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delivered: November 13, 1991.


Appeal from Tarrant County.


Attorneys for appellant, George Gallagher, William S. Harris, Fort Worth, Texas.

Attorneys for State, Tim Curry, D. A. & C. Chris Marshall, Delonia A. Watson, Michael Parrish & Stanley Hatcher, Asst. D. A's., Fort Worth, Texas, Robert Huttash, State's Attorney, Austin, Texas.

En Banc. White, Judge. Baird and Maloney, JJ., concur in the result. Clinton, J., dissents.

Author: White

Appellant was convicted of capital murder. See V.T.C.A., Penal Code, § 19.03 (a)(2). After the jury made an affirmative finding on both of the special issues submitted under Art. 37.071 (b)(1) and (2), V.A.C.C.P., the trial court imposed the penalty of death. This case is before us on direct appeal.

Appellant brought a total of twenty-one points of error to this Court, including an argument that the evidence at trial was insufficient to support the jury's affirmative answer to the second special issue. We will affirm the judgment of the trial court. A review of the evidence admitted at appellant's trial is necessary.

On Sunday night, February 3, 1985, appellant and his brother, Ronald Allridge, left their apartment to rob a Circle K convenience store on Sycamore School Road in Fort Worth. Appellant took his chrome Raven .25 calibre semi-automatic pistol with him. Ronald Allridge was driving appellant's car. Appellant and his brother selected a Circle K store because appellant, due to his past experience as an employee with Circle K, was familiar with the store's procedures and appellant also knew where the combination to the safe was kept at a Circle K store. Ronald dropped appellant off and went around the corner to wait for him.

It was close to midnight, and the attendant, Brian Clendennen, had already closed the store for the evening. Clendennen was working there on that evening as a substitute for another clerk. Appellant and Clendennen knew each other from when appellant had worked for Circle K from December, 1984 through January, 1985. Appellant knew Clendennen by name, and asked for change for a dollar to use the phone. Clendennen unlocked the door and made change for appellant. Appellant pretended to use the phone and left to rejoin his brother.

Appellant's brother accused him of chickening out of the robbery. He dropped appellant off at the store a second time. Appellant went to the door and knocked. Clendennen opened the door and appellant pulled his gun, forcing Clendennen to admit him into the store. Appellant took Clendennen to the back storeroom and tied the clerk's hands behind his back. Appellant then emptied the register and safe of their money, placing it in a sack. Some of the change fell to the floor. Appellant heard movement in the storeroom, went there and found that Clendennen had moved. Appellant made Clendennen get back on his knees and shot him twice in the back of the head. Appellant left with the bills and some of the change taken from the store.

When appellant rejoined his brother, he discovered that his pistol had jammed on the second shot. Appellant decided to return to the store to be certain that Clendennen was dead. When appellant got to the front of the store, he saw a woman waiting in a car in the parking lot. Without entering the store, appellant turned around and ran from the scene and rejoined his brother. Appellant and his brother returned to their apartment and counted the money. They got $336 in the robbery.

The woman waiting in the car was Brian Clendennen's mother. After appellant fled the scene, Mrs. Clendennen opened the door and looked in. She saw a bunch of change laying on the floor, but did not see her son. She ran back to her car and went to the Whataburger on Sycamore School Road to get help. Someone called the police. Other people ran down to the Circle K to try to help. When the police arrived, they found Brian Clendennen in the back storeroom of the Circle K, his hands still tied behind his back. He was barely breathing. He died the next day. An autopsy confirmed that he died from the gunshot wound to the head he received during the course of the robbery. The police retrieved an intact slug from the victim's head. They had no leads in this robbery-murder for six weeks.

On March 25, 1985, three men pulled a robbery-murder at the Whataburger Restaurant on Sycamore School Road. A witness positively identified appellant's brother, Ronald, as the shooter in the robbery-murder. The police arrested appellant and his brother at their apartment on March 25, 1985. After the arrest, appellant was taken outside the apartment to the parking lot. The police testified that appellant was not threatened, promised, or physically abused. Appellant then signed a consent to search his room in the apartment. During the search, the police recovered the Raven .25 calibre pistol appellant used in the Circle K offense.

On the night of March 25, 1985, appellant was arraigned by Municipal Court Judge Bernal for the Whataburger offense. At trial Bernal testified that she did not recall if appellant requested an attorney to be appointed to represent him. Her bailiff, A.D. Marshall, testified that appellant did not request an attorney at his arraignment. At 10:00 a.m. on March 26, 1985, appellant gave the police a written confession admitting that he killed Brian Clendennen in the course of robbing him at the Circle K store. The detective who took the confession testified that appellant did not invoke any rights or request the assistance of counsel during the interrogation.

