JAMES T. CAMPBELL, Justice.
Clayton Edward Davis, Jr., appeals his conviction for the murder of a City of Beaumont police officer. Punishment was assessed at life imprisonment and a $10,000 fine. We affirm.
The basic facts surrounding the events giving rise to appellant's prosecution are undisputed. Elizabeth Thomas lived on Cordova Street in Beaumont. Her father Earl Wright lived a few houses away. Thomas had been dating appellant for several months. On the evening of September 6, 2002, appellant left Thomas's house shortly after she came home from work. He returned over an hour later in an agitated state. After an apparently disjointed conversation, Thomas refused appellant's demand for sex but he sexually assaulted her, threatening to kill her if she did not comply. Later in the evening Thomas escaped the house and ran to her father's house wearing only a bedsheet. She told Wright appellant was trying to kill her and went inside to dial 911. Wright went into the front yard with his grandchild's baseball bat. Appellant soon ran up to the house without any clothing, threw Wright to the ground and choked him saying "I'm going to kill you." Appellant also struck Wright with the bat, breaking it in two. Thomas ran to a second house and again called 911.
An ambulance and two police cars responded to the calls from Thomas. The ambulance, which was occupied by two paramedics and a third in training, arrived first at the north end of Cordova. While they were looking for the correct address, appellant ran up to the ambulance screaming for them to leave. He broke the driver's window, injuring the driver. About the same time, police officers arrived at the southwest end of the street.
Valadez then saw a Chevrolet Suburban back out of a driveway on Cordova at a high rate of speed and turn south toward the ambulance and road construction on Beatrice. The truck turned the corner from Cordova to Beatrice and continued to accelerate. Valadez and the two paramedics testified the driver swerved off the road and struck Gernale. The driver then turned back toward the ambulance approximately 100 feet away. The Suburban struck the ambulance before coming to rest. Appellant emerged from the Suburban and was immediately arrested. Officer Gernale died at the scene.
Appellant was charged with capital murder and the State sought the death penalty. The indictment alleged he intentionally caused the death of Gernale knowing that Gernale was a peace officer discharging an official duty. A second count alleged appellant intentionally caused the death of Gernale in the course of committing aggravated sexual assault. The primary issue at trial was appellant's intent at the time he struck Gernale and the
In his first issue appellant argues reversible error is shown through the cumulative effect of misstatements of the law during voir dire. He cites sixteen specific instances in support of this issue
Review of a trial court's decisions during voir dire is for abuse of discretion. Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim.App.1996). If abuse of discretion infringing the right to question the venire is shown, we will evaluate harm to appellant under the standard applicable to nonconstitutional error under Rule of Appellate Procedure 44.2(b). See Taylor v. State, 109 S.W.3d 443 (Tex.Crim.App.2003) (finding Rule 44.2(b) standard applicable to improper hypothetical by trial court during voir dire); Thompson v. State, 95 S.W.3d 537, 543 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (same). See also Stewart v. State, 162 S.W.3d 269, 278 (Tex.App.-San Antonio 2005, pet. ref'd) (applying Rule 44.2(b) standard to misstatement of law by prosecutor during voir dire). That standard requires us to disregard the error unless it had a "substantial and injurious effect or influence in determining the jury's verdict." Thompson, 95 S.W.3d at 543.
An abuse of discretion infringing the right to question the venire in order to intelligently exercise peremptory challenges ordinarily is shown only when a proper question about a proper area of inquiry is prohibited. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002); Howard, 941 S.W.2d at 108. Of the sixteen instances appellant cites, only in one did the trial court sustain an objection to a question propounded to a prospective juror. When counsel asked a venire member during individual voir dire what "mitigation meant to him," the court sustained the State's objection that he was asking an improper commitment question. However, the court did not preclude defense counsel's inquiry into the subject of mitigation. The court overruled the State's objection to counsel's next question, which also concerned mitigation, and counsel asked a further question testing the member's understanding of the concept of mitigation. The record does not reflect an abuse of the court's discretion concerning counsel's questioning of the member concerning mitigation. See Howard, 941 S.W.2d at 111 (distinguishing between court's regulation of particular form of
Most of the other fifteen instances of misstatements of the law appellant cites in his brief also concern aspects of the special issues applicable to the punishment phase of trial of a death penalty case.
Of the remaining instances cited by appellant, three occurred during voir dire of individual venire members. Appellant complains that a prosecution objection denigrated his presumption of innocence to one venire member. In response to a statement of defense counsel that: "Right now he's innocent of capital murder. The judge will tell you that, I'll tell you that and the State needs to tell you that," the trial court sustained the State's objection to "the terminology that counsel has used that he enjoys a legal presumption of innocence." Appellant also argues the prosecutor's comment to another member of the venire during her individual voir dire that she "may not have to [take the jury oath]" and his question asking if the member could take the oath given her personal feelings about the death penalty improperly implied that jurors have a choice as to whether to take the oath. The trial court overruled appellant's objection to the comment and question. Appellant further complains about the trial court's sustaining the State's objection to defense counsel referring to the prosecution as "the government" during individual voir dire of a third venire member.
