Rhoades v. State

934 S.W.2d 113, 1996 Tex. Crim. App. LEXIS 205, 1996 WL 557833
CourtCourt of Criminal Appeals of Texas
DecidedOctober 2, 1996
Docket71595
StatusPublished
Cited by956 cases

This text of 934 S.W.2d 113 (Rhoades v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rhoades v. State, 934 S.W.2d 113, 1996 Tex. Crim. App. LEXIS 205, 1996 WL 557833 (Tex. 1996).

Opinions

OPINION

MANSFIELD, Judge.

A Harris County jury convicted appellant, Rick Allan Rhoades, of capital murder.1 At the punishment phase of the trial, the jury unanimously found appellant to be a future danger under Article 37.071 § 2(b),2 and, further, declined to find mitigating circumstances under Article 37.071 § 2(e). The trial court sentenced appellant to death. We will affirm the judgment of the trial court.

Appellant raises eighteen points of error in his brief on appeal. There are no evidentia-ry insufficiency points of error. Hence, we will address his points in chronological order where appropriate.

In point number one, appellant contends the trial court impermissibly restricted his right to intelligent and effective use of peremptory challenges, when it prohibited voir dire discussion of the statutory thirty-five year minimum for individuals sentenced to life imprisonment. The substance of appellant’s argument is that his right to counsel — as guaranteed by Article I, Section 10, of the Texas Constitution — was impinged when the trial court precluded voir dire discussion of the minimum calendar years appellant would have to serve before being eligible to parole were he sentenced to life imprisonment instead of death. See Ex parte McKay, 819 S.W.2d 478, 482 (Tex.Crim.App.1990); Shipley v. State, 790 S.W.2d 604 (Tex.Crim.App.1990).

We have held that a trial court commits error if it prohibits defense counsel from asking “proper” voir dire questions. Caldwell v. State, 818 S.W.2d 790, 793 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990, 112 S.Ct. 1684, 118 L.Ed.2d 399 (1992). A natural corollary to the preceding rule is that a trial court commits no error if it precludes improper voir dire questioning. A “proper” question is one which seeks to discover a veniremember’s views on an issue applicable to the case. Id. When an appellant challenges a trial court’s voir dire limitation, the reviewing court must analyze the claim under an abuse of discretion standard, the focus of [119]*119which is whether the appellant proffered a proper question. Id.

We have held that parole, and the issues surrounding the minimum prison term necessary for parole eligibility, are not matters for jury consideration in a capital murder prosecution. Smith v. State, 898 S.W.2d 838, 846 (Tex.Crim.App.1995) (plurality opinion), cert. denied, — U.S. -, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Broxton v. State 909 S.W.2d 912, 919 (Tex.Crim.App.1995); Sonnier v. State, 913 S.W.2d 511, 521 (Tex.Crim.App.1995). Given that juries are not to consider any aspect of parole, a reasonable trial court could find that parole was not an issue applicable to the ease. If parole was not an issue applicable to the case, a reasonable trial court could correctly conclude that parole was not a “proper” area of voir dire inquiry. Ford v. State, 919 S.W.2d 107, 116 (Tex.Crim. App.1996). Point of error number one is overruled.

In his second point, appellant avers that his Sixth Amendment right to counsel was impinged when the trial court precluded him from discussing, with the venire-members, the statutory thirty-five year minimum for individuals convicted of capital minder who are given a life sentence. Appellant simply declares that his right to counsel was violated, and presents no argument or authority for this contention.

It is not sufficient that appellant globally cite the “Sixth Amendment,” and nothing else, in support of his request for reversal. See Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.1992), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). It is incumbent upon counsel to cite specific legal authority and to provide legal argument based upon that authority. Id.; Tex.R.App.Proc. 74(f) and 210(b); Ex parte Granger, 850 S.W.2d 513, 515, fn. 6 (Tex.Crim.App.1993). This is especially important where, as in the case at bar, the relevant area of law is not well defined.3 This Court will not make novel legal arguments for appellant. Point of error two is inadequately briefed, and it is, therefore, overruled.

In point three, appellant claims the trial court committed error by providing false and misleading information about parole eligibility, during the jury selection process. We note that, in appellant’s brief, the argument and authority for this point was combined with the argument and authority for points one, two, and four. Hence, it is difficult for this Court to ascertain what information appellant believes the trial court erroneously provided to the veniremembers. Nevertheless, appellant apparently complains of two instances.

First, appellant complains the trial court, in response to a question from a veniremember, informed the veniremember that the decision regarding parole eligibility was within the exclusive jurisdiction of the Board of Pardons and Paroles. The exchange follows:

THE COURT: Did you have a question?
VENIREMEMBER: Yes. When will they be eligible for parole?
THE COURT: I can’t answer that.
APPELLANT: I ask the court to answer that.
THE COURT: I am not going to answer it. It’s within the exclusive jurisdiction of the Board of Pardons and Paroles and the governor of the State of Texas.
PROSECUTOR: Shall I continue?
THE COURT: Please.

Appellant contends that the time for parole eligibility is not within the jurisdiction of the parole board at all. Rather, appellant avers, under the current statutory scheme, parole eligibility is within the jurisdiction of the Legislature. See Article 4.2.18. However, whether the trial court’s response constituted error is not an issue before this Court because appellant failed to object to the statement. We have long held that, for an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for that objection. Rezac v. State, [120]*120782 S.W.2d 869, 870 (Tex.Crim.App.1990). Since, appellant is raising this argument for the first time on appeal, any error is waived.4

As his second basis for error, appellant contends the trial court misled venire-member Adams when it told her that a person sentenced to death was not eligible for parole, while also stating that a defendant sentenced to life in prison was eligible for parole. The relevant voir dire exchange follows:

VENIREMEMBER: ... is he eligible for parole?
THE COURT: Well I think it’s obvious if somebody is assessed the death penalty you don’t get paroled on a death penalty.
VENIREMEMBER: That doesn’t seem to be what is happening, though. Or are we not knowing the full story when we hear things?
THE COURT: You probably don’t know the full story, but you aren’t paroled on a death penalty. I think that is obvious. I don’t think anybody is going to object at this point to my telling you that, which leaves you with the other option, a life sentence.
VENIREMEMBER: And that’s the one that you are eligible for parole at some stage, perhaps?

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Cite This Page — Counsel Stack

Bluebook (online)
934 S.W.2d 113, 1996 Tex. Crim. App. LEXIS 205, 1996 WL 557833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhoades-v-state-texcrimapp-1996.