Broxton v. State

909 S.W.2d 912, 1995 Tex. Crim. App. LEXIS 95, 1995 WL 579732

• Court: Court of Criminal Appeals of Texas
• Decided: October 4, 1995
• Docket: 71488
• Status: Published

Opinions

OPINION

KELLER, Judge.

Appellant was convicted of capital murder. Tex.Penal Code Ann. § 19.03(a)(2). After the jury affirmatively answered the first and second Special Issues and negatively answered the third Special Issue, the trial court assessed the death penalty.¹ Direct appeal to this Court is prescribed by article 37.071(h) of the Texas Code of Criminal Procedure. Appellant raises eight points of error.

I. First Point of Error

In his first point of error, appellant claims he is entitled to a new trial because the jury questionnaire forms do not appear in the appellate record. See Perez v. State, 824 S.W.2d 565 (Tex.Crim.App.1992) (ordering new trial where court reporter’s tapes and notes lost); Payne v. State, 802 S.W.2d 686 (Tex.Crim.App.1990) (ordering new trial where testimony of three witnesses missing from record); Emery v. State, 800 S.W.2d 580 (Tex.Crim.App.1990) (ordering new trial where pretrial hearing notes lost); Dunn v. State, 733 S.W.2d 212 (Tex.Crim.App.1987) (ordering new trial where portion of pretrial hearings, voir dire, and testimony of witness missing). According to appellant, these forms should have been included in the record on appeal because they were admitted into evidence and were the subject of a timely request for inclusion. Appellant contends that a new trial is required because he exercised due diligence in requesting the forms, and neither he nor his counsel caused the appellate record to be incomplete.

The State argues that the forms were not admitted into evidence and not designated to be included in the record on appeal. The State further contends that appellant failed to exercise due diligence in securing the questionnaires for inclusion in the record.

Texas Rule of Appellate Procedure 50(e)² provides that, in order to prevail, an appellant must show (1) he made a timely request for a statement of facts and (2) the court reporter’s notes and records have been lost or destroyed without the appellant’s fault. See Cuitan v. State, 852 S.W.2d 512, 514 (Tex.Crim.App.1993). Under Rule 53(a),³ a “timely request” is a request made in writing to the official court reporter on or at the time prescribed for perfecting the appeal. Id.

In addition to the stated requirements of Rules 50(e) and 53(a), this Court has historically required defendants to demonstrate due diligence in attempting to secure a complete statement of facts. Id.; Dunn, 733 S.W.2d at 214; Austell v. State, 638 S.W.2d 888, 890 (Tex.Crim.App.1982); Timmons v. State, 586 S.W.2d 509, 512 (Tex. Crim.App.1979). Appellants demonstrate due diligence if they (1) obtain the missing portion of the record and file a motion to supplement the record, or (2) obtain an affidavit from the court reporter explaining the absence of the missing portion of the record and file a motion to supplement the record supported by the affidavit. Cuitan, 852 S.W.2d at 515; see Tex.RApp.P. 55.

Appellant in the instant ease has not complied with the requirements of Rules 50(e) and 53(a) nor demonstrated due diligence. First, there is no evidence in the record that appellant made a written request to the court reporter designating the portions of the evidence to be included in the appellate record. In his brief, appellant claims he filed a designation letter with the Harris County District Court Clerk wherein he requested the clerk to include all exhibits introduced into evidence at trial in the record on appeal. Appellant also claims that the designation letter was the subject of a Motion to Supplement the Transcript filed with this Court. However, no such letter or motion appears in the transcript or among the papers filed with this Court. Second, even if appellant made a timely written request, he did not file a motion to supplement the record supported with either the missing portions of the record or an affidavit from the court reporter explaining the absence of the missing portions. Therefore, appellant is not entitled to a new trial.⁴ Appellant’s first point of error is overruled.

II. Second Point of Error

Appellant’s second point of error concerns the voir dire examination of venireperson Dwayne Edward Nolan. Appellant complains that the trial court improperly sustained the State’s challenge for cause of Nolan.

At the onset of his voir dire examination, Nolan indicated to the court that he did not have any conscientious, religious, or moral scruples against the infliction of death as a punishment in a proper case. The State inquired about Nolan’s juror questionnaire form in which Nolan checked a statement that he was opposed to capital punishment under any circumstances as the one statement that best summarized his general views about capital punishment. In response to the State’s questions, Nolan initially stated that he was opposed to capital punishment under any circumstances, but then stated that it would depend on the circumstances of the case.⁵ Nolan later indicated that he believed life imprisonment was a more effective punishment than the death penalty.

