Court of Criminal Appeals Update: Buntion v. State

Court of Criminal Appeals

Court of Criminal Appeals

Buntion v. State

NO. AP-76,769

Case Summary written by Keirsten Hamilton, Staff Member

JUDGE BROWN delivered the unanimous opinion of the court. JUDGE HERVEY filed a concurring opinion in which JUDGE KEASLER and JUDGE NEWELL joined. JUDGE ALCALA filed a separate concurring opinion.

In June 1990, James Irby, a motorcycle police officer, stopped a vehicle in which the appellant was a passenger. Officer Irby spoke with the driver outside the vehicle. At some point while the two individuals stood next to the vehicle, the appellant exited the vehicle, and shot Officer Irby in the head. The appellant subsequently shot Officer Irby two additional times. The appellant then fled the scene on foot and proceeded to commit multiple acts of violence in an effort to evade responding police officers.

In January 1991, a jury convicted the appellant, Carl Wayne Buntion, of capital murder for the June 1990 offense. The jury found the appellant guilty based on special issues addressed in Texas Code of Criminal Procedure Article 37.071, §§ 2(b), 2(e). Based upon the jury’s findings, the trial judge sentenced the appellant to death. On direct appeal, the appellate court affirmed the appellant’s conviction and sentence. The appellant petitioned for habeas relief; the initial petition was denied, but the court granted his subsequent petition, and remanded the case for a new punishment hearing.

In February 2012, at the trial court’s new punishment hearing, the trial judge sentenced the appellant to death. Per Texas Code of Criminal Procedure, Art. 37.0711, §3(j), the appellant was afforded automatic direct appeal to the Court of Criminal Appeals. On appeal, the appellant raised twenty-seven points of error; the court reviewed each point in turn, and determined all points to be without merit. Thus, the court affirmed the appellant’s sentence of death.

The court addressed the appellant’s points of error in the following seven categories: sufficiency of the evidence; juror disability; district attorney’s conduct and police presence; introduction of matters outside the record; voir dire—denied challenges for cause; motion to include life without parole; and future dangerousness special issue. Upon its review, the court found each point of error to be without merit.

Sufficiency of the evidence

The appellant claimed that insufficient evidence existed to “sustain the jury’s affirmative answer to the future dangerousness special issue.” The appellant claimed that no evidence existed to show that he would be a future danger and that the only relevant society that should be considered would be prison society. The court did not find the argument to be convincing, and denied his points of error regarding the sufficiency of the evidence.

Juror Disability

The appellant claimed in his first three points of error that the trial court should have removed, disqualified, or excused juror Kristi Kotsatos. The appellant claimed that because Kostastos was “psychologically crippled by the prospect of serving on a jury,” according to her own testimony, that the trial court abused its discretion. The court determined, however, that because the appellant failed to object to Kotsatos’s jury service during the initial trial, that the appellant did not preserve this point of error.

District Attorney’s Conduct and Police Presence

The appellant claimed that, among other things, pretrial publicity along with the trial court’s rulings, as well as the police presence denied him a fair trial. The court determined that the appellant did not prove error on any of the claims separately, and thus did not have a convincing argument that the “harms” together created a “cumulative harm.”

Introduction of Matters Outside the Record

The appellant claimed that the prosecutor interjected “impermissible evidence and argument into the trial court proceedings.” The court determined that because the appellant did not “provide[] specific record references to the relevant argument, evidence, and rulings from the trial proceedings.” Ultimately, the court determined that appellant did not show that the State “interjected information outside the record” and denied appellant’s points of error regarding this issue.

Voir Dire

After reviewing the appellant’s fourteen points of error regarding voir dire, the court noted that “to demonstrate reversible error, appellant must show that the trial court erroneously denied his challenges for cause to at least three of the eleven prospective jurors at issue.” The court reasoned that appellant failed to show that the trial court erred in denying his challenges for cause in such a manner that would satisfy his burden.

Motion to Include Life Without Parole

The appellant complained that his rights under the “Sixth, Eighth, and Fourteenth Amendments” were violated by the trial court. The appellant argued that the trial court should not have denied his motion to waive his right to parole as a sentencing option. The appellant argued that he should have been allowed to waive his right to parole under the previous punishment scheme, and to have the benefit of trial under Article 37.0711, and the jury instruction as to the resulting life without parole sentence. The appellant claimed that he needed the instruction because individuals expressed concerns to “local media that appellant could be released on parole if he received a life sentence.” Upon consideration, the court reasoned that the current punishment scheme did not “by its own terms . . . apply to an offense” that occurred in 1990. Ultimately, the court found that the trial court was correct in refusing to apply the current punishment scheme to the appellant’s offense.

Future Dangerousness

On the issue of future dangerousness, the court determined that the appellant’s claim as to whether the jury should have received the benefit of research suggesting “how prison society actually functions,” and that appellant statistically is “‘almost no threat at all’” to be unconvincing. The court did not find the appellant’s argument that “capital juries cannot accurately predict a defendant’s future dangerousness” to be persuasive. Furthermore, the court noted that no evidence existed to show that the appellant had raised these claims at the trial court; thus, the court found his claim to be inadequately briefed, and overruled his point of error regarding the future dangerousness special issue.

JUDGE ALCALA, concurring.

Judge Alcala wrote separately to address the possibility of the legislature adopting a provision to address the inequity of the current punishment and sentencing scheme when compared to the punishment of defendants convicted under the Tex. Code. Crim. Proc. art. 37.0711. Judge Alcala agreed with the appellant that defendants sentenced under the current provision set forth in Tex. Code. Crim. Proc. art 37.071 received the benefit of a jury instruction as to the current scheme’s death or life with no possibility of parole options, as well as the actual benefits that might occur as to the jury feeling less confined by the sentencing options. Appellant argued that the jury might feel that its “only alternative to a death sentence was a life sentence with the possibility of parole,” which might make it more likely that the jury would answer the question affirmatively as to the death sentence. Although Judge Alcala agreed that an inequity existed, because the sentencing scheme applicable to the appellant did not provide for this option, Judge Alcala agreed with the majority, but urged the legislature to consider adopting a “legislative enactment applicable to a defendant convicted of capital murder for an offense occurring before September 1, 1991, who intentionally, knowingly, and voluntarily waives his right to the possibility of a sentence of life with parole,” that would include a jury instruction similar to the instruction under art. 37.071.

JUDGE HERVEY, joined by JUDGE KEASLER and JUDGE NEWELL, concurring.

Judge Hervey wrote separately to address Judge Alcala’s suggestion for the legislature to include a provision allowing the possibility of life without parole. Judge Hervey noted that Judge Alcala’s suggestion “ignore[d] the fact that equity includes the right of the State of Texas to decide to seek the death penalty in the first place, and the right of the jurors to make an ultimate decision based on all the facts and their right to perform their duties based on the law provided by the Legislature at the time they carry out that heavy burden.” Furthermore, Judge Hervey noted that such a provision would potentially violate ex post facto laws.

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