Berry v. State

BERRY, Appellant, Kenisha Eronda

The STATE of Texas. AP-74,913.

No. Criminal Appeals of Texas.

Court of

May 2007.

Rehearing Sept. Denied 2007. Barlow, Barlow,

Douglas M. David W. Beaumont, for Appellant.

Rodney D. Assistant Conerly, Criminal Beaumont, Paul, Atty., Matthew District Austin, Atty., State. State’s for OPINION JOHNSON, J., opinion delivered PRICE, WOMACK, the Court which HOLCOMB, COCHRAN, JJ, joined. and February Appellant was convicted capital murder. Tex Penal Code 19.03(a). jury’s § Based on the answers special issues set forth Texas Code Ser- 37.071, Protective June Child On of Criminal Procedure Article (CPS) met Tracy Rideaux worker vices 2(b), (e), judge ap- trial §§ sentenced jail on another who was in appellant, 37.071, § Di- 2(g).1 to death. Art. pellant time, an charge. At that Art. is automatic. appeal rect Court Paris, who was named daughter infant 2(h). 37.071, appel- § reviewed We have nine-year- She also had the care of CPS. nine of error. We affirm points lant’s Jasmine, a seven- daughter named old reform the sen- judgment, trial court’s Keerstan, named year-old daughter imprisonment. to life tence Ri- Joskin. three-year-old son named infant testified deaux STATEMENT OF FACTS by a man named fathered daughter was the murder of Appellant was indicted for three older chil- Carrier Leonard years age. under six an individual man named Jos- were fathered dren early meeting, at trial showed that jail evidence first Rideaux kin Love. At the 29, 1998, Roy morning the removal of hours November discussed Keerstan, Joskin, Jasmine, body Black the victim’s while discovered family Rideaux wife, placement. for a Ima, looking potential he and his were 10, July jail again in on met with apart- in a at an dumpster aluminum cans charged appellant had been after Beaumont, Roy complex ment Texas. death her son capital murder in the of with a the male infant inside found deceased Malachi, Baby to as known authorities bag tape trash duct over his mouth. with if fami- Hope. asked her Rideaux His arms were secured across his chest Malachi or other ly anything knew about and matter tape with duct there was fecal their knowl- pregnancies, hidden because the bag. inside the trash Ima alerted appel- placement affect the edge would “Baby Hope.” and named the infant police Appellant told Rideaux lant’s children. The unsolved until the case remained pregnancy” how hide a that “she knew to summer of when Debbie Beavers lot. stated her fluctuated a She weight and County Department the Jefferson Sheriff’s absolutely to nothing had family that “her investigating involving case was another was on.” Baby Hope going with or what do During course of the inves- appellant. the birth to Mala- gave that she She revealed tigation, to the took Beavers it was apartment, in her chi home dumpster Baby Hope had been where “fine” “easy delivery,” and that he was an this to the atten- brought found. Beavers went the store he was born. She when Boles, police officer tion Beaumont John and some formula purchased a bottle and fingerprints compared had appellant’s who Her children were after his birth. other trash tape to those found on the duct birth, and at the of his a relative time with print bag A the trash bag. palm latent on home, ex- the returned she when children right palm. A latent appellant’s matched friend’s keeping “she was a plained that tape fingerprint piece on a of duct matched Rideaux de- baby.” give She did testing index ac- appellant’s finger. left DNA other than tape about the duct tails “lying oral tape the victim’s blood and that she had duct knowledging confess house.” did not probability a around the She swabs indicated 99.98% Malachi, she stated that that she killed but the of the victim. appellant was mother indicated, all Procedure. Unless references 1. otherwise the Code Criminal Articles refer to Texas car, placed her grandmother’s pathologist Tommy borrowed Forensic Brown had infant, already “which performed autopsy Baby Hope was inside trunk, bag,” transported trash days estimated that he was two to five old. dumpster him anyone’s to a without knowl- tape Duct had been used to cover his edge. stated “the baby She and to mouth constrain his arms around moving” or she him in kicking put when abdomen, he his had been in- placed dumpster. plastic a bag. side trash His stomach product,” contained “milk-like indi- which at trial did testified that she death, cated that he been fed before baby. not kill her knew She that she was and there was matter pregnant plas- she know fecal inside the did not along how far pregnancy. bag. “petechiae she was her tic trash He had baby The father of the a man named pleural the lung,” surfaces of which was Beard. did not tell fami- Nicholas She her oxygen deprivation. consistent with ly anyone pregnancy. else about being taped combination of duct and cov- birth gave She at home herself and plastic bag ered trash was also named the infant appeared Malachi. He oxygen deprivation. consistent with born, healthy to be he was when and she no an Brown observed indications of infec- milk fed him from a bottle. nose His syndrome. sudden-infant-death tion or He running day, started went next infant determined that the “died from as- morning to the store that milk. buy phyxia smothering,” due to and he ruled store, When she returned from he opined death