Jаmes Lee BEATHARD, Appellant, v. The STATE of Texas, Appellee.
No. 69474.
Court of Criminal Appeals of Texas, En Banc.
March 8, 1989.
Rehearing Denied May 10, 1989.
767 S.W.2d 423
Joe L. Price, Dist. Atty., Groveton, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION
CAMPBELL, Judge.
Appeal is taken from a conviction for capital murder.
The appellant was convicted of intentionally causing the death of Marcus Hathorn in the course of committing and attempting to commit the offense of burglary. Appellant raises five points of error. He argues that the evidence was insufficient to prove that the murders occurred during the course of a burglary; that there was insufficient corroboration to support the accomplice testimony of Gene Hathorn; that the indictment was insufficient because it failed to allege the elements of burglary within the capital murder charge; that the judge‘s failure to instruct the jury at the punishment phase concerning appellant‘s right not to testify requires a new trial; and that the judge erred in denying appellant‘s motion for new trial because of newly discovered evidence after Hathorn recanted his prior testimony. We will affirm the conviction.
Appellant and Gene Hathorn, Jr., appellant‘s accomplice, became acquainted while working at the State Hospital at Rusk. Both living in Rusk, the two men continued their friendship after appellant left his job at the hospital. Recurrent topics of conversation were Hathorn‘s desire to commit “the perfect murder” and his wish to kill his father, stepmother, and half-brother, a wish motivated by animosity and the pros-
On October 9, 1984, appellant and Hathorn left Rusk and went to Nacogdoches, ostensibly for appellant to check some books out of the library at Stephen F. Austin University, where appellant had formerly been a student. The two went to Nacogdoches by way of Gallatin, in Cherokee County. Appellant had relatives who owned property near Gallatin. There, appellant and Hathorn conducted some target practice with Hathorn‘s shotgun. When finished, they went on to Nacogdoches. While in Nacogdoches, the two went to several highly visible places in addition to the library. When finished, they drove on to Hathorn‘s parents’ home in Trinity County, near Nogalus Prairie.
Hathorn testified that when he and appellant arrived at his parent‘s home, they got out of the car. Hathorn gave appellant a .380 pistol, a Ruger Mini-14 rifle, and cellophane packets containing the hair and cigarettes butts that they were going to leave at the scene. Hathorn kept the shotgun. Thus armed, the men cut through the woods until they got to the driveway leading to the Hathorn‘s trailer. They followed the driveway until they reached the clearing around the trailer. At this point, they followed the tree line around the clearing to the trailer. Hathorn went behind the trailer, and appellant went to the back door. Once positioned, Hathorn fired a shot through a large back window. When the shot was fired, Mr. Hathorn was sitting with his back to the window with his head visible above the top of the sill. Upon hearing the shot, appellant was to enter the back door with the remaining two weapons in order finish any job that the shotgun blast failed to do, plant the evidence, and remove agreed upon items of property. Hathorn said that he heard shots fired from inside the trailer. A few minutes later, appellant came out the front door of the trailer carrying a video cassette recorder, a video disk player, and a number of the Hathorn family‘s guns. They both loaded the items into the car. Hathorn drove a van belonging to the victims, and appellant drove the car in which they had arrived. Hathorn drove to Nigton, a “predominantly black” area. There, he left the van on a residential street and joined appellant in the car they had brought. Next, they drove to Nacogdoches, stopping twice to drop the items removed from the trailer, the pistol, and the rifle off of two different bridges into two different rivers. Arriving in Nacogdoches, they returned to the library to check out an additional book. Completing this, they returned home.
