stating that in absence of record that shows contrary, appellate court presumes that trial court’s response was in open court and in appellant’s presence, as required by article 36.27, and that appellant had an opportunity to object
How later courts described this case
- stating that in absence of record that shows contrary, appellate court presumes that trial court’s response was in open court and in appellant’s presence, as required by article 36.27, and that appellant had an opportunity to object
- determining that the trial court’s response to the jury that a witness “never used the term ‘emotional problems’!” neither expressed the trial court’s opinion regarding the testimony nor instructed the jury on a factual matter
- holding that failure by defendant to object to trial court’s answer to question waived complaint by defendant that trial court failed to follow requisites of article 36.27 of Code of Criminal Procedure
- finding that appellate complaint that judge impermissibly commented on the weight of the evidence was not preserved for review because no objection was lodged in the trial court
Written by the judges who cited it.
The opinion
OVERSTREET, Judge,
concurring.
In point of error eleven, appellant contends that his capital punishment proceedings violated the Eighth and Fourteenth Amendments of the United States Constitution because the court charged the jury that it could not be influenced by “sympathy” when answering the special issues submitted.
In point of error twelve, appellant contends that his capital punishment proceeding violated Texas constitutional protection against imposition of cruel or unusual punishment because the court charged the jury that it could not be influenced by “sympathy” when answering the special issues submitted.
Appellant in essence argues, as the majority opinion notes, that the trial court’s “sympathy” charge nullified the special issue on mitigation. 912 S.W.2d 189 at 195, without any analysis, states we disagree, and hold the trial court’s sympathy charged violated neither the United States nor the Texas constitutions, and cites California v. Brown, 479 U.S. 538 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987) and Wheatfall v. State, 882 S.W.2d 829, 842-43 (Tex.Cr.App.1994), cert. denied, — U.S. -, 115 S.Ct. 742 , 130 L.Ed.2d 644 (1995) and overrules both points of error.
While I object to the total lack of analysis, I nevertheless agree that the majority reached the right result. In Wheatfall supra, we determined the constitutionality of the antisympathy charge. In doing so, we were guided by the commands of Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989) concerning mitigating evidence. In Brown supra, the U.S. Supreme Court addressed the same concerns regarding an antisympathy charge. The overriding focus of an antisympathy charge is to instruct the jury that it not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling in considering the evidence and answering the special issues. By limiting a jury’s emotional response to our special issues, a trial court limits emotional responses in favor of the defendant and in favor of the victims of the crime. The Court went on to say that it does not follow that by limiting a juror’s sympathy towards the defendant the court is also limiting that jurors’ consideration of evidence which may mitigate against the imposition of the death penalty. As Justice O’Connor explicated in her concurring opinion in Brown ,
Because the mdividualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence, I agree with the Court that an instruction informing the jury that they “must not be swayed by *199 mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” does not by itself violate the Eighth and Fourteenth Amendments to the United States Constitution.
Wheatfall, supra at 842 .
Consequently, the majority holding that the antisympathy charge is not violative of the United States and Texas Constitutions is correct. With these comments, I join the judgment of the Court.