holding that during our review of voir dire testimony, "we recognize that we are faced with only a cold record, and that we should grant considerable latitude to the trial judge, who had the 13 opportunity to directly observe the demeanor of the venireperson"
How later courts described this case
- holding that during our review of voir dire testimony, "we recognize that we are faced with only a cold record, and that we should grant considerable latitude to the trial judge, who had the 13 opportunity to directly observe the demeanor of the venireperson"
- holding that appellant failed to preserve complaint that he was denied right to present defense and right to due process or course of law in violation of United States Constitution and Texas Constitution when he did not raise those objections below
- holding appellant=s failure to argue in the trial court that he was denied right to present a defense and right to due process or course of law in violation of federal and state constitutions waived those arguments on appeal
- stating that to preserve error for appellate review, complaint on appeal must comport with objection at trial, and an objection stating one legal theory may not be used to support a different legal theory on appeal
Written by the judges who cited it.
The opinion
*924 MALONEY, Judge,
dissenting.
Reaffirming the reasoning in my dissenting opinion in Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.1995) (Maloney, J., dissenting), ce rt. denied, — U.S.-, 116 S.Ct. 131 , 133 L.Ed.2d 80 (1995), I dissent to the majority’s eighth point of error. 1 In his eighth point of error, appellant argues that the trial court’s refusal to instruct the jury regarding the statutory minimum incarceration period that he would be required to serve before becoming eligible for parole violated the cruel and unusual punishment provision of the Eighth Amendment applicable to the states through the Due Process Clause of the Fourteenth Amendment of the United States Constitution. 2
Appellant contends that the trial court effectively prevented the jury from giving mitigating weight to the testimony of Wendell Dickerson, James Marquart, and Walter Qui-jano at the punishment stage of the trial. While this Court has held that appellant cannot be prevented from presenting this testimony to the jury, Matson v. State, 819 S.W.2d 839, 850-51 (Tex.Crim.App.1991), without instruction on the applicable parole eligibility law, it is my opinion that appellant’s Eighth Amendment rights cannot be fully realized. See Smith, 898 S.W.2d at 874-86 (Maloney, J., dissenting).
Wendell Dickerson, a psychologist, testified as an expert witness on behalf of appellant. Dickerson testified that he was employed as the chief psychologist for the Department of Corrections in Huntsville, Texas. Dickerson stated that there were few disciplinary infractions in appellant’s Texas Department of Corrections record, 3 and “for the most part, the sanctions imposed were lightweight.” After reviewing appellant’s record and background, Dickerson expressed his opinion that “the odds greatly favor [appellant] behaving himself under conditions of serious structure” such as a prison environment:
Q: [Defense counsel] Can you explain to us in relation to these records, if you have an opinion, why you believe that [appellant’s] conduct in prison seems to be significantly different than the conduct in the free world?
A: [Dickerson] The implications that I would draw from the records is that in a stable, structured environment, this man understands what’s — what the rules are and what’s going to happen so that he’s able to comport his conduct in a more acceptable fashion.
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*925 A: [Dickerson] Well, whenever he is in a situation where he is safer and knows how it works, he is less frightened. He is able to secure some measure of recognition and affirmation for himself more readily and can play the game more successfully. And so the aggressive acting out kind of conduct diminishes. Where he is in a relatively unstructured field, apparently he becomes frightened, concerned, doesn’t know how to operate in a more competitive situation; and something goes wrong.
Appellant also called James Marquart, an associate professor of criminal justice at Sam Houston State University, who testified regarding a study he conducted which found that juries were incorrect eighty percent of the time when determining future dangerousness. Marquart looked at a group of inmates whose death sentences had been vacated or commuted and subsequently released into the general prison population. His research found that the vast majority of these inmates
went on to become, quote, good inmates. That is, they did not just — they did not pose a disproportionate threat to other inmates, to staff, or to property. I mean, they behaved, and they became what I would consider to be good inmates.
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Well, those people that had been predicted to be a continuing threat to society were much less a threat than ordinary inmates.
In addition, Marquart testified about the correlation between the age of the defendant and likelihood of engaging in future acts of violence:
Q: [Defense counsel] Is there a difference from what you’ve seen in your research and somebody being a threat in prison and being a threat out of prison?
A: [Marquart] Well, those people that are going to be threats internally are usually those folks that have been there. In many cases, they’re a lot younger.... There is sort of an odd correlation between the length of a prison sentence with the propensity for violence within the penal setting.
Q: [Defense counsel] Is that correlation the longer the prison sentence, the less likely there is to be violence?
A: [Marquart] That’s what it looks like, yes.
Q: [Defense counsel] And that’s related not just to the length of the sentence, but the age as the time progresses, correct?
A: [Marquart] Yeah. If there is one brutal fact about crime and criminality and future violence or anything like that, age — if anybody agrees on anything, it’s age. Age is the one — like I said, it’s the one group fact about crime. The older one is the less likely one that’s [sic] going to engage in that kind of activity in the future.
Finally, the State offered the testimony of Walter Quijano, a clinical psychologist, as a rebuttal expert witness. After describing the variables used in predicting whether someone poses a continuing threat, Quijano predicted that appellant would, “more likely than not, continue to engage in violent acts against society.” Quijano conceded that his opinion would be a “better predictor if [appellant] was in the streets.” Quijano admitted that appellant’s pattern of behavior in the Louisiana and Texas prison system, i.e., that he was involved in far fewer disciplinary violations as he got older, fit the classic scenario that one begins to conform more and more with age:
Q: [Defense counsel] It’s very possible that somebody can be a threat to society on the street and not be a threat to anybody in a prison environment, correct?