The State questioned Nolan extensively about how he would answer the third special issue. Nolan responded that he would have a tendency to answer the issue “yes” so that a life sentence would be imposed.⁶ When questioned by the trial court regarding this testimony, Nolan testified repeatedly that he absolutely could not put aside this bias in answering the issue.

After this line of questioning, the State challenged Nolan for cause. Then, after defense counsel explained the presentation of evidence and the requirement of affirmative answers to the first and second special issues before reaching the third, Nolan’s voir dire examination continued as follows:

Q: [Defense counsel] If we get to here, and in applying your own reasoned moral judgment, you believed that there were not sufficient mitigating circumstances or one circumstance that was sufficient to warrant a sentence of life in prison rather than death, would you put aside any feelings you had, any bias you might have against the death penalty, and answer that the way you honestly believe?

A: [Nolan] I would answer it the way I honestly believe it, yes.

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Q: [Court] Could you put aside any bias you have towards your feelings against the death penalty in answering that or not?

A: [Nolan] No.

Q: [Court] You could not put aside the bias?

A: [Nolan] Not the — no, not the bias.

Nolan further discussed whether he would have a tendency to answer “yes” to the third issue before he heard any evidence. He indicated that he could not set aside any bias and prejudice and decide the answer to the third issue based solely on the evidence that he heard. The trial court thereafter sustained the State’s challenge for cause, and Nolan was excused from jury service.

Appellant complains that the trial court abused its discretion by applying the incorrect legal standard in sustaining the State’s challenge for cause to venireperson Nolan. According to appellant, Nolan’s testimony as a whole demonstrated that Nolan was qualified, notwithstanding his expressed bias toward answering the third special issue such that a defendant would receive a life sentence rather than the death penalty. Appellant contends that because Nolan also expressed a willingness to answer the third special issue based upon the evidence presented at trial, his bias would not have prevented or substantially impaired the performance of his duty as a juror.

In Vuong v. State, 830 S.W.2d 929, 943 (Tex.Crim.App.1992), cert, denied, — U.S. -, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992), we held that an appellant complaining of an erroneously excluded juror must demonstrate one of two things: (1) the trial judge applied the wrong legal standard in sustaining the challenge for cause, or (2) the trial judge abused his discretion in applying the correct legal standard. The correct legal standard was articulated in Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 850, 83 L.Ed.2d 841 (1985), in which the United States Supreme Court held that a prospective juror may be excluded for cause only when the juror’s views on capital punishment are such that they would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” See also McFarland v. State, 845 S.W.2d 824, 833 (Tex.Crim.App.1992), cert. denied, —— U.S. -, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993); Jones v. State, 843 S.W.2d 487, 497 (Tex.Crim.App.1992), cert. denied — U.S.-, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). However, the State is not required to prove a prospective juror’s bias or prejudice with “unmistakable clarity.” Witt, 469 U.S. at 424; McFarland, 845 S.W.2d at 833; DeBlanc v. State, 799 S.W.2d 701, 717 (Tex.Crim.App.1990), cert. denied 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Bird v. State, 692 S.W.2d 65, 75 (Tex.Crim.App.1985), cert. denied; 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986). Here, the questions asked by appellant’s counsel, the prosecutor, and the trial judge indicate that the trial judge applied the correct legal standard, articulated in Witt, in attempting to ascertain whether Nolan would be prevented or substantially impaired in performing his duties as a juror. We now turn to the issue of whether the trial judge abused his discretion in applying the correct legal standard. Goodwin v. State, 799 S.W.2d 719, 731 (Tex.Crim.App.1990), cert. denied 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991). In reviewing the trial judge’s decision to sustain the State’s challenge of Nolan, we must determine whether the totality of his voir dire testimony supports the trial judge’s implied finding of fact that Nolan was unable to take the requisite oath and to follow the law as given. Id. at 731. During this review, 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 opportunity to directly observe the demeanor of the venireperson. Vuong, 830 S.W.2d at 943.

Initially, Nolan indicated to the State that due to his belief that life imprisonment is a more effective means of punishment than the death penalty, he would have a tendency to answer “yes” to the third special issue so that a life sentence would be imposed. In response to appellant’s questions, Nolan agreed that if there were not sufficient mitigating circumstances, he would answer the third issue after hearing evidence “the way [he] honestly believe[d] it.” However, when questioned by the trial court regarding this tendency, Nolan testified repeatedly that he absolutely could not put aside this bias in answering the third issue. From these responses, the trial court could reasonably infer that Nolan’s ability to follow the law would be substantially impaired by his beliefs about the death penalty; therefore, his conclusion is supported by Nolan’s voir dire as a whole. Accordingly, appellant’s second point of error is overruled.

