Beltran v. State

appealed She her conviction to the Second Appeals, Court of pub affirmed in a BELTRAN, Appellant, Noe opinion. lished King v.

302 (Tex.App. 1985). Worth — Ft. Texas, The Appellee. STATE of petition In her discretionary review, appellant contends the Appeals Court of No. 68877. erroneously affirmed the trial court’s deni- quash al of her motion to the information. Court of Appeals Texas, Criminal Appellant filed quash a motion to alleging, En Banc. alia, inter information does not state “[t]he April 15, 1987. place where the offense except took the offense occurred in ‘public place’.”

In her brief submitted to the Court of

Appeals, appellant pointed “public out that

place” “any place means pub- which the

lic or group a substantial public includes,

access and to, is but not limited

streets, highways, and the common areas schools, hospitals, apartment houses, of- buildings, facilities,

fice transport

shops.” Tex.Rev.Civ.Stat.Ann., Art.

6701¿ 1(a)(4); V.T.C.A., Penal Code Sec. — 1.07(a)(29). argued She then that her mo- quash

tion to should granted have been

because the allege information did not

type public place. Appeals Court of

relied on prior three cases decided

expanded definition “public place”

holding that it is unnecessary allege

anything more “public place.” than

They correctly did not address

lant’s claim upon based the current law at

the time.1 Also see Adams v. Therefore,

S.W.2d 900 (Tex.Cr.App.1986).

the cause is remanded to the Court of

Appeals to address claim. This expresses opinion

Court regarding the disposition

ultimate of this issue. judgment Appeals of the Court of

vacated and the cause remanded for fur- proceedings

ther in accordance this with

opinion.

ONION, P.J., DUNCAN, J.,

dissent to remand. V.T.C.A., 1.07(29)

1. See dissent Justice Ashworth. Penal Code Sec. and the

place points proper perspec- error in tive.

The evidence Enrique shows that Arechi- ga wife, Carmen, and his oper- owned and ated the Disco de Factory Oro Tortilla Enrique Brownsville. testified that he first noticed the “robber” p.m. around 2:20 on son, March 1981. At the time his Valen- tin, standing near the giving cash box change customer, to a while Carmen stood by waiting the counter on En- customers. rique testified point- that the intruder first pistol Valentin, ed a immediately at who unspecified handed over an amount of mon- ey point from the cash drawer. At this Jeffrey Jackson, L. Michael J. McNa- said, Carmen moved toward the drawer and mara, Harlingen, appellant. wants, money.” “If that’s what he Accord- Cantu, Jr., Reynaldo Atty. ing Enrique, S. opened up Dist. and “She the drawer Garcia, A. Atty., Gilbert Asst. Dist. and handed money.” over another bunch of Brownsville, Huttash, Atty., stated, Robert Enrique my State’s also “When wife hand- Austin, for the State. ed him money, over this second bunch of at

that same moment the individual fired.” “Q you saying Are she was still in the handing money act of he when OPINION fired? ONION, Presiding Judge. opened “A At the same time that she up money drawer and throws appeal is taken from the conviction him, he fires. V.T.C.A., Code, murder. Penal “Q money you do 19.03(a)(2). How much think was penalty death was as- § in that cash box at that time? by jury sessed the court after the returned findings affirmative to the two is- Eighty sixty “A dollars in bills.” $1 pursuant sues submitted 37.- Article working he Valentin testified that was 071(b)(1) (2), and V.A.C.C.P. appellant entered. tortilleria when appeal appellant points On raises ten sports He stated that he had noticed a car error, relating stage all .of pull up alley in the next to the tortillaria trial. He contends the in court erred ad- shortly and that thereafter he “saw this mitting probation officer’s file in- pointed gun into the door and man come ” sheet,” cluded FBI “rap an that the court said, and ‘El dinero!’ failing grant erred a new trial because “Q say? What did he misconduct, that the evidence was said, I “A He ‘El dinero!’ After that insufficient to sustain the affirmative an- gave I him the opened the cash box. swer to Issue No. submitted un- money. 37.071, supra, der Article and that that, my gave him “After mother failing court erred to receive the more, he shot. some and verdict, leaving Special Issue No. 2 unan- the door that he came “He went out swered. him. in. I tried to run after Although appellant does not chal- had get alley but the car “I lenge sufficiency of the evidence to already left. guilt sustain the conviction obtained at the trial, my I see mother “I come back a recitation of all the guilt stage facts at the dead. of the trial will that, ambulance; graphs appellant’s left arm show- I called the taken of