homicide. Brown asleep still on the bed bedroom. the infant was alive when he was still lay She on the couch watch television in placed plastic bag, the trash and “as the and later checked on him because she was died, baby large then there was a release yet that not concerned he had awakened. from The of fecal material the rectum.” bedroom, When went he was she into the lividity posterior on the anterior and sides “limp” moving breathing. was or and not body that of the led him to conclude the dead, She that not realized he was but did was his when lying infant on stomach he help call for was because she “scared” died and that he was discovered he after “if against did not know it was the law to placed was turned over and on his back for baby put tape have a at home.” She duct period of time. short they over his arms were because stiff out sticking and she “wanted them in front Pustilnik, Stephen expert Defense fo- put tape of him.” She mouth duct over his pathologist, rensic testified that he re- it because bothered her that his mouth autopsy report Brown’s and the viewed open. apartment was She left her with photographs microscopic slides that in bag placed Malachi in a and later him a autopsy. taken at He observed were the dumpster. “multiple aspiration” areas of meconium2 microscopic in the slides of the victim’s appellant on prosecutor questioned failing and he criticized lungs, Brown regarding infant cross-examination microscop- to include an of the assessment daughter acknowledged Paris. Appellant Paris, autopsy He report. ic slides his be- pregnancy hid her but meconium ques- lieved the infant released answering prosecutor’s avoided the experiencing his fetal had from bowels while tions about whether she abandoned birth, prior to which later caused Paris on the side of a road. distress first of child. 2. The meconium is the fecal excretion newborn bag insignificant be- trash enough explain plastic the significant pneumonia “a material could “the of fecal very enough cause release being sick and sick this child any agreed He at time.” on the have occurred petechiae also observed to die.” He lungs could on the infant’s lungs, petechiae stated the infant’s surface of oxygen deprivation, developed due finding” that have “nonspecific this was a proof “not of petechiae are any- but stated that proof be as of “should never used and are particular mode of death” tape thing.” testified that the duct He in- young autopsies necessarily “very common mouth the infant’s would unexplained situations.” are fants who die most babies asphyxia cause because as to However, not reach a conclusion he Hunt “could “obligate] nose breathers.” he baby spoke until why or died” bag how acknowledged plastic the trash Pustilnik, him he who informed caused He did asphyxia. could have meconium in presence of plas- the discovered the think that the fecal matter inside infant’s lungs. microscopic time of the slides bag tic trash was indicative the this, him Hunt con- have oc- After Pustilnik told death defecation could because death, infant died of natural at or the cluded that “this curred either after time and meco- strug- asphyxia did infant causes related to birth nor he think that the words, syndrome, in other bag aspiration nium gling when the fecal matter was lung from his rectum the feces failure.” released because buttocks, back, was confined to his lower after the tes- The state recalled Brown resting of the foot that “the back dis- timony of Pustilnik and Hunt. Brown in it up because knee was flexed findings pneu- agreed with Pustilnik’s disputed the foot was the feces.” He testified that he monia infection. He lividity body necessarily on the lungs looked the victim’s specifically that the on its stom- indicated infant died during autopsy. always exceptions ach because are “[t]here lungs, I looked at Whenever specifi- to this rule.” Pustilnik could not spaces open. were There were alveolar cally what caused conclude the death cells, squamous which comes from a few acknowledged possibili- He infant. fluid within the alveolar the amniotic ty of and asphyxia, homicide but testified spaces. There was meconium that naturally that the “child could have died yellow It described earlier. has brown prior being placed in the the bag to with So, I did not realize pigment effect. tape good guesses” on He as it.” had “two lungs. of that within the there was natural, why infant “One to the died: is to have neutro- pneumonia you A have — “it’s one is homicide.” He testified that cells for bac- which are white blue phils, just likely as that this child of a died lymphocytes, or have terial infection it of a natural cause as it is that died a viral infection. The which indicates homicide.” I call baby had neither of those. cannot Hunt, expert a medical Defense Carl pneumonia. this pediatrics and neona- specializing doctor to cause Brown continued believe the the au- tology, testified that he reviewed smothering “asphyxia of death was due accompanying photo- and topsy report and a homicide.” tape that the duct on graphs. He testified OF THE EVIDENCE SUFFICIENCY not the victim’s mouth “would be suffocat- AT GUILT/INNOCENCE infant” infants ing “young to this because one, appellant point noses.” of error prefer through breathe their In factually insuf that the evidence is alleges inside He believed the fecal material 854 support capital