Crime scene investigators and a forensic pathologist testified about the physical evidence discovered. The evidence and testimony of these witnesses corroborated, as far as possible, Hathorn‘s version of the facts. The forensic pathologist testified that all three victims had wounds from a shotgun blast or blasts. In addition, Mr. and Mrs. Hathorn had fragments of glass and other debris in their wounds which would be consistent with a shotgun being fired through a window. He went on to say that, based on his examinations, the shotgun wounds of the victims were the first gunshot wounds to be inflicted. Assuming that the shotgun wounds occurred simultaneously, the additional gunshots to Mr. and Mrs. Hathorn, whose bodies were found in the living room, were inflicted next, and the additional wounds to Marcus, the Hathorn‘s son, whose body was discovered in a bathroom, were inflicted last. Investigators at the crime scene stated that the pattern of buckshot which hit the ceil-
Appellant testified and denied his complicity in the murders. He admitted that he accompanied Hathorn to Gallatin and to Nacogdoches; however, he said that he agreed to leave Nacogdoches with Hathorn because he was offered an opportunity to make $2,000 by participating in a drug transaction. Appellant‘s account of the trip to the Hathorn residence coincided with that of Hathorn until the two arrived at their destination. Appellant said that the two drove all of the way up the driveway and to the trailer. He said that Hathorn instructed him to stay outside while he went into the trailer to conduct his transaction. Hathorn went to the door, knocked, and entered the trailer for a short while. After leaving the trailer, Hathorn went to the car and retrieved the shotgun. Hathorn, who was now wearing rubber gloves, then went to appellant, who was standing away frоm the mobile home near a camper trailer parked in the yard, and told him, “I don‘t want to have to do it this way.” Hathorn then rapidly turned and fired the shotgun through the back window “as if he were shooting skeet” and shouted “Mommy and Daddy get down somebody‘s shooting at us.”2 He then said to appellant “If I go down you go down. Shoot anything that moves.” And, then handed appellant the shotgun. Hathorn then ran off, but appellant did not see where Hathorn ran because he laid down on the ground. At this point, appellant said that he did not see Hathorn in possession of any other weapons and, at that point, had not seen any weapon, other than the shotgun, during the evening. “A few seconds later,” appellant heard three or four shots fired rapidly, a pause, and a similar group of shots. Unsure of what was happening, appellant said that he crept into the edge of the woods and hid. After a while, appellant worked his way back to the camper and shouted for Hathorn. Hathorn shouted back for appеllant to get back in the car. From the point appellant returned to the car, the two men‘s stories again coincide.3
In his second point of error, appellant argues that the evidence was insufficient to prove that he killed Marcus Lee Hathorn while in the course of committing burglary upon the habitation of Gene Hathorn [Sr.]. This point of error focuses on the burglary component of
In judging the sufficiency of the evidence to sustain a conviction, this Court will compare the evidence adduced to the judge‘s charge to the jury in order to determine whether a rational trier of fact could find all requirements set out in the charge beyond a reasonable doubt. Marras v. State, 741 S.W.2d 395, 408 (Tex.Cr.App.1987) (and cases cited therein). The instructions to the jury required the jury to find, beyond a reasonable doubt, that appellant intentionally killed Marcus Lee Hathorn “while in the course of committing or attempting to commit burglary of a habitation owned by Gene Hathorn.” Further, the charge stated that “A person commits burglary of a habitation if, without the effective consent of the owner, he enters a habitation with intent to commit a felony or any theft.” [emphasis added]. For purposes of this point of errоr,5 the evidence is sufficient if the jury could find, beyond a reasonable doubt, that appellant entered the Hathorn residence with intent to commit a felony.
Recently, this Court has held that an unlawful entry into a habitation with the intent to commit murder will satisfy the burglary element of a capital murder charge. Fearance v. State, (Tex.Cr.App. No. 69,024 delivered Dec. 7, 1988) (not yet reported, slip op. at pp. 10-11). Therefore, if the jury could reasonably have found from the evidence that appellant entered the Hathorn residence with the intent to commit murder, then the evidence is legally sufficient.6 Hathorn expressly stated that appellant agreed to a plan by which he would enter the trailer after Hathorn fired the shotgun and kill the occupants. Hathorn also testified that appellant had gone to the back of the trailer, that there were gunshots fired from within the trailer, and that, after the shots were fired, appellant exited the front of the trailer. In addition, testimony showed that the guns that Hathorn said that he gave to appellant were the same оnes that caused the deaths of all three occupants. Based on this evidence, a rational trier of fact could have easily found, beyond a reasonable doubt, that appellant entered the trailer and that entry was with the intent to commit murder. Appellant‘s second point of error is overruled.
In his third point of error, appellant argues that there was insufficient evidence to corroborate the testimony of accomplice, Gene Hathorn.
