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Criminal Law No. 74-145, 6/25/2003. Click here for the full text of this decision FACTS: Appellant was convicted in June 2001 of capital murder. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, ��2(b) and 2(e), the trial judge sentenced the appellant to death. HOLDING: Affirmed. The appellant claims veniremembers Thomas Brooks and Kimberly Williams each equated the term “probability” of future dangerousness with “possibility.” He complains that the trial court should have granted his challenges for cause against them on that basis. During the state’s voir dire, Brooks explained his understanding of the term “probability” as meaning “not definite.” During questioning by defense counsel, Brooks explained that it meant “[i]t’s not a definite thing.” He stated that it was something that was “possible in the future” but that he could not “put a number on it.” He stated it was “a chance.” During Williams’ voir dire by the State, Williams stated that “probability” meant “it’s possible it could, or could have not.” Upon further questioning, she agreed that it would have to be more than 50 percent chance on a scale of zero to 100. When questioned by defense counsel Williams reiterated that she would define probability as a possibility. When questioned about percentages by the trial court, Williams could not say. She continued to reiterate that she believed probability and possibility mean the same thing. The appellant relies on Hughes v. State, 878 S.W.2d 142 (Tex. Crim. App. 1992), in which the court reversed a conviction based upon an erroneous denial of a challenge for cause against a venireperson who equated the term “probability” with “possibility.” The court held: “[The venireperson's] answers during his voir dire indicate that he understood ‘probability’ as any percent possibility rather than as a ‘likelihood’ or ‘good chance[.]‘ In its usual acceptation, a ‘probability’ is something more than a ‘possibility.’ As this Court stated in Smith, 779 S.W.2d 417, 421, in which the court relied on Cuevas[ v. State, 742 S.W.2d 331 (Tex. Crim. App. 1987)], ‘we know that the second special issue calls for proof of more than a bare chance of future violence.’ Requiring more than a mere possibility that the defendant would commit criminal acts of violence and would constitute a continuing threat to society prevents the freakish and wanton assessment of the death penalty. Since [the venireperson] understood ‘probability’ as only a ‘possibility’, he was properly challengeable for cause. The court holds the trial court abused its discretion in denying appellant’s challenge.” Assuming Brooks’ and Williams’ understandings of the term probability was erroneous, the appellant has not shown that he was entitled to strike them for cause. Although the court has held that the term “probability” need not be defined, the court has also held that the terms means “more than a mere possibility.” Further, it must be explained to the veniremember that the law requires him to see and accept the distinction between the terms as set forth in Hughes. Once explained the law, if the prospective jurors continue to insist upon an definition or understanding of the term that is inconsistent with Hughes, then they may be challengeable for cause. In these circumstances, where the law was not carefully or adequately explained to Williams and Brooks, the trial court did not abuse its discretion in denying appellant’schallenges for cause. OPINION: Holcomb, J.; Meyers, Price, Keasler and Cochran, JJ., join. Keller, P.J., concurs in the result with respect to point of error number three and otherwise joins CONCURRENCE: Johnson, J., filed an opinion, in which Womack and Hervey, JJ., join, that concurring in the result with respect to points of error numbers seven and eight and otherwise joined the opinion of the court. “In Hughes v. State, 878 S.W.2d 142, 148 (Tex. Crim. App. 1992), this Court stated that a prospective juror who cannot distinguish between probable and possible is properly challengeable for cause and that the trial court abused its discretion in denying such a challenge. Too, the legislature was very specific when it promulgated the procedures for assessing the death penalty, and this Court is bound by those procedures. The legislature required “probability,” and so must this Court. “In this case, two jurors appear from the record to be unable to distinguish ‘probability’ and ‘possibility.’ Brooks stated that the probability is ‘a chance,’ while Williams ‘continued to reiterate that she believed probability and possibility mean the same thing.’ Murphy v. State, slip op. at 10, supra. Under Hughes, Brooks and Williams were properly challengeable, and the trial court abused its discretion in denying appellant’s challenges to them. “The next issue is harm. Although I would find an abuse of discretion as to Brooks and Williams, neither served on the jury, and appellant has not complained that he has suffered harm by the need to expend peremptory challenges. He has therefore failed to establish harm, and I would find that the error in denying his challenges for cause was harmless.” Banking, Business and Contracts

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