ficient to his hearing description conviction of the microscopic may factually murder. Evidence be insuf slides. “1) ficient is clearly if: it so weak as to be Appellant conclusion, attacks Brown’s 2) wrong manifestly unjust the or matter, presence based on the of fecal against is finding great weight adverse placed the infant was alive when inside the and preponderance of the evi available plastic bag. trash Pustilnik Hunt dis- State, 1, dence.” v. Johnson 23 11 S.W.3d conclusion, agreed with Brown’s but ac- State, In (Tex.Crim.App.2000). Watson knowledged possibility defecation 404, 204 (Tex.Crim.App. S.W.3d 414-15 have time of could occurred at the death. 2006), recently we reiterated that evi argues infant Appellant that the could not dence, sufficient, though legally factually by tape have the duct been smothered jury’s insufficient if it is so weak that the his mouth because Pustilnik and Hunt tes- clearly

verdict wrong seems and manifest obligate most tified that infants are nose whether, ly unjust, or conflict considering Pustilnik, however, breathers. acknowl- evidence, ing verdict, jury’s though edged plastic bag that the could trash have sufficient, legally against is nevertheless asphyxia. caused the great weight preponderance Brown’s conclusion that infant did sufficiency a factual evidence. Such re pneumonia supported by not have oth- requires view reviewing court con at er evidence trial. voir dire examina- On sider all of the evidence. Marshall v. state, tion Pustilnik testified that “a State, (Tex.Crim.App. 625 S.W.3d child this much could pneumonia” be 2006). clearly wrong unjust A verdict “irritable,” of,” care “hard to take jury’s occurs where the is mani finding However, told “whiny.” Rideaux festly conscience, unjust, shocks the infant was when he “fine” State, clearly demonstrates bias. Sells v. at born. She also testified trial that he 754 (Tex.Crim.App.2003); S.W.3d birth, appeared healthy be at and she Santellan v. 939 S.W.2d symptoms described no illness other (Tex.Crim.App.1997). runny than a nose. argues “the overwhelm- experts’ disagreement regarding ing indicat- presented evidence the trial not the cause death does make the ed that the child died of causes natural case. The evidence insufficient evi- homicide,” rather than a to the pointing supporting dence the verdict was so experts of defense Pustilnik and wrong to be clearly weak as and manifest- Pustilnik, however, pin- Hart. could ly unjust, finding nor was the adverse point the cause of the He victim’s death. great preponder- the and against weight acknowledged possibility the of homicide the See Mar- ance of available evidence and infant asphyxia, shall, 625-26; Watson, but testified that the 210 S.W.3d at 204 pneumonia following could from have died at of error S.W.3d 414-15. Point one is ultimately meconium con- aspiration. He overruled. just likely

cluded that “it’s as WORKER TESTIMONY OF CPS child natural is that it died of a cause as it two, initially point appellant of ar died of a homicide.” Hunt could In error erroneously gues the cause of based on that the trial court ad determine death worker autopsy report Tracy his own review of the and mitted the of CPS regarding He was able a con- Rideaux statements photographs. to reach jail. complains clusion and her in only talking after to Pustilnik made to

