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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00029-CR
______________________________
ELIJAH LORENZO COLBERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Hopkins County, Texas
Trial Court No. 0820618
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Elijah Lorenzo Colbert appeals.[1] In this case, Colbert was convicted of engaging in organized criminal activity and sentenced to life in prison as a result of his participation with others in breaking into a pawnshop and stealing pistols. As with the companion prosecution, after investigation that centered police attention on certain individuals and resulted in the recovery of many of the stolen items, a participant admitted involvement and identified Colbert as one of the other robbers. At trial, several other witnesses provided testimony that corroborated the co-defendant’s statements.
Because the issues raised in each appeal are identical, for the reasons stated in our opinion dated this day in Colbert v. State, cause number 06-10-00028-CR, we affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: April 14, 2011
Date Decided: April 15, 2011
Do Not Publish
[1]In a companion appeal, also decided this day, Colbert was convicted of burglary of a building and sentenced to twenty years’ imprisonment. He was tried in both cases in a single proceeding.
App. 1971). The detective who did testify remained in the room "to coordinate the testimony of the witnesses." Id. Again, the court pointed out that the detectives were not present during grand jury deliberations and concluded there was no error:
The Texas rule is that "when the jurors are not deliberating or voting the presence of persons who have official business in the jury chamber, such as police officers or stenographers, is not discountenanced." 27 Tex. Jur.2d 261, Sec. 44. See: Lopez v. State, 158 Tex. Crim. 16, 252 S.W.2d 701; Tinker v. State, 95 Tex. Crim. 143, 253 S.W. 531.
However, better practice would dictate that only the prosecutor, reporter, if any, and such witnesses that are testifying be present.
Id. (emphasis added). (8) "Discountenance" is "to treat or regard with disfavor." Webster's II New College Dictionary (2d ed. 2001).
(b) Codification of the "Better Practice" Rule
If the presence of unauthorized people during grand jury testimony was not disfavored, it became at least somewhat more disfavored in 1995 when the Legislature passed Article 20.011, effectively codifying what had historically been deemed "the better practice." Again, no cases construe or apply Article 20.011. We must apply the plain language of Articles 20.011 and 27.03 to determine whether there is no error when unauthorized people are in the grand jury room during testimony.
(c) Construction of Articles 20.011 and 27.03
Article 20.011 of the Texas Code of Criminal Procedure became effective September 1, 1995, and limits who may be present during both grand jury proceedings and grand jury deliberations:
(a) Only the following persons may be present in a grand jury room while the grand jury is conducting proceedings:
(1) grand jurors;
(2) bailiffs;
(3) the attorney representing the state;
(4) witnesses while being examined or when necessary to assist the attorney representing the state in examining other witnesses or presenting evidence to the grand jury;
(5) interpreters, if necessary; and
(6) a stenographer or person operating an electronic recording device, as provided by Article 20.012.
(b) Only a grand juror may be in a grand jury room while the grand jury is deliberating.
Tex. Code Crim. Proc. Ann. art. 20.011 (Vernon 2006). Notably absent in Article 20.011 is a specific remedy for a violation of the rule. It is also quite significant that Article 20.011 addresses the presence of unauthorized persons both in grand jury proceedings and in grand jury deliberations.
Article 27.03 specifically provides circumstances in which an indictment may be set aside:
In addition to any other grounds authorized by law, a motion to set aside an indictment or information may be based on the following:
1. That it appears by the records of the court that the indictment was not found by at least nine grand jurors, or that the information was not based upon a valid complaint;
2. That some person not authorized by law was present when the grand jury was deliberating upon the accusation against the defendant, or was voting upon the same; and
3. That the grand jury was illegally impaneled; provided, however, in order to raise such question on motion to set aside the indictment, the defendant must show that he did not have an opportunity to challenge the array at the time the grand jury was impaneled.
Tex. Code Crim. Proc. Ann. art. 27.03 (Vernon 2006) (emphasis added). We note that Article 27.03 refers to the presence of unauthorized persons during grand jury deliberations only. So, the presence of unauthorized persons during grand jury testimony can be a basis for setting aside the indictment only if Article 20.011 serves as authority to do so. That is, only if Article 20.011's list of authorized persons would qualify as "other grounds authorized by law" under Article 27.03, may Walter seek to set aside the indictment on the basis that unauthorized persons were present during testimony before the grand jury. We conclude that Article 20.011 does not authorize an indictment to be set aside on the ground that unauthorized persons were present during grand jury testimony.
