








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0853-13


HAYWARD GEORGE SLATER, JR., Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY



 Meyers, J., filed a statement dissenting to the refusal of Appellant's
PDR.

DISSENTING STATEMENT


	Appellant was charged with capital murder.  During voir dire, the State told the
jury that it "has to find the Defendant not guilty of the greater offense or have a
reasonable doubt and resolve that doubt in favor of the lesser offense before it can
consider the lesser offense."  Appellant objected that this was a misstatement of the law
and that "The jurors are called upon to consider the charge as a whole in every aspect of
conduct that the Judge submits for their consideration, they must take in consideration. 
They don't have to acquit somebody of anything.  They have to-under Barrios, they have
to take in consideration all the conduct submitted." (1)  The trial court overruled his
objection.  The jury found Appellant guilty of capital murder and he was sentenced to life
in prison.  Appellant appealed, arguing that the trial court erred in overruling his
objection.  The court of appeals affirmed the trial court's judgment and Appellant filed a
Petition for Discretionary Review arguing that "The Court of Appeals disregarded
Barrios v. State and has improperly allowed the State to specifically misstate the law that
the jury must acquit of the greater offense before it could consider any lesser included
offenses."  
	I think we should have granted and considered the merits of Appellant's Petition
for Discretionary Review for several reasons.  First, the prosecutor's statements during
voir dire were a misstatement of the law.  Second, the prosecutor should not be
commenting about the jury charge during voir dire when he could not possibly know what
the charge is going to include until both sides have presented their cases and the parties
have held a jury-charge conference with the trial judge.  The evidence raised at trial may
not have even revealed the possibility of any lesser-included offenses being included in
the jury instructions.  Third, the prosecutor's statements may have forced the defense to
voir dire the jury on issues that may not be relevant to the case or to make statements
about the case that he did not want to reveal at that particular time.  In order to respond to
the voir dire statements by the prosecutor, the defense could have had to reveal privileged
or prejudicial information.  Finally, the court of appeals did not adequately consider the
issue of the prosecutor's statements during voir dire, instead focusing on the language
that was later included in the jury charge.  Slater v. State, No. 02-11-00368-CR, 2013
Tex. App. LEXIS 7343 at *10-13 (Tex. App.- Fort Worth, June 13, 2013) (mem. op., not
designated for publication).  The judge allowing the prosecutor to voir dire the jury
regarding lesser-included offenses at this point in the trial is a significant situation that
warrants our consideration.  Therefore, I respectfully dissent to the Court's refusal of
Appellant's PDR.

Filed: September 25, 2013
Publish




1. See Barrios v. State, 238 S.W.3d 348 (Tex. Crim. App. 2009).
