Shipley v. State

727 S.W.2d 118, 1987 Tex. App. LEXIS 6999
CourtCourt of Appeals of Texas
DecidedMarch 17, 1987
DocketNo. 05-86-00558-CR
StatusPublished
Cited by2 cases

This text of 727 S.W.2d 118 (Shipley 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
Shipley v. State, 727 S.W.2d 118, 1987 Tex. App. LEXIS 6999 (Tex. Ct. App. 1987).

Opinions

LAGARDE, Justice.

Steve Steele Shipley was convicted by a jury of murder. Punishment was assessed by the same jury at life imprisonment. In four points of error, appellant contends that: (1) the trial court abused its discretion by restricting the appellant’s voir dire examination; (2) the evidence is insufficient to support the conviction; (3) the trial court erred in failing to instruct the jury on the lesser-included offense of attempted murder; and (4) the instructions to the jury regarding the law of parole violated the constitutional provisions guaranteeing the separation of governmental powers and deprived him of a fair trial as guaranteed by the due process clauses of the federal and state constitutions. For the reasons stated below, we overrule these points and affirm.

Appellant contends that the trial court abused its discretion by disallowing appellant the opportunity to question the jury panel on their opinions about extramarital affairs, thereby denying appellant his right to counsel to intelligently exercise his peremptory challenges.

The record reflects that the following occurred during voir dire examination:

DEFENSE COUNSEL: I don’t think this is really going to be an issue in the case, but it is the kind of thing that does come up from time to time in a criminal case and that's the reason I ask it.
I need to talk with you about something that is very hard for me to talk with you about because it is hard for me to bring the subject up in a group this large, but I do need to bring it up, and that is the subject of an extramarital affair, where a husband or wife is seeing somebody else in the same sex outside the marriage. (sic)
It’s reasonable to me that to believe there are several of you on the panel who have encountered situations like this in life or in some way related. I mean, you know about, or you have seen, or hate to see involved, but it’s my duty to bring this up.
Doctor Unger, how would you feel about it if it became apparent—
THE STATE: I will object to this, going into any possible facts of this case.
DEFENSE COUNSEL: I’m not going into the facts of this case, Your Honor. I am talking about extramarital affairs in general, not going into the facts of this case. I realize I am well prohibited from doing that. It’s often asked if a witness can base the testimony on one [120]*120witness. I mean, you know, that may be the facts of that case, but as a general matter, inquiry is permitted.
THE COURT: Well, you are going to have to be more specific in your question. Otherwise, I am not going to be able to say that you are not talking about this case when you say, “How do you feel about that?” You are going to have to be specific, then I am going to rule. I will let you ask that question.
DEFENSE COUNSEL: I want to make it clear, Your Honor, that I am not making inquiries with relationship to this case. I am talking about the subject of extramarital affairs.
THE COURT: Well, what I am talking about the question to the Doctor, I am going to sustain the objection if that is the way you’re going to phrase that.
DEFENSE COUNSEL: I will rephrase that question.
THE COURT: All right. I sustain the objection at this time.
DEFENSE COUNSEL: All right. Thank you, Your Honor. Have you ever known somebody that was harmed by extramarital affairs?
THE STATE: I am going to object to that. I mean, I don’t see what possible inquiry that has anything to do with— one, it doesn’t have anything to do with this case. It’s irrelevant to anything. Two, if it has something to do with the case, it’s going into specific facts of the case, and I object to it.
DEFENSE COUNSEL: Now, Your Hon- or, I am — pardon me for interrupting. Go ahead.
THE STATE: No, I am finished.
THE COURT: Go ahead.
DEFENSE COUNSEL: Your Honor, I am not asking the question with reference to this case. I am simply asking about life experiences. I am certainly entitled to information like that to be exercised peremptory challenges, and the State has reasonable latitude to do the same thing and has in this case.
THE COURT: Sustained.
DEFENSE COUNSEL: Your Honor, are you going to forbid me asking that question of every member of the voir dire panel?
THE COURT: Yes.

The constitutional rights to counsel and trial by jury carry with them the right of counsel to interrogate members of the jury panel for the purpose of enabling counsel to exercise intelligently his peremptory challenges. Esquivel v. State, 595 S.W.2d 516, 524 (Tex.Crim.App.1980), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980); Williams v. State, 629 S.W.2d 791, 794 (Tex.App.—Dallas 1981, pet. ref’d). However, the conduct of voir dire examination rests within the sound discretion of the trial court, and only an abuse of discretion will call for reversal. Clark v. State, 608 S.W.2d 667, 670 (Tex.Crim.App.1980).

The record reflects that the trial court only disallowed the question as asked, to-wit: “Have you ever known somebody that was harmed by extramarital affairs?” It does not reflect that the trial court disallowed any inquiry into any preconceptions, bias or prejudice of the prospective juror. The question, as phrased, was not focused toward credibility of witnesses, an area of law, a theory of punishment, or a preconceived notion tending to reflect bias or prejudice, all of which are proper inquiries on voir dire examination. See Florio v. State, 568 S.W.2d 132, 133 (Tex.Crim.App.1978); Hernandez v. State, 508 S.W.2d 853, 854 (Tex.Crim.App.1974) (credibility of witnesses); Campbell v. State, 667 S.W.2d 221, 223 (Tex.App.—Dallas 1983), aff'd, 685 S.W.2d 23 (Tex.Crim.App.1985) (theories of punishment). The question, as asked, reflects no inherent relevance as to the prospective juror’s preconceived feelings, bias or prejudice against persons who might engage in extramarital affairs, but simply asked whether or not the prospective juror had ever known somebody who was harmed by an extramarital affair. It is possible, of course, to have known someone who was harmed by an extramarital affair and yet not be prejudiced or biased; on the other hand, it is also possible to be prejudiced against those who would engage in extramarital affairs while never having personally known any[121]*121one who was harmed by an extramarital affair.

Although appellant argues that the court disallowed any inquiry into the subject, we do not read the court’s ruling so broadly.

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Related

Shipley v. State
790 S.W.2d 604 (Court of Criminal Appeals of Texas, 1990)
Allridge v. State
762 S.W.2d 146 (Court of Criminal Appeals of Texas, 1988)

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Bluebook (online)
727 S.W.2d 118, 1987 Tex. App. LEXIS 6999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shipley-v-state-texapp-1987.