(d) Article 20.011 Does Not Authorize Setting Aside the Indictment Based on Presence of Unauthorized Persons During Grand Jury Testimony
It is a well-settled rule of statutory construction not to interpret laws in such a way as to render useless an act of the Legislature. We, therefore, presume that, in enacting legislation, the Legislature did not do a "useless thing." See Childress v. State, 784 S.W.2d 361, 364 (Tex. Crim. App. 1990); Heckert v. State, 612 S.W.2d 549, 552 (Tex. Crim. App. 1981); see also Tex. Gov't Code Ann. § 311.021(2) (Vernon 2005) (providing "it is presumed that the entire statute is intended to be effective"). Generally, courts are also to presume that every word in a statute has been used for a purpose and each word, phrase, clause, and sentence should be given effect if reasonably possible. State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997); State v. Verhoeven, 151 S.W.3d 637, 640 (Tex. App.-- Fort Worth 2004, pet. ref'd). To achieve this, we must focus "on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment." See Ex parte Spann, 132 S.W.3d 390, 393 (Tex. Crim. App. 2004); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In doing so, we may consider, among other things, "common law or former statutory provisions, including laws on the same or similar subjects." See Tex. Gov't Code Ann. § 311.023(4) (Vernon 2005).
We apply these rules of statutory construction to determine whether Article 20.011 calls for an indictment to be set aside when the record shows that unauthorized persons were present during the grand jury testimony. To determine this issue, we return to our earlier observation regarding Article 20.011: while Article 20.011 forbids unauthorized persons to be present with a grand jury during both testimony and deliberations, it does not specify a remedy for either situation. See Tex. Code Crim. Proc. Ann. art. 20.011.
That said, we also re-examine what Article 27.03 does and does not do. Article 27.03 provides that an information or indictment may be set aside when unauthorized persons have been present during grand jury deliberations, but it makes no reference at all to the presence of unauthorized persons during grand jury testimony. In other words, Article 27.03 provides a specific remedy, but with respect to only the deliberations, not the testimony, referenced in Article 20.011. See Tex. Code Crim. Proc. Ann. art. 27.03(2). Therefore, treating Article 20.011's proscriptions as providing "other grounds authorized by law," to set aside an information or indictment, would necessarily render Article 27.03(2)--specifically providing a remedy for unauthorized presence during grand jury deliberations--an unnecessary repetition of what Article 20.011 could accomplish as "other grounds." Article 27.03(2) simply would not be necessary if Article 20.011 authorized setting aside the indictment for unauthorized presence during grand jury testimony and deliberations.
To further illustrate, it is helpful to first reconcile the two articles with respect to grand jury deliberations. Article 20.011(b) identifies who may be present during grand jury deliberations--only grand jurors. Article 27.03(2) then authorizes the trial court to set aside an indictment if a defendant shows that unauthorized persons were present during those deliberations. Similarly, Article 20.011(a) identifies who may be present during testimony before the grand jury. However, there is no specific provision authorizing setting aside the indictment on that basis. The "any other grounds" language cannot be used because, again, to do so would render Article 27.03(2) useless and redundant.
In order to accept Walter's position, we would have to treat Article 27.03(2) as a redundant provision. We are bound by rules of statutory construction not to interpret legislation in such a manner as to render a provision useless. See Fearance v. State, 771 S.W.2d 486, 522 (Tex. Crim. App. 1988) (enactment of redundant legislation a "useless thing"). We cannot conclude Article 20.011, as "other grounds" does, in part, what Article 27.03(2) does specifically. To do so would make Article 27.03(2) unnecessary. Therefore, Article 20.011 does not authorize the setting aside of the indictment on the basis that unauthorized persons were present during grand jury testimony. (9)
(5) The Trial Court Did Not Abuse Its Discretion by Granting the State's Challenges for Cause
Walter complains the trial court erroneously granted the State's challenges for cause regarding five jurors who indicated they would hold the State to a standard of proof higher than beyond a reasonable doubt. (10)
It is left to the discretion of the trial court to first determine whether bias exists. Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. 1982). An erroneous decision by a trial court to grant the State's challenge for cause will result in a reversal of the conviction only if the appellant can show that he or she was deprived of a lawfully constituted jury as a result of the trial court's action. See Feldman v. State, 71 S.W.3d 738, 749 (Tex. Crim. App. 2002); Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998).
A challenge for cause may be made by the State if a juror has a bias or prejudice against any phase of the law on which the State is entitled to rely for conviction or punishment. Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (Vernon 2006). Bias is an inclination toward one side of an issue that leads to a natural inference that the juror will not act with impartiality; prejudice is prejudgment. See Anderson, 633 S.W.2d at 853. When a juror indicates this type of bias as a matter of law, he or she must be excused despite any protestations by the juror of an ability to set the bias aside and be fair and impartial. See Clark v. State, 717 S.W.2d 910, 917 (Tex. Crim. App. 1986); Anderson, 633 S.W.2d at 854; Mize v. State, 754 S.W.2d 732, 742 (Tex. App.--Corpus Christi 1988, pet. ref'd).