Appellant correctly argues that “[n]o one may be convicted on the basis of accomplice testimony without other evidence which corroborates the accomplice testimony and tends to connect the defendant with the commission of the charged offense.” Cockrum v. State, 758 S.W.2d 577, 581 (Tex.Cr.App.1988);
The State arguеs that the fact that the Hathorn van had been moved 18 miles to Nigton serves to corroborate the accomplice testimony. This argument reasons that a single person could not, within the time frame established by other evidence, have driven the van to its destination and walked back to the Hathorn‘s trailer in order to pick up the other car. In addition, a witness testified that, at about 9:15 P.M. on the night of the murder, he saw the Hathorn‘s van being followed closely by another vehicle, and appellant admitted that he aided in moving the van to Nigton. The State is correct that this evidence sufficiently proves that two people were at the murder scene and participated in moving the van. This evidence, however, does not “tend to connect” appellant to the crime. Mere presence of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony. E.g., Brown v. State, 672 S.W.2d 487, 489 (Tex.Cr.App.1984). In addition, this element of “corroboration” merely proves details of the accomplice‘s testimony. It does not corroborate a fact which tends to connect appellant to the killing. Losada v. State, 721 S.W.2d 305, 308 (Tex.Cr.App.1986); Paulus v. State, 633 S.W.2d 827, 844 (Tex.Cr.App.1981). No matter how convincingly proven, the fact that some person helped Hathorn move the van does not disprove appellant‘s exculpatory version of the facts and fails to connect appellant to the commission of the killing.
The State argues that, because items taken from the Hathorn residence and one of the murder weapons were found where the accomplice witness said that they would be found, Hathorn‘s testimony was corroborated. Analytically, this is identical to the State‘s previous argument. Discovery of these items does corroborate the accomplice‘s testimony that the items were thrown from specific river crossings. This physical evidence, however, does not corroborate accomplice‘s assertions which connect appellant to the commission of thе murders. Losada, supra; Paulus, supra. Therefore, this evidence does not tend to connect appellant to the commission of the offense within the framework of
The State contends that testimony from the accomplice‘s wife corroborated accomplice‘s testimony. She testified that, on the night of the murders, Hathorn told her that they were to go to his parents’ home the next morning. Again, this testimony represents corroboration of a detail which fails to connect appellant to the commission of the offense. Losada, supra; Paulus, supra.
Hathorn, in a taped conversation with Neil Shriver, admitted that he murdered his family and that he was assisted by an unnamed person.7 The State argues that this prior consistent statement serves to prove that Hathorn was aided in the commission of these murders. Coupled with proof that appellant was the only oth-
What kind of attack upon the witness opens the door to evidence of prior statements by the witness consistent with his present story on the stand? When the attack takes the form of impeachment of character, by showing misconduct, convictions or bad reputation, it is generally agreed that there is no color for sustaining by consistent statements. The defense does not meet the assault. Further, if the attacker has charged bias, interest, corrupt influence, contrivance to falsify, or want of capacity to observe or remember, the applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.
McCormick on Evidence, supra at 118-19 Here, the underlying basis for the accomplice witness rule effectively challenges the witness‘s character and places bias at issue. Hathorn had every reason to tell Shriver the same story that he told at trial — Hathorn knew at that time that appellant was present at the scene and, if appellant‘s version were a true statement of the facts, that appellant posеd the greatest threat as a source of inculpatory evidence. Because, in this situation, the witness‘s prior consistent statement fails to address the questions of credibility which underlie
Neil Shriver and Larry Brown both testified that, before the murder, Hathorn attempted to recruit them to participate in a scheme to murder his parents. Each of these solicitations involved plans similar to that which was ultimately used and would have required Hathorn‘s assistant to actually participate in the killing. Such testimony is to be distinguished from Hathorn‘s prior consistent statement because it was not a potentially self-serving assertion of fact. Instead, this testimony serves to show that Hathorn wanted somebody to help him with the killings. The relevance of this testimony is to prove that Hathorn had formed a specific plan for killing his parents. Coupled with the assumptions that Hathorn stаyed with his original plan and that the events of the murder comported with that plan, one can infer that anyone accompanying Hathorn on the night of the murders did so pursuant to that plan. Because the corroborative value of the testimony rests in part upon two assumptions, the validity of which we cannot be certain, the corroborative strength of this testimony is also uncertain.