III. Third and Fourth Points of Error

Appellant’s third and fourth points of error concern the testimony of Christopher Jules Shook, appellant’s former roommate who testified on behalf of the State. In his third point of error, appellant claims he was denied the right to present a defense in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution when the trial court ruled that appellant could not limit questioning of Christopher Jules Shook to the content of the witness’ auditory hallucinations. In his fourth point of error, appellant argues that the trial court’s ruling denied him due process or due course of law in violation of the Fourteenth Amendment to the United States Constitution and Article 1, Sections 13 and 19 of the Texas Constitution.

Prior to appellant’s cross-examination of Shook, a bench discussion occurred regarding whether the trial court would allow the State on redirect examination to elicit testimony about extrajudicial assertions made by Shook to a clinical psychologist. Shook told psychologist Dr. Edward Silverman that he was having auditory hallucinations, which Dr. Silverman detailed in a written report. In addition to the content of the auditory hallucinations, Silverman’s report .included Shook’s explanation for hearing voices.⁷ Appellant’s counsel argued that only testimony regarding the content of the hallucinations should be admitted, because Shook’s explanation, while relevant, would be unduly prejudicial under Rule 403 of the Texas Rules of Criminal Evidence due to the references to extraneous offenses. The State indicated that it would not object to testimony concerning the content of the hallucinations, but if the trial court admitted such testimony, the State should be allowed to go into Shook’s explanation for hearing voices pursuant to Texas Rules of Criminal Evidence 107 (optional completeness) and 612 (impeachment). The trial court ruled in the State’s favor and refused to allow appellant to limit Shook’s testimony.

Appellant stated on the record that, based on the trial court’s ruling, he would not question Shook about the content of the auditory hallucinations because he did not want the jury to hear the extraneous offense evidence. Appellant later made a bill of exception.⁸ The State claims appellant did not properly preserve error because appellant did not obtain an adverse ruling on an objection at trial that comports with the complaint raised on appeal, citing Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991), cert. denied 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991), and Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.1986).

To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. Tex.RApp.P. 52(a); Turner, 805 S.W.2d at 431; Thomas, 723 S.W.2d, at 700. In addition, the point of error must correspond to the objection made at trial. Turner, 805 S.W.2d at 431. In other words, “An objection stating one legal theory may not be used to support a different legal theory on appeal.” Johnson v. State, 803 S.W.2d 272, 292 (Tex.Crim.App.1990), cert. denied 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991); Thomas 723 S.W.2d at 700. We have further held that even constitutional errors may be waived by failure to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990); Gibson v. State, 516 S.W.2d 406, 409 (Tex.Crim.App.1974).

Here, appellant’s trial objection was based on Texas Rule of Criminal Evidence 403. On appeal, appellant claims that he was denied the right to present a defense and the right to due process or course of law in violation of the United States Constitution and the Texas Constitution. We hold that appellant’s complaint on appeal does not correspond to the objection made at trial, and thus appellant did not properly preserve error. See Ellason v. State, 815 S.W.2d 656, 665 (Tex.Crim.App.1991) (appellant did not preserve error where objection to excusal of venireperson at trial was based on various constitutional provisions and complaint on appeal was that trial court improperly excused venireperson sua sponte); Johnson v. State, 803 S.W.2d 272, 292 (Tex.Crim.App. 1990) (appellant did not preserve error where objection at trial to admission of bag of cocaine was that the State did not show that appellant exercised custody or control over the evidence and complaint on appeal was that admission of evidence violated Tex. R.Crim.Evid. 404(b)). Accordingly, we will not review the merits of appellant’s third and fourth points of error.

IV. Fifth through Eighth Points of Error

In his fifth and sixth points of error, appellant claims that he was denied due process and due course of law, in violation of the Fourteenth Amendment to the United States Constitution and Article 1, §§ 13 and 19 of the Texas Constitution, when the trial court disallowed punishment testimony that he would never be paroled and when the trial court instructed the jury that it could not consider the minimum time appellant would have to serve before becoming eligible for parole. In points of error seven and eight, appellant claims that the same rulings deprived him of the right to be free from cruel and unusual punishment guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Article 1, § 13 of the Texas Constitution. Appellant argues that the requested information regarding parole was relevant to whether he would be a continuing threat to society and that the trial court prevented the jury from weighing the mitigating effect of punishment testimony that appellant, given his age and past behavior in a prison setting, would not likely pose a future threat while incarcerated or thereafter.⁹

In Smith v. State, 898 S.W.2d 838 (Tex.CrimApp.1995), cert, denied, — U.S. -, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), this Court addressed and rejected the identical constitutional challenges posed in points six and eight. We hereby adopt the reasoning of the plurality opinion in Smith, id., and follow that decision in regard to those points.