Here, five prospective jurors--those assigned numbers 44, 45, 53, 127, and 154--indicated that, when faced with the facts of a case in which the State seeks the death penalty, he or she would hold the State to a standard of proof higher than beyond a reasonable doubt. For instance, Juror 44 explained that he would have to be "absolutely sure without any doubt" in a death penalty case. Jurors 45 and 127 were, initially, less emphatic than the others and, on the defense's request, the trial court spoke with those two individually regarding their positions on the standard of proof. Both jurors clarified that they could not hold the State to the beyond-a-reasonable-doubt standard, that the State would have to prove its case more convincingly. None of the challenged jurors ever wavered on his or her position by trying to state that he or she could put aside his or her personal position and follow the law. Each consistently indicated that they would have to be convinced by a standard higher than the beyond-a-reasonable-doubt standard.
Therefore, we conclude that the trial court did not abuse its discretion by determining that these five jurors were biased against the law to be applied in this case. Based on the rule in Anderson and Clark that a juror who has demonstrated bias as a matter of law must be excused, we conclude the trial court properly granted the State's challenges for cause and overrule Walter's point of error.
(6) The Trial Court Did Not Err by Refusing to Include an Aggravated Robbery Instruction
A defendant is entitled to the submission of a lesser offense if a two-pronged test is met: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that, if the defendant is guilty, he or she is guilty only of the lesser offense. See Solomon v. State, 49 S.W.3d 356, 368-69 (Tex. Crim. App. 2001).
Pursuant to Section 19.03(a)(7)(A) of the Texas Penal Code, the State alleged that Walter
did unlawfully then and there intentionally cause the death of an individual, Chrystal Willis by shooting Chrystal Willis with a firearm and did then and there intentionally cause the death of an individual, Rebecca Shifflett by shooting Rebecca Shifflett with a firearm and did then and there intentionally cause the death of an individual, Matthew Hines by shooting Matthew Hines with a firearm and all murders were committed during the same criminal transaction.
That is, the State characterized the offense as capital murder by virtue of there being three victims murdered in the same criminal transaction. While the State may have charged Walter with capital murder by alleging that he committed murder in the course of committing aggravated robbery, it did not do so. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2006). Nevertheless, Walter argues that the trial court erred by refusing to include his requested instruction on aggravated robbery.
Aggravated robbery is not included within the proof necessary to establish that Walter murdered three people in one criminal transaction. Further, even if the first prong were satisfied, we note that there is no evidence that, if Walter is guilty, he is guilty only of aggravated robbery. While Walter denied having shot the victims, he also denied having gone to the restaurant at all that night. Therefore, his testimony does not suggest that, if he is guilty, he is guilty only of aggravated robbery. No other evidence in the record suggests that Walter did not shoot the three victims.
Walter cites Broussard v. State to support his position. 642 S.W.2d 171, 173 (Tex. Crim. App. 1982). However, we distinguish Broussard by pointing out that the State in Broussard had alleged capital murder as murder during the commission of robbery. Id. Such is not the case here; Broussard is inapplicable to these facts. The trial court did not err by refusing to include a charge on aggravated robbery.
Having overruled all of Walter's points of error, we affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 10, 2006
Date Decided: November 15, 2006
Publish
1. Walter began working at the Outback Steakhouse in September 2001 and was, by most accounts, a problem employee, having been fired by at least one manager, and perhaps by another prior manager as well. New general manager Matthew Hines decided to give him another chance, but he also fired Walter August 5, 2003, after continued problems. Since then, Walter had been working at Tyson Chicken and staying with a female friend in nearby Hope, Arkansas. He came to Texarkana to attend his sister's weekly party where he connected with Henson at some point. Henson, also, had been fired from Outback some months earlier. Walter and Henson planned to rob the restaurant. They left together in a Chevrolet Blazer that Walter had been borrowing from his sister. The two gained entry to the restaurant through a side door known by all of the employees to be defective.
2. Johnson testified that a very serious and nervous Walter admitted committing the robbery and shooting three people at the restaurant. Walter explained that Henson was with him at the restaurant. In response, Johnson advised Walter that Walter should have killed Henson, also, to ensure that Henson would not talk.
