stating "the . . . [trial] court has discretion to control the manner of voir dire with the exception that in capital murder cases both the State and the defense must be accorded the right to examine each prospective juror individually."
How later courts described this case
- stating "the . . . [trial] court has discretion to control the manner of voir dire with the exception that in capital murder cases both the State and the defense must be accorded the right to examine each prospective juror individually."
- holding that the trial judge did not err by conducting a general voir dire before individual voir dire in a capital case because the defendant was allowed to individually voir dire veniremembers regarding the law of capital murder
- holding that the prosecutor’s characterization of the defendant as a “mean person” was a reasonable deduction from the evidence
- holding that prosecutor’s characterization of defendant as a “mean person” was a reasonable deduction from the evidence
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
concurring and dissenting.
There is much high and low mischief in the majority opinion by Judge McCormick. Time constraints prevent me from filing at this time a lengthier dissenting opinion.
I write because I find that the majority opinion by Judge McCormick correctly overrules appellant’s first point of error in which he asserts that “The indictment is defective as a capital murder indictment in that it uses the act constituting the murder as the element that converted a theft into a robbery and then uses the robbery as the aggravating factor that converted the murder into a capital murder.” This indictment does no such thing. The pertinent part of the indictment is set out on page 708.
As easily seen, in the very first pertinent sentence of the indictment, the State alleged that appellant murdered TUAN NGUYEN by shooting him with a rifle. The indictment next alleges that the murder occurred in the course of committing the offense of robbery, namely, the robbery of NGUYEN NGUYEN, another and different individual, in which it was alleged *724 that appellant did intentionally and knowingly cause bodily injury to TUAN NGUYEN. As easily seen, the State did not allege that the bodily injury to TUAN NGUYEN caused that person’s death.
One of the ways that a person might commit the offense of robbery is if, in the course of committing theft, and with intent to obtain and maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. See Y.T.C.A., Penal Code, Section 29.02. The offense of murder is not an element of the offense of robbery.
One of the ways that the offense of capital murder might be committed is if an individual commits the offense of murder in the course of committing or attempting to commit the offense of robbery. See V.T.C.A., Penal Code, Section 19.03(a)(2). That is exactly what the State alleged in this cause; it alleged the primary offense of murder and then alleged that it was committed in the course of committing the underlying offense of robbery. The underlying offense of robbery, as alleged, however, did not have as an element thereof the offense of murder, and the State did not allege that it was an element of that túfense.
Appellant’s reliance upon the Common Law doctrine of merger or the felony murder statute of this State, see V.T.C.A., Penal Code, Section 19.02(a)(3), is sorely misplaced.
Had the indictment alleged that the primary murder was also an element of the underlying offense of robbery, then appellant would be correct that the State was erroneously “bootstrapping” itself to a capital murder, which would be impermissible simply because the State in that instance would have alleged that it had “spent” the murder “bullet” that it needed to prove the primary offense of murder. However, in this instance, the indictment does not allege that the murder was an element of the underlying offense of robbery. Thus, the State never alleged that it had “spent” the primary murder “bullet.” Therefore, it still had available to it the murder “bullet.” Therefore, I agree with the majority opinion that appellant’s first point of error must be overruled.
However, because I cannot join most of what else is in the majority opinion, I am compelled to respectfully dissent to the rest of the majority opinion.