Hughes v. State

878 S.W.2d 142, 1992 WL 360550

• Court: Court of Criminal Appeals of Texas
• Decided: June 23, 1993
• Docket: 70901
• Status: Published

Opinions

OPINION

CAMPBELL, Judge.

Appellant was convicted of capital murder. V.T.C.A. Penal Code § 19.03(a)(6). Upon the jury’s affirmative answers to the two issues submitted at punishment, the trial judge sentenced appellant to death. See Art. 37.-071(b)(1), (b)(2), and (e), V.A.C.C.P.¹ Appellant raises twelve points of error in this direct appeal. We will reverse appellant’s conviction on the basis of our disposition of his fourth point of error, and address the one point of error challenging the sufficiency of the evidence on the second punishment issue. Lane v. State, 743 S.W.2d 617, 629 (Tex.Crim.App.1987), cert. denied, — U.S. -, 112 S.Ct. 1968, 118 L.Ed.2d 568.

In his eighth point of error, appellant contends the evidence at trial is insufficient to establish that he would commit criminal acts of violence that would constitute a continuing threat to society. In reviewing the sufficiency of the evidence to support an affirmative answer to the second punishment issue, this Court utilizes the same standard of review for judging the sufficiency of the evidence to support a conviction, viz: we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the punishment issue beyond a reasonable doubt. Black v. State, 816 S.W.2d 350, 352 (Tex.Crim.App.1991), cert. denied, sub. nom., Black v. Collins, — U.S. -, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). When deliberating on the punishment issues, the jury is entitled to consider all evidence admitted at both phases of trial. We therefore proceed to review that evidence.

The record reflects that officers of the Houston Police Department discovered two persons — one still alive — in a vacant field in Harris County on September 26, 1988. The victims, S_C_and M_T_, had both sustained multiple stab wounds. The aorta and jugular vein of each victim had been severed.

Houston police officer Donald Hamilton spoke with S_C_at the scene before she died. S_ C_informed Hamilton that someone named “Preston” had tried to sexually assault her and then had stabbed her. Based on this information, the police officers went to an apartment complex located approximately 100 yards from the vacant field. The police requested and received a list of apartment tenants from the manager of the complex. Appellant was the only person named Preston on the list.

Around 2:30 a.m. on September 27, the police went to appellant’s apartment. Appellant admitted the officers into his apartment and answered some questions, none of which mentioned the investigation of S_C_⅛ and M_ T_’s deaths. Appellant agreed to accompany the officers to the police station for further questioning. At the police station, the interrogation of appellant continued while the police conducted a computer inquiry to determine whether appellant had a prior criminal record. The inquiry revealed that appellant had been involved in “some sexual assault cases.”

During the interrogation, appellant admitted that he had become acquainted with S_ C_ through a mutual friend. Based upon (1) the proximity of appellant’s residence to the scene of the offense, (2) the computer information about appellant’s involvement with past sexual assault cases, (3) the statement from S_C_that “Preston” had attacked and tried to sexually assault her, and (4) the admission from appellant that he knew S_ C_, the police arrested appellant at 4:30 a.m. on September 27. After arresting appellant, the police informed him of his Miranda² rights and continued to interrogate him. Over the course of several hours, appellant confessed to killing S_C_and M_T_

During the punishment phase of the trial, the State offered testimony and documentary evidence showing that when appellant committed the murders of S_ C_ and M_ T_, he was already serving two ten-year probated terms pursuant to a deferred adjudication judgment. Appellant had been placed on deferred adjudication for committing aggravated sexual assault and aggravated assault³ against a thirteen-year-old female, T_H_T_H,__ testified that appellant had raped her in 1985 and had forced her to swear to be his girlfriend. Additionally, T H_testified that appellant told her not to contact the police because he kept her home under surveillance.

