John Kyle Lockard v. The State of Texas--Appeal from 364th District Court of Lubbock County (majority)
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NO. 07-10-00430-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 28, 2012
JOHN K. LOCKARD, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-419,440; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, John K. Lockard, appeals his conviction for murder and resulting
ninety-seven-year sentence. On appeal, he complains that the trial court violated his
rights to due process and due course of law by refusing to answer a jury question
regarding consequences of a verdict of not guilty by reason of insanity. We will affirm.
Factual and Procedural History
On March 1, 2008, appellant called 911 to report that he had shot his ninety-fouryear-old grandfather in the head with a shotgun.
Appellant raised the defense of
insanity at his murder trial. The jury heard evidence that, as appellant grew into an
adult, he began to display erratic, unusual behavior and that, in the days preceding the
shooting, he had become increasingly paranoid and delusional. In fact, his mother
testified that, on the morning of the shooting, he had displayed strange, confused
behavior. Appellant presented evidence that he had been diagnosed with psychotic
disorder.
The jury also heard evidence concerning the history of mental illness in
appellant’s family. Appellant testified that he had not slept the night before the shooting
and, at the time of the shooting, felt as though he were in a dream-like, disconnected
state of mind in which his memories are disjointed and blurred.
About one-half hour after the jury heard all the evidence and retired to deliberate,
it sent a note out to the trial court, asking as follows: “[T]he Jury would like to inquire as
to the disposition of Mr. Lockard if we find him not guilty by reason of insanity, if
possible.” The trial court responded as follows: “Members of the jury, I cannot answer
the question that you’ve asked other than to refer you to the Court’s Charge.” Defense
counsel acknowledged the statutory basis for the trial court’s refusal to provide the jury
with the substantive law on disposition in the event the jury found appellant not guilty by
reason of insanity, but he lodged an objection that the governing provision denied
appellant due process and due course of law. The trial court overruled appellant’s
objection, and the jury deliberated two more hours before returning its guilty verdict.
On appeal, appellant reiterates his position. He advances his position in one
issue: whether appellant was denied due process and due course of law when the trial
court refused to answer the jury’s note with substantive law regarding the civil
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commitment procedures to be followed in the event the jury returned a verdict of not
guilty by reason of insanity.
Standard of Review and Applicable Law
Due Process and Due Course of Law Challenges
We review the constitutionality of a criminal statute de novo as a question of law.
See Owens v. State, 19 S.W.3d 480, 483 (Tex.App.—Amarillo 2000, no pet.). When
reviewing the constitutionality of a statute, we presume that the statute is valid and that
the Legislature did not act arbitrarily and unreasonably in enacting the statute. See
Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App. 2002) (applying presumption “that
the legislature acted in a constitutionally sound fashion”).
A party challenging the
statute bears the burden of showing that, in its operation, the challenged statute was
unconstitutional as applied to him. Id.; see State ex rel. Lykos v. Fine, 330 S.W.3d 904,
910 (Tex.Crim.App. 2011). In the absence of evidence supporting the challenge, the
presumption of constitutional validity remains in force. Eguia v. State, 288 S.W.3d 1, 11
(Tex.App.—Houston [1st Dist.] 2008, no pet.) (citing Rodriguez, 93 S.W.3d at 69, and
Vuong v. State, 830 S.W.2d 929, 941 (Tex.Crim.App. 1992)).
Due process requires only that the most basic procedural safeguards are
observed. Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281
(1977). “States have considerable expertise in matters of criminal procedure,” and it is,
therefore, appropriate to exercise “substantial deference to legislative judgments in this
area.” Herrera v. Collins, 506 U.S. 390, 407, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)
(quoting Medina v. California, 505 U.S. 437, 445–46, 112 S.Ct. 2572, 120 L.Ed.2d 353
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(1992)). The State has the power to regulate the procedures under which laws are to
be carried out without violating the Due Process Clause, unless it offends some
principle of justice so deeply rooted in the traditions and conscience of our people as to
be ranked as fundamental. See Patterson, 432 U.S. at 201–02. In the field of criminal
law, the U.S. Supreme Court has “defined the category of infractions that violate
‘fundamental fairness’ very narrowly” based on the recognition that, “[b]eyond the
specific guarantees enumerated in the Bill of Rights, the Due Process Clause has
limited operation.” Medina, 505 U.S. at 443 (quoting Dowling v. United States, 493 U.S.
