Williams v. State

¶1OPINION

¶2The appellant was found guilty of capital murder; the jury answered affirmatively special issues (1) and (2), Article 37.071(b) V.A.C.C.P., and accordingly the punishment *118was assessed at death. The sufficiency of the evidence at either the guilt or punishment phase of the trial is not challenged.

¶3By his first ground of error the appellant contends that the trial court committed reversible error in excusing for cause Venire Members Tillman, Criner, Anderson and Ol-igney. He contends that these prospective jurors were excused in violation of the Sixth and Fourteenth Amendments as construed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In examining the Texas procedure for selecting jurors in capital cases the Supremé Court of the United States recently stated:

“[T]he general proposition [is] that a jur- or may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

“. .. If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoondoctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality.” Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980).

¶4Based on the record before us, we conclude that the aforementioned venire members were unable or unwilling to consider the statutory special issues with the degree of impartiality to which the State was entitled.

¶5Venire Member Tillman gave conflicting responses when asked whether under any circumstances he could answer the special punishment issues affirmatively. Although he initially stated that he could answer “Yes” if the issues were proved by the evidence, Tillman later stated that his religious beliefs would prevent him from answering the punishment questions. At the conclusion of his voir dire examination Tillman agreed that he would automatically respond “No” to one of the issues to prevent the appellant from receiving the death penalty even though the evidence was to the contrary.

¶6Venire Member Criner informed the trial court that she did not believe in capital punishment. Criner further stated that no matter what the evidence might show she believed that she would vote “No” on at least one special issue to prevent the imposition of the death penalty. Criner expressed the belief that she could not answer both issues “Yes” no matter “how horrible the circumstances.”

¶7Venire Member Anderson stated that her conscience would not permit her “under any circumstances” to answer both issues “Yes.” Anderson agreed that she would automatically vote “No” simply because she did not believe in the death penalty.

¶8Venire Member Oligney also gave conflicting answers when asked whether she could answer the punishment issues affirmatively. Oligney initially stated that she “imagine[d]” that she could vote “Yes” to both issues, but she was not certain. Olig-ney subsequently concluded that she would probably answer “No” to at least one of the special issues “in spite of the evidence” because she did not believe in capital punishment.

¶9The record adequately demonstrates that these venire members’ views about capital punishment would have prevented or substantially impaired the performance of their duties as jurors in accordance with their instructions. Thus we conclude that the trial court did not err in excusing them for cause. The appellant’s first ground of error is overruled.

¶10By his second ground the appellant contends that the trial court committed reversible error in denying his challenge for cause to the twelfth juror selected, Alva Jean Wagner. Specifically the appellant *119asserts that the voir dire examination revealed that Wagner was not qualified to sit on the jury because: (1) she would be inclined in a case involving an “atrocious” murder to find the accused guilty of capital murder even though the evidence failed to establish the alleged aggravating circumstances, and (2) she would not consider life imprisonment for a defendant found guilty of capital murder.* We conclude that the appellant’s contentions are without merit. Wagner specifically stated that although she “might have a tendency to want to do so” she would not convict an accused of capital murder simply because of the horror of the case. Wagner also stated that even though she “may not like it” she would follow the law and not convict an accused of capital murder unless the alleged aggravating circumstances had been proven. It does not appear from the record that Wagner was unable or unwilling to follow the law in determining whether the appellant was guilty of the offense of capital murder.

¶11As to the claim that Wagner could not consider the full range of punishment, Wagner did admit that it probably would be her “tendency to assess the highest punishment” if the defendant was found “guilty of the highest crime at the guilt or innocence stage” of the trial. But Wagner never stated that she was incapable of considering life imprisonment as adequate punishment for a defendant guilty of capital murder. In fact Wagner informed the trial court that she would not answer the statutory issues “Yes” contrary to the evidence simply because she believed that death was the appropriate penalty. The voir dire examination of Wagner does not show that she would consider only the death penalty. The appellant’s second ground of error is overruled.

¶12By his third ground the appellant contends that he “was denied a fair determination of the voluntariness of his written confession where the trial judge informed each prospective juror that a confession is inadmissible only if it is obtained by ‘torture.’ ” The trial court gave the first juror selected the following explanation of the law relating to the admissibility of confessions:

“Q All right. Let me go to the next problem that might arise. I don’t know whether there is to be a confession in this case. There have been questions asked that indicate to me there may be, but again we’re not talking about this case. I want to talk to you now about just any other case. Our law says that before a confession can be used by a jury to convict a defendant, that they must consider whether or not the confession was voluntarily given. In other words, if you believe that the confession was tortured out of somebody, you’re not to consider the confession because understand tortured people may say or do anything. And even if you believe that it was true, but you believe that it was tortured, you’re not to consider it. Could you set aside the confession and consider it for no purpose even though you believe it’s true, if you thought it was coerced or forced out of a person?”

¶13A similar explanation was given to the other eleven venire members selected to serve upon the jury.

¶14No objection was made to the trial court’s comments and thus nothing is presented for review. Woods v. State, 569 S.W.2d 901 (Tex.Cr.App.1978). Further, the court’s remarks to the jury were rendered harmless. Our review of the record reveals that there was no evidence before the jury raising the issue of voluntariness; the appellant did not testify or call any witnesses on the issue. At worst the trial court’s statements merely misled the jury as to the appropriate standard for determining whether a confession was given voluntarily. Since that issue was not before the jury, no harm resulted.

¶15*120In the same ground of error, the appellant asserts that the “failure of [his] court-appointed counsel to object to this prejudicial instruction by the trial court deprived him of the effective assistance of counsel.” The Constitution demands only reasonably effective counsel, not counsel that is error-free. The representation in this case was well within that standard. Further, counsel’s failure to object to the court’s remarks was harmless in light of the fact that the issue of voluntariness was not raised by the evidence. The appellant’s third ground of error is overruled.

¶16By his fourth ground the appellant contends that Article 37.071 V.A.G.C.P. violates the Sixth, Eighth, and Fourteenth Amendments “because it contains no provisions for directing and instructing the jury’s consideration of mitigating circumstances at the punishment phase of the trial.” It is the appellant’s contention that a “charge on all mitigating evidence at the punishment phase of a capital murder trial is imperative if the jury is to give meaningful consideration to such evidence.” The appellant has ■ failed to preserve the error now asserted on appeal. No objection to the court’s charge or special requested instruction was filed. Articles 36.14 & 36.15 V.A.C.C.P. Absent such an objection or requested instruction, the trial court’s failure to charge the jury as to the consideration of mitigating circumstances was not reversible error. The appellant’s ground of error is overruled.

¶17By his final ground the appellant contends that evidence of unadjudicated, extraneous rape offenses admitted at the punishment phase of the trial “rendered the proceedings fundamentally unfair and deprived [him] of due process and equal protection of the law.” This Court has previously held that, absent a showing of unfair surprise, proof of unadjudicated, extraneous offenses at the “sentencing proceeding” of a capital case is admissible. Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979). The appellant does not contend that he was unfairly surprised by the evidence now complained of on appeal. The appellant’s ground of error is overruled.

¶18The judgment is affirmed.