Leonard identified Milton at a police lineup. Milton was convicted of capital murder by a Fort Worth jury which then answered the three death penalty questions required by Article 37.071(b), Tex. Code Crim.Proc. Ann. The conviction and sentence were affirmed by the Court of Criminal Appeals of Texas. Milton v. State, 599 S.W.2d 824, 825 (Tex.Crim.App. 1980) (en banc). The Supreme Court denied certiorari.
DEFENSE ATTORNEY: All right. What, if anything, would you say would be the difference in their meaning? STATE'S ATTORNEY: Your Honor, we're going to object under the Milton case [ Milton v. State, 599 S.W.2d 824 (Tex.Crim.App. 1980) ], to his asking the prospective juror to define a word that's not defined under the law, Charles Milton. Initially, we must address the State's argument that Milton v. State, supra, stands for the proposition that defense counsel may not inquire as to a veniremember's definition of "deliberately."
We have held on numerous occasions that a trial court does not abuse its discretion when it refuses to permit defense counsel from inquiring into a potential juror's definition of "deliberately." Trevino v. State, 815 S.W.2d 592, 608-610 (Tex.Crim.App. 1991), vacated on other grounds, ___ U.S. ___, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992); Milton v. State, 599 S.W.2d 824, 826 (Tex.Crim.App.) (en banc), cert. denied, 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400 (1980); Esquivel v. State, 595 S.W.2d 516, 525 (Tex.Crim.App.) (en banc), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980); Chambers v. State, 568 S.W.2d 313, 323 (Tex.Crim.App. 1978) (en banc), cert. denied, 440 U.S. 928, 99 S.Ct. 1264, 59 L.Ed.2d 484 (1979), overruled on other grounds; see also Battie v. State, 551 S.W.2d 401, 405 (Tex.Crim.App. 1977) (No abuse of discretion in refusing counsel from asking potential juror to define "criminal acts of violence."). The rationale for this prohibition is not that these questions are improper, Gardner v. State, 730 S.W.2d 675, 688 n. 7 (Tex.Crim.App. 1987), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1988), but rather if counsel were to be permitted to inquire into the definition of every term during trial, voir dire would become endless.
Moreover, our review of our capital jurisprudence reveals that we have determined that a trial court does not abuse its discretion by refusing to permit counsel to question a veniremember regarding his definition of the term "probability." Milton v. State, 599 S.W.2d 824, 826 (Tex.Cr.App. 1980), cert. denied, 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400 (1981) (finding no abuse of discretion where trial court refused voir dire questioning on definitions of terms deliberately, probability, and criminal acts of violence in a capital case); see also Wheatfall v. State, 882 S.W.2d 829, 835 (Tex.Cr.App. 1994) (endorsing proposition that trial court in capital proceedings has discretion to prohibit voir dire on definitions of undefined terms in charge). Otherwise, "voir dire examination could take an unreasonable length of time if attorneys on both sides selected different words throughout a contemplated charge and asked each prospective juror what those words meant."
Then, rather than render aid to the dying officer, appellant ran down the street, pointed his gun into the open window of a car in which a man and his two young children were sitting and murdered the man by shooting him in the head. Viewing the evidence in the light most favorable to the verdict, we find the evidence sufficient to support the jury's affirmative answer to special issue number one. Santana v. State, 714 S.W.2d 1 (Tex.Cr.App. 1986); Selvage v. State, 680 S.W.2d 17 (Tex.Cr.App. 1984); Milton v. State, 599 S.W.2d 824 (Tex.Cr.App. 1980). Appellant's sixteenth point of error is overruled.
E.g., Cook v. State, 369 So.2d 1251, 1257 (Ala. 1979); Perry v. State, 395 So.2d 170, 174 (Fla. 1980); State v. McCormick, 272 Ind. 272, 278, 397 N.E.2d 276, 280 (1979). But see, e.g., People v. Easley, 33 Cal.3d 65, 87, 654 P.2d 1272, 1288, 187 Cal.Rptr. 745, 760-61 (1982); Commonwealth v. Hoss, 445 Pa. 98, 118, 283 A.2d 58, 68-69 (1971); Milton v. State, 599 S.W.2d 824, 827 (Tex.Crim. 1980), cert. denied, 451 U.S. 1031, 101 S.Ct. 3022 (1981). Under the circumstances here, we shall vacate the death sentence and remand the case for a further sentencing proceeding.
Only a minority of states, two in number, has adopted a contrary view. See People v. Balderas, 41 Cal.3d 144, 204-05, 222 Cal.Rptr. 184, 219-20, 711 P.2d 480, 515-16 (Cal. 1985) (uncharged crimes may be used in deciding whether to impose the death penalty); Milton v. State, 599 S.W.2d 824, 827 (Tex.Crim.App. 1980) (upholding "use of unadjudicated offenses at the [capital] punishment phase"). However, in both minority states it is required that the unadjudicated offense be proved "beyond a reasonable doubt".
Furthermore, Texas decisions have uniformly approved the admission of unadjudicated offenses. See, e.g., Rumbaugh v. State, 629 S.W.2d 747, 754 (Tex.Crim.App. 1982) (en banc); Milton v. State, 599 S.W.2d 824, 827 (Tex.Crim.App.) (en banc), cert. denied, 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400 (1980). [T]he Constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating circumstances or statutory mitigating factors, as long as that information is relevant to the character of the defendant or the circumstances of the crime . . . What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.
In Milton's first habeas trip, we set out the procedural history of his case: Milton was convicted of capital murder by a Fort Worth jury which then answered the three death penalty questions required by Article 37.07(b), Tex. Code Crim.Proc.Ann. The conviction and sentence were affirmed by the Court of Criminal Appeals of Texas. Milton v. State, 599 S.W.2d 824, 825 (Tex.Crim.App. 1980) (en banc). The Supreme Court denied certiorari.
Resting its decision on the requirement that "all relevant evidence concerning the defendant must be placed before the jury," Texas has found no constitutional issue with the use of unadjudicated offense evidence during sentencing. Milton v. State, 599 S.W.2d 824, 827 (Tex. Crim. App. 1980); see also Cantu v. State, 939 S.W.2d 627, 648 (Tex. Crim. App. 1997).