Testimony at trial revealed that appellant purchased the Raven .25 calibre pistol at a pawn shop on September 11, 1984. A ballistics expert testified that the bullet retrieved from the head of the victim was fired from the Raven .25 calibre pistol.

In his first point of error, appellant argued the trial court erred by excusing venireperson Martin Osborn for cause in violation of the Witherspoon*fn1 doctrine. According to appellant, Osborn's opinion of the death penalty merely involved his emotions and would only affect his view of the seriousness of his task as a capital juror. Appellant argued that Osborn's answers on voir dire implied that he could follow the law and not be controlled by his feelings.

The State replied that Osborn was a venireperson whose beliefs about the death penalty would substantially impair his performance as a capital juror. The State explained that Osborn's entire voir dire revealed strong feelings that would impair him from fairly and impartially carrying out his oath as a capital juror. Also, the State alleged that Osborn's scruples indicate he would hold the State to a higher burden of proof than required by law.

In order to assess Osborn's capacity to obey his oath and follow the trial court's instructions, we will not focus on only one answer or passage from his voir dire. This Court must examine Osborn's testimony as a whole. Fearance v. State, 771 S.W.2d 486, at 500 (Tex.Cr.App. 1988) cert. denied, 492 U.S. 927, 109 S. Ct. 3266, 106 L. Ed. 2d 611, 109 S. Ct. 3237 (1989); Porter v. State, 623 S.W.2d 374 (Tex.Cr.App. 1981); Pierce v. State, 604 S.W.2d 185 (Tex.Cr.App. 1980); Vigneault v. State, 600 S.W.2d 318 (Tex.Cr.App. 1980); and Cuevas v. State, 575 S.W.2d 543 (Tex.Cr.App. 1978). We will review the entire record of Osborn's voir dire to determine if it shows that Osborn's opposition to the death penalty would prevent or substantially impair his performance of his duties as a juror in accordance with his instructions and oath. Fearance, 771 S.W.2d, at 500-501; Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985); and Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980).

This review is an assessment of whether the record of voir dire supports the trial court's decision that a venireperson was substantially impaired in his or her ability to perform the duties of a juror in accordance with their instructions and oath, rather than an analysis of whether or not this Court would have excused the venireperson for cause. Perillo v. State, 758 S.W.2d 567, at 577 (Tex.Cr.App. 1988). This is a task which a trial court is uniquely capable of performing. Fearance, 771 S.W.2d, at 501.

When the record of voir dire is unclear, as it is in the instant case with venireperson Osborn, "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Wainwright v. Witt, 105 S. Ct., at 852. This results in a finding by the trial court concerning the venireperson's state of mind. This finding will be based upon many factors, including determinations of the credibility and demeanor of the venireperson. Wainwright v. Witt, at 854; Bird v. State, 692 S.W.2d 65 (Tex.Cr.App. 1985) cert. denied, 475 U.S. 1031, 106 S. Ct. 1238, 89 L. Ed. 2d 346 (1986). If the entire record contains sufficient evidence to support a trial court's determination that a juror would be prevented or substantially impaired from obeying his oath and following his instructions, deference must be paid to that determination. Fearance v. State, 771 S.W.2d at 501-502.

In the instant case, Venireperson Osborn explained that as a result of his experiences in Viet Nam, he did not believe that he could make a decision on the death penalty. Osborn stated that he had a "gut" feeling that he could not assess the death penalty, and that he'd be very uncomfortable casting the final vote of "yes". He acknowledged his feelings were strong and would tend to prevent him from answering the special issues affirmatively. He also stated that he could not sign the verdict as foreman. The state then submitted Osborn to the trial court to be excused for cause. Appellant requested an opportunity to rehabilitate Osborn.

Appellant's trial counsel asked Osborn if he could follow the oath and answer the questions honestly. Osborn replied that he would be as honest as he possibly could, but that it would be tempered by his "basic instincts that it is wrong for one person to take another's life." When the trial court asked Osborn if he would answer the special issues "no" just to avoid the death penalty, he responded, "I don't honestly know. . . .I can't say." The trial court then denied the state's challenge. The trial court permitted the state to resume its voir dire of Osborn.

The state asked Osborn about the burden of proof at the punishment phase of appellant's trial. Osborn replied that he would have to have "little or no doubt" that the answers to the special issues were "yes" before he could answer them affirmatively. Osborn later said there could be some doubt and he would still vote "yes".

