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Criminal Law No. 1037-02, 7/2/2003. Click here for the full text of this decision FACTS: This court granted review to determine the proper harm analysis to apply when a trial judge uses an improper hypothetical in voir dire to illustrate a proposition of law. HOLDING: Reversed and remanded. The Morrow and Lane hypotheticals amounted to misstatements about the elements of capital murder – allowing a jury to find mere intentional conduct, rather than an intentional killing, sufficient to prove capital murder. Morrow v. State, 753 S.W.2d 372 (Tex. Crim. App. 1988). Lane v. State, 743 S.W.2d 617 (Tex. Crim. App. 1987). And in so doing, the hypotheticals also mislead the jury about deliberateness – leading the jury to believe that the deliberateness punishment issue was satisfied by a mere intentional killing. Relieving the state of the burden of proving an intentional killing at the guilt stage implicates at least two constitutional guarantees: a due-process or due-course-of-law right not to be convicted on proof of less than the elements of the crime and the right to a jury trial on all elements of the crime. Misdefining the deliberateness issue similarly implicates the defendant’s constitutional right to have the state prove that punishment issue. But the present case does not involve a constitutional issue. The trial judge did not misstate the range of punishment, nor did she misstate the law regarding punishment enhancement, which was the only discrete punishment issue to be decided in this case other than the assessment of punishment itself. At most, the trial judge mistakenly presented, as eligible for the lower range of punishment, a situation that could not, in fact, be presented to a jury because some of the facts were based upon evidence the court may not be permitted to admit. The trial judge did not, however, say that onlyher proposed hypothetical would be eligible for the minimum punishment. She carefully told the jury she could not tell them what circumstances would be eligible for the minimum penalty. The jury was not foreclosed from considering for the minimum punishment a scenario that did not include a victim’s statement about punishment, nor was the jury told it necessarily had to consider for the minimum punishment the scenario offered by the trial court. Rather, the trial court’s hypothetical was used simply to illustrate that there might be a situation where mitigating circumstances would warrant imposing the minimum sentence. The court holds that the inclusion of inadmissible evidence in a hypothetical designed to illustrate the range of punishment does not by itself rise to the level of constitutional error. Constitutional error might be shown if the evidence were inadmissible for constitutional reasons. But the court finds nothing in the federal or state constitutions that would prevent a victim from recommending leniency in the matter of punishment. Any error associated with the trial court’s hypothetical was harmless. OPINION: Keller, P.J.; Womack, Keasler, Hervey, Holcomb and Cochran, JJ., join. Price and Johnson, JJ., concurred in the result. DISSENT: Meyers, J. “I disagree with the majority that the issue in this case is simply ‘the inclusion of inadmissible evidence in a hypothetical designed to illustrate the range of punishment.’ The issue instead is a misstatement of the law which resulted in a jury that was not properly qualified to consider the range of punishment. The defense attempted to resolve this by moving to quash the venire and then by challenging for cause each veniremember. The trial judge denied both requests and the jury was subsequently chosen from a panel of veniremembers who had effectively been told by the trial judge that a victim can tell the jury if he or she wants the defendant to be leniently punished. “The right to an impartial jury is a constitutional right, as is the right to the assistance of counsel. The trial judge’s misinterpretation of the law and denial of appellant’s motion to quash the venire interfered with appellant’s ability to conduct a defense and with the intelligent use of peremptory strikes. Because the entire panel was biased on the issue of punishment and the trial judge denied the challenges for cause, appellant was forced to use peremptory strikes for veniremembers who should have been stricken for cause.”

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