Similar to Hathorn‘s attempts to solicit help in committing the murders is the testimony of Cathy Ross8 concerning conversations that she overheard between appellant and Hathorn. Ross testified that, on more than one occasion, she heard appellant and Hathorn discussing a plan to commit the “perfect murder.” Whether these conversations represented the planning of an actual murder or merely a hypothetical one, they serve to show that Hathorn had formed a plan and that appellant
Cathy Ross testified that on the weekend before the murders occurred, appellant went to the Stephen F. Austin library and checked out some books.10 In addition, this was the first time that appellant had gone to the university‘s library since he had dropped out of school. Appellant‘s sudden decision to, twice in one week, check out books from this library is suspicious given appellant and Hathorn‘s apparent11 attempt to use the time-stamped books as an alibi. “Proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.” Brown, supra at 489 (and cases cited therein). While not independently sufficient to corroborate Hathorn‘s testimony, Ross‘s testimony provides a “suspicious circumstance” which tends to corroborate thе testimony by suggesting the existence and implementation of a plan.
Independent evidence which generally tends to prove that an accomplice witness‘s version of events is true, rather than the version given by the defendant, is considered corroborative, even if it concerns a mere “detail,” as opposed to a substantive link between the defendant and commission of the offense. See Brown, supra at 489; Paulus, supra at 845. The remaining corroborative evidence, while coming from various sources, is all of this variety. First, ballistics evidence concerning the point from which the shotgun blast was fired supports Hathorn‘s testimony and is contrary to that of appellant.12 Second, appellant testified that, when Hathorn fired the shotgun he did not have the rifle in his possession. Hathorn testified that he fired the shotgun and that appellant immediately entered the back door and began to fire. The pathologist testified that the bullet wounds to Mr. and Mrs. Hathorn were inflicted very quickly after they were struck by the shotgun pellets. Under аppellant‘s version of the facts, Hathorn had to fire, give appellant the shotgun and instruct him to “shoot anything that moves,” run toward the back of the trailer, retrieve the rifle from the car, return to the back of the trailer, enter the trailer, and begin to fire. Hathorn‘s version is more consistent with the pathologist‘s testimony concerning the time between shots.13 Third, Hathorn
Given appellant‘s admitted presence at the scene of the crime and the number of factors which we have found that tend to connect appellant to the crime, we hold that the evidence is sufficient to corroborate the testimony of Hathorn. Appellant‘s third point of error is overruled.
In his first point of error, appellant argues that the indictment was insufficient because it failed to allege the elements of the burglary which was used to bring this murder under
In appellant‘s fifth point of error, he claims that the trial judge erred in refusing to give the jury a “no-adverse-inference” instruction concerning his failure to testify at the punishment phase of trial. The State responds that appellant waived his Fifth Amendment privilege by testifying at the guilt/innocence stage of the trial and was therefore not entitled to an instruction. Alternately, the State contends that if the failure to instruct the jury was error, the error was harmless.
First, we will decide whether appellant waived his Fifth Amendment rights by testifying during the first portion of his trial. In Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969), the defendant testified at the guilt/innocence phase of his trial and was convicted. The indictment alleged a number of prior convictions for enhancement purposes. During the punishment phase, the State called the defendant as a witness in order to prove those convictions. The defendant objected on the basis of the Fifth Amendment. The trial judge overruled the defendant‘s objection, compelling defendant to testify. In a case of first impression,14 this Court held that, for purposes of Fifth Amendment waiver, the punishment and guilt/innocence portions of a criminal trial are to be treated as separate hearings. Id. at 741. Thus, defendant‘s waiver during guilt/innocence did nоt carry over to punishment. We reversed that conviction.
The State counters that in Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986), later proceeding Penry v. Lynaugh, cert. granted (on separate grounds) 487 U.S. 1233, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988), this Court held that a defendant waives his Fifth Amendment right to be warned prior to psychiatric examination15 when he introduces evidence of insanity at the guilt phase of his trial. Although correctly stating our holding in Penry, this argument fails because of factual distinctions between these cases. When a defendant introduces evidence of insanity, the State may compel him to submit to psychiatric examination. Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906,
Upon request from a defendant, a trial judge must instruct jurors that they may not draw any adverse inference from a defendant‘s failure to testify. Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121-22, 67 L.Ed.2d 241 (1981). The right not to testify continues beyond conviction until after a defendant has been sentenced. Brown v. State, 617 S.W.2d 234, 237 (Tex.Cr.App.1981); Brumfield, supra at 735. Therefore, because appellant‘s right against self-incrimination extended to the punishment phase of trial and that right had not been waived, appellant was entitled to a “no-adverse-inference” instruction upon timely request.
