Sunday v. State , 1988 Tex. App. LEXIS 495 ( 1988 )

OPINION

DIES, Chief Justice.

A jury convicted Appellant of the murder of Johnny Demny and assessed punishment at fifteen years confinement in the Texas Department of Corrections. The jury also made an affirmative finding that Appellant used a deadly weapon in the course and commission of the offense. The trial court entered judgment and sentenced Appellant in accordance with the jury’s verdict. Appellant has perfected this appeal from the judgment of the trial court. Appellant does not challenge the sufficiency of the evidence.

By his first point of error Appellant urges that the trial court erred in overruling his challenge for cause against prospective juror Geiver. We find the following in the record of the voir dire examination by the prosecutor:

“[PROSECUTOR]: ... Does anyone here feel they could not give five years probation if they felt the facts warranted it for the offense of murder? Yes, ma’am?

“[MS. GEIVER]: Laurraine Geiver. They should pay for it.

“[PROSECUTOR]: Is that regardless of any fact situation?

“[MS. GEIVER]: Because she is terminally ill or something like that, that’s a little different.

“[PROSECUTOR]: So, in that particular situation, you might be able to consider five years probation?

“[MS. GEIVER]: Yes; but other than that, no way.

“[PROSECUTOR]: So, really you can’t conceive of a fact situation?

“[MS. GEIVER]: No; there’s been too much of it.

“[PROSECUTOR]: But you’d be able to give five years probation if the facts warranted it?

“[MS. GEIVER]: The mercy killing would be the only way. Mercy killing would he the only way I could go with probation.

“[PROSECUTOR]: Okay. Anybody else?”

We find the following exchange in the record of the voir dire examination by defense counsel:

“[DEFENSE COUNSEL]: Now, Mrs. Geiver, ma’am, you stated earlier that you would have, generally speaking, trouble giving probation; is that correct?

“[MS. GEIVER]: Yes.

“[DEFENSE COUNSEL]: Okay. And, I believe the prosecutor told you one hypothetical situation, a mercy killing where you might consider it; is that correct?

“[MS. GEIVER]: Yes.

“[DEFENSE COUNSEL]: Can you conceive of any other instance, can you conceive of any proper case—

“[PROSECUTOR]: Your Honor, I object to that question as an improper question.

“[THE COURT]: Overruled at this time.

“[DEFENSE COUNSEL]: Thank you.

“[DEFENSE COUNSEL] (Continuing:) Can you conceive of any other facts where you could follow the law and give probation?

“[MS. GEIVER]: Not if there’s a killing involved, then I couldn’t.

“[DEFENSE COUNSEL]: You could not?

“[PROSECUTOR FRAZIER]: Your Honor, excuse me, I believe that the proper standard is would you consider, not would give. ■

“[THE COURT]: Thank you, Counsel. Mr. Bernardino will voice objections for the State. Thank you.

“[DEFENSE COUNSEL] (Continuing:) I’ll use the prosecutor’s words, could consider. Is it your statement, then, ma’am, that you couldn’t consider probation in a murder case unless it involved a mercy killing, fitting the hypothetical the State posed?

“[MS. GEIVER]: No.

“[DEFENSE COUNSEL]: Could we approach the bench, please?

“[THE COURT]: You may.

“REPORTER’S NOTE: (WHEREUPON THE FOLLOWING DISCUSSION IS HAD AT THE BENCH AND OUT OF THE HEARING OF THE VENI-REPERSONS:)

“[THE COURT]: Anything further, Counsel?

“[DEFENSE COUNSEL]: Yes, sir. Ma’am, I’d just like for you to state again, for the Judge, whether you could consider probation in a murder case in any other fact situation other than a mercy killing?

“[MS. GEIVER]: I don’t think I can.

“[DEFENSE COUNSEL]: Well, I’ll need a yes or a no.

“[MS. GEIVER]: No.

“[DEFENSE COUNSEL]: I move that she be excused for cause.

“[THE COURT]: Do you have anything further?

“[PROSECUTOR]: No; other than to state that I feel that the fact that she can consider five years probation in any situation should be the standard and for that reason I ask that the motion be revoked.

“[THE COURT]: I’ll overrule your motion, Counsel.

“You may take your seat, ma’am.”