342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)).
Disposition of Appellant Upon Verdict of Not Guilty by Reason of Insanity
The Texas Code of Criminal Procedure provides very specific procedures to be
followed in the event a defendant is found not guilty by reason of insanity. See TEX.
CODE CRIM. PROC. ANN. arts. 46C.155–.270 (West 2007). Article 46C.154, however,
prohibits disclosure of these procedures to the jury:
The court, the attorney representing the state, or the attorney for the
defendant may not inform a juror or a prospective juror of the
consequences to the defendant if a verdict of not guilty by reason of
insanity is returned.
Id. art. 46C.154 (West 2007).
Though appellant appears to challenge the propriety of the trial court’s refusal to
provide the jury with the substantive law regarding disposition in the event of a verdict of
not guilty by reason of insanity, he seemingly acknowledges that the trial court’s
response to the jury’s question was governed and limited by article 46C.154.
4
His
contentions on appeal focus, instead, on a challenge to the constitutionality of article
46C.154 as it applies here when it prohibited the trial court from issuing a supplemental
charge in response to the jury’s question. As we read appellant’s issue, he complains
that, by precluding the trial court’s supplemental instruction regarding disposition upon a
finding of not guilty by reason of insanity, article 46C.154 operated to deny appellant’s
rights to due process and due course of law.
Prior Constitutional Challenges
Article 46C.154’s predecessor1 withstood similar challenges, most notably in
Robison v. State, 888 S.W.2d 473 (Tex.Crim.App. 1994), cert. denied, 515 U.S. 1162,
115 S.Ct. 2617, 132 L.Ed.2d 859 (1994), and Zwack v. State, 757 S.W.2d 66
(Tex.App.—Houston [14th Dist.] 1988, pet. ref’d).
In Zwack, the appellant attacked the constitutionality of that portion of former
article 46.03 which, like article 46C.154, prohibited the trial court, prosecutor, and
defense counsel from informing a juror or prospective juror of the consequences to the
accused if a verdict of not guilty by reason of insanity is returned. See Zwack, 757
S.W.2d at 69. More specifically, he complained of “the failure of the trial court to answer
an inquiry from the jury as to the consequences” of such a verdict. Id. In support of his
position, Zwack argued that article 46.03 denied him fundamental fairness and urged
1
Article 46C.154’s predecessor, article 46.03, section 1(e), similarly provided as follows:
The court, the attorney for the state, or the attorney for the defense may
not inform a juror or a prospective juror of the consequences to the
defendant if a verdict of not guilty by reason of insanity is returned.
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the court to adopt the rationale of Lyles v. United States, 254 F.2d 725 (D.C. Cir. 1957).
See Zwack, 757 S.W.2d at 69.
In addressing appellant’s contentions, the Zwack court first noted that it was
unable to “discern any constitutional infirmity in the statute” and that Zwack had “not
supported his contention with convincing argument.” Id. The court went on to observe
that, even before the enactment of the provision at issue, Texas courts have
consistently held that the statutes prescribing the disposition of a defendant found not
guilty by reason of insanity are “a guideline for the court and not for the jury’s
consideration.” Id.2 The Zwack court continued, distinguishing the basis for the Lyles
decision: “[T]he rule announced by the District of Columbia Circuit Court of Appeals in
Lyles was not based upon constitutional principles but upon its rule-making authority.”
See Zwack, 757 S.W.2d at 69. Finally, the court deferred to the Legislature on this
matter of public policy. See id.