“After they just took ing came and the tattooed initials ambulance the absence of my “LT,” mother.” supposed to “LX” or which were upper left have been on the assailant’s he also testified that saw Valentin composite according to a received forearm jump passenger’s into side into Defense counsel was the evidence. shooting took sports car after only witness called the defense before Benavidez, Guadalupe place. a former em- both sides closed. tortillaria, ployee at testified that appellant’s escape in the also observed points error In his first two sports car identified the vehicle. in admit- contends that the trial court erred made in- Enrique and an Both Valentin ting evidence a office file into They appellant. court identification of the 30) (State’s particu- Exhibit No. and more they previously had iden- also testified larly therein of an FBI the inclusion appellant’s picture photospread, tified sheet,” in overruling the motion for picking lineup. him of The as as out a well on the admission of said new trial based on lineup was conducted March exhibit. derringer pistol Both men identified the Lee Probation Officer Alfonse of Camer- during appellant robbery. wielded the Be- stage County penalty on testified at the of substantially navidez testified the same appellant in the trial he first met December appellant and as facts identified the vic- appellant placed proba- after was on tim’s assailant. driving felony of while tion the offense Guadalupe Rodriguez that on testified kept proba- a intoxicated. Lee testified 4, 1981, sitting March she was at home on appellant, tion file on was custodian the coming her when she heard a noise bed file, all and the file made entries therein factory. the from tortilla From her win- possession in his had been since Rodriguez saw a man out of the dow walk placed on He probation. was stated tortillaria then run a car and towards red normal course of entries were made parked alley. in the an- She testified that probation duties offi- carrying out his as person Rodriguez drove other the vehicle. probation other cer. It was shown that photograph identified a as Lee had access to the file and was officers being the same man who exited the tortilla- custody of always aware who had not ria and also made an in-court identification file. appellant. Appellant objected to Exhibit No. State’s According pathologist, to the Dr. Law- ground that of the informa- 30 on the much Dahm, rence the deceased died as result hearsay, gross had been tion the file was gunshot of a wound the chest. placed by individuals other than therein doctor testified that the bullet “nicked” the Lee for cross-exam- who were not available aorta, right lung deceased’s and struck had proper predicate ination and that causing it to burst. The destruction file’s as a laid for the admission busi- been pulmonary artery aorta and the resulted 3731a ness or record. See Articles official hemorrhaging filled quickly extensive and 3737e, V.A.C.S., in effect. The then chest with victim’s blood. bullet and the objection was overruled exhibit body side exited deceased’s on the left was admitted. top of her back. The bullet found on was Villarreal, by an a counter Raul emer- at the After both sides closed gency medical technician. read or before the exhibit was but appellant object- jury,1 had delivered Appellant’s attorney testified that he by again asked that Exhibit No. appointed represent been ed State’s the court least, withdrawn, not, at appellant. and if photo- He identified two objection argument parties agreed and overruled. 1. At oral second was made both did not No. see State’s Exhibit 30 until after 1979), FBI sheet” included therein be cert. den. 456 U.S. 102 S.Ct. pointed It (1982). withdrawn. was out that coun- “However, L.Ed.2d 491 circumstances, sel did not have sufficient time to examine some evidence within the file the entire when it was first offered. recognized of a exception ambit The court noted it had rushed counsel at hearsay rule is not admissible if it does not objection. the time and It allowed was have the indicia of reliability sufficient to argued report that the FBI not made was integrity insure the finding pro- of the fact probation ordinary officer in the cess commensurate with the constitutional business, placed course in the file rights of confrontation and cross-examina- 22, 1981, on June after the indictment had p. tion.” Porter at 746 and cases there setting been returned and after the first cited. 15th, the trial on June and over three The documents and letters in Porter months after Probation Officer Lee’s last were parole from a federal officer’s file appellant. Appellant argued contact with pertaining to the supervision defendant’s rap containing that the sheet “double and progress parole. while on federal De- triple hearsay” placed proba- into the termining “hearsay upon the letters were get tion file in order to it into evidence for hearsay” opinions, as well as this Court otherwise it could not be considered as wrote: Again, pointed admissible evidence. it was opinions “The sources of these are in probation entirety out that the file in its unnamed, most cases and in no case are “double, triple, quadruple was full of hear- the authors or the unnamed sources say,” including reports competent shown to be to make the mother-in-law, officer from etc. statements attributed to them. It defies objection State countered that the letters, suggest reason to these timely, specific enough was not was not merely they because were collected in a and that the FBI or NCIC record could be office, in government file a have the indi- considered an official record and ad- reliability cia of insure sufficient to the 3737e, missible under Article V.A.C.S. The integrity finding process of the fact com- objections and to motion withdraw the ex- rights mensurate with the constitutional hibit were overruled. of confrontation and cross-examination.” “rap p. McCrary It is that the FBI sheet” also observed Porter at 8746. See v. State, purports originate (Tex.Cr.App.1980) on its face to in Wash 604 S.W.2d 113 D.C., ington, purports (involving report); and it to have com officer’s 876, piled State, information from unnamed 494 882- received Coulter v. S.W.2d Houston, State, Bay (Tex.Cr.App.1973); sources in v. Brownsville and 883 Sisson City, All “rap Texas. The sheet” was of one 561 S.W.2d 197 “Beltran, “Beltran, in Noe Diaz” or Noe of the above cases resulted reversal. Dias,” per and it was not shown that the 37.071(a), V.A.C.C.P., pro Article person son named therein was the same as during pun part in relevant the vides Noe Beltran named the indictment. See capital phase ishment of a murder trial State, 439, (Tex. 441 Nichols v. 504 S.W.2d presented to may “evidence as mat Cr.App.1974). No one from the Federal court deems relevant to sen ter that the Investigation of the Bureau testified about at tence.” It follows that the trial court compilation “rap sheet.” Probation capital has wide penalty the of a case Officer entries Lee testified made all excluding admitting or evi discretion in compile into the file but he did not the FBI State, 393, 683 S.W.2d dence. Smith v. “rap sheet.” State, (Tex.Cr.App.1984); v. 578 405 Porter 742, (Tex.Cr.App.1979), cert. hearsay 748 exceptions