Despite this threat, T. H_did contact the police and appellant was charged with aggravated sexual assault. As the trial date was approaching in late 1985, appellant confronted T_H_, told her she should not testify against him, and fired a gun at her. T_ H_ informed the police of this incident, and appellant was charged with aggravated assault. Beyond T_H_⅛ testimony, the State also introduced documents wherein appellant was found guilty of the offenses and received two sentences of deferred adjudication for ten years.

The record also contains evidence that appellant had been accused of sexual assault in the state of New York and that appellant had failed to attend a number of his scheduled meetings with his probation officer, Mikal Klumpp. Klumpp testified that he tried to accommodate appellant’s schedule by remaining at the probation office later than he normally would. Despite Klumpp’s efforts, appellant still missed numerous scheduled appointments.

Appellant presented punishment evidence in the form of testimony regarding his character. While few of the witnesses stated that they were aware of appellant’s past legal problems, six of appellant’s friends testified that he was a good-natured person and not prone to violence. Appellant’s mother testified to the same effect. She also testified that, in her opinion, appellant did not pose a threat of future violence.

The second punishment question required the State to prove that appellant would, more likely than not, commit violent criminal acts in the future so as to constitute a continuing threat to society, whether he was incarcerated or not. Smith v. State, 779 S.W.2d 417, 421 (Tex.Crim.App.1989). In weighing the evidence, the jury could consider a number of factors, including the existence of a prior criminal record, the severity of any prior crimes, and the calculated nature of the defendant’s conduct. Stoker v. State, 788 S.W.2d 1, 7 (Tex.Crim.App.1989). Moreover, the jury may return an affirmative answer to the second punishment issue based solely upon the facts and circumstances of the case being prosecuted. Farris v. State, 819 S.W.2d 490, 498 (Tex.Crim.App.1990); Muniz v. State, 573 S.W.2d 792, 795 (Tex.Crim.App.1978).

Appellant argues that the evidence is insufficient to support the jury’s affirmative answer because no one testified that appellant “had a bad reputation for peacefulness, nor was any psychiatric evidence offered on the issue of future dangerousness.” Appellant also argues that the facts of the charged offense alone are not brutal enough by themselves to “justify the death sentence.” The State argues not only that the facts of the instant offense are sufficient to warrant the death penalty, but also that the remainder of the evidence adequately demonstrates the likelihood that appellant would commit criminal acts of violence in the future.

Appellant’s eighth point of error is without merit. The evidence shows that appellant raped T_H_just three years before he attacked and murdered S_C_and M_T_In an effort to silence T_ H_, appellant threatened her and fired a gun at her. Moreover, appellant’s attack upon S_ C_ and M_ T_ was cold and calculating, as evidenced by the severing of each person’s aorta and jugular vein. Additionally, the victim who identified her attacker as “Preston,” was a fifteen-year-old girl, approximately the same age as the victim T_H_Demonstrably, appellant has a history of sexually assaulting young teenage girls.

While the State did not introduce any psychiatric testimony on the issue of future dangerousness, a jury may return an affirmative answer without such evidence. See Cockrum v. State, 758 S.W.2d 577 (Tex.Crim.App.1988); Crawford v. State, 617 S.W.2d 925 (Tex.Crim.App.1980). On this record, we conclude that a rational jury could have found beyond a reasonable doubt that appellant constituted a continuing threat to society and overrule appellant’s point of error eight.

In his fourth point of error, appellant asserts the trial court abused its discretion in denying his challenge for cause to prospective juror Faulkner. Appellant argues Faulkner was properly challengeable for cause pursuant to Art. 35.16(c)(2), V.A.C.C.P., which provides:

(c) A challenge for cause may be made by the defense for any of the following reasons:

⅜ ⅜ ⅜ * ⅜ ⅜

(2) That he has a bias or prejudice against any of the laws applicable to the case upon which the defense is entitled-to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or the of the punishment therefor.