Johnson testified that, earlier on August 31, he had loaned Walter the loaded Lorcin semi-automatic .380 caliber handgun used in the murders. He testified that Walter asked him for the gun and left Johnson with the impression that he wanted the gun as protection against crime in his neighborhood. Later that day, Walter returned to Johnson and mentioned "do[ing] Outback." Johnson did not take the comment seriously until Walter returned a second time and continued to talk about robbing the Outback Steakhouse with the gun. Johnson then attempted to dissuade Walter from that idea and suggested Walter return the gun to Johnson. Walter did not return the gun.
Johnson further testified that, after Walter was arrested for the murders, Walter's mother--Johnson claims her as his mother-in-law--found the gun at Walter's apartment and destroyed it. Johnson also admitted that he initially perjured himself before the grand jury by attempting to provide an alibi for Walter, but that later he agreed to cooperate when the State agreed it would not pursue perjury or other charges against Johnson if he would testify in this case.
3. Roderick was familiar with Walter and testified that Henson and Walter were acquaintances. Roderick further testified that, the morning following the murders, a nervous Henson told him about the events. Before Roderick heard anything about the murders, Henson told him that Walter and Henson had planned on "hit[ting] a lick," slang for committing a robbery, at the Outback Steakhouse. Henson explained to Roderick in their private conversation that Walter went into the back office, came out with a bag of money, and went back to the office to perhaps get keys to the safe. As Henson waited in the hallway, he heard voices pleading with Walter not to shoot and then heard six gunshots. Henson and Walter left in Walter's vehicle and split the money, amounting to approximately $400.00 each. Fearing that cameras may have filmed the two as they left the restaurant, Henson enlisted the help of Roderick to burn the clothing Henson wore that night. Later, Roderick suggested to Henson that he turn himself in and, after Roderick began fearing that he was becoming too involved himself, had his wife call the police and relay the information he had learned from Henson.
4. The United States Supreme Court added the following distinction:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis, 126 S.Ct. at 2273-74.
5. A person commits criminal conspiracy if, with intent that a felony be committed, he or she agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense. See Tex. Penal Code Ann. § 15.02(a)(1) (Vernon 2003); Cienfuegos v. State, 113 S.W.3d 481, 489-90 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd).
6. In 1986, Johnson was convicted of sexual assault and placed on probation. This probation was revoked in 1988 when Johnson was convicted for robbery and murder and sentenced to ten years' confinement. Johnson was paroled in 1992 only to return to prison months later after being convicted of possession of a controlled substance and possession of a firearm by a felon. For these 1993 convictions, he was sentenced to three years' confinement, to run concurrently with the remaining sentence from the 1988 convictions. Johnson was again paroled in 1995 and remained on parole until November 15, 2000. So, the record indicates that Johnson was not released from confinement for the 1988 convictions until either 1995 when he was paroled or 2000 when he was released from parole. See Tex. Gov't Code Ann. § 508.001(6) (Vernon 2004) (describing parole as a "discretionary and conditional release" that allows an inmate to "serve the remainder of the inmate's sentence under the supervision of the pardons and paroles division" and suggesting that parole is not a release from confinement for purposes of Rule 609 of the Texas Rules of Evidence). Under either calculation, the 1988 convictions were not remote convictions to be evaluated under the stricter "substantially outweigh" standard of Rule 609(b). Further, the 1993 convictions for possession of a controlled substance and possession of a firearm by a felon represent intervening felonies which would vitiate the remoteness of any prior convictions and place the older convictions back under the "outweigh" standard of Rule 609(a). See Jackson v. State, 11 S.W.3d 336, 339 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd); Hernandez v. State, 976 S.W.2d 753, 755 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd).
7. Had the State attended oral argument at this Court's invitation, it may have more thoroughly explained its interpretation of Article 20.011(a).
8. See also Baldwin v. State, 478 S.W.2d 476, 478 (Tex. Crim. App. 1972) (citing long- standing rule such presence "not discountenanced" and concluding no reversible error shown); Harris v. State, 450 S.W.2d 629, 630 (Tex. Crim. App. 1970) (holding Article 27.03(2), authorizing dismissal based on presence of unauthorized people during deliberations, means more than "mere examination of witnesses").
9. Nor does it serve as a basis for setting aside the indictment because unauthorized persons were present during the grand jury's deliberations; Article 27.03(2) plainly does that.
10. In the same analysis, Walter also argues that the trial court erred by refusing to submit a definition of reasonable doubt in the jury charge. We can readily dispose of that issue, however. The Texas Court of Criminal Appeals has specifically held that a "reasonable doubt" definition is not required. See Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). We applied Paulson in Rogers v. State, 85 S.W.3d 359, 362 (Tex. App.--Texarkana 2002, no pet.).
Document Info
Docket Number： 06-10-00029-CR
Filed Date： 4/15/2011
Precedential Status： Precedential
Modified Date： 10/16/2015