855 if they or have con- statutory police parallel of her or are that she received none constitutionally warnings required before Id. at 530. verged particular in a case. making her oral statements to Rideaux. evaluation are the actions Central to this a Appellant contends that Rideaux was police, the the CPS perceptions and of required and agent state was thus to warn worker, Id. the defendant herself. and Miranda Ari- compliance her in with v. this custo- inquiry is: “Was The essential 1602, zona, 436, 384 U.S. 86 S.Ct. im- or (explicitly conducted dial interview (1966), Article L.Ed.2d 694 and 38.22.3 the of the for plicitly) police behalf on or gathering of evidence primary purpose safeguards procedural in a criminal to be used later statements apply interrogation to custodial Miranda Id. the interviewee?” proceeding against law enforcement officers or their by at 531. agents. Wilkerson S.W.3d 521, (Tex.Crim.App.2005). State em a Rideaux testified she was CPS not, itself, per does a ployment make County. supervisor Jefferson foster-care agent the purpose son an of the state for met When Rideaux first with defining interrogation.” Id. “custodial jail, appellant daughter had an infant who types employees at 528. Different of state other care of CPS and three the It is law serve different roles. Id. enforce “placement.” children needed When who crime, job to investigate ment’s ferret out appel- what prosecutor the asked Rideaux commission, perpetrator, its arrest the and meeting, ap- during lant said to their gather possible prosecution. evidence for a any state- pellant objected to “custodial a duty: Id. CPS workers have different by the questioning ments made under safety protect welfare and children requested healing state” on and community. in the Id. Police officers and Outside admissibility of statements. run generally separate, CPS workers on jury, presence testified Rideaux parallel paths. Id. at 529. jail that she on June met police collecting While are information July and 2003. She denied prosecution, for an arrest and criminal questioning appellant the direction investigating workers find CPS are law She testified that enforcement. housing protection safe and for abused interviewing purpose appellant was neglected children. When a state- reasons, the removal as well “[t]o discuss working agency employee path regarding the chil- as to obtain information to, from, yet parallel separate police, health, histo- dren’s social educational warnings required. are not Miranda from her ry, history also obtain social hand, if the once-parallel On other family possi- regarding her to discuss paths police converge, CPS and options placement.” She ble for relative police agent state are investi- family if needed know tandem, gating criminal offense Mi- done be- knowledge of what she had warnings compliance randa with ar- family members who cause there were may necessary. ticle 38.22 be to care for children. She willing were have foster care we “[i]n must testified that Id. Courts examine entire record if as far as law enforce- paths determine of CPS and the limited contact with claim, we do Appellant ment state constitutional 3. also claims that the admission of for her rights her Rideaux’s violated under S.W.2d it. Heitman address appellant Texas Because Constitution. (Tex.Crim.App.1991). 690-91 n. authority provide argu- separate does not or ment.” appellant gather She told that she was Rideaux to evidence to be used not there act on behalf of law enforce- in against appellant capital-murder Mi- give appellant ment. She did not prosecution. Appellant testify did not re- randa warnings because she “was not garding perceptions her of her encounters doing investigation.” there an Rideaux, After hear- with but Rideaux testified that ing testimony, her the trial court made she told that she was not there findings on the record. to act on behalf of law enforcement. The trial court

I find that did not abuse its discretion in by [ap- the statements made pellant admitting testimony regarding Rideaux’s freely made and voluntari- were] appellant’s ly. I statements. Point of error two [appellant] also find that while custody overruled. these statements were pursuant to a interroga- custodial tion, as it was not in connection with a EXTRANEOUS OFFENSES Therefore, investigation. criminal I’m four, points In appel- of error three and going testimony. to allow the complains lant about the admission of ex- Rideaux then testified before the traneous at guilt phase offenses that appellant charged had been with the argues trial. She the admission of capital murder of Malachi the time evidence of her pregnancies” “hidden jail July Rideaux met with her in on the abandonment of Paris violated Texas 404(b). 2003. Rideaux told that the CPS point Rule of Evidence In of error placement decision would be affected if five, appellant asserts that the admission family any knowledge had about Malachi of this evidence violated Texas Rule of pregnancies. or other hidden prejudicial Evidence 403 because ef- “[t]he said that “she preg- knew how to hide a subject fect of the extraneous acts out- nancy” and that family had no knowl- weighed any probative value.” edge explained of Malachi. She that she appellant’s Rideaux first testified about gave apart- birth to him at in her home pregnancies prosecutor hidden when the ment, “easy delivery,” that it anwas questioned meeting her about her born, he was “fine” when he was that she jail July 2003: house,” tape “lying had duct around the Q. you tell her What did con- and that transported she him a trash your agency cern that had? bag to a dumpster anyone’s without knowl- A. Regarding the removal? edge. children, Q. yes. Of the older three agent