As rule S.W.2d 2046, 965, den., 3737e, V.A.C.S., 456 102 S.Ct. Article in exist U.S. 3731a 72. State, (1982); 609 trial, v. ence L.Ed.2d 491 Sanne at the time of the instant v. (Tex.Cr.App.1980);McManus applicable v. S.W.2d 762 to criminal cases. Porter (Tex.Cr.App.1979); State, 742, State, (Tex.Cr.App. 591 505 578 746 S.W.2d S.W.2d

387 State, (Tex.Cr. process a committee Hammett 578 699 lative House deleted S.W.2d App.1979); Felder v. from the sentence that the Senate version den., (Tex.Cr.App.1978); cert. exclusionary U.S. abolished the would have (1979); Rob L.Ed.2d 640 99 S.Ct. penalty phase rules of evidence in the of (Tex.Cr.App. inson v. 548 S.W.2d 63 only capital can mean that the trial. “This 1977). Legislature deliberately not to abol chose “However, only to this discretion extends legislative is ish rules. The intent those of the relevance facts question supra, at 417. Rumbaugh, clear.” 37.071(a), sought proved. to be Article Furthermore, is supra, does not alter the rules of evi- we have ruled there manner proof holding insofar is dence as our no conflict between contained during concerned. While facts exclusionary apply rules of evidence question may have the documents penalty phase previous our hold punishment, manner been relevant unadjudicated, ings extra that evidence of sought prove those State is at the neous offenses admissible denied his constitutional facts Rumbaugh, supra, phase capital of a trial. rights of confrontation and cross-exami- at Porter, supra, 748; also at see nation.” Smith, supra, at 405-06. given to Thus the wide discretion 37.071(a), the trial Article su court under unadjudicated, In the sense that extrane only question pra, of rele extends relevant, ous offenses are this Court sought proved. to be vance facts consistently ad held that such evidence is 37.071(a) Article does not alter the rules of penalty stage missible proof trial, evidence insofar as manner and that does murder such admission contained in process an concerned. While the facts deprive accused of due equal FBI doc protection under See sheet” and some law. (Tex. McCoy v. punish have may S.W.2d uments been relevant East Cr.App.1986); ment, in which the the manner State Smith, supra, (Tex.Cr.App.1985); sought ap facts prove these denied (and therein). cited cases rights of confron pellant constitutional his cross-examination. tation and Nevertheless, 37.071(a), supra, Article interpreted been never abolish argues objections The State that State, Rumbaugh v. rules of evidence. specific. sufficiently timely and were not 414, 589 416 (Tex.Cr.App.1979); S.W.2d general that when an points It rule State, King 109, v. (Tex.Cr. 657 111 S.W.2d and inad admissible exhibit contains both State, App.1983); O’Bryan v. 591 S.W.2d objection specifi must missible material the 464, (Tex.Cr.App.1979); Porter, supra; 475 objec cally material deemed refer to the State, (Tex.Cr. Cortez v. 308 571 S.W.2d State, 692 S.W.2d Brown v. tionable. See App.1978). thoroughly dis Court has (Tex.Cr.App.1985); Maynard v. 497, 501 legislative background Arti cussed the State, 60, (Tex.Cr.App. 685 S.W.2d 64-65 37.071(a), originally cle included State, 616 S.W.2d 197, 1985); Wintters v. proposed reading: Senate amendment v. Hernandez (Tex.Cr.App.1981); 202 “Any evidence the court deems State, 614, (Tex.Cr.App. 617 599 S.W.2d punishment probative have value [at 1980) Rehearing). Motion (Opinion on for phase] may admitted, regardless its of urges appellant did not The State that the admissibility exclusionary rules under objection comply he his first when made evidence, but the defendant shall be subsequent objections trial and that his any opportunity accorded fair to rebut disagree. Before too late. We Rumbaugh, supra, hearsay