The state asked Osborn whether his feelings about the death penalty would bias him. He replied that his feelings would tend to bias him against the death penalty and for the saving of a life. Osborn said that he did not think he could honestly take the oath and not "do violence" to his strong feelings. Realizing the severe consequences of a yes vote on the special issues, Osborn responded that he thought his feelings might change how he viewed the evidence at trial. The trial court then granted the state's re-submission of Osborn to be excused for cause.

Appellant requested another opportunity to rehabilitate Osborn. Initially, the trial court denied the request. When appellant pointed out that Osborn had been re-submitted for cause, the trial court granted his request to ask Osborn more questions. After listening to Osborn explain how his strong feelings about the consequences of his vote would affect his decisions, the trial court stopped the voir dire of Osborn and granted the state's challenge for cause.

In a capital case, the State is entitled to jurors who "will consider and decide the facts impartially and conscientiously apply the law as charged by the court." Perillo v. State, 758 S.W.2d, at 577; and Adams v. Texas, 448 U.S. 38, 100 S. Ct.2521, at 2526, 65 L. Ed. 2d 581. From his responses on voir dire, it appears that Osborn was torn between the obligation to honestly comply with his oath as a juror and his strong feelings in opposition to the death penalty. Osborn's answers that those feelings would influence his assessment of the evidence at punishment and affect his ability to comply with his oath support the trial court's determination that Osborn was substantially impaired in his ability to perform his duties as a capital juror in accordance with his instructions and oath. Fearance v. State, 771 S.W.2d, at 502; and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, at 852, 83 L. Ed. 2d 841. Osborn's answers that he would have to have little or no doubt that an answer to a special issue should be yes for him to vote that way indicate he would hold the state to a greater burden of proof at the punishment phase of trial than required by statute. This also supports the trial court's decision to excuse Osborn for cause. Sawyers v. State, 724 S.W.2d 24, at 30 (Tex.Cr.App. 1986); and Little v. State, 758 S.W.2d 551, at 554-555 (Tex.Cr.App. 1988). Appellant's first point of error is overruled.

In appellant's second point of error, he argued that the trial court erred when it interrupted his attempt to rehabilitate Martin Osborn after the trial court decided to grant the State's challenge for cause. As noted above, the trial court permitted appellant an attempt to rehabilitate Osborn. After listening to Osborn's responses to appellant's questions, the trial court terminated the voir dire of Osborn. Initially we note that the error presented on appeal in this point does not comport with appellant's objection at trial. At trial, appellant stated:

TRIAL COUNSEL: "Your Honor, I would raise our objection and our objection would be that I think he said earlier that he would be able to follow his oath and for that reason, I submit that he is qualified."

Appellant did not object that the trial court was improperly limiting his voir dire, or that the trial court kept him from intelligently exercising his voir dire of Osborn. Error has not been preserved. Sawyers v. State, 724 S.W.2d, at 28. Also, a trial court has wide discretion in controlling voir dire examination. Allridge v. State, 762 S.W.2d 146, at 170 (Tex.Cr.App. 1988); and cases cited therein. Appellant has not pointed out how the trial court in the instant case abused that discretion. Appellant's second point of error is overruled.

In his third point of error, appellant argued that the trial court abused its discretion in improperly limiting appellant's voir dire of venireperson Elizabeth Smith. Appellant sought to explore Smith's racial attitudes in the context of Smith being a white woman, appellant being a black man, and the victim being a white male.

Without quoting at length from the record,*fn2 Smith was asked over fifteen questions by both the state's attorney and appellant about her opinions regarding the role that racial considerations play in the criminal justice system, her personal opinions about minorities, and her experiences with black people both at work and in relation to her children's school experiences. At that point, appellant asked the following question:

DEFENSE ATTORNEY: "What is your opinion of court-ordered busing to achieve - excuse me - integration?

PROSECUTOR: "I'm going to object. This is improper voir dire in this case."

TRIAL COURT: "I am going to sustain the objection to that question."

DEFENSE ATTORNEY: "Well, Your Honor, I think we are entitled to explore these opinions, they don't have to be direct, and I'd cite the case of Hamm versus South Carolina, a Supreme Court case, and I don't think that my questions have to be simple, direct questions."

TRIAL COURT: "I don't think they do either, but I am going to sustain the objection to the last one."