Finding error, we now must determine whether the error was harmless.16 Normally, because this is an instance of charging error with timely objection, we would apply the “some harm” test set out in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985); c.f. Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988). However, the Supreme Court has stated, “The application of a state harmless-error rule is, of course, a state question where it involves only errors of state procedure or state law.” Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705 (1967). When an error implicates rights flowing from the United States Constitution, we must apply the harmless-error rule enunciated by the Supreme Court. Id. Before a “federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24, 87 S.Ct. at 828. This is the same standard imposed by our general harmless-error rule.
The right to a “no-adverse-inference” instruction is rooted in a jury‘s natural tendency to assume that the decision not to testify stems from a defendant having something to hide. See generally Carter v. Kentucky, supra. In the instant case, this was not a concern. By testifying during guilt/innocence, the jury heard numerous things from the appellant.17 In addition, the State presented no evidence at the punishment phase. Thus, appellant was not placed in a position where the jury would expect him to counter factual assertions made by the State. In fact, if the jury was to draw any improper inference from a failure to present a case, it would have been made against the State.18 Appellant did, however, call six witnesses.19 Limited to the unusual factual setting of this case, we find that the trial judge‘s error in failing to give a “no-adverse-inference” instruction was, beyond a reasоnable doubt, harmless. Appellant‘s first point of error is overruled.
Under the law applicable at the time when judgment was filed, appellant had thirty days to file his motion for new trial based on newly discovered evidence.20
Having considered the appellant‘s points of error and finding no reversible error, we affirm the judgment of the trial court.
CLINTON, J., concurs in result.
MILLER, J. dissents.
TEAGUE, Judge, dissenting.
I respectfully file this dissenting opinion.
James Lee Beathard, henceforth appellant, was convicted of capital murder. After the jury answered the special issues that were submitted to it pursuant to
Appellant testified at the guilt stage of the trial but did not testify at the punishment stage of the trial.
During the punishment phase of appellant‘s trial, appellant timely objected to the trial judge‘s failure to instruct the jury on appellant‘s failure to testify at that stage of the trial. Appellant complains on appeal of the trial judge‘s action in his fifth point of error. The majority оpinion agrees with appellant that the trial judge erred, but further holds that, because it cannot find that the error made any contribution to the jury‘s answers to the submitted special issues, the error is harmless. Because I disagree with the latter holding, I respectfully dissent.
We hold that where a request is made to the trial court to add to its charge at the punishment stage of the trial an instruction on the failure of the defendant to testify, or an objection is made to the omission of such charge, it is reversible error if the trial court fails to honor that request or objection because we find that ‘members of the jury, unless instructed otherwise, may well draw adverse inferences from a defendant‘s silence,’ at the punishment phase of the trial, just as they could from the defendant‘s silence at the guilt-innocence stage of the trial. ‘No judge can prevent jurors from speculating about why a defendant stands mute ..., but a judge can, and must, if requested to do so, use the unique jury instruction to reduce that speculation to a minimum.’ See Carter, supra, [450] U.S. at page [288], 101 S.Ct. at 1113. (First emphasis supplied; second emphasis is in the original opinion.)
Also see Stewart v. State, 666 S.W.2d 548 (Tex.App.-5th 1984) (State‘s P.D.R. refused). Thus, before today, it was axiomatic as a matter of state law that under no circumstances could the failure to give the instruction, when requested, be harmless error. Today, however, a new majority of this Court applies to appellant‘s contention the harmless error test set out in Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826-27, 17 L.Ed.2d 705 (1967), and finds that the error was harmless beyond a reasonable doubt. Given what this Court unequivocally stated and held in Brown, supra, I totally disagree with the majority opinion‘s holding that the error was harmless beyond a reasonable doubt. Furthermore, the State in this cause has not proved, beyond a reasonable doubt, that the error made no contribution to the affirmative answers that the jury returned to the special issues. See
This Court probably has more harmless error tests than any other supreme court in the nation. We have a harmless error test that was devised in Almanza, supra, for “normal” jury charge error; we have a harmless error test that is found in
I have no problem with any of the above. Just recently, a majority of the Supreme Court of the United States in Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100
In this instance, the State has clearly failed to establish beyond a reasonable doubt that the refusal of the trial judge to instruct the jury on appellant‘s failure to testify did not contribute to the affirmative answers that the jury returned to the special issues that werе submitted to it to answer. Especially is this true as to the affirmative answer to special issue number 2.