statements.” read Comment, or delivered 416; Bill exhibit was see also “House appellant explained the belatedness Legislative Attempt 200: Reinstate Texas,” objection “rap FBI sheet” Capital his Punishment 11 Hous.L. objections and 410, (1974). his During legis Rev. the court entertained 416-20 388 motions to withdraw the or in exhibit alter district year court for one for the offense “rap native sheet.” driving intoxicated, while second of- fense, and that his birth August date was The trial court in admitting erred into 2, Therfore, appellant years was 25 evidence including State’s No. 30 Exhibit age at the time of the offense and 26 State, the FBI however, sheet.” The years age at the time of trial. Of argues that even if the admission was er- course, introduced into evidence was ror, prejudicial. the error was not pre-We State’s Exhibit containing No. 30 the FBI termit discussion at this time of such “rap sheet” admissibility whose was con- disposition contention view of our appellant tested. The offered no evidence case. guilt stage at the of the trial. point In of error number five the It is well settled that in answering challenges lant sufficiency of the evi- special 37.071, issues under Article V.A.C. dence to sustain the affirmative find- C.P., including danger the issue of future ings 2, as to Issue No. “whether ousness, jury may consider all of the probability there is a that the defendant evidence guilt stage admitted at the first or would commit criminal acts of violence that State, bifurcated trial. Santana v. continuing would constitute a threat to so- 1, 714 S.W.2d (Tex.Cr.App.1986); 8 Fierro ciety.” 37.071(b)(2), Article Y.A.C.C.P. State, 310, v. 706 (Tex.Cr.App. S.W.2d 319 penalty stage At the of the trial the State 1986); State, (Tex. Garcia v. 626 S.W.2d46 testimony offered the of Brownsville Police Cr.App.1981), and cases there cited. See Guillen, Reynaldo Officer who testified he State, 238, also Russell v. 598 S.W.2d 254 appellant had known junior “since (Tex.Cr.App.1980); State, Russell v. 665 high” reputation and that his in the com- 771, S.W.2d (Tex.Cr.App.1983). 871 It has munity being peaceable for and law-abid- said been the circumstances of the ing good,” citizen was “not that was “bad.” offense, enough, if may severe alone be Former South Padre Island Police Officer support sufficient to an affirmative answer Troy 17, Clifton September testified that on to the second issue. v. Carter 1978, stopped appellant speeding in a State, (Tex.Cr.App.1986); 717 60 S.W.2d vehicle, appellant motor pas- and the State, 310, (Tex. Fierro v. 706 S.W.2d senger, Benavides, Ernesto both had blood- State, Cr.App.1986); Bush v. 697 S.W.2d eyes shot and smelled of alcohol. While (Tex.Cr.App.1985); Thompson v. attempting to handcuff Benavides at the (Tex.Cr.App. 691 S.W.2d scene, Troy Officer related that 1984); Smith v. face, stuck him in the and that he defended (Tex.Cr.App.1983); Roney by kicking appellant himself in the stomach (Tex.Cr.App.1982); Duffy S.W.2d using Troy mace to subdue men. both charged believed aggra- with guilt stage At the of the trial the evi- police driving

vated assault on a officer and shows, described, ap- dence as earlier that intoxicated, while appeared but he never in pellant, derringer, armed with a entered court, a knew, and as far as “nothing ever factory money. tortilla alone and demanded happened ... as a result of that.” deceased, Appellant shot the Carmen Men- Lee, Alfonso Hernandez a Cameron Arechiga, pushed money dez as she the officer, County probation testified that on towards him on the counter. 24, 1980, appellant November placed was 603, Roney, supra, p. In this Court probation on and that he first came into wrote: appellant 1, contact with on December