We note that, at trial, Appellant did not allege any fact which rendered Geiver incapable or unfit to serve on the jury in accordance with the statutory grounds for a challenge for cause set out in TEX. CODE CRIM.PROC.ANN. art. 35.16 (Vernon Supp.1987). Therefore, no error is preserved for review. Barney v. State, 698 S.W.2d 114, 122 (Tex.Crim.App.1985). In his brief, Appellant argues that Geiver was subject to challenge for cause because she was biased or prejudiced against the law applicable to a murder case. Thus, even in his brief, Appellant has failed to specifically point out what law Geiver was shown to be prejudiced against and upon which Appellant was entitled to rely. Therefore, he has not clearly identified the specific point of his complaint and thus does not comply with TEX.R.APP.P. 74(d). See Barney, 698 S.W.2d at 123. We nevertheless proceed to review this point of error in the interest of justice. Id.; see also Carter v. State, 656 S.W.2d 468 (Tex.Crim.App.1983).

A defendant has the right to challenge for cause any prospective juror who could not give the minimum legal punishment prescribed for the offense alleged in an indictment. Von Byrd v. State, 569 S.W.2d 883, 891 (Tex.Crim.App.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073 (1979). The minimum punishment which the jury could assess against Appellant should they find him guilty of murder was five years probation¹ since he had elected to have the jury set his punishment and had filed a sworn, written motion for probation prior to trial. TEX. CODE CRIM.PROC.ANN. art. 42.12, sec. 3a(a) (Vernon Supp.1987).

The State argues that since Ms. Geiver stated that she could consider assessing punishment at five years probation if the murder involved was a “mercy killing,” she was not subject to challenge for cause. The State relies upon Von Byrd v. State, 569 S.W.2d at 891, in which case it was held that the trial court did not err in overruling a defendant’s challenge for cause where the venire member stated he could consider probation in a proper case. Likewise, in another case, it was held that a venire member who stated he could consider minimum punishment, although it would be a rare case where he would apply probation, was not subject to challenge for cause. Moore v. State, 542 S.W.2d 664, 671 (Tex.Crim.App.1976), cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977). The record in the present case reveals, however, a situation quite different from that in Von Byrd and Moore.

Ms. Geiver never stated that she would consider the minimum punishment in a proper case. She consistently stated she could consider probation only where the murder involved was a “mercy killing.” Ms. Geiver was clearly referring to a hypothetical killing set out by the prosecutor when he began trying to qualify the venire as to the applicable range of punishment. That hypothetical situation involved an older man who killed his terminally ill wife at her own request. Neither the Appellant nor the State has cited to us any case determining the validity of a challenge for cause to a prospective juror who unequivocally states that she' could only consider minimum punishment in one very narrowly defined fact situation. This Court has also been unable to find such authority.²

Having found no case law to guide us in reviewing this point of error, we must decide the issue under the express language of TEX.CODE CRIM.PROC.ANN. art. 35.16(c) (Vernon 1966) which reads, in pertinent part, as follows:

“A challenge for cause may be made by the defense for any of the following reasons:

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“2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely ... as a mitigation thereof or of the punishment therefor.”

We hold that Ms. Geiver consistently exhibited a prejudice against the law which set the minimum punishment for the offense of murder at five years probation. Her statements reveal that she would only consider such punishment appropriate in a “mercy killing.” We view this as a prejudice against the minimum legal punishment because Ms. Geiver would create her own statutes concerning minimum punishment for the offense of murder. While every person is entitled to hold and express such beliefs, we believe a criminal defendant has the statutory right under article 35.16 to have a jury assess punishment after consideration of the full range of punishment for his offense as prescribed by the legislature. If the record revealed that the instant case did involve a “mercy killing,” perhaps any error in overruling Appellant’s challenge of Ms. Geiver would be harmless. However, the killing involved here could not be described as a “mercy killing” by any stretch of the imagination.

Appellant exercised all of his peremptory strikes, one of which was used to strike Ms. Geiver. He requested an additional strike as compensation for the peremptory he was erroneously forced to use on her and then identified a juror upon whom he would have exercised the extra strike had he been allowed one. Therefore, the record clearly reveals that Appellant was forced to accept a juror whom he found unacceptable. Barrow v. State, 688 S.W.2d 860, 863 (Tex.Crim.App.1985). Appellant’s first point of error is sustained.

By his thirtieth point of error, Appellant urges that the trial court erred in permitting the State to attack Appellant by attacking his trial attorney during the State’s closing argument at the guilt-innocence phase of the trial. Appellant had testified that he shot the victim while the victim was approaching him and uttering threats. Appellant testified that the victim reached for his pocket and that Appellant believed he was reaching for a gun or knife. Then he stated he grabbed his shotgun and fired once, and Demny (the victim) staggered and fell. The State introduced a statement Appellant gave the police on the morning after the shooting. This statement did not mention that Demny reached for his pocket, nor did it contain any claim of self-defense by Appellant. The record of the prosecutor’s closing argument contains the following:

“[PROSECUTOR]: That statement speaks for itself. I ask you to take back every item of evidence back into the jury room with you, which you’re entitled to do and I ask you to please read that statement in its entirety.