About six years later, the Texas Court of Criminal Appeals addressed the same
contention. See Robison, 888 S.W.2d at 476–77. Based on the rules applied in other
jurisdictions, Robison complained “that failure to instruct the jury on the consequences
of a finding of not guilty by reason of insanity violates his constitutional right to due
course of law and due process under article 1, section 19 of the Texas Constitution and
2
Citing Holder v. State, 643 S.W.2d 718, 721 (Tex.Crim.App. 1982); Granviel v.
State, 552 S.W.2d 107, 122 (Tex.Crim.App. 1976); Belachheb v. State, 699 S.W.2d
709, 712 (Tex.App.—Fort Worth 1985, pet. ref’d); Heflin v. State, 640 S.W.2d 58, 60
(Tex.App.—Austin 1982, pet. ref’d); Finch v. State, 638 S.W.2d 215, 217–18
(Tex.App.—Fort Worth), pet. dism’d, 643 S.W.2d 415 (Tex.Crim.App. 1982) (per
curiam).
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the Fifth and Fourteenth Amendments of the United States Constitution.” See id. at
476. Both Robison and the Robison court acknowledged the issue raised was identical
to the issue addressed in Zwack. Id. at 477. Ultimately, however, because the cases
upon which Robison relied did not address the issue in constitutional terms, the Robison
court declined to reach the constitutional challenge.3 Id. at 476–77.
Like Zwack, Robison urged the Texas Court of Criminal Appeals to adopt the
rationale of Lyles. Robison, 888 S.W.2d at 477. After explaining the reasoning in Lyles
and acknowledging that its “rationale for providing such an instruction is persuasive,”
the Robison court concluded that, simply because the approach advanced by Robison
was adopted in other jurisdictions, the contrary position was not necessarily a violation
of Robison’s right to due process or due course of law: “[W]e fail to see where the policy
decisions of our sister courts throughout the union are ever raised to the level of a due
process right or a due course of law right.” Id. In overruling Robison’s point of error, the
court expressly agreed with the opinion in Zwack and, as did the Zwack court, deferred
to the Legislature where it had spoken on such matters. Robison, 888 S.W.2d at 477.
Dealing again with a challenge to article 46C.154’s predecessor, the Texas Court
of Criminal Appeals briefly revisited the issue a few years later only to reaffirm–and
arguably clarify–its holdings in Robison:
3
Although the Texas Court of Criminal Appeals did not engage in an extensive
analysis of Robison’s contentions in terms of constitutional rights, the same defendant
later brought a federal habeas corpus proceeding raising the same constitutional
challenge. See Robison v. Johnson, 151 F.3d 256 (5th Cir. 1998). The Fifth Circuit
Court of Appeals held that Robison failed to make a substantial showing of a denial of
the claimed constitutional right. Id. at 268.
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The Texas Legislature has clearly stated that no party, including the trial
court, may inform a juror or a prospective juror of the consequences to the
defendant if a verdict of not guilty by reason of insanity is returned. In
denying similar contentions from other appellants, we have held that
Article 46.03, § 1(e), does not violate the Constitution and that informing
the jury of the consequences of finding a defendant not guilty by reason of
insanity is a policy matter exclusively within the purview of the Legislature.
Moore v. State, 999 S.W.2d 385, 404–05 (Tex.Crim.App. 1999) (internal citations
omitted) (citing Robison in support of conclusion that section 1(e) of former article 46.03
did not run afoul of constitutional protections); see Dial v. State, No. 03-98-00040-CR,
1999 Tex. App. LEXIS 3366, at *22–25 (Tex.App.—Austin May 6, 1999, pet. ref’d).
Nature of Appellant’s Issue on Appeal
When the trial court responds substantively to a question the jury asks during
deliberations, that communication essentially amounts to a supplemental jury
instruction, and the trial court must follow the same rules for impartiality and neutrality
that generally govern jury instructions.
Lucio v. State, 353 S.W.3d 873, 875
(Tex.Crim.App. 2011); Daniell v. State, 848 S.W.2d 145, 147 (Tex.Crim.App. 1993).
