Rische v. State

834 S.W.2d 942, 1992 Tex. App. LEXIS 1334, 1992 WL 110937
CourtCourt of Appeals of Texas
DecidedMay 28, 1992
Docket01-90-00594-CR
StatusPublished
Cited by27 cases

This text of 834 S.W.2d 942 (Rische v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rische v. State, 834 S.W.2d 942, 1992 Tex. App. LEXIS 1334, 1992 WL 110937 (Tex. Ct. App. 1992).

Opinions

OPINION

DUNN, Justice.

A jury convicted appellant, Ronald Rische, of the offense of voluntary manslaughter, and assessed punishment at 12-years confinement and a fine of $1,000. This Court affirmed appellant’s conviction in an opinion delivered on January 28, 1988.1 Appellant then filed a petition for discretionary review with the Court of Criminal Appeals. On June 22, 1988, the Court of Criminal Appeals, without granting, refusing, or dismissing appellant’s petition, remanded the cause to this Court for consideration of the parole charge issue in light of the Court of Criminal Appeals’ opinion in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987). This Court remanded the cause to the trial court for a new trial on punishment only. Rische v. State, 757 S.W.2d 518 (Tex.App.—Houston [1st Dist.] 1988, pet. ref’d).

Appellant now appeals from his punishment trial, in which the jury again assessed his punishment at 12 years-confinement.

Appellant and the complainant, Gordon Duncan, were co-workers and friends. Over a period of months, appellant had an affair with Duncan’s wife. Duncan’s wife eventually told Duncan about the affair. Duncan and appellant then engaged in several conversations in which Duncan agreed to return certain items to appellant.

In February of 1985, Duncan telephoned appellant and told him he would be over shortly to return some of appellant’s items. Appellant testified that when Duncan arrived, Duncan and appellant engaged in a heated argument over Duncan’s wife. Appellant subsequently shot Duncan three times. Appellant was later arrested and charged with murder.

In his first point of error, appellant contends the trial court erred in overruling his challenge for cause on juror number 22, Keith Arnold Ashley. In his second point of error, appellant asserts that the trial court erred in refusing to grant him an additional peremptory challenge, because he had to use a peremptory challenge to strike Ashley from the venire.

During the voir dire of the jury venire, the following exchange occurred between defense counsel, Mr. Schneider, and Keith Ashley, juror number 22:

Mr. Schneider: You think you could consider two years probation in a proper case?
Ashley: I’d have to know the facts.
Mr. Schneider: You can conceive in your mind a situation where two years probation would be proper?
Ashley: Like I said, I’d have to know the facts.
Mr. Schneider: Actually I need to know yes or no whether or not right now you could consider.
Ashley: No, I could not consider.

Near the end of voir dire examination, Mr. Schneider informed the trial court that he wished to challenge Ashley for cause. The following exchange occurred between Ashley, Mr. Schneider, the trial court, and the prosecutor:

The Court: Our question is whether you can give fair consideration to the full range of punishment. I think maybe earlier indication was that you would not give fair consideration to 20 years probation. I couldn’t hear you.
Ashley: I said I wouldn’t give fair consideration. I said I wouldn’t consider two years.
The Court: You would just not consider two years?
Ashley: Not consider two years probation.
The Court: You’ve any question?
[945]*945Prosecutor: I’m confused. Are you saying that when you go back into the jury room, if you’re selected as a juror, you would not even consider two years probation?
Ashley: Well, I’d have to weigh the facts.
Prosecutor: That’s what I’m asking. What I’m asking is can you go back in there and can you consider the full range all the way from two years probation to 20 years in the penitentiary?
Ashley: Knowing all the facts. Prosecutor: Hearing all the facts, you can do that?
Ashley: Yes.
The Court: We don’t want anybody doing anything until you hear the facts. You don’t know anything about the case, and I don’t either. You’re telling me that you can go back there and be fair and give fair consideration to the full range of punishment. In other words, you would fairly consider giving two years probation as well as you would 20 years in the penitentiary?
Ashley: That’s true.
The Court: Do you have any questions? Mr. Schneider: Yes Your Honor. You indicted that you could not conceive of a situation where you could consider two years probation for the offense of voluntary manslaughter?
Ashley: That’s without knowing the facts, I couldn’t consider two years.
Mr. Schneider: Just two years probation, voluntary manslaughter, you could not consider two years probation?
Ashley: Yeah, I couldn’t. You kind of confusing me here. You confused me here.

Under Tex.Code Crim.P.Ann. art. 35.16(c)(2), a venire member may be challenged for cause if he or she has a bias or prejudice against any of the law applicable to the case. Goodman v. State, 701 S.W.2d 850, 859 (Tex.Crim.App.1985). To determine if the trial court abused its discretion in denying a defendant’s challenge for cause, we must consider the voir dire in its entirety. Faulder v. State, 745 S.W.2d 327, 339-40 (Tex.Crim.App.1987); Goodman, 701 S.W.2d at 859. We must determine whether the record reflects the evidence tends to reasonably support the trial court’s implied findings that the venire member would be able to perform the tasks that are assigned to jurors in this State. Johnson v. State, 773 S.W.2d 322, 325 (Tex.Crim.App.1989). An appellate court must “especially accord due deference to the trial court given its position to gauge the prospective juror’s demeanor.” Goodman, 701 S.W.2d at 859.

Based on the totality of the voir dire, we find that Ashley would have listened to all the facts and evidence before deciding what punishment appellant should be assessed. Ashley indicated that he would follow the law applicable to punishment for voluntary manslaughter, and consider the full range of punishment — from two years probation to 20-years confinement. When Mr. Schneider questioned Ashley about whether or not he could consider two years probation right now, Ashley interpreted the question as asking him if he would consider a two-year probated sentence without hearing all the facts and evidence. Ashley indicated he would not consider any punishment until he had heard all the evidence.

We hold that the trial court did not abuse its discretion in denying appellant’s challenge for cause on juror number 22, Keith Arnold Ashley. See Faulder, 745 S.W.2d at 340; Barney v. State,

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Bluebook (online)
834 S.W.2d 942, 1992 Tex. App. LEXIS 1334, 1992 WL 110937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rische-v-state-texapp-1992.