1980; appellant reported “Although that in December mur this was a senseless January 1981, der, and February, every and but not in in that fact is true of murder March; appellant’s robbery. that attitude towards course of a The facts of probation offense, alone, Only standing carry was indifferent. from the this do not probation records introduced we learn do marks a ‘calculated and cold-blood crime,’ appellant placed that appeared O’Bryan was on a ed such as

389 State, 464, 480, psychiatric and no years last five there was v. 591 S.W.2d where testimony candy- offered. planned the for months defendant life his own to collect poisoning of child In connection with considera ‘yes’ to support To answer insurance. a 30, this Court tion of State’s Exhibit No. issue, punishment the evi second determining sufficiency held that beyond must show a reasonable dence evidence, reviewing court must of the appel probability there is that a doubt evidence, properly whether consider all vio commit criminal acts of lant would improperly admitted. Chambers v. continuing would a lence that constitute State, 240, (Tex.Cr.App. S.W.2d 247 711 society. To hold that the facts threat 1986) (On Rehearing); for State’s Motion alone, offense, standing of this would State, 831, v. Gardner S.W.2d 835 699 verdict, such a mean that support would (On Appellant’s (Tex.Cr.App.1985) Motion every of a virtually murder in the course State, v. 677 S.W.2d Rehearing); Bain for robbery penal would warrant the death Porier 52, v. 51, (Tex.Cr.App.1984); 1 n. destroy a ty. Such construction would State, 602, (Tex.Cr.App. 606 662 S.W.2d punishment State, purpose v. 1984); 678 Garza see also S.W.2d cases, provide murder is to 1984, 183, Antonio (Tex.App. 193 —San State, and decision on v. a reasonable controlled Troncosa granted); PDR 670 im 671, death should be (Tex.App. whether the S.W.2d 679 Antonio —San guard capricious 1984, writ). posed, against applies and to its because This rule State, v. arbitrary imposition. illegal is Jurek and the admission evidence trial remedy is Ju proper and therefore the [Tex.Cr.App.1975]; 934 error 522 S.W.2d Texas, 262, 2950, the conviction and remand the rek v. 428 reverse U.S. 96 S.Ct. State, for a new trial. Adams v. 639 cause 49 L.Ed.2d 929 [1976].” 942, Gregg (Tex.Cr.App.1982); 943 S.W.2d penalty stage At the of the trial State State, 125, v. (Tex.Cr.App. 667 S.W.2d proved probation for that was on 420, v. Schmidt 1984); 659 S.W.2d driving felony while at the time intoxicated v. Collins (Tex.Cr.App.1983); offense, alleged that there had been (Tex.Cr.App.1980). 602 S.W.2d officer, upon police though a an assault claims instant In the case resulted, through apparently no trial and including No. 30 State’s Exhibit even with officer, reputation one as a “rap sheet” the evidence whole is being peaceable law-abiding and citizen support an affirmative find insufficient permit- In was bad. addition the was State dangerousness, ing the issue of future to introduce State’s Exhibit No. ted v. 2. See Porier No. Special Issue probation file, “rap including FBI (Tex.Cr.App.1984). Cf. sheet,” although improperly this ad- (Tex.Cr.App.1980); S.W.2d Collins ten ar- mitted. sheet” reflected State, der Roe Beltran, rests for a Noe a Noe Diaz Beltran ap In view ar- and a Noe Dias Beltran. Two of the contention, are free review pellant’s we convictions, one for driv- rests resulted properly improperly admitted both ing “drunk.” while intoxicated one for evidence. arrests, reflecting convic- The other intoxicated, deciding whether there tions, When driving were for while marihuana, auto,” support possession sufficient evidence to “drunk in finding probability there de aggravated peace assault on officer of criminal acts vio assault fendant will commit burglaries. Other than the three continuing officer, showing of that will constitute upon there no lence was society, this Court with of violence to any other act of violence connected threat light in the most (indepen- the evidence file must view said offenses. to determine sheet) appellant, verdict rap favorable dent of the shows fact could have time, had a a rational trier of 25-years-old at the had not whether 37.071(b)(2), Article the elements of juvenile adjudication found conviction 390