*926 A: [Quijano] That is true.
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Q: [Defense counsel] And the best indicator and probably the strongest indicator in your mind as to whether or not someone would commit crimes on the street is their prior record, their history of criminal actions, correct, particularly in this case?
A: [Quijano] Yes.
Q: [Defense counsel] And the same thing holds true with respect to that likelihood in prison, that their conduct while there, especially over a long period of time, is a pretty good indicator on what you can expect in the future, especially as they get older.
A: [Quijano] Yes.
Without an instruction indicating the minimum period of time appellant would serve before becoming eligible for parole, it is difficult to imagine how the jury could have given the above testimony any mitigating effect. The testimony of Dickerson, Marquart, and Quijano indicated that time and appellant’s environment were important factors in predicting future dangerousness.
Despite our decisions defining “society” as prison society and free society, 4 during the punishment phase of the trial, the State argued to the jury that society did not include prison society:
Special Issue No. 2 asks you to determine whether or not there is a probability that the defendant will commit criminal acts of violence that will constitute a continuing threat to society. Nowhere, nowhere— despite what counsel for the defense says, nowhere does it say in that Special Issue, whether or not there is a probability while incarcerated in the penitentiary that the defendant will be a continuing threat to society by way of committing criminal acts of violence in the future. We don’t have to prove to you that he’s going to be a threat while he’s in prison. Now that’s what they [appellant’s counsel] would like, you to believe that Issue says, but that’s not what it says.
The State went on to discuss the definition of society, “Those people out in this courtroom are a part of society.” The State then listed the victims of appellant’s alleged offenses and noted that they were also a part of society.
While it effectively argued at trial that “society” does not include prison society, the State now argues, on appeal, that “society” encompasses both the penitentiary and the free world. It is likely that the jurors were uncertain about whether to consider the testimony of appellant’s disciplinary infractions while in the Louisiana and Texas Department of Corrections, 5 because, after eliciting this testimony, the State argued that it was irrelevant. Jurors, uninformed as to the meaning of “society,” were left to speculate.
The trial court’s refusal of appellant’s minimum incarceration period instruction violated appellant’s rights under the Eighth and Fourteenth Amendments, particularly in light of our decision in Matson, supra, established Eighth Amendment death penalty jurisprudence, and the Supreme Court’s decision in Simmons v. South Carolina, — U.S. -, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994). Due to jurors’ inability to “give effect” to relevant mitigating evidence of decreased recidivism and violence over time, the trial court unconstitutionally denied appellant’s minimum incarceration period instruction. Smith, 898 S.W.2d at 874-86 (Maloney, J., dissenting). Because I would vacate the trial court’s sentence of death and remand appel *927 lant’s cause for a new punishment hearing, 6 1 respectfully dissent.
.I also note that the majority’s lumping together of several distinguishable points of error, five through eight, leads to the inaccurate resolution of issues and provides little guidance for the bench and bar. Broxton v. State, 909 S.W.2d 912, 919 (Tex.Crim.App.1995). The majority overrules appellant's fifth, sixth, seventh, and eight points of error in two cursory paragraphs, citing to only two cases, Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.1995), cert. denied, -U.S.-, 116 S.Ct. 131 , 133 L.Ed.2d 80 (1995) and Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992), cert. denied ,-U.S.-, 113 S.Ct. 1858 , 123 L.Ed.2d 479 (1993). Broxton, at 919. The majority’s disposal of points of error five through eight fails to provide a stated, meaningful, and thorough review by this Court in this case where the State has imposed the penalty of death.
. While his eighth point of error additionally alleges that the trial court's refusal violated article 1, section 13 of the Texas Constitution, appellant does not adequately brief this point, and we decline to make his arguments for him. Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992), ce rt. denied,-U.S.-, 114 S.Ct. 154 , 126 L.Ed.2d 115 (1993); Tex.R.App.P. 74 & 210.
. Testimony regarding the Texas Department of Corrections’ records indicated that appellant's disciplinary infractions were sleeping late on several occasions; hanging something on his light in his cell; yelling; possessing a pitcher of ice, deemed “contraband” in the Department of Corrections; trying to take a pair of pants in to be pressed; throwing coffee at another inmate; wearing the wrong pair of shoes; failing to show up for a shave; failing to close his door; failing to attend class one day; and smoking in a prohibited place.
. E.g., Jones v. State, 843 S.W.2d 487, 495 (Tex. Crim.App.1992), cert. denied, -U.S.-, 113 S.Ct. 1858 , 123 L.Ed.2d 479 (1993); Boyd v. State, 811 S.W.2d 105 , 118 n. 12 (Tex.Crim.App.1991), ce rt. denied, 502 U.S. 971 , 112 S.Ct. 448 , 116 L.Ed.2d 466 (1991).
. Appellant was in the Louisiana Department of Corrections from age eighteen to thirty-one and the Texas Department of Corrections from age thirty-one to thirty-five. Appellant was thirty-seven at the time of trial for the instant offense. Appellant’s disciplinary records from the Louisiana Department of Corrections included fighting with other inmates, refusing to work, possession of a weapon, possession of money, theft of state property, and attempted suicide. For Texas Department of Corrections disciplinaiy violations, see supra n. 3.
. Tex.Code Crim.Proc.Aim. art. 44.251 & 44.29(c).