Rideaux was not an of law en- A. Our concerns were that we had the forcement required comply who was pending capital regard- murder case with Miranda and Article 38.22. Ri- Baby ing Hope. point At purpose deaux’s was to find a placement time, ... given had birth to appellant’s family children. Since only several children. Her mother considered, placement being Rideaux knowledge had of one of those appellant’s needed to determine if relatives births. We didn’t know what infor- knew about the death of Malachi or the any, if part, mation or what that the infant daugh- abandonment family regarding Baby Hope. clearly having ter. Rideaux denied a law- Q. that —if purpose acting family enforcement the di- And what would police. nothing Baby Hope rection of the There is knew about or other hidden, pregnancies record to indicate that the used that were police Paris. re- A. your decision that affect would garding placement? Paris’ father? Q. Paris. Who’s Yes, it Carrier. A. would. A. Leonard Paris? you do with Q. did pregnancies other What Q. Were there were hidden? Hon- Your COUNSEL]: [DEFENSE or, object any reference I have to A. Yes. appro- that’s not matter any extraneous Ms. Ber- that with Q. you Did discuss jury. priate for ry? Overruled. THE COURT: Your Hon- COUNSEL]: [DEFENSE 404(b), I submit [PROSECUTOR]: or, object that. It’s refer- I have to Honor, to show intent. Your admissi- extraneous matters not ring to Paris? you did do with Q. What ble in the trial of this cause. (No response) A. THE Overruled. COURT: Your And COUNSEL]: [DEFENSE [Appel- you discuss that with Q. Did Honor, object under we would also lant]? 404(b) out- prejudicial effect Yes, A. I did. par- probative value to weighs any you or not Q. And did she tell whether thing. ticular any pregnan- she hid of her other That’s overruled. THE COURT: cies? re- exchange, appellant Following this to hide a A. stated she knew how She testimony about her any give fused to pregnancy. Paris, prose- despite abandonment Rules Rule 3B.1 of the Texas and the trial questions repeated cutor’s that an Appellate provides Procedure them. Even to answer court’s instructions sufficiently objection timely must be objection was counsel’s though defense make the trial court aware specific to preserve sufficiently specific to timely and complaint, specific grounds unless the 404(b) 403 er- Rule and Rule alleged Appel apparent from the context. were rors, testimony on this gave no matters,” objection lant’s to “extraneous topic. particular be, it could although precise not as as testified, pros After ap the circumstances to sufficient under about Rideaux to ask her re-called ecutor objecting trial that she was prise the court of Paris: abandonment 404(b). of Evidence under Texas Rule Rideaux, [appel- did talk Montgomery Q. 810 S.W.2d Ms. However, incident con- regarding the Rule (Tex.Crim.App.1990). lant] 404(b) child, Berry? it Paris objection timely cerning because already testi made after Rideaux A. Yes. pregnan hidden that there were other fied Hon- Your COUNSEL]: [DEFENSE preserve also failed to cies. we, or, just purposes for the could further she did not Rule 403 claim because record, objection to running have a object that basis. Id. at 388. of- concerning extraneous fenses? appel- questioned later prosecutor Yes, her infant abandonment of sir. lant about the THE COURT: daughter: I assume COUNSEL]: [DEFENSE is the same? ruling of the Court fifth child?

Q. your Who’s 858

THE COURT: Overruled. Joskin Love. acknowledged She that Mala- chi by and Paris were fathered two differ- instance, appellant In this made an ob- men, “kept ent and [herself]” jection timely sufficiently that was regard pregnancies. to those Rideaux 404(b) specific preserve her Rule chal- appellant then confirmed that “knew how lenge to subsequent testimony. Rideaux’s pregnancy” to hide a and abandoned Paris After the trial court overruled shortly on the side of a road after birth. objection, Rideaux testified that testimony Rideaux’s was admissible to placed told her “she had out on [Paris] prove appellant’s motive and her intent to Appellant previ- Hillebrandt Road.” had kill Malachi. trial court’s decision to ously her, stated that someone but helped admit this evidence was within the zone of then changed story, telling her Rideaux disagreement reasonable an and was not that she acted alone. Rideaux testified Santellan, abuse of discretion. 939 S.W.2d said that “she knew how to three, four, at 169. Points of error pregnancy weight hide a and that her five are overruled. lot,” appeared fluctuated and she to be proud of that fact. JURY ARGUMENT While evidence other six, In point of error