Appellant attempts to distinguish Zwack and Robison by characterizing those cases as
dealing with denial of a jury instruction and the instant case as one dealing with the trial
court’s failure to answer a jury note. However, in response to the jury note, appellant
sought and was denied what is effectively a supplemental jury instruction, the trial
court’s refusal of which is, then, the functional equivalent of the denial of a supplemental
jury instruction. See Earnhart v. State, 582 S.W.2d 444, 450 (Tex.Crim.App. 1979)
(concluding that “referral to the original charge is not considered an additional
instruction”).
So, while appellant attempts to distinguish the issues in Zwack and
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Robison from the issue he raises, we find no discernible basis for such a distinction and
find guidance from both cases.4
Analysis
We are persuaded and bound by Zwack and Robison, respectively.
To the
extent Robison addressed the issues raised in the instant appeal, we are “bound by the
precedent of the Texas Court of Criminal Appeals and [have] no authority to disregard
or overrule” it. See Bolen v. State, 321 S.W.3d 819, 828 (Tex.App.—Amarillo 2010, pet.
ref’d) (quoting Sierra v. State, 157 S.W.3d 52, 60 (Tex.App.—Fort Worth 2004), aff’d,
218 S.W.3d 85 (Tex.Crim.App. 2007)). We only limit Robison’s binding effect “to the
extent” it applies because the Robison court expressly declined to reach the
constitutional issues.
However, Robison does touch on an issue central to the constitutional issues
raised here: “[W]e fail to see where the policy decisions of our sister courts throughout
the union are ever raised to the level of a due process right or a due course of law
right.” Robison, 888 S.W.2d at 477.5 That is, Robison concluded that reliance on
contrary positions from other jurisdictions does not elevate the right at issue here to
fundamental fairness, the denial of which could serve as a denial of due process or due
4
Further, we note that Zwack specifically dealt with “the failure of the trial court to
answer an inquiry from the jury as to the consequences” of a verdict of not guilty by
reason of insanity. Zwack, 757 S.W.2d at 69.
5
Further, as we have noted, it would appear the Texas Court of Criminal Appeals
itself has read Robison to, at a minimum, have a bearing on constitutional issues. See
Moore, 999 S.W.2d at 404–05; Bigby v. State, 892 S.W.2d 864, 889 (Tex.Crim.App.
1994).
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course of law. See id. Likewise, we are not persuaded that the application of article
46C.154 operated here to deprive appellant of fundamental fairness. See Medina, 505
U.S. at 443; Patterson, 432 U.S. at 201–02. We recognize and respect the basis upon
which appellant seeks a change in this area of the law. However, like the Robison
court, we observe that simply because other jurisdictions have taken a contrary position
on this issue does not mean that the position adopted in Texas deprives appellant of
fundamental fairness. See Robison, 888 S.W.2d at 477. Article 46C.154, as the trial
court applied it here, does not “offend[] some principle of justice so deeply rooted in the
traditions and conscience of our people as to be ranked as fundamental.”6
See
Patterson, 432 U.S. at 201–02.
Further, we find guidance from both Zwack’s and Robison’s deference to the
Legislature on this matter: should there be the need or call for a change in the policy on
this particular issue, that change should be analyzed and implemented by the
Legislature, if at all. See Robison, 888 S.W.2d at 477; Zwack, 757 S.W.2d at 69. We
must begin with the presumption that a challenged provision is valid and the Legislature
did not act arbitrarily or unreasonably by enacting it, and appellant’s contentions have
not overcome that presumption. See Rodriguez, 93 S.W.3d at 69. Having concluded
that appellant has failed to establish that the trial court applied the mandatory prohibition
of article 46C.154 in a manner that deprived appellant of fundamental fairness, we
overrule appellant’s issue on appeal.
6
In fact, we note that article 46C.154 and the trial court’s adherence to it here
are consistent with the recognized notion that a jury should not be concerned with the
consequence of its verdict. See Patterson v. State, 654 S.W.2d 825, 827 (Tex.App.—
Dallas 1983, pet. ref’d).
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Conclusion
Having overruled appellant’s issue, we affirm the trial court’s judgment of
conviction.
Mackey K. Hancock
Justice
Publish.
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