The final instance cited by appellant was an objection, during general voir dire, to defense counsel's statement to the venire that members of a jury have "an absolute right to your own vote according to your conscience." The State objected on the basis that was not a correct statement of the law because "[t]hey have to vote according to the facts and the law and obey the law." The trial court sustained the objection and directed counsel to rephrase the statement. Defense counsel responded, "I'm going to move on," and proceeded with a discussion of the burden of proof.
Taken individually or collectively, we fail to see how these claimed misstatements of law prevented the intelligent exercise of appellant's peremptory challenges. None of them prevented appellant from questioning venire members or inhibited him from obtaining information needed to exercise challenges. Taylor, 109 S.W.3d at 454. We find that any error associated with the trial court's rulings in the instances
Appellant's second and third issues concern voir dire examination of the same venire member, Shirley Deane. His second issue assigns error to the denial of his challenge of Deane for cause based on her voir dire responses indicating a bias or prejudice against the applicable law. Through his third issue, appellant argues the court's error was compounded by the State's improper examination of Deane. As did appellant's brief, we consider the issues together.
During individual questioning of venire member Deane about capital offenses, defense counsel asked whether she would tend to vote for a sentence of life or death. She responded:
Through several questions seeking to clarify this response, Deane repeatedly reaffirmed her belief that she would vote in favor of death on proof of the offense beyond a reasonable doubt and there was nothing the defense could do to change that belief.
Even after efforts by defense counsel to clarify the distinction between the jury's verdict on guilt and its consideration of punishment, Deane reaffirmed she would answer the first sentencing special issue
After this attempt to rehabilitate, on three more occasions Deane repeated her intent to vote in favor of death on proof of commission of capital murder. Appellant reasserted his challenge for cause. The prosecution sought to rehabilitate Deane a second time, asking:
The trial court again denied appellant's challenge for cause and denied his request to conduct further questioning.
One of appellant's examples of the State's improper voir dire of Deane occurred at the beginning of the State's first attempt to rehabilitate her. The prosecutor asked if Deane thought the defense attorneys wanted her off the case. The trial court sustained appellant's objection to the comment but denied his request for an instruction to disregard and that Deane be excused.
A prospective juror "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." King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App.2000) (citing Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). A trial court's decision to dismiss a member of the venire for cause is entitled to "considerable deference." King, 29 S.W.3d at 568. That deference is particularly important when the venire member's responses are vacillating, unclear or contradictory. Id.; see Howard, 941 S.W.2d at 107-08 (also discussing the "vacillating veniremember"). A reviewing court considers whether the totality of the voir dire testimony supports the trial court's finding on whether the prospective juror is able to follow the law as instructed, and reverses only if a clear abuse of discretion is evident. Id.
The record establishes that Deane vacillated on her ability to distinguish between the determination of guilt and the special issues in capital sentencing. She did not so clearly demonstrate an unwillingness or inability to follow the law as instructed as to permit us to second-guess the trial court's finding that she could do so. Even considering the State's voir dire that appellant finds objectionable, no clear abuse of the trial court's discretion is evident in its overruling appellant's challenge for cause. We overrule appellant's second and third issues.
Appellant also presents a combined argument in support of his fourth and fifth issues. His fourth issue assigns error to the trial court's failure to exclude or limit the number of uniformed officers in the courtroom during trial. In his fifth issue appellant complains of the trial court's permitting members of the gallery to wear "victim medallions" bearing a photograph of officer Gernale.
Appellant filed a written pretrial motion asking the court to preclude police officers who attended the trial as spectators from wearing their uniforms.
The record in Howard reflected an objection to the presence of uniformed state troopers at arguments during the penalty phase of defendant's trial for capital murder of a trooper. The trial court observed there were twenty officers in the back of the courtroom and there were eighty-one other spectators. 941 S.W.2d at 117. The court noted findings of inherent prejudice are reserved for extreme situations. Id., citing Bundy v. Dugger, 850 F.2d 1402, 1424 (11th Cir.1988). Emphasizing the lack of evidence the officers engaged in any conduct or expression that could be construed as directed to influencing the jury, and that officers did not predominate the courtroom gallery, the court held the record did not support a finding of inherent prejudice. 941 S.W.2d at 118. This was consistent with its prior holdings that spectator conduct results in reversible error only if the appellant shows a reasonable probability the conduct interfered with the jury's verdict. 941 S.W.2d at 117.
During trial of the case at bar, defense counsel noted for the record that at times there were as many as eight uniformed officers in the courtroom. When defense counsel later renewed his objection, the trial judge stated there was then one uniformed officer present and throughout the trial there had been "at least six to one civilian to police officer in uniform ratio."