As for points five and seven, we have previously held it improper to admit testimony concerning when or whether a defendant would be paroled. 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). The reasons in Smith for rejecting the constitutional challenges to the exclusion of parole information apply equally well to the exclusion of parole testimony under the circumstances present in this case. Points of error five through eight are overruled.

The trial court’s judgment is AFFIRMED.

1 . After the punishment phase of the trial, the following Special Issues were proffered to the jury:

Was the conduct of the defendant, Eugene Broxton, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased would result? Is there a probability that the defendant, Eugene Broxton, would commit criminal acts of violence that would constitute a continuing threat to society?

Taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, do you find that there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?

Tex.Code Crim.Proc.Ann. art. 37.071.

2 . Texas Rule of Appellate Procedure 50(e) provides:

When the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts. but the court reporter’s notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.

3 . Rule 53(a) of Appellate Procedure provides in pertinent part:

The appellant, at or before the time prescribed for perfecting the appeal, shall make a written request to the official reporter designating the portion of the evidence and other proceedings to be included therein.

4 . We do not reach the issue of whether the questionnaire forms were admitted into evidence and thus required to be included in the appellate record. Even if the questionnaire forms were properly admitted, appellant has not satisfied the requirements in Texas Rules of Appellate Procedure 50(e) and 53(a).

5 . The State also inquired about the portion of Nolan’s juror questionnaire form in which he checked a statement that he agreed that capital punishment cannot be a sane method of dealing with crime. Nolan’s responses to the prosecutor’s questions indicated that he did not understand what the statement meant when he checked it. For example, Nolan stated "I was understanding that that — that you can’t be, like I said, disability and, you know, if you didn't have a straight head or something like that.”

6 . The following exchange occurred:

Q: [Prosecutor] Do you think that you would be prejudiced towards the defense in the sense that you would lean towards answering this question yes without having even heard any evidence because of the fact that you believe that life imprisonment is more effective than capital punishment or the death penalty?

A: [Nolan] No, I wouldn't.

Q: [Prosecutor] How do you feel like you would lean with regard to answering that question, if any way at all?

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A: [Nolan] I would say by thinking real thoughtfully, I would say yes.

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Q: [Prosecutor] So you’re telling me that because of your feelings, you do think that you would tend to answer Special Issue No. 3

A: [Nolan] Yes.

Q: [Prosecutor] Okay. And that's in each and every case?

A: [Nolan] No, sir.

Q: [Prosecutor] You just think you would answer it — well, let me put it this way. You think already right now, without having heard any evidence, that you have a built-in tendency towards answering it yes; is that correct?

A: [Nolan] Yes.

Q: [Prosecutor] And that’s because of what?

A: [Nolan] That’s because of not hearing the case.

Q: [Prosecutor] Okay. So I take it then, what you're telling me then is as we sit here — and counsel for the defense used the word bias or — bias—that you have a built-in bias with regard to tending toward answering Special Issue No. 3 yes, even without having heard any evidence?

A: [Nolan] Yes sir.

7 . The report, which was later admitted as Court’s Exhibit No. 1, included statements made by Shook about his experience as appellant’s roommate. Shook stated that shortly after he moved in with appellant, he discovered that "lo and behold, he turns out to be a mass murderer.” Shook stated that appellant regularly brought cocaine back to the apartment, and when they were high, appellant told Shook that he had been killing people.

8 . In the bill of exception. Shook admitted to having auditory hallucinations. Shook stated that he told the psychologist that he heard appellant’s voice telling him to purchase cocaine and to kill people. Shook admitted that the voice convinced him that these things were not wrong and that he felt as though a time bomb was about to explode in his head. Finally, Shook conceded that he was hearing voices as a result of his cocaine addiction and that he was addicted before he met appellant.

9 . Appellant does not explain how the protection offered by the Texas Constitution differs from that of the United States Constitution. We decline to make appellant’s arguments for him. Therefore, we will address the issues solely on federal grounds. Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992), cert. denied,-U.S.-, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993).