NO. 74,095






Womack, J., delivered the opinion for a unanimous Court.

Appellant was convicted in March 2001 of capital murder. Tex. Penal Code Ann. §19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 §2(g). (1) Direct appeal to this Court is automatic. Art. 37.071 §2(h). We affirm.

In his first point of error, appellant claims the trial court erred in denying his proposed jury instructions regarding the voluntariness of his written statement. The State offered Exhibit 177, a written statement appellant made shortly after the offense. Appellant sought suppression of the statement on the ground that it was involuntary due to his intoxication. The trial court held a suppression hearing and overruled appellant's motion to suppress the statement, concluding in its written findings of fact and conclusions of law appellant made his statement freely and voluntarily. (2)

Under Article 38.22 section 7, when the issue of the voluntariness of a confession is raised by the evidence, the trial court is required to instruct the jury on the law pertaining to the statement. Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1157 (1995). But there must be "some evidence" presented before the jury raising the issue. Id.

Appellant points to his written confession in which he stated that he took eleven Dilantin pills on the night before the offense, in addition to the testimony by Dr. Reginald Stanley as to the possible effects of ingesting Dilantin, as "some evidence" raising the issue sufficient to warrant an instruction. Dr. Stanley testified for the State that Dilantin is generally used to treat seizures or epilepsy and an overdose would not result in hyperactivity, but the opposite - lethargy or even death. However, on cross-examination he agreed that it was possible in some rare cases that an overdose could result in hyperactivity, hallucinations, and confusion. But this does not amount to "some evidence" that appellant's actions were involuntary.

All of the prison officials who observed appellant following the offense testified that he did not appear to be intoxicated or impaired in any way. The officials who participated in taking appellant's confession testified that appellant understood the constitutional warnings that were given and voluntarily waived them, gave his statement voluntarily, did not appear to be under the influence of any drugs, and was described as "calm" but "eager" to tell his story of what had occurred. Appellant's blood tested negative for drugs or alcohol immediately following his written statement. Nothing in appellant's statement indicated that the alleged ingestion of Dilantin rendered his subsequent actions involuntary. To the contrary, appellant's confession contained waivers and warnings which were all neatly initialed by appellant. Although appellant stated that he took the Dilantin the night before the offense "to help with the rush of killing someone," the statement does not further reflect whether the drug assisted him or had any effect on his actions the following day. Even if appellant ingested the Dilantin as he claims, there is no evidence raising an issue that it rendered his actions involuntary. The trial court did not abuse its discretion in denying appellant's requested instruction. Point of error one is overruled.

In his second point of error, appellant claims the trial court erred in admitting certain allegedly gruesome photographs and a videotape because they had no probative value, were highly prejudicial, and were cumulative. During the guilt or innocence phase of trial, the State introduced the photographs and videotape over appellant's objection that their prejudicial effect outweighed their probative value. Appellant also argues that the trial court admitted them without conducting a balancing test.

Appellant objected to State's Exhibits T14A through T14L, color Polaroid pictures of the victim and the crime scene. The majority of the pictures depict different views of the victim, the victim's surroundings, or the weapons used, without enhancement or any apparent manipulation of the victim's body or wounds by pathologists or investigators. The photos are probative of the nature of the crime and the manner of the victim's death. While the photos are gruesome in their depiction of the crime scene and the victim, they are no more gruesome than the scene as it existed following the murder. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App.1995)(recognizing no error if gruesome crime scene photos depict nothing more than reality of brutal crime committed ). As explained in Sonnier:

The photographs are powerful visual evidence, probative of various aspects of the State's theory of the offense including the brutality and heinousness of the offense. Appellant must realize that it is precisely the quality which we describe as "powerful" which gives rise to his arguments that the photographs are prejudicially inflammatory. But when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. A trial court does not err merely because it admits into evidence photographs which are gruesome.

Id. (citations omitted). The trial court did not abuse its discretion in admitting the photos.

As to the videotape, we have explained that videotapes have value separate from still photos because they offer a more panoramic view of the physical and forensic evidence. See Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990). While admittedly there is some cumulation of the evidence simply in the fact that the video and the still photos depict the same evidence, the form of presentation differs and therefore has its own value and impact before the jury. Id.

