Opinion

Penry v. State

  • 691 S.W.2d 636
  • 1985 Tex. Crim. App. LEXIS 1198
Court
Court of Criminal Appeals of Texas
Filed
Jan 9, 1985
Status
Published
Author
Clinton
On the bench
Tom G. Davis
Cited by
140 cases
Authority
More cited than 7.5%

Reversed on other grounds by Penry v. Lynaugh, 492 U.S. 302 (1989)

relying upon a previous case, Walker v. State, 150 Tex.Crim. 421, 201 S.W.2d 823, 829 (App.1947), in which the *180 court rejected objection to the testimony of a graduate student nurse under the theory that she was not an expert, stating ''[s]he was not expressing an opinion from hypothetical questions, but from actual observation of the patient in aiding the doctor in his treatment.”

How later courts described this case

  • relying upon a previous case, Walker v. State, 150 Tex.Crim. 421, 201 S.W.2d 823, 829 (App.1947), in which the *180 court rejected objection to the testimony of a graduate student nurse under the theory that she was not an expert, stating ''[s]he was not expressing an opinion from hypothetical questions, but from actual observation of the patient in aiding the doctor in his treatment.”
  • relying upon a previous case, Walker v. State, 150 Tex.Crim. 421, 201 S.W.2d 823, 829 (App.1947), in which the court rejected objection to the testimony of a graduate student nurse under the theory that she was not an expert, stating "[s]he was not expressing an opinion from hypothetical questions, but from actual observation of the patient in aiding the doctor in his treatment."
  • holding that the appellant fatally deviated from the long standing rules on preserving error by moving for mistrial without first objecting
  • approving last paragraph of written statement, which read “I further affirm that I knowingly, intelligently and voluntarily waived the above rights prior to and during the making of this statement.”

Written by the judges who cited it.

The opinion

CLINTON, Judge,

concurring.

For the reasons stated in the dissenting opinion in Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983), I remain convinced that the observation made in King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977) 1 and relied on by the majority today, 2 has over the intervening years proven to be unsound as regards the term “deliberately.”

As used in the first special issue, the word “deliberately” is not “simple in meaning,” as the continuing debate between lawyers, scholars and judges 3 over its meaning and import well attests.

It is inconceivable to me that the Court has acknowledged the jury’s failure to differentiate “deliberately” from “intentionally” would constitute a denial of due process, see Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981), yet continues to refuse to require as a matter of course that the jury be informed “distinctly [of] the law applicable to the case,” Article 36.14, V.A.C.C.P., in this regard.

Thus, it is clear to me that appellant’s objection to the charge on the ground that it failed to guide the jurors’ deliberations as to the meaning of “deliberately” in the punishment phase, constituted error.

However, due to the fact that the evidence of “deliberateness” was uncontested, overwhelming and in large part gleaned from appellant’s written admissions, I cannot see that the error, under the facts of this ease, was “calculated to injure the rights of the defendant.” Article 36.19, V.A.C.C.P.

Accordingly, I concur in the result only of the Court’s opinion which overrules grounds of error 30 through 34. Otherwise, I join in the opinion and judgment of the Court.

."Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury.”

553 S.W.2d at 107 .

. In overruling grounds of error 30 through 34.

. See Russell, supra, at 783, n. 8 (Opinion dissenting).

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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