crimes, wrongs or acts is not admissible prosecutor claims that misstated the prove “to the character person closing argument evidence in at the his conformity order to show action in there guilt specifi trial. phase Appellant with,” it may pur be admissible for other cally complains following portion about the motive, poses, proof opportuni such as prosecutor’s argument. of the intent, ty, preparation, plan, knowledge, [ap- Did hear identity, [PROSECUTOR]: or absence of mistake or accident. 404(b). pellant] testified? used This list is illustra when she She Tex.R. Evid. tive, baby.” not exhaustive. Johnston v. the words “that She didn’t use (Tex.Crim.App.2004). you, “I S.W.3d Malachi. She didn’t tell loved example, For say any extraneous-offense evidence Malachi.” didn’t of that. She may be admissible when a defendant raises Your Hon- [DEFENSE COUNSEL]: an affirmative or a defense defensive issue or, object I do that it have to misstates negates one of the elements of the because I think she re- crime. Id. “my baby” throughout. ferred to it as argues subsequent

The state THE COURT: Overruled. The pregnancy hidden and abandonment of will be instructed to recall the testimo- Paris that appellant keeping showed “was ny. Love, by the children fathered Joskin re- Appellant contends that she never discarding by the children fathered other baby” child as “that when ferred men,” demonstrating thus her motive and she testified at trial. The state concedes in- Appellant’s her intent to kill Malachi. prosecutor did mis- appeal that “[t]he

tent was a in this disputed issue case. testified,” ar- Appellant state how theory Appellant’s defensive was that the simply mis- gues prosecutor that the “was baby died of natural causes. She denied taken” and that error was harmless. child, and state killing the defense factors to consid experts disagreed about the cause of There are three Jasmine, harm assessing impact death. testified that er when (1) Keerstan, arising jury argument were fathered from error: Joskin Did (the any of the witnesses? contact magnitude ever severity of the misconduct to the you Did talk you contact C.P.S.? prosecutor’s effect of the prejudicial (2) you talk to the defendant?” remarks); family? to Did adopted the measures (the you said that efficacy any of that Dr. Pustilnik Things misconduct cure the and, pro- his own judge); the do.... He violated cautionary instruction should (3) agenda the his certainty you of conviction absent told what the tocol. He (the the evidence strength beginning. of misconduct from the conviction). Mosley v. the supporting “My impression first goes, [Pustilnik] 249, State, (Tex.Crim.App. 983 S.W.2d 259 defense But then the was homicide.” State, 1998); Threadgill v. 146 S.W.3d him, “Well, for a de- looking we’re tells (Tex.Crim.App.2004). 666-67 defen- looking the We’re fense. —and told us that —” dant’s statement does not prosecutor’s Hon- did not Your COUNSEL]: amount to severe misconduct. He [DEFENSE or, object. ob- It’s outside the repeat statement after I have to the record, any expert overruled jected to it. The trial court and we never told appellant’s objection, looking but instructed for a defense. It’s we’re witness true, testimony.” “to recall the Rideaux simply outside the record at trial that specifically testified Honor. Your baby” victim as “that dur- referred to the THE COURT: Overruled. ar- ing prosecutor’s their interviews. The You can ask for [PROSECUTOR]: other, gument damning, focused on more testimony. Dr. Pustilnik Dr. Pustilnik’s evidence, appellant covering such as counsel], said, in talking [defense tape plastic bag, victim with duct and a baby that the defendant told them disposing dumpster, of him a and later So, bag. him in the put died before she abandoning another on the side newborn looking for a defense. He they were error, of a road. The state concedes this to do before he knew what he needed did appellant’s the error not affect conclusions. And came to one his rights, and must therefore substantial we contact, did he did he do? Did he what Tex.R.App. 44.2(b). disregard it. P. Point “no.” talk to Dr. Brown? The answer’s error six overruled. in- people Did he contact talk to the defen- No. Did he volved? seven, point In of error family? he talk to the dant? No. Did jury argu again complains improper bless, go they’ve had And God guilt phase. Appellant at asserts ment through this. prosecutor improperly that the struck of defense appellant over shoulders gener jury argument Permissible coun argued counsel when he that defense (1) four areas: sum ally falls into one of that “we’re look expert sel told an witness (2) evidence; reasonable de mation of the made ing prosecutor for a defense.” The (3) evidence; an answer duction from the closing during at issue his the statement counsel; opposing argument argument. (4) Cannady for law enforcement. plea (Tex.Crim. State, 205, 213 11 S.W.3d ... The defense v.