Appellant bases this challenge on Faulkner’s understanding of the term probability as that term is used in Art. 37.071(b)(2).⁴ The record reflects the following colloquy during Faulkner’s voir dire examination:

Q. (by the prosecutor) Okay. Now, the word probability presents a problem sometimes. To some people who may be from an engineering kind of background, probability can range anywhere from a zero percent probability to a hundred percent probability or anywhere in between. Some people might consider probability being something more than 50 percent. Some people might say it’s more likely than not. What are your feelings about the word? When the question asks you: Is there a probability the defendant would commit future criminal acts, how would that word play in your mind? What would you think it would mean?

A. (by Faulkner) I would think it would mean to me — and I do have a technical background — that if there is a percentage chance of this occurring, whether it is property damage, et cetera, okay? Then I could answer that yes.

Q. So, you would put it on kind of a percentage basis, maybe 10 percent possibility [⁵] or something of that nature?

A. Yes, sir.

Q. Would there be a certain percentage point that I would have to reach before you would be able to answer that question yes beyond a reasonable doubt? I mean, like, would you have to have a 10 percent probability or 20 percent probability or 50 percent probability?

A. I wouldn’t — I could answer that as long as I had a percent.

Q. Okay.

A. There is no limit on that. If it’s 10 percent, then I would have to answer it yes.

Q. Depending on the facts of the ease.

A. The facts of the case, yes.

Defense counsel then questioned Faulkner on this issue to fully understand his position.⁶ The record reflects the following:

Q. (by Defense counsel) Let’s talk about your answers related to the probability on Question 2. I understood your testimony, your statement to be that the probability of any percentage would cause you to vote yes. Is that a fair summation of what you said?

A. Yes, sir.

At the conclusion of Faulkner’s voir dire examination, defense counsel moved that “based on his answers related to the probability issue on Question 2 [he] should be stricken for cause[.]” The trial judge denied the motion, the State accepted the prospective juror, but defense counsel peremptorily challenged him.

The term “probability” is not statutorily defined, and this Court has repeatedly held the trial court does not err in refusing to instruct the jury as to the definition of the term “probability” as used in the second punishment issue. See Earhart v. State, 823 S.W.2d 607, 632 (Tex.Crim.App.1991); Caldwell v. State, 818 S.W.2d 790, 797 (Tex.Crim.App.1991), and cases cited therein.⁷ According to Art. 3.01, V.A.C.C.P., therefore, the term is to be taken and understood in its usual acceptation in common language.⁸

Appellant directs us to Cuevas v. State, 742 S.W.2d 381 (Tex.Crim.App.1987), where this Court recognized various dictionary definitions of the term “probability” when addressing the same issue confronting us in the cause sub judice. In Cuevas, we stated:

Dictionary definitions of ‘probability’ include: ‘likelihood; appearance of reality or truth; reasonable ground of presumption; verisimilitude; consonance to reason.... A condition or state created when there is more evidence in favor of the existence of a given proposition than there is against it.’ Black’s Law Dictionary 1081 (5th ed. 1979); ‘Something that is probable,’ with ‘probable’ meaning ‘supported by evidence strong enough to establish presumption but not proof; likely to be or become true or real.’ Webster’s New Collegiate Dictionary (1980).

Cuevas, 742 S.W.2d at 347. In that case, the defendant challenged for cause a prospective juror on the basis of his understanding of the term “probability.” The defendant contended the potential juror had a “faulty understanding” of the term as used in the second punishment issue. During his voir dire examination, the venireman stated in several ways his understanding of the term.⁹ After reviewing the venireman’s testimony, the Court rejected the defendant’s contention that the venireman expressed a faulty understanding of the term “probability” and held the trial court did not abuse its discretion in denying the defendant’s challenge for cause on this venireman. Id. at 347.

