No. 01-01-01165-CR.
Opinion Issued February 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 836895.
Before Justices TAFT, KEYES, and HIGLEY.
LAURA C. HIGLEY, Justice
Appellant, Steven Ray Tatum, was charged by indictment with the felony offense of capital murder, for which the State did not seek the death penalty. After appellant entered a plea of not guilty, the jury found him guilty of capital murder. The trial court assessed punishment at confinement for life. In his sole point of error, appellant asserts that the trial court erred in denying his challenges for cause of several prospective jurors during voir dire. We affirm.
Background
Jamal Labdi, the complainant, was employed as a cashier at the N Star Gas Station at 10104 Tidwell in Harris County. On the evening of February 16, 2000, Labdi was working at the store when appellant entered the store carrying a revolver. There were three customers in the store at the time — Kimberly Flenoury, Tenille Rhodes, and an unidentified man. Appellant pointed the gun at Labdi, demanded money, and ordered everyone to get on the floor. After demanding their purses, appellant took Flenoury's purse from the counter where she had left it and took Rhodes's purse from her arm. While on the floor, Flenoury and Rhodes heard one shot. After appellant fled the store, Flenoury got up and observed that Labdi was not moving and appeared to be dead. Douglas Harris Posey, Jr., M.D., Assistant Medical Examiner for Harris County, testified that Labdi died immediately as the result of a gunshot wound to the head. Janet Parker was driving in the area near the N Star Gas Station on the evening of February 16, 2000, when appellant approached her vehicle, waving his arms, in what appeared to be an attempt to flag her down. Parker noticed that appellant was holding a gun and managed to drive away. However, before driving away, appellant touched the hood of her vehicle with his hand. Houston Police Department Officer Skelton lifted prints off of the hood of Parker's vehicle, which matched appellant's prints. Perry Barnett, who lives near the N Star Gas Station, was awakened by his wife's screams on the evening of February 16, 2000. Appellant had broken into their home, was in their bedroom, and held a gun to Barnett's wife's head as he demanded money and car keys. Barnett turned on the bedroom light in order to locate the car keys. Appellant then demanded that Barnett go outside and ordered him to start the van, at which time appellant got in the van and drove away. The purses taken from Flenoury and Rhodes during the robbery were found in Barnett's bedroom, and Rhodes' wallet was found in Barnett's yard. Barnett identified appellant as the man who broke into his home on February 16, 2000. Houston Police Department Officer Robert Parrish testified that appellant turned himself in to the police on February 18, 2000, and voluntarily gave an audio-taped statement regarding the events of February 16, 2000. The audio-taped statement was played for the jury at trial. In the statement, appellant admitted entering the N Star Gas Station on February 16, 2000 to commit a robbery and admitted shooting the gun. Voir Dire
The record in this case shows that voir dire started with a panel of 65 people on November 5, 2001. After appellant challenged 46 of the 65 venire members for cause, the trial court determined that there would not be sufficient venire members remaining to select a jury. Therefore, the trial court decided to start over the next day with a new venire. During voir dire, appellant's attorney asked the venire members if they could consider the minimum punishment of five years' imprisonment for the lesser-included offense of intentional murder. Forty-five venire members stated that they could not consider the minimum punishment. Appellant's attorney also asked the venire members if they could consider the minimum punishment of five years' imprisonment for the lesser-included offense of felony murder. Forty-six venire members stated that they could not consider the minimum punishment in such a case. Appellant's attorney then challenged for cause 50 of the 65 venire members for several reasons, including those who had stated they could not consider the minimum punishment range under the lesser-included offenses of intentional murder and felony murder. The trial judge denied defense counsel's challenges for cause based on the venire members' inability to consider the minimum range of punishment. Appellant's attorney then used eight of his 10 peremptory challenges on venire members for whom his challenge for cause was denied. Appellant's attorney requested seven additional peremptory challenges, identifying seven jurors on whom he would have exercised peremptory challenges if he had not exhausted his allotted challenges. All seven of these objectionable jurors had been challenged for cause based on their answers that they could not consider the minimum punishment of five years for the lesser-included offense of murder. The trial court denied defense counsel's request for additional peremptory strikes and the jury was seated. Discussion
In his sole point of error, appellant contends that the trial court erred in denying his challenges for cause with respect to several venire members who stated an inability to consider the minimum range of punishment for the possible lesser-included offense of murder. This same argument was presented in King v. State. 953 S.W.2d 266, 268 (Tex.Crim.App. 1997). In King, appellant complained that the trial court erred in denying his challenges for cause for two venire members who had stated that they could not consider the minimum punishment for the offense of murder. Id. The Court of Criminal Appeals held that, because appellant was convicted of capital murder, any error relating to the punishment range of the lesser-included offense of murder made no contribution to appellant's conviction or punishment. Id. In this case, appellant was convicted of capital murder. We find that any error relating to the denial of appellant's challenges for cause made no contribution to appellant's conviction or punishment. Appellant's sole point of error is overruled. Conclusion
We affirm the judgment of the trial court.