Bender v. State

say is not to he could not be policy judgment appellant’s “malice” attempted capital aggravated murder or as- under the justifies circumstances holding sault, in that he peace fired officers “criminally him responsible” for a result apparent with an intent to kill. See Buba- we cannot easily conclude in ordinary supra, ny, at 308. terms alone “caused.” In adhering Blansett, to the errors of Whether policy such a is laudable is not supra, majority today engages in a the issue question here. The we should analysis. chaotic First it observes that “all confront, rather, supra, whether § appellant’s voluntary.” actions were At room impute allows for this Court to causa- true, 273. While that undoubtedly Blansett, tion as it did in supra. That is significance escapes me. majori- Next the thought what I we appellant’s peti- ty declares that under our caselaw “the tion to address. Because majority does is sufficient to appel- not, respectfully must dissent. lant intentionally knowingly caused the Captain death of Gray_” Presum- Id.

ably this simply statement is an observa-

tion which the majority then endeavors in

succeeding justify, sentences to for as

analysis utterly begs question. it What

follows, however, rationally sup- does not

port “By acting observation. intention- ally,” continues, majority presumably Harry BENDER, Appellant, Lincoln referring having gone to his armed into the station, police “appellant showed he was aware of the nature of his conduct and that Texas, Appellee. The STATE of initiating police a shoot-out in the station No. 596-85. result the death of one of the officers on duty.” Apparently by Id. Texas, Court of Criminal majority means that “con- En Banc. disregard scious life[,]” as Commission- Sept. Blansett, Dally put er it in was such as to impute awareness, i.e., to him an “knowl-

edge” that death would result. But result majority

from what? The seems further to

impute rea, causation from mens sequitur

it concludes a non “that

lant acted and therefore his ma-

licious conduct him was sufficient to hold

criminally responsible Captain Gray’s

resulting By death.” this I believe the

majority reiterates, awkwardly in terms

foreign statutory to our homicide scheme

(i.e., “malice”), the same mistake we Blansett, supra, identify guilty viz: to

intent, itself, nonspecific killing cause”) (“proximate

from it attribute cause escape

so as to the conclusion that Wind- may

ham’s act have been a concurrent reality making

cause.5 In the Court is law, distinction, 5. Even under California more than malice blur the as indeed have the required impute responsibility Caldwell, criminal People supra California courts. See provocation C.J., the accused. Some act or is also (Bird, dissenting). required, majority see text ante. The seems to

279 sustain con- appellant insufficient to viction.’’ argued

Appellant that the evidence his plea offered court before which was evidence was 1.15, Article accepted by the court under V.A.C.C.P., judgment, for its as the basis insufficient. and such evidence was that Appeals, unpublished opinion, stipulation and examined the used appellant that the forms filled in did not for and as to sustain constitute sufficient evidence and It reversed the conviction conviction. authority rendered “a without citation acquittal.” Bender v. State judgment of Dist.], (Tex.App. No. 01-84- [1st — Houston 1985). 0554-CR — review, petitions Ap- the State contended that the Court of peals and misconstrued the misread appellant into between the entered and offered to sustain State plea of contendere. We nolo petitions State’s determine correct- Ap- decision the Court of ness of the peals. appellant

