Help..brain fried..

In a capital murder where the charge is causing the death of more than one person in the same criminal transaction and the cause of death of the two victims is gunshot wound to the head....can anyone think of a good reason why the defense should be allowed to voir dire on probation and the lesser offense of murder?

It seems to me the defense should be able to assume the State might fail to prove the "capital element" and thus utilize such questions. The court appears to have accepted such assumption in Pieringer, 139 S.W.3d at 717. Even though in Mohammed, 127 S.W.3d at 169 the court said there was no error in restricting voir dire to the State's theory of the case, it further held the error was not preserved. But, in any event, no juror should be disqualified based on disagreement with a punishment provision not applicable to the case. Under Santana, it appears you are gambling on whether there is any harm based on what the evidence ultimately shows.

Tried a double murder capital. One victim died several weeks later from complications from gunshot wound. Different ME did autopsies on victims. Second ME botched autopsy (Harris Co.) HCME would only send first ME and hid second ME from subpeona. At trial First ME had problem testifying from second ME report as to actual cause of death. Couldn't eleiminate interveaning factors. Jury found defendant guilty of murder. Crappy facts but it has happened to me.

Apparrently, the standard is not "if Leonard can't think of it, you don't get it." All of the cases address the court's failure to include a lesser instruction on facts similar to mine and they say that the D was not entitled. Only problem? The cases are based on the trial evidence-one thing you don't have at voir dire.