998
Status
Published
Author
Meyers
On the bench
Keller, Meyers, Baird, Overstreet, McCormick, Mansfield, Holland, Womack, Price
Cited by
126 cases

concluding that a section 8.04(a) instruction suffers no constitutional infirmity and does not improperly benefit the State by shifting the burden on the requisite element of criminal intent

How later courts described this case

  • concluding that a section 8.04(a) instruction suffers no constitutional infirmity and does not improperly benefit the State by shifting the burden on the requisite element of criminal intent
  • holding that “trial court does not abuse its discretion.by refusing to allow a defendant to ask venire members questions ... about particular mitigating evidence”
  • holding a trial court does not abuse its discretion by refusing to allow a defendant to ask venire members questions based on facts peculiar to case on trial
  • setting out evidence that grandsons often let appellant into the home through the window so that appellant could spend the night

Written by the judges who cited it.

The opinion

MEYERS, Judge,

concurring.

In point of error one appellant says the trial court erred “by depriving appellant of the right to voir dire prospective jurors on whether they could ‘consider’ particular types of mitigating evidence during the capital sentencing phase.” This point of error suggests appellant was simply seeking to ask prospective jurors whether they could consider certain evidence during the punishment phase of the trial. But this was not appellant’s request at trial. There, he asked the trial judge for permission to voir dire prospective jurors about whether “they could consider, or would be willing to consider, at least in some cases, [certain specified] types of evidence in mitigation of punishment." (Emphasis added). This could reasonably be construed as seeking to ask prospective jurors whether they could consider certain evidence as mitigating evidence. Under our precedents, such inquiry is improper and thus the trial court did not abuse its discretion in denying it. Arguably the inquiry might also be construed as seeking to ask prospective jurors whether they could consider certain evidence during the mitigating evidence or punishment phase of trial. While an inquiry of this nature is not necessarily improper, the inquiry here was not clearly asking this. At best, appellant’s inquiry was ambiguous, and for this reason alone, the trial court did not abuse its discretion in denying it.

With these comments, I concur in the disposition of point of error one and otherwise join the opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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