It is or his counsel obvious stip- used County took Harris form Lawrence, Houston, R. Paul felony in a case ulations where lant. before the court conten- Holmes, Jr., Atty. B. John Dist. Roe through interlineation “modified” dere and Morris, M. Mil- McCarthy Eleanor and Jack have otherwise been a written what would lin, Houston, Attys., Asst. Dist. Robert judicial confession. The interlineation Huttash, Austin, Atty., for the apparently resulting modification was State. by the and the observed by the as were offered as “accepted by court the basis 1.15, V.A.C.C.P. judgment.” for its Article PETITIONS OPINION ON STATE’S question plea of that the FOR REVIEW There can be DISCRETIONARY voluntarily freely and nolo contendere was ONION, Presiding Judge. entered, duly appellant Waiving by jury, entered a trial consequences of the admonished trial to plea of nolo contendere in a bench 26.13, Article V.A. plea in accordance aggravated sexual assault the offense of appellant waived C.C.P. In addition the Code, V.T.C.A., Penal 22.- under §§ writing appearance, confrontation 011(a)(2)(A) 22.021(a)(5). The as- against him of witnesses cross-examination imprison- punishment years’ at 8 sessed against self- privilege and also waived ment. to both and consented incrimination evidence, appeal only point urged error oral and written On Appel- etc. V.A.C.C.P. the “evidence admitted See lant does not States, contend etc. In the same U.S. S.Ct. 57 L.Ed. (for etc.) rights, (1978), written form waiver of 2d 1 and Greene v. Massey, U.S. found typed (1978), of the indict- 98 S.Ct. 57 L.Ed.2d 15 ment. The first count was crossed on which held that .Jeopardy out the Double leaving only the form Clause of the Fifth Amendment precludes second consent to United States which the en- Constitution a sec- plea tered ond trial reviewing once the non-contendere. Below this has legally the evidence printed form is found the insufficient to state- ment, support the “I conviction. understand the above I they confess that are true and that jeopardy prohibi- While the said double the acts were committed on applicable states, tion is Benton v. _” While the date was filled in on 784, Maryland, 2056, 395 U.S. S.Ct. form, someone struck the words “... (1969), important L.Ed.2d 707 it is to note confess they [allegations] are true” that Burks and Greene involved contested and entered interlineations in ink which jury plea trials where the in each case was prevented stipulation being from judi- guilty” “not and where the burden was on cial confession when it by was sworn to prosecution each element of Thus, appellant. it is ap- obvious that the beyond the criminal offense a reasonable pellant or his counsel or someone took the doubt. Winship, See In re 397 U.S. County Harris stipulations form used for (1970). 90 S.Ct. 25 L.Ed.2d 368 plea where the felony before the court in a In the prior instant case the conviction case guilty or nolo contendere and plea involved a of nolo contendere before through interlineation “modified” what the court and a failure comply with a judi- have otherwise been written 1.15, supra. state statute. Article confession, cial standing which alone would Williams, parte Ex 703 S.W.2d 674 have been sufficient to meet the evidentia- (Tex.Cr.App.1986),it was held there no ry requirements 1.15, supra. of Article federal requirement constitutional that evi- The resulting interlineation and modifica- guilt dence of must be offered to corrob- tion of the form were apparently not ob- guilty orate a plea or nolo contendere in a served stip- State which offered the prosecution state criminal and that the “ra- ulations as accepted by evidence and “were tionality” test of Virginia, Jackson v. the court as the judgment.” basis U.S. 99 S.Ct. 61 L.Ed.2d 560 1.15, supra. (1979), application thereto, has no and that up” portion The “doctored of the waiver a defendant collaterally cannot attack the form as utilized was the basis of the com- sufficiency of the evidence to plaint appeal that the evidence was in- plea guilty or nolo contendere. sufficient. recently parte Martin, More in Ex The Appeals Court of found that (Tex.Cr.App.1988), reading reflected in held Court that Burks and do Greene not acquit sufficient evidence and ordered an apply in a federal constitutional sense to tal. If the is insufficient to federal state cases where the defendant requirements meet the of Article su intelligently voluntarily has entered a matter; pra, that acquit is one the order of plea contendere, noting tal is another. The cites Alabama, 238, 242, Boykin 395 U.S. no authorities for the order acquittal. (1969), 89 S.Ct. 23 L.Ed.2d 274 Surely a defendant who enters a nolo con plea made clear that such a is a conviction plea freely voluntarily tendere per nothing remaining with but for the court to plea despite sists in such the admonishment punishment determine judg and render consequences go is not entitled to ment. See and Federal Rules Cr.Pro. cf acquitted 11(f). free and stand because of the Rule Martin also made clear that acquit interlineation utilized. The order of comply the failure to the rather may (Article 1.15, tal well rest unique supra) Burks v. United Texas statute recommendation as does constitute federal constitutional There was Nevertheless, violation, punishment in this cause. Burks Greene nor render indictment, alleg- the first applicable, so that a defendant who intelli- offense, theory ing of the same another gently enters a dropped State. acquitted stand forevermore begins acknowledgement an crime.1 him, against reading in charges brought Thus, Greene are not a portion: relevant ordering acquittal in the in basis allege charges “The me Further, accepted case. if stant the court Texas, I, County, Harry Harris Lincoln such evidence as the basis for its Defendant, Bender, styled hereafter judgment, light there was trial error in of 1984, January 18, or heretofore on about 1.15, supra. Greene and unlawfully did inten- then and there ... Martin, application to have trial error. tionally pen- and cause the supra. vagina [A.M.B.], of the of here- etration judgment Appeals of the Court of is styled complainant, person after the cause is to reversed and the remanded the younger years age than fourteen of trial court. his in spouse placing finger not his vagina complainant.” the of the TEAGUE, J., dissents. portion This the the was for typewritten duplicate most CLINTON, Judge, dissenting. paragraph second of the indictment. What Upon of nolo contendere before handwritten, appears next and reads: the court appellant was convicted of the stipulate “I if further that [A.M.B.] aggravated offense of sexual assault under testify, testify called to she would that Code, the terms of Y.T.C.A. Penal 22.