In the present case, appellant asserts Faulkner’s responses are “drastically different” from those elicited from the venireman in Cuevas, and “[i]t simply cannot be doubted that ‘probability’ means more in special issue no. 2 than it did in the mind of Mr. Faulkner.” After reviewing Cuevas, we agree with appellant. Faulkner’s answers during his voir dire indicate that he understood “probability” as any percent possibility rather than as a “likelihood” or “good chance”. In its usual acceptation, a “probability” is something more than a “possibility.”¹⁰ As this Court stated in Smith, 779 S.W.2d 417, 421, in which we relied on Cuevas, “we know that the second special issue calls for proof of more than a bare chance of future violence.” Requiring more than a mere possibility that the defendant would commit criminal acts of violence and would constitute a continuing threat to society prevents the freakish and wanton assessment of the death penalty.

Since Faulkner understood “probability” as only a “possibility”11, he was properly challengeable for cause. We hold the trial court abused its discretion in denying appellant’s challenge. Pursuant to Harris v. State, 790 S.W.2d 568, 581 (Tex.Crim.App.1989), appellant has demonstrated that this error was reversible. Appellant’s fourth point of error is sustained.

The judgment of the trial court is reversed, and the cause remanded to the trial court.

1 . Since appellant’s trial, Art. 37.071 has been amended by the 72nd Legislature. V.A.C.C.P. Art. 37.071 (Vernon Supp. 1991).

2 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3 . The aggravated assault conviction has since been vacated by this Court on the basis of the trial court’s failure to admonish appellant on the applicable range of punishment. Hughes v. State, 833 S.W.2d 137 (Tex.Crim.App.1992).

4 . Article 37.071(b)(2) asks the jury “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

5 . Unless otherwise indicated, all emphasis is supplied by the author.

6 . By saying "even though such inquiry [into Faulkner’s conception of probability] could have been totally barred by the trial judge, and appellant's counsel would have known nothing of Faulkner’s views on ’probability’ ”, the dissent contends a majority of this Court decides, “based upon ambiguous testimony that the trial judge allowed to be solicited,” that the trial judge abused his discretion. See dis. op. at p. 159. The dissent, in fostering the idea that the trial judge could have foreclosed such questioning, ignores this Court’s recent pronouncements in Woolridge v. State, 827 S.W.2d 900 (Tex.Crim.App.1992), where we discussed the voir dire examination of a prospective juror’s understanding of an undefined term which will be used in the court’s charge to the jury, viz: reasonable doubt. The Court stated that the fact that no definition is provided for a term does not render irrelevant a prospective juror’s understanding of that term. Woolridge, 827 S.W.2d at 906. Indeed, "the understanding becomes more crucial to the intelligent exercise of either the State’s or the defendant’s peremptory challenges[.]” Id. We held there the parties were entitled to question the venireperson on his understanding of an undefined term that, as here, was contained in and crucial to an issue in the court's charge to the jury. Id. In so doing, this Court overruled implicitly Cuevas and its progeny which held that inquiry into an undefined term may be foreclosed by the trial judge. The dissent therefore errs in relying on such caselaw.

7 . Moreover, a trial judge’s refusal to define the term poses no constitutional problems. Lewis v. State, 815 S.W.2d 560, 562-63 (Tex.Crim.App.1991).

8 . Article 3.01 provides:

All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined.

9 . The prospective juror stated, e.g., that probability “implies that it is a good chance that it would happen." “[M]y definition would be that there is a strong potential for that act to be repeated. Not that it is likely to happen, but there is a strong potential for it to happen;” "stronger than possibly;” etc. See 742 S.W.2d at 346.

10 . Webster's New Collegiate Dictionary gives the following as an example of the use of the word “possible”: “it is possible but not probable that he will win.”

11 . The dissent asserts that Faulkner's voir dire testimony was ambiguous. See dis. op. at p. 159. On the contrary, we find the testimony is quite clear and straightforward, and that the quoted portions of the voir dire upon which the dissent relies neither contradict nor rehabilitate the juror’s previously stated views.