As to appellant's contention that the trial court failed to engage in the required balancing test, the fact that the trial court did not conduct a balancing test aloud on the record does not mean the test was not performed. When nothing in the record shows the court did not perform the test, and the record reflects that the court listened to the defendant's objections and then overruled them, we have held there is no error. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)(citing Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997)). Appellant clearly stated his objections and arguments, and the State made its arguments for admission of the photos. The trial court overruled appellant's objections. In these circumstances, when an objection has been made under Rule of Evidence 403, we presume the trial court conducted the required 403 balancing test. Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997)(noting once Rule 403 invoked, trial judge has no discretion not to engage in balancing test but is not required to sua sponte place findings or conclusions into record). Point of error two is overruled.

In his third point of error, appellant claims his trial counsel was ineffective for declining to use peremptory strikes against five venirepersons. Appellant's trial counsel advised him that five venirepersons should be peremptorily struck due to their predisposition in favor of the death penalty, but appellant instructed counsel not to use any more peremptory strikes "in part because he did not want to waste any more of the State's time and he just wanted to get the trial over with as soon as possible." Appellant argues that trial counsel mistakenly deferred to appellant and in doing so rendered ineffective assistance.

The Rules of Professional Conduct provide that, with some exceptions, a lawyer shall abide by a client's decisions (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement except as otherwise allowed by law; (3) in criminal cases, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. Tex. Disciplinary R. Prof'l Conduct 1.02(a), reprinted in Tex. Gov't Code tit. 2, subtit. G, app. A. One exception to this provision is that "a lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation." Id. at 1.02(b).

Trial counsel made a record after each incident establishing that they had advised appellant to use a peremptory strike but that appellant had instructed them otherwise. Following is an excerpt from the record pertaining to the disagreement over the first venireperson:

[Defense counsel]. You understand that both [co-counsel] and myself have advised you that [this venireperson] needs to be stricken as one of the peremptory challenges that's available to you?

[Appellant]. Yes.

Q. And you understand that we have a motion before the Court for additional challenges, do you not?

A. Yes.

Q. And you understand that the advice that [co-counsel] and I have given to you concerning [this venireperson] is based on, number one, her strong belief in the death penalty, is that correct?

A. Yes.

Q. And her strong opinion in terms of being able to implement the death penalty in connection with your case?

A. Yes.

Q. You also understand that as a part of the basis of our advice to you that she be stricken is that she has family that is involved in law enforcement?

A. Yes.

Q. And she also has a family member who is the victim of a crime?

A. Yes.

Q. And you understand then that based on these factors, we have advised you that she should be stricken, is that correct?

A. Yes.


Q. And in response to that, you have advised us what?

A. That I will not strike her.

Q. And so that this record's clear, you want to keep [this venireperson] as one of the jurors in connection with this case, is that correct?

A. Yes.

Q. And the reason for that?

A. No particular reason at all. I want to get this over with.


Q. Have you told me that you believe that this women is honest?

A. Yes.

Q. Have you told [co-counsel] that?

A. Yes.

Q. And have you told both of us that you want to get this case over with?

A. Yes.

Q. And that you want to save the State of Texas money in connection with your case?

A. Yes.

Q. And as a result of your stated reasons or no reasons at all, you want to keep this woman as a juror in connection with your case?

A. Yes.

Co-counsel asked some additional questions, after which the venireperson was accepted by the defense "at the instruction of our client."

To establish ineffective assistance of counsel, applicant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001). First, appellant must demonstrate by a preponderance of the evidence that counsel's performance was deficient. Second, appellant must show that counsel's performance prejudiced his defense at trial. He must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel.

It is clear from the record that appellant was advised by counsel as to counsel's professional position on the issue. Nonetheless, appellant insisted on asserting his own views over those of his counsel. Under these circumstances, when counsel advised their client of their professional position, advised the court of the situation, preserved the record, and did not breach the Rules of Professional Conduct, we hold that appellant did not demonstrate by a preponderance of the evidence that his counsel's performance was deficient. See McFarland v. State, 845 S.W.2d 824, 847 (Tex. Crim. App. 1992)(denying claim of ineffectiveness for failing to put on mitigating evidence that defendant himself instructed counsel not to put on), cert. denied, 508 U.S. 963 (1993); Duncan v. State, 717 S.W.2d 345, 348 (Tex. Crim. App. 1986)(noting that when defendant preempts attorney's strategy by insisting that a different defense be followed, claim of ineffectiveness will not stand, and holding that defense counsel was not ineffective where he was attempting to follow trial strategy "thrust upon him" by defendant). Point of error three is overruled.