“Also obviously lacking in that statement is any claim whatsoever that the deceased was trying to kill him. Isn’t that interesting? He didn’t come up with any claim like that until after the State had presented its case and until well after he had gone down to Houston and hired him an attorney.

“[DEFENSE COUNSEL]: Your Honor, I object to Counsel attacking the defendant through his counsel. And, I request the Court to instruct the jury to disregard it.

“[THE COURT]: Denied, but sustain the objection.”

An argument attacking defense counsel in an effort to inflame the minds of the jury to the accused’s prejudice can not be condoned. Lopez v. State, 500 S.W.2d 844, 846 (Tex.Crim.App.1973). Furthermore, when such attacks on defense counsel strike at the core of a defendant’s exculpatory story, the argument also violates the defendant’s right to counsel under the Sixth Amendment to the United States Constitution. United States v. McDonald, 620 F.2d 559, 564 (5th Cir.1980).

The State argues that the prosecutor’s statements were not an attack upon Appellant’s counsel but, rather, were merely an attack upon the credibility of Appellant’s claim at trial that Demny was trying to kill him. The State argues that the statement of the prosecutor was a reasonable deduction from the evidence and is, therefore, not improper. While the record certainly contained inconsistent statements by Appellant, there is nothing to indicate that he did not “come up with” his claim of self-defense until after he hired an attorney. Nor is there anything in the record from which it is reasonable to deduce that Appellant “came up with” the self-defense claim only after hiring an attorney.

We can find no permissible purpose for such arguments by the prosecutor in this case. More importantly, we can perceive only one message conveyed by the remark about hiring counsel, and that is that Appellant’s counsel must have made up the defense. Such remarks penalize a defendant for exercising his right to counsel. McDonald, 620 F.2d at 564. Furthermore, such attacks on the integrity of defense counsel may be so manifestly improper that an instruction that the jury should disregard them may not be sufficient to cure the error. See Lopez, 500 S.W.2d at 846. In the present case, we need not decide the minimum remedy for such error because the trial court, though sustaining the objection, refused to grant any remedy at all. Appellant’s thirtieth point of error is sustained.

By his point of error number twenty-five, Appellant complains that the trial court erred in instructing the jury as to the law of parole and good time credit as mandated by TEX.CODE CRIM.PROC.ANN. art. 37.07, sec. 4 (Vernon Supp.1987). We have previously addressed such contentions and found that the statute and instruction are not unconstitutional. See Boudreaux v. State, 723 S.W.2d 230 (Tex.App.—Beaumont 1986, no pet.). We continue to hold that both the statute and instruction are not unconstitutional. Furthermore, Appellant did not object to the submission of this instruction. Therefore, even if submission of the instruction was erroneous, Appellant’s conviction cannot be reversed unless the record reveals that Appellant suffered egregious harm due to such error. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (on rehearing).

After a thorough review of the entire record, we find nothing to indicate that the submission of the parole law instruction created such harm to Appellant that he was denied a fair and impartial trial. See Almanza, 686 S.W.2d at 171. Under the evidence presented, the jury was entitled to believe that Appellant fired one shot from a shotgun into the victim’s chest at a distance of eight to ten feet. The jury was entitled to disbelieve Appellant’s claim of self-defense. Neither attorney discussed parole law in their arguments or elsewhere. Under the record before us, we could not hold that Appellant was denied a fair and impartial punishment hearing. Therefore, Appellant’s point of error number twenty-five is overruled.

We have carefully reviewed Appellant’s remaining points of error and find them to be without merit, and they are hereby overruled.

The judgment of the trial court is reversed and the cause is remanded to the trial court.

Reversed and Remanded.

1 . Under TEX.PENAL CODE ANN. sec. 19.02 (Vernon 1974), murder is a first degree felony, and the minimum punishment for a first degree felony is five years confinement in the Department of Corrections. TEX.PENAL CODE ANN. sec. 12.32(a) (Vernon Supp.1987).

2 . We have noted that a similar situation was presented in Pierce v. State, 696 S.W.2d 899 (Tex.Crim.App.1985). There, prospective juror Gorka indicated he could not consider probation as a punishment for murder. Then he stated, "Other than again, there is a difference in a husband-and-wife relationship, too.” The Court of Criminal Appeals neither sustained nor overruled the point of error based on the trial court’s overruling the challenge for cause as to Mr. Gorka.