Y.A.C.C.P., beyond a although reasonable doubt. of the trial the same was not State, (Tex. See Santana v. 714 1 S.W.2d essential. testify One witness did State, Cr.App.1986), and Fierro v. 706 reputation “bad,” lant’s and (Tex.Cr.App.1986). S.W.2d 313 “Prior prior did previ- have criminal record as conduct, age criminal defendant ously only two, detailed. possi- There were psychiatric among and evidence are three, bly driving convictions for while in- deciding various other factors relevant in toxicated and “drunk.” These were all al- punishment the record Roney, issue.” su cohol related and were not shown to be pra at 601. Other factors have been dis unadjudicat- criminal acts of violence. The State, cussed v. 600 S.W.2d Brasfield ed offenses were not shown to involve (Tex.Cr.App.1980); State, Milton v. criminal acts of violence or assaultive of- (Tex.Cr.App.1980); 599 S.W.2d 824 Hovila except fenses upon the assault Officer State, (Tex.Cr.App.1978). v. 562 S.W.2d 243 Troy, who testified there had been no trial however, Psychiatric testimony, is not es “nothing happened.” had ever In or- support sential to an affirmative answer to support der to a “Yes” answer to the issue question dangerousness. of future dangerousness of future the evidence must State, (Tex.Cr. v. Carter beyond show a reasonable doubt that there App.1986); State, v. Williams 668 S.W.2d probability is a that the defendant would State, (Tex.Cr.App.1983); Mitchell v. commit criminal acts of violence that would (Tex.Cr.App.1983). 650 S.W.2d 801 continuing society. constitute a threat to 37.071(b)(2),supra; Roney, Article 603. In order to determine whether the present facts in the instant case were suffi viewing find We the evidence as a cient, may we look to other cases where the light whole and in the most favorable to present failed State sufficient evidence. jury’s verdict and under the test de- have, alia, We inter examined the cases of above, Santana, supra, scribed see State, (Tex.Cr. Roney v. 632 S.W.2d 598 Fierro, supra, there is insufficient evidence State, App.1982); Garcia v. 626 S.W.2d 46 support finding the affirmative (Tex.Cr.App.1982); Wallace v. second issue under Article 37.- (Tex.Cr.App.1981); S.W.2d 67 Brasfield 071(b)(2),supra. supra; Warren v. holding only penal- affects the death are, (Tex.Cr.App.1978). No two cases points ty assessed and other of error course, exactly alike. findings jury’s on the issue relative evidence, According to the State’s such, punishment. appellant’s other As clearly instant murder case was senseless concerning points of error errors at the unnecessary as most murders commit- penalty stage moot. trial are Sanne robbery ted in the course of a are. There 609 S.W.2d 762 showing robbery was no long that the Nevertheless, a brief discussion of planning or that murder or violence was points impor several of these of error are although intended was armed holding. background Ap our tant as a when he entered the facts store. Given the itself, points five of error con say they pellant advances of the offense we cannot cerning accept the trial court’s refusal to inherently support sufficient to finding which left Is question. affirmative There was as the verdict psychiatric penalty stage evidence at the sue No. unanswered.2 WHICH LEFT ISSUE NO. 2 on this issue read: MENT SPECIAL error Appellant’s points UNANSWERED. “(6) THE COURT ERRED IN DENYING AP- "(8) THE ERRED IN DENYING AP- COURT PELLANT’S MOTION TO RECEIVE THE REQUESTING MOTION THAT PELLANT’S JURY'S VERDICT ON PUNISHMENT WHICH PUNISHMENT THE JURY’S VERDICT ON LEFT SPECIAL ISSUE NO. UNANSWERED. SPECIAL ISSUES IN ANSWERING BOTH “(7) THE IN AP- COURT ERRED DENYING NOT BE RECEIVED. THE AFFIRMATIVE PELLANT’S MOTION FOR NEW TRIAL "(9) ERRED IN OVERRULING THE COURT RE- BASED ON THE COURT’S FAILURE TO TRIAL MOTION FOR NEW APPELLANT’S CEIVE THE JURY’S VERDICT ON PUNISH- REFUSAL TO AC- BASED ON THE COURT’S a verdict had been through the bailiff that charge The at the court’s the following judge the examined paragraph: reached. When included the following the took open court verdict Special Issue on which any “If is there unanimously place: not jurors of the is the vote (10) in favor of not least ten ‘Yes’ or Reyes Okay. Mr. “THE COURT: [the ‘No,’ be no then there shall an answer yes foreman], jury answered the Special Issue and the answer for that number 2. did not answer any sign his to Foreman should name Yes, is sir. That “THE FOREMAN: Special Ar- for that Issue.” See answer right. 37.071(e), ticle V.A.C.C.P. Is chance “THE there COURT: jury the retired The reflects that record you you if deliberations that continued penalty stage of the at the