In his fourth point of error, appellant claims the trial court erred in granting the State's challenge for cause against venireperson Lori Anne Ouellette on the ground that her views about the death penalty would substantially impair her ability to answer the special issues. Appellant argues that Ouellette held no bias against the law that would have impaired her ability to answer the special issues and that she had no general opposition to the death penalty. But our review of the record reveals that Ouellette was a vacillating venireperson.

On her juror questionnaire, in response to the statement that best reflected her feelings about the death penalty, Ouellette circled the statement, "I believe the death penalty is appropriate in some murder cases but I could never return a verdict which assessed the death penalty." During questioning by the State, Ouellette indicated she would have trouble serving in a death penalty case:

[Prosecutor] Q. Okay. If you would, I want to just simply give you the floor because what we've got here, I think, is that you theoretically see the necessity for capital punishment in some cases, but because of your personal beliefs, you could not participate in a jury without your personal beliefs interfering with your process as a juror. Am I correct in that?

[Ouellette] A. That's right.

Q. Do you have anything to add to that?

A. I just don't know how it would make me feel afterward, maybe thinking what if, you know, he really didn't do it and we put him to death? And I really don't think it's my place to decide if someone lives or dies.

Q. Okay. Now, here's what we need to figure out. . . . Would your views - and this is the question that only you can answer. Would your views prevent or substantially impair the performance of your duties as a juror in accordance with your instructions and oath as a juror? . . . Now, do you think that you would be so worried about how you would feel afterward that that particular view would substantially interfere with or impair your ability to return a verdict in this case?

A. I'm just thinking if I didn't know for sure, if I wasn't positively sure, I don't think I could do it.

At this point, the prosecutor explained that the burden of proof was beyond a reasonable doubt and gave examples of burden of proof. The prosecutor then asked Ouellette to read the special issues and tell him whether she could answer yes or no to them based on the evidence in the case or whether her feelings would substantially interfere with or impair her ability to participate as a juror. She agreed that her personal feelings would substantially interfere or impair her ability to participate.

When questioned by appellant, however, Ouellette agreed that even though she might have misgivings and be uncomfortable, she would do her duty as a juror and answer the issues based on the evidence presented. On re-direct examination, the prosecutor asked Ouellette again whether her feelings and reservations would substantially interfere or impair her ability to be a juror. Ouellette had previously stated that she could not sentence someone to death unless she knew "for sure" that they were guilty. The prosecutor asked her whether this personal standard and her feelings would substantially interfere and impair her ability to serve as a juror. She agreed that it would and stated that she had not changed her mind from her initial voir dire.

In reviewing a trial court's ruling on a challenge for cause, we ask whether the totality of the voir dire testimony supports the court's finding that the prospective juror is unable to follow the law as instructed and reverse only upon a clear abuse of discretion. King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2002). In the case of a venireperson whose answers were vacillating, unclear, or contradictory, we accord particular deference to the trial court who was present to observe demeanor and tone of voice. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002); King, 29 S.W.3d at 568.

When questioned initially by the State, Ouellette testified that her personal views would impair her performance. When questioned by appellant, she stated unequivocally that she could answer the issues and listen to the evidence. On redirect, she again responded that her "for sure" standard and personal feelings would interfere with and impair her performance as a juror. Viewing her voir dire as a whole, we defer to the trial judge who was best-positioned to assess the situation. We discern no abuse of discretion. See Feldman, 71 S.W.3d at 744; King, 29 S.W.3d at 568. Point of error four is overruled.

The judgment of the trial court is affirmed.

Delivered April 9, 2003.

Do not publish

1. Unless otherwise indicated all future references to Articles refer to the Texas Code of Criminal Procedure.

2. In connection with his first point of error appellant also complained that the trial court failed to make written findings of fact and conclusions of law as required by Article 38.22 section 6, but the trial court forwarded its findings in the form of a Supplemental Clerk's Record, rendering that complaint moot.