Jeremy Heath Needum v. State

MEMORANDUM OPINION¹

JOHN CAYCE, Chief Justice.

Jeremy Heath Needum appeals from his sentences for aggravated assault against a public servant, endangering a child, and resisting arrest. He pleaded guilty to all of these offenses, and a jury assessed his punishment. In his sole point on appeal, appellant complains that the trial court violated his federal and state constitutional rights to effective assistance of counsel by refusing to allow defense counsel to question venire members about whether they would consider intoxication as a mitigating factor in assessing punishment. We affirm.

The relevant facts and the law applicable to this case are well known to the parties. During voir dire in the punishment phase of trial, the court refused to allow defense counsel to ask venire members the following question:

Is there anybody here that does not believe that intoxication could be a mitigating factor in a crime?

Whether a venire member considers a particular type of evidence, including intoxication, to be mitigating is not a proper area of inquiry during voir dire.² A prospective juror is not challengeable for cause simply because he or she does not consider a particular type of evidence to be mitigating.³

[T]he law does not require a juror to consider any particular piece of evidence as mitigating; all the law requires is that a defendant be allowed to present relevant mitigating evidence and that the jury be provided a vehicle to give mitigating effect to the evidence if the jury finds it to be mitigating. A trial court does not abuse its discretion by refusing to allow a defendant to ask venire members questions ... about particular mitigating evidence.⁴

The dissent argues that the trial court should have allowed the question because a defendant who relies on temporary insanity as a defense is entitled to a jury instruction regarding mitigation when the evidence tends to show that such insanity was caused by intoxication.⁵ Based on the well-established precedent that we have discussed, we are unpersuaded by this argument. Moreover, the argument was not preserved for our review because the question at issue did not inform the trial court that appellant was seeking to discover a disqualifying bias against the temporary insanity defense.⁶ Therefore, we hold that the trial court did not abuse its discretion⁷ or violate appellant’s constitutional rights by disallowing the question. We overrule appellant’s point and affirm the trial court’s judgments.

LIVINGSTON, J. concurs without opinion.

DAUPHINOT, J. filed a dissenting opinion.

1 . See Tex.R.App. P. 47.4.

2 . Garcia v. State, 919 S.W.2d 370, 399-400 (Tex.Crim.App.1996) (op. on reh’g) (holding that trial court did not abuse its discretion by refusing to allow defense counsel to voir dire venire members regarding whether they could consider voluntary intoxication as a mitigating circumstance); accord Standefer v. State, 59 S.W.3d 177, 181 & n. 19 (Tex.Crim.App.2001) (reiterating that whether juror considers particular type of evidence mitigating is not proper area of inquiry and citing Garcia as example).

3 . Standefer, 59 S.W.3d at 181.

4 . Raby v. State, 970 S.W.2d 1, 4 (Tex.Crim.App.), cert. denied, 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998).

5 . See Tex. Penal Code Ann. § 8.04(c) (Vernon 2003). Appellant received such an instruction in these cases.

6 . See Tex.R.App. P. 33.1(a) (providing that request must be sufficiently specific to apprise trial court of reason for desired ruling); Bell v. State, 938 S.W.2d 35, 54-55 (Tex.Crim.App.1996) (same), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997); see also Hailey v. State, 87 S.W.3d 118, 121-22 (Tex.Crim.App.2002) (holding that appellate court cannot reverse trial court’s judgment on legal theory not raised below), cert. denied, 538 U.S. 1060, 123 S.Ct. 2218, 155 L.Ed.2d 1111 (2003).

7 . See Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002) (applying abuse of discretion standard of review to trial court’s limitation of voir dire).