Sattiewhite v. State

CLINTON, Judge,

dissenting.

I dissent to the majority’s conclusion, in treating appellant’s second point of error, that the trial court did not err in failing to grant appellant’s challenge for cause against venireman Cowswert. Clearly Cowswert agreed a finding of guilty of “intentional” murder at the guilt/innocence phase of trial “logically” would lead him to answer Article 37.071(b)(1), V.A.C.C.P., inquiring whether appellant acted “deliberately,” “automatically” in the affirmative. Thus, as the majority notes, it was up to the State to rehabilitate Cowswert, for he had manifested an inability to reconsider guilt evidence in the particular context of the first special issue, rendering him subject to challenge for cause. Gardner v. State, 730 S.W.2d 675, at 681 (Tex.Cr.App.1987). However, I do not believe Cows-wert has been rehabilitated here, any more than venireman Hooper was rehabilitated in Gardner, supra, by the simple expedient of promising to wait until all the punishment evidence is in to make his determination of “deliberateness.” If in his mind “intentional” and “deliberate” are identical or synonymous, it does not matter when he makes the latter determination, so long as it follows his verdict finding that appellant intentionally killed. His resolution of the deliberateness issue will still be predetermined. Nor do I understand Cowswert at any time to have retreated from his position that “intentional” and “deliberate” mean the same. This situation does not call for deference to the trial court, for the record reveals a venireman who was neither “genuinely noncommittal, vacillating, equivocating [n]or uncertain,” and thus we need not “make allowances for the fact that a judge, trying his qualifications for jury service, had an opportunity to observe his demeanor, intonation and expression.” Hernandez v. State, 757 S.W.2d 744, at 753 (Tex.Cr.App.1988). Appellant’s challenge for cause should have been granted.

While I agree with the majority’s ultimate disposition of appellant’s other points of error, I write further to disassociate myself from much that I consider erroneous and frequently unnecessary rationale.

*292 Addressing appellant’s first point of error, I agree the trial court committed compound error, first in instructing the venire at all with regard to the effect of failing to reach a verdict on any of the special issues, and secondly, in misinforming the venire of what that effect would be. The manner in which the majority proceeds to apply Tex. R.App.Pro., Rule 81(b)(2), however, is disturbing. The majority relies upon a “presumption” that jurors follow their instructions. But the instruction the majority sets out simply informs the jury that any issue it cannot answer either yes or no according to the court’s instructions should be left unanswered. Nothing about this instruction remedies the fact that, contrary to the unambiguous language of Article 37.071(g), supra, the trial court has informed the ve-nire, and then erroneously, of the effect of any failure to agree on one of the special issues. Nevertheless, by conjuring this shadow “presumption” the majority shifts the burden which Rule 81(b)(2), supra, places squarely on the State to show harmlessness, to appellant to show he was harmed. Thus the majority facilitates its conclusion that the trial court's error does not call for reversal.

I would take a different tack. It seems apparent to me that the purpose of Article 37.071(g), supra, is to act as a kind of inverted “dynamite” charge. The Legislature did not want jurors to know that failure to reach a punishment verdict — a hung jury — would not result in the State incurring the additional expense of a retrial. In other words, the Legislature, while desiring to avoid costly retrials in capital cases in which no punishment verdict is reached, did not wish jurors to take the fact that failure to answer one of the special issues nevertheless results in a life sentence, as incentive to hang up whenever reaching a consensus seems too arduous. * Because an accused is indifferent whether he achieves his life sentence by way of a negative answer or a hung jury, the provision must be designed principally to benefit the State, by encouraging jurors to continue deliberating toward an affirmative answer where that is their collective inclination.

As the majority observes, appellant’s jury appears to have had no trouble reaching a consensus to answer the special issues affirmatively. Thus, the purpose of the statute was not undermined by the trial court’s error. Nor is it likely appellant would complain if it had been. For this reason I agree the error was harmless. Resort to the majority’s purported “presumption” is wholly unnecessary.

Turning to appellant’s third point of error, all that need be said is that the trial court instructed venireman Lamm in accordance with appellant’s wishes, that upon affirmative answers to special issues “[t]he death penalty will be imposed.” Nothing in the record suggests this instruction would not be efficacious. The majority’s “deference” to the trial court in this instance, however, is purely rhetorical, for there is nothing here either which calls for assessment of attitude or demeanor. Hernandez v. State, supra. Indeed, in the colloquy excerpted by the majority, the venireman does not even speak!

In point of error four appellant attacks admission of extraneous offenses. The majority responds, in part, that “the evidence was necessary to refute that appellant was acting under sudden passion.” At 284. This seems an anomalous rationale when one considers that in rejecting appellant’s *293 fifth point of error the majority holds, correctly in my view, that the issue of sudden passion arising from an adequate cause, V.T.C.A. Penal Code, § 19.04(a), was not raised by the evidence. I would simply hold evidence of these encounters was admissible to give context to the instant offense rather than as evidence from which the jury could draw inferences based upon character conformity. From that perspective the majority’s inquiry into “similarity” of prior acts to the instant offense is irrelevant and unnecessary. Furthermore, I reject the majority’s suggestion, in context of its superfluous prejudice-versus-probativeness analysis, that prejudicial impact of extraneous misconduct may somehow be “lessened” by packaging it as a “transaction” rather than an “offense.” It is an accused’s misconduct which prejudicially vilifies him, inviting improper character propensity inferences; not whether that misconduct has subjected him to “civil or criminal liability.”