to deliberate Question Num- to might be able answer p.m. August 1981. At on trial 3:04 2? ber court, to jury sent a note the p.m. the 5:09 Honor, I be- “THE Your FOREMAN: which read: by paper there. we went lieve that question blank if “May we leave one misun- maybe could have “I think we unanimously ‘yes’ or ‘no’ vote we cannot question we sent to on the last derstood referring votes? by 10 or more come you supposed we to whether 2.” question number to Issue questions. on an answer both to note, receipt the defense Upon me the “THE Yes. Give COURT: opinion that the it was his counsel stated note. specifically” charge this note “covers it put on the “THE You FOREMAN: jury specifical- refer urged the court to bench. charge ly proper paragraph Yes, well, the “THE answer COURT: The [quoted court declined above]. your delib- you should continue stating the be re- suggestion jury should guided by the instruc- and be erations charge “period,” not ferred to the tions. prepared an specific paragraph. The court you that my telling reading: purpose “The answer a verdict you could reach was to see your delibera- should continue “You if in this matter. guided the instructions tions and be Honor, charge.” I Your “MR. McNAMARA: request jury’s object and that the must objected to counsel be received. verdict At 5:25 answer3 which was overruled. have court “The instructions p.m. court’s answer was sent reported followed. p.m. jury At 5:44 been jury. suggests that the response the the note RENDERED CEPT THE JURY’S VERDICT verdict, they not. 2 UNAN- do ISSUE NO. LEAVING SPECIAL reach contrary WAS REN- WITH SUCH VERDICT SWERED the instructions "It is IN WITH THE they DERED COMPLIANCE not answer state that shall court which AND AS BY THE COURT CHARGE GIVEN jurors unless 12 in the affirmative the issues TO JURY'S THE REPLY THE WITH COURT’S negative ten agree, unless answer or REQUEST AS HOW TO FOR GUIDANCE TO suggestion of urge jurors agree, and that the NO. 2. ANSWER SPECIAL ISSUE charge pre- portion defendant "(10) ERRED IN OVERRULING THE COURT pointed out to viously record be into the read TRIAL MOTION FOR NEW APPELLANT’S court jury, alternative that the in the TO INSTRUCTION BASED ON THE COURT’S note, “Yes, you may leave answer FURTHER THE JURY TO DELIBERATE question blank.’ one A THEY HAD SUBMITTED EVEN THOUGH por- already that the I mentioned "I believe TO PURSUANT VERDICT TO THE COURT referring charge is con- I’m tion COURTS CHARGE AND THE THE COURT’S 1, 2, 2, Paragraph 3—Para- Item tained in REQUEST FOR THE JURY’S RESPONSE TO charge. graph in the 3 of Item 2 SPE- TO HOW TO ANSWER GUIDANCE AS Okay. objection will be "THE COURT: CIAL ISSUE NO. 2.” overruled.” objects to “MR. McNAMARA: Defendant note, response to as the court’s the court’s

“THE objection COURT: The will be “THE COURT: That is Only correct. Special overruled. Issue Number 1 was answered.” “My question you you to is that if p.m. At jury again 6:15 announced longer to deliberate for a continued while that a verdict had been reached. This time verdict, you might be able to reach a special issue number two was answered questions. be able to answer the affirmatively. request At the ‘ Yes, “THE FOREMAN: sir. jury poll only lant a special as to the second issue indicated that this was the you

“THE “verdict” COURT: You think can? jury. reached all members of the “THE I FOREMAN: believe we can. Okay. you