Many of us have heard from former and present experienced prosecutors, as well as from many trial and appellate court judges, ministers, and social workers that the first step that the defendant must take towards rehabilitating himself, which is in part what second special issue asks, is for him to come forward, bare his soul, and repent in public for all of his sins and crimes that he has committed in the past. Whether this is a valid or rational statement is not the point; the point is that most lay persons actually believe the above statement.
Our statutory law, see
In Brown, supra, the principle of law set out in
Who is the person that can best tell us whether appellant will commit criminal acts of violence in the future? The answer, of course, is obvious. It is appellant himself who can best supply us with that answer. In fact, just recently in Montoya, supra, this Court so found: “The appellant was also the only one who could testify as to whether ‘I‘m going to commit acts of violence in the future.‘” (744 S.W.2d at 36). All other persons who testify on the issue of future dangerousness are either just speculating, or, in the case of the likes of Drs. Grigson, Griffith, and Schroeder, just making an educated guess the defendant will in the future commit criminal acts of violence that will constitute a continuing threat to society.
The majority opinion states in footnote 17 that “Aside from a plea for mercy, which was made by appellant‘s mother, we can think of nothing else that appellant could have said during the punishment phase that he had not already said [at the guilt stage of the trial].” I thought Mon-
It is true that at the guilt stage of the trial appellant informed the jury about certain things. It is also true that there is no provision in our law for the defendant to testify over objection at the guilt stage of the trial that he wants mercy from the jury; that he will not in the future commit criminal acts of violence that would constitute a continuing threat to society; that he is remorseful; that he acknowledges all of his former transgressions; and that he has enterеd into a truce with sin. Nor can he perform at the guilt stage of the trial as Reverend Jimmy Swaggart did on national television. That kind of testimony can only be adduced at the punishment stage of the trial, and only the defendant himself can testify that he is now on the road that is free of sin and that he will not in the future commit criminal acts of violence that would constitute a continuing threat to society.
The majority opinion is just dead wrong when it states that appellant could not have said more during the punishment phase that might have persuaded the jury to return a negative answer to the second special issue. The majority opinion is just merely speculating from its appellate perch where it states that “Aside from a plea of mercy, which was made by appellant‘s mother, we can think of nothing else that appellant could have said during the punishment phase that he had not already said.”
In holding that the error was harmless, I believe that what the author of the majority opinion, on behalf of himself аnd those who join his opinion, is really saying is that the error would not have affected his own decision or would not have contributed to his own verdict had he been on the jury. He cannot, however, without speculating, state why he believes it did not affect the jurors in this cause. Also see Black v. State, 723 S.W.2d 674, 682 (Tex.Cr.App.1986) (Teague, J., dissenting opinion).
Because the author of the majority opinion appears to place so much emphasis upon appellant‘s mother‘s plea for mercy, in making the determination that the error was harmless, I am compelled to ask this question: Had Reverend Swaggart sent his mother, rather than himself to testify on national television, and had she asked the audience for forgiveness for her son, how much of an impact would this have had on the audience?
In this instance, I suspect that before each and every member of this Trinity County jury decided to answer the second special issue in the affirmative, deep down in their hearts, they wanted appellant to perform much like Reverend Swaggart did on national television, and because he did not testify at the punishment stage of the trial, and also because they were not told by the trial judge that they could not draw an adverse inference from appellant‘s failure to testify, it is reasonable to assume that they did draw adverse inferences on appellant‘s failure to testify.
For good discussions on the role that the jury charge plays in a criminal trial in Texas, see Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982) (Opinion on State‘s Second Motion for Rehearing), and Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1980) (Opinion on State‘s Motion for Rehearing) (“We believe that the charge to a jury represents the distilled and abstracted wisdom of many trials, appeals, and teachings of many great legal minds, both past and present, whose attention has been riveted on the subject of instructions to the jury. The charge should resemble a gem that has been cut and polished by the hard edge of legal experience obtained from both within and without our criminal justice system.“) (738).
Therefore, I expressly dissent to the majority opinion‘s overruling appellant‘s fifth point of error.