- §§ Co., January on in Harris Tex- 011(a)(2)(A) 22.021(a)(5), punish and his as, penetration vagina I caused of her eight years ment was assessed at in the finger.” my Department Texas ap of Corrections. On The form which peal challenged sufficiency in judicial continues the manner to support judg confession, viz: “I understand the above conviction, asserting ment of it that failed they I and confess that are true alleged to show that the victim the of alleged the acts above were com- spouse, fense was not his that she was a ...,” space mitted after on which a blank younger years age, 14 child than as provided Through in- to the date. alleged in In unpub the indictment. terlineation, by filling in the applicable opinion lished the First Court of date, it provision modified so that this contention, appellant’s Houston sustained now reads: court, judgment reversed trial “I understand above judgment acquittal. and ordered a testify to stipulate that [A.M.B.] State, v. 01-84-0554-CR, Bender No. deliv alleged acts above the above and that the 25, April ered We January were committed on 1984.” petition review to last, portion construing modified examine the State’s contention that stipulation, appeals the court of ob- failing apply to appeals court of erred in served, and then concluded: reasonably “the rule that are be used as liberally ef “A subordinate clause construed with view case, intentions.” O’Con fectuating In the instant both subor- parties’ noun. (Tex.Cr. nouns; they State, 401 as ner v. 238 dinate clauses are used S.W.2d objects. compound are direct Since App.1966). State, Rehearing), progeny are conflict and their 1. To the extent that S.W.2d Laflore they opinion overruled to the extent (Tex.Cr.App.1980), with this are and Thornton (Tex.Cr.App.1980) (Opinion on conflict. series, subordinate clauses are a a com- second stipulation, where- plete sentence should result when explicitly each in is set out the substance of clause is read with introductory noun “testify” Indeed, what A.M.B. would to. verb, Also, ‘I stipulate.’ the subor- apparently interpretation no other even oc- dinate clauses which are used as direct curred appeals. to the court óf objects compound; thus, are both clauses Even if we read “the above” to refer receive the action ‘stipulate.’ of the verb however, back to the paragraph, first liter- “Therefore, first subordinate ally construed, accomplish all this would stipulates clause that A.M.B. would testi testify A.M.B. would fy appellant penetrated that the vagi her appellant what already himself had ac- finger na with his January knowledged in that first paragraph, viz: (paragraph [2]). The second subordinate that the indictment allege did indeed stipulates clause that the acts younger she was years than fourteen paragraph [2], i.e., penetration age spouse. and not his Obviously, stipu- complainant’s vagina fin lating allegation that an has been made ger, on January occurred 1974 [sic]. does not allegation. Therefore, However, judicial there is no confession simply interpreting “the above” to embrace that he committed the the first paragraph does sup- not of itself alleged indictment, acts within the ply proof missing to establish the elements. there is stipulation no that A.M.B. was a person younger years age, than 14 of that, possible It is liberally, construed * that she appellant’s spouse.” was not stipulation testify the that A.M.B. would to finding, appeals On this the court of “the above” could be read to that she mean the evidence to be insufficient. every allegation would substantiate made In reaching this ap- result the court of in the paragraph stipulation, first peals interpreted phrase the in the third simply testify not that such paragraph stipulation, of the “that argues have fact been made. The State testify ...,” would to the above to [A.M.B.] such a construction would effectuate the refer back to the handwritten second parties. obvious intent of the All that paragraph wherein it was that if ascertaining par- on the intent bears of A.M.B. testify, were to it would be to the ties, however, that, by modifying effect “that January on in Harris paragraph stipulation, third appel- Co., Texas, [appellant] penetration caused unwillingness judi- lant manifested an to vagina, of finger.” her [his] cially to the in the in- confess argues State now that “the above” should pre- dictment. view of this we will not be read also to refer back to the first sume, absent a clear indication on the face stipulation, so as to in- itself, of the document an intent on clude the assertion that A.M.B. would testi- to every lant’s to element of fy January that on 1984 she had been necessary support judg- to offense person younger “a than years fourteen of ment of conviction. To hold otherwise age spouse,” and not his since this would suggest would that an intent parties effectuate the obvious intent of the judgment support sufficient evidence to that each element of the offense be covered of conviction will arise from the mere fact in order to judgment. contendere, of a