It is sufficient to dispose of appellant’s fifth point of error to observe there was absolutely no evidence constituting “adequate cause.” Absent evidence of some provocation on the part of the deceased or one acting with him, that appellant may have been incapable of cool reflection is not sufficient to raise the issue of whether he killed the deceased while under the influence of sudden passion arising from an adequate cause. Hobson v. State, 644 S.W.2d 473 (Tex.Cr.App.1983); Gonzales v. State, 717 S.W.2d 355 (Tex.Cr.App.1986) (Clinton. J., dissenting). Because “sudden passion” was not in fact raised by the evidence, I agree that failure of the paragraph authorizing conviction for capital murder to require negation of that issue beyond a reasonable doubt was not fundamental error under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). See Moore v. State, 694 S.W.2d 528 (Tex.Cr.App.1985) (Clinton, J., dissenting). I disagree with the majority that “it is unnecessary to undertake a harm analysis under the second step of Almanza, supra, since ... appellant was not entitled to the charge.” At 288-289. Rather, as I see it, finding no evidence of provocation is tantamount to finding no egregious harm under Alman-za.

The majority then proceeds to “assume” the evidence did raise the issue of sudden passion, and with that premise decides that the paragraph authorizing conviction for capital murder need not contain the “implied element,” see Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985), of the absence of sudden passion. This is so, reasons the majority, because “capital murder is essentially ‘Murder Plus’ another offense,” At p. 289, the murder application paragraph in appellant’s charge did require negation of sudden passion beyond a reasonable doubt, and that “consider[ing] the charge as a whole,” At p. 289, the jury will devine that it must find absence of sudden passion in order to convict of capital murder as well. This argument echoes that of now-Presiding Judge McCormick in his dissenting opinion in Cobarrubio v. State, 675, S.W.2d 749 (Tex.Cr.App.1983), which was rejected by a majority of this Court. Here, no less than in Cobarrubio, supra, if the jury followed the trial court’s instructions to the letter — a presumption the majority embraces willingly, if misguidedly, in resolving appellant’s first point of error — there is every chance it found appellant guilty of capital murder without ever having to decide whether he acted under the immediate influence of sudden passion arising from an adequate cause. It is true that the implied element of absence of sudden passion was contained in the murder application paragraph. Even assuming the jury read the court’s charge top to bottom, however, it need never have “considered” beyond the paragraph authorizing conviction for capital murder before obtaining its verdict. In failing to recognize this in its dicta today, the majority gratuitously threatens to undercut the rationale of Co-barrubio and set our jurisprudence back six years. The issue of sudden passion was not raised in this cause. No more than that need be said.

Finally, I also agree appellant’s seventh point of error is without merit. The normative question of what punishment “would be most appropriate” in any given *294 case is not “a fact in issue” at the punishment phase of a capital murder trial under Article 37.071, supra. See, again, Hernandez v. State, supra. Thus it presents no relevant fact issue susceptible to proof by expert testimony as authorized by Tex.R.Cr.Evid., Rule 702. Nor would it seem that a jury’s “reasoned moral response” to evidence proffered in mitigation, Penry v. Lynaugh, 492 U.S. -, 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989), involves an issue of “fact” subject to expert assistance in contemplation of Rule 702, supra. Surely none but the individual jurors themselves can inform this exercise of the jury’s collective conscience. If this is what the majority means in concluding the record did not show that Dickenson was “qualified to recommend punishment to the trier of fact[,]” At p. 291, then I agree without reservation.

Because the majority fails to sustain appellant’s second point of error, I respectfully dissent.

DUNCAN, J., joins in this opinion.

The positive misinformation the trial court gave the jury here, that a hung jury would mandate a mistrial, might conceivably have harmed appellant. A single juror or a minority of jurors holding out in the belief that at least one special issue must be answered "no” according to the evidence might nevertheless be persuaded to vote "yes” in order to avoid a mistrial that will never occur. Instructing the venire, contrary to the express provision of Article 37.071(g), supra, that even a solitary holdout can force imposition of a life sentence rather than a mistrial would obviate this scenario. See generally, Clary, R.J., Voting for Death: Lingering Doubts About the Constitutionality of Texas’ Capital Sentence Procedure, 19 St. Mary’s LJ. 353 (1987). Yet appellant would not have this ve-nire instructed that a life sentence will be imposed upon failure to reach a verdict on one of the special issues. He complains not of a purported unconstitutional application of Article 37.071(g), supra, see Clary, supra, but of its breach.