Appellant's argument that there was "absolutely no reason for [off-duty, uniformed] officers to be present, other than to pressure and influence the jury," appears to disregard the personal interest they would naturally have in the events leading to the death of another officer. As in Howard, the non-police spectators significantly outnumbered officers
Appellant's fifth issue similarly challenges the denial of his request to prohibit members of the gallery from wearing victim medallions bearing the picture of officer Gernale. The complaint is subject to the same analysis as his fourth issue. Appellant does not cite any authority
The record before us is similar to that in Nguyen, 977 S.W.2d at 457. It does not show how many spectators wore the medallions, where they sat or the size of the medallions. We have no evidence indicating whether any juror saw any of the medallions. We find no support in the record for appellant's claim they were "theatrically placed," or that the prosecution had any role in their conduct. The record is insufficient to establish actual or inherent prejudice from the wearing of victim medallions by spectators, or to show the trial court abused its discretion in overruling appellant's objection. We overrule appellant's fifth issue.
Through his sixth issue appellant assigns error to the court's allowing a witness to speculate on appellant's mental state. We review the trial court's ruling on the admissibility of evidence for an abuse of discretion. Fairow v. State, 943 S.W.2d 895, 901 (Tex.Crim.App.1997). The challenged testimony came from paramedic William Green. On direct examination by the State, the following exchange occurred:
Appellant argues Green's testimony expressed an opinion on appellant's state of mind, that is, whether he deliberately drove into the officer, which was an ultimate issue for the jury to determine.
Green was not asked whether appellant intended to strike the officer. The State's
Appellant's seventh issue assigns error to denial of a jury view. The record indicates that sometime after beginning deliberations on guilt-innocence, the jury sent a note requesting to view the scene of the offense.
This issue was recently addressed by the Court of Criminal Appeals in Mauricio v. State, 153 S.W.3d 389 (Tex. Crim.App.2005). Although jury views were traditionally disfavored in Texas in criminal cases, the decision to permit a jury view in a particular case is now committed to the trial court's discretion. Id. at 393. That decision must be made considering the totality of the circumstances of the case including the timing of the request for the jury view, the difficulty and expense of arranging it, the importance of the information to be gained by it, the extent to which that information has been or could be secured from more convenient sources, and the extent to which the place or object to be viewed may have changed in appearance since the controversy began. Id.
None of the factors listed in Mauricio support a conclusion the trial court abused its discretion here. Coming from the jury during their deliberations, it obviously came after both parties had rested and closed their cases, and cannot be called timely. Unlike the jury view in Mauricio in the courthouse parking lot, there is no evidence where the scene was located in relation to the courthouse or the time required to travel there. The denial of a jury view was upheld in Jones v. State, 843 S.W.2d 487 (Tex.Crim.App.1992),
Appellant's eighth issue challenges the inclusion in the charge of an instruction that voluntary intoxication is not a defense to commission of a crime. He contends the instruction was error because the evidence showed he was "under the influence of intoxicants that rendered him incapable of intentional or knowing conduct, but instead he was guilty of intoxication manslaughter." At trial defense counsel argued to the jury the evidence of appellant's intoxication "tells you that intentionally and knowingly is gone."
The challenged instruction tracks the language of Penal Code Section 8.04(a), instructing that voluntary intoxication does not constitute a defense to the commission of a crime. Before the trial court appellant cited Jaynes v. State, 673 S.W.2d 198 (Tex.Crim.App.1984), overruled in part, Chauncey v. State, 877 S.W.2d 305, 309 n. 8 (Tex.Crim.App.1994), for the proposition such an instruction is appropriate only at the penalty stage of trial. Jaynes does not support the proposition because the Court of Criminal Appeals there approved the trial court's use of the instruction at the guilt-innocence stage. Id. at 201-02. Moreover, the proposition is not correct. An instruction pursuant to section 8.04(a) is appropriate, at the guilt-innocence phase, when there is evidence from any source that might lead the jury to conclude the defendant's intoxication somehow excused his actions. Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim.App.1994).
The trial court also charged the jury on the lesser included offense of intoxication manslaughter. The charge correctly instructed the jury that a person commits the offense of intoxication manslaughter if he operates a motor vehicle while intoxicated and "by reason of that intoxication causes the death of another by accident or mistake." On appeal, appellant contends the instruction under section 8.04(a) improperly precluded the jury from finding him guilty of the lesser included offense of intoxication manslaughter.
Appellant cites no authority holding that an instruction under section 8.04(a) may not be given when the jury also is charged that it may find the defendant guilty of intoxication manslaughter as a lesser included offense. We cannot agree the challenged instruction prevented the jury from finding appellant guilty of intoxication manslaughter if it found the State failed to prove beyond a reasonable doubt that appellant intended to cause the officer's death. As the court in Jaynes noted, the jury was free to find the defendant lacked the culpable mental state required for guilt, "as long as they did not attribute that lack . . . to intoxication." 673 S.W.2d at 202; see Raby v. State, 970 S.W.2d 1, 6 (Tex.Crim.App.1998) (noting Texas law that voluntary intoxication may not be used to negate specific intent element). We overrule appellant's eighth issue.