We find appellant's argument to be unpersuasive. First, we note that the case relied upon by appellant, Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973), is distinguishable from the instant case. In Hamm, the trial court limited voir dire to three questions about bias in general, none of which touched upon the issue of racial prejudice. Hamm, 93 S. Ct., at 850, footnote 3. Justice Rhenquist concluded, "Because of the trial court's refusal to make any inquiry as to racial bias of the prospective jurors after petitioner's timely request therefor, the judgment . . . is reversed." Hamm, 93 S. Ct., at 851. In contrast, venireperson Smith was extensively questioned about whether her racial attitudes affected both her day-to-day life or her potential performance as a capital juror. Hamm is not controlling in the instant case.

Second, the trial court did not abuse its discretion by not allowing appellant to ask Smith the "busing" question. As noted in appellant's second point of error, a trial court has wide discretion in controlling the voir dire examination. See Allridge v. State, 762 S.W.2d at 170, and the cases cited therein. "A trial court is empowered to impose reasonable restrictions on the conduct of voir dire. The exercise of that power is within the sound discretion of the trial judge." Marquez v. State, 725 S.W.2d 217, at 238 (Tex.Cr.App. 1987), and the cases cited therein.

This discretion includes the power to terminate needlessly duplicitous or repetitious questioning. Allridge v. State, 762 S.W.2d at 170. In Marquez, the trial court was held to have properly exercised its discretion in not allowing defense counsel a third opportunity to explore the distinctions between direct and circumstantial evidence. In the instant case, appellant extensively questioned Smith about her racial attitudes, including her feelings and opinion about her children attending school with, and socializing with, black children. The question about her opinion of busing to achieve integration was both duplicitous and, essentially, repetitious. The trial court did not abuse its discretion in sustaining the state's objection to this question. Allridge, Marquez. Appellant's third point of error is overruled.

In appellant's fourth point of error, he argued the trial court abused its discretion by improperly restricting the voir dire of venireperson Bob Beauchamp. Appellant alleged that this prevented him from intelligently exercising his voir dire. Specifically, appellant complained of being barred by the trial court from asking Beauchamp, "What circumstances in your opinion warrant the imposition of the death penalty?" Appellant used one of his peremptory challenges on Beauchamp.

Prior to being asked this question, Beauchamp discussed with both the State and appellant his general opinions on the potential range of punishment in the instant case. Beauchamp indicated that he had always believed that the death penalty was appropriate "where the circumstances may warrant." Beauchamp also indicated that he could give fair consideration to the full range of punishment, including probation if appellant was found guilty of murder. Beauchamp explained that he "would have no difficulty giving the minimum sentence" if the evidence indicated that was fair. At that point in voir dire, appellant's counsel asked Beauchamp the question that is the subject of this point of error.

The state objected that this question was "an attempt to bind this juror and get him to commit to something." The trial court sustained the objection. Appellant's counsel then asked a second question on the subject:

DEFENSE ATTORNEY: "Are there particular types of crime that you philosophically feel are appropriately the subject of capital punishment?"

DISTRICT ATTORNEY: "Same objection."

TRIAL COURT: "I will let him answer that question just as far as the category of crime generally."

BEAUCHAMP: "Not by the crime itself, no, sir."

Appellant premised this argument on his right to explore a prospective juror's opinion on the death penalty. When a proper question is asked and the opportunity to get an answer is denied, a defendant has been barred from intelligently exercising his right to voir dire and the harm is presumed. Art. I, § 10, Tex.Const.; Smith v. State, 703 S.W.2d 641 (Tex.Cr.App. 1985); and Mathis v. State, 576 S.W.2d 835 (Tex.Cr.App. 1979). The State responded in its brief that the question asked by appellant's counsel was not proper. Therefore, it was not an abuse of discretion for the trial court to bar Beauchamp from answering it. We agree.

This Court has held that an attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts. "It is improper to inquire how a venireman (sic) would respond to particular circumstances as presented in a hypothetical question." Cuevas v. State, 742 S.W.2d 331, at 336 (Tex.Cr.App. 1987). It would also be improper to ask an open-ended question designed so the venireperson could set the hypothetical parameters for their decision-making. In the instant case, appellant's counsel requested Beauchamp to devise a set of facts and to speculate regarding what decision he would make in that situation. This was not relevant to the issue of whether Beauchamp could fairly consider the full range of punishment in the instant case based solely upon the facts proven at trial.

Regarding this issue, the trial court did not restrict either party's questioning of Beauchamp about his ability to fairly consider the full range of punishment in the instant case. As set out above, Beauchamp was extensively questioned by both appellant and the State on the minimum and maximum penalty which could be assessed. Because the trial court did not hinder appellant's questioning of Beauchamp about his opinion of assessing probation, imprisonment, or death, but only restricted appellant's reliance on hypothetical fact situations, the trial court did not abuse ...

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