There problems facts, are number of with the coupled any stipulation re- position. place, In the first it seems gardless of whether that em- making reasonable to conclude that in every braces element of- handwritten in paragraph modification steadfastly fense. We refuse thus to “lib- stipulation, three of the “that A.M.B. erally way construe” such a above,” testify would what is re- statutorily pre- as to reduce the State’s earlier, handwritten, ferred to is the also proof. burden of See v. scribed Thornton * Emphasis original. emphasis supplied in the All other unless otherwise indicated. State, appeals. court of That (Tex.Cr.App.1980); ment of the acquittal, propriety order an but did indeed V.A.C.C.P. challenged. has not been of its order State, supra, relied O’Conner There, State, surmises, factually inapposite. gratuitously “The The majority heroin, the prosecution possession rest acquittal may well order of stipulated that the defendant ... and Green v. States v. United arresting However, testimony offer the officer Massey at 280. as the Court [.] ” trial, given examining at his correctly discerned: “as give testimony re- chemist would lessened not The state’s burden “... report at of his flected” in a the time contest, and the by plea analysis in the de- substance found every ele- contain must evidence He possession. fendant’s further stated uphold the ver- offense ment testimony that the contents of the officer’s 601 S.W.2d v. State dict. Thornton report “true and and of the chemist’s reh’g); (op. on (Tex.Cr.App.1979) offering actually Instead of correct.” 1.15'(Vernon art. Crim.P.Ann. Tex.Code evidence, however, prosecu- these into 1977).” paraphrased Ap- tor court. them rest on acquittal does not Thus order of pellant object. appeal he “in- did not On does Thornton Burks-Massey. Neither presented by sisted that the Martin, 747 S.W. supra. parte Ex State was authorized (Clinton, J., dis- (Tex.Cr.App.1988) 2d 789 parties entered into between 793-796). senting, at therefore insufficient show Id., effect, argued guilt.” at 238. In J., DUNCAN, joins. presentation because manner of there upon, valid evidentiary support judgment. for

Finding a clear intention that sufficient

evidence should in some manner be HERRING, Appellant,

presented, James Alton this Court construed the liberally, to include the actual manner utilized. Texas, Appellee. The STATE Having found no clear indication that No. 0720-88. intended to to the full substance of the offense Texas, Court of Criminal him, apply decline to of liberal we rule En Banc. missing construction to ele- Sept. proof ments of in the instant case. essentially majority agrees my The ground for

treatment the sole review

presented by petition the State its for and, thus, review However, for it

issue this Court. before acquittal

“the order another [matter].”

At 280. prayed PDR the State Schaffer, appeal only, Hous- Randy “reverse the decision of the Court of ton, appellant. PDR, Appeals.” at 6. Because we have Holmes, Jr., Timothy merit, Atty., Dist. ground review John B. found the without Zummo, Attys., Dist. Lisa Asst. prayed cannot be G. Taft and relief Huttash, Atty., Houston, granted. proper judgment rendered Robert Austin, judg- for the State. by this Court an affirmance of

Case Details

Case Name: Bender v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 27, 1988

Citation: 758 S.W.2d 278

Docket Number: 596-85

Court Abbreviation: Tex. Crim. App.