“THE I’ll COURT: ask to The contends the court erred in jury your accepting return to the room and resume Spe- verdict with cial Issue deliberations. No. unanswered. It is ob- served that the above events occurred on here, you you “While are I’ll ask 20, 1981, August days a few before 6:30, you if deliberate to about can’t (Acts 1981 amendment to Article 37.071 time, you reach a verdict at that if will 1981, 2673, 725, 1, Leg., p. 67th ch. eff. § know, please let me I’ll send off for some 31, 1981). August The 1981 amendment you you if food for and then see can requires the court to trial sentence a de- deliberate, you continue to to see can if imprisonment fendant life if jury Question reach some kind answer any special unable to answer issue sub- (Em- Okay? try.” Number 2. At least jury’s inability mitted. Thus “a to answer phasis supplied.) punishment question in a murder p.m. jury At 5:47 retired to deliberate sentencing case has the same effect as further, at defense counsel which time negative Padgett answer.” again specifically objected trial 55, court’s instructions: effect, however, amendment was not in Honor, “MR. McNAMARA: Your the time of trial. I strongly object this time to the instruc- (Tex.Cr. In Eads v. 598 S.W.2d304 given jury tions that were because App.1980), prior to the 1981 decided amend they can have no effect but to confuse ment, jury returned a “verdict” which charge. them on the special omitted answers to issues numbers charge clearly “The ‘If states that only special one and two and answered Special any there is Issue on which the accept number three. The trial court issue jurors unanimously vote of the is not imprison ed the “verdict” and assessed life (10) ‘Yes’ not at least ten favor ment. This Court found the “verdict” was ‘No,’ an answer of then there shall be incomplete and the trial court erred ac Special answer for that Issue and the cepting the same as a verdict and reversed sign foreman should not his name to In the conviction. Muniz v. Special answer form for that Issue. (Tex.Cr.App.1978),also decided S.W.2d 792 “This re- was the verdict amendment, judgment before the 1981 court, turned to the this was the verdict affirmed. In Muniz the of conviction was received, that should have and at been special issue unan jury left the second this time the defendant moves for a mis- judge retired the for swered and the trial. upon said issue. future deliberations Okay. “THE COURT: motion of discretion such There was no abuse mistrial will be overruled at this time. action, answering the sec and the verdict Honor, upheld. In “MR. McNAMARA: Your DeLuna ond issue was 44, (Tex.Cr.App. record does reflect Issue unanswered, 1986), the 1981 and 1985 Number was is that cor- decided after 37.071, supra, to Article rect? amendments4 1, 576, 1, 1985.) 1, 1985, (Acts 1985, Leg., Sept. Leg., Sept. § ch. eff. ch. eff. 69th § 69th 1985; 8(b); Leg., Acts 69th ch. Acts § felt after the dangerousness, future but no abuse of discretion under there was described, and where had there the issue judge’s circumstances instructions special did, the first jury believing had answered she answered and second, and the court not issue but new automatically get a trial. lant would jury future deliberations retired the for jury decide issue of Since we do not accepted. completed was later verdict misconduct, here no further comment need made. not judge trial did In the instant case the retiring jury for discretion in abuse his insufficient Since the evidence was given the circumstanc-

future deliberations support the affirmative answer to effect at time. es and law dangerousness and there issue of future indicate, however, dif- events do committed dur allegations error arriving at an answer ficulties ing guilt stage of murder dangerousness. issue of future trial, judg court’s we will reform trial deciding, we necessity Without Roney, imprisonment. See ment life appellant also contends there observe that Wallace, supra. supra, and jury misconduct at the was reformed, judgment, as is affirmed. other in that the received trial did not receive a fair evidence and (8), 40.03(7)and impartial trial. See Article WHITE, JJ., W.C. DAVIS hearing At the on the motion V.A.C.C.P. concur. affi- trial the introduced new Theresa jurors. CLINTON, J., concurs, davits from three Sister would add Streif, nun, men- two, a Catholic swore that she respect points one and with during verdict tioned deliberations so reports are data NCIC merely advisory judge and the could flawed, notoriously Gassett v. fit either sentence the defendant as saw (Tex.Cr.App.1976), 330-331 accepting rejecting the verdict. Juror for their the F.B.I. will not vouch that even enough Mabel Hanks swore there accuracy. evidence to convince her there was CAMPBELL, JJ., MILLER and probability dangerousness. of future She point of error disposition dissent judge, notes and his recited the question). (sufficiency number five answers, finally and stated she voted “Yes” she believed Sister Theresa because statement, and that Streif’s get judge new would trial or would give imprisonment regardless him life Mary Gaytan Juror she the verdict. swore did sufficient not believe the evidence affirmatively as to answer the issue

Case Details

Case Name: Beltran v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 15, 1987

Citation: 728 S.W.2d 382

Docket Number: 68877

Court Abbreviation: Tex. Crim. App.