[PROSECUTOR]: consistently held that have got App.2000). We controlled how much information over that strikes at a defendant argument experts. [the of those You heard both improp counsel is of defense go, you did examine? the shoulders prosecutor] “What State, victim, v. 7 S.W.3d or did er. Wilson you Did ever examine the Dinkins you (Tex.Crim.App.1999); Did you pictures? look at the ever Pustilnik, Q. (Tex.Crim.App.1995). you 894 S.W.2d Dr. said that the de- objection assuming you Even fense counsel contacted preserve they was sufficient to her claim on wanted to child show already claim it appeal, prose fails because the dead when placed bag? in the Is that what argument cutor’s was a reasonable deduc said? tion from the evidence. No, they A. said that one of expla- the initially prosecutor Pustilnik told the on nations offered the defendant opinion cross-examination that his about that the already was child was dead

the cause of death was based on his review placed bag, yes. when it was in the autopsy, not on what defense coun- prosecutor directly was referring sel told him. When defense counsel later The to examination, testimony he questioned him on Pustilnik’s when made the re-direct during following exchange closing argu- occurred: statement at issue ment. It is a reasonable deduction from Now, met, Q. you I the first time Pustilnik’s as a whole that de- you you do remember what told me fense counsel told Pustilnik that at least about the cause of death this theory “that one defensive was the child case? prior being put bag” dead to in the was Oh, Iyes A. do. autopsy and that Pustilnik looked at the Q. you did me? What tell potential with this alternative in mind. A. I said it looks like a homicide to me. statement, prosecutor’s although ag- The

gressive, permis- fell within the bounds of jury at argument sible and did strike appellant over the shoulders defense Q. you But to wanted see what? is overruled. counsel. Point of error seven slides, I I autopsy A. wanted to see the autopsy photo- wanted to see THE SUFFICIENCY OF EVIDENCE graphs, I wanted to see the rest of AT PUNISHMENT the case. point eight, appel In of error Q. why you And did want to see that? argues legally lant the evidence is A. Because told me the child support jury’s affirma insufficient to say I had —the statement —can finding future-dangerousness tive on the theory that —that that the special issue. view the evidence We prior being put child was dead to jury’s finding to the light most favorable therefore, bag. And since that any rational trier and determine whether theory, it would have been beyond a of fact could have found reason case, my job, my if this were probability able doubt that there is prove disprove the child appellant would commit criminal acts of , prior being put could have died continuing that would constitute a violence So, bag. I wanted to see ev- society. Virginia, threat to Jackson v. 443 done to look for a erything that was L.Ed.2d 560 U.S. 99 S.Ct. proved natural that either disease (1979). If, evidence, all of the given proved natural was there or disease necessarily rational would have enter natural disease was not there. proba tained a reasonable doubt as dangerousness in the prosecutor again bility appellant’s this matter revisited future, trial court’s on we must reform the re-cross examination: charges. capital-murder jailed of life im- been judgment to reflect a sentence post- diagnosed had been prisonment. Holberg v. 38 S.W.3d Jasmine Rideaux testi- (Tex.Crim.App.2000); Article traumatic-stress disorder. 44.251(a). expressed had fear fied that Jasmine why [done] her mom had “wondered presented punish- evidence at The state Hope why and Paris and Baby detailing appellant’s ment abandonment killed them.” nearly years daughter her infant Paris five of Malachi. Andrew Dur- after the death counsel called Defense baby crying ham that he heard a testified cousin, aunt, testify on and mother to Road walking along as he was Hillebrandt They punishment. appellant’s behalf a.m. and County between 6:30 Jefferson shy testified Paris 7:00 a.m. on June 2003. He found loving caring and a and respectful child approximately in a ditch lying on her back Jasmine, Keerstan, and Jos- mother to feet from the road. She was naked fifteen that her behavior re- They kin. testified Dur- body. and had fire ants all over her totally Malachi and Paris was garding nurse, wife, ham his who was a and alerted re- Appellant’s out of character. cousin had hospital. she took Paris to the Paris previously had ported appellant that eyes extensive ant bites and her were restaurant, in a food employed been fast swollen shut. She needed a blood transfu- facility. Ap- prison, and a child-care experienced hospi- sion and seizures in the acknowledged aunt and cousin pellant’s Tracy tal. that was Rideaux testified CPS had hidden all but one of appellant that appointed managing as Paris’s conservator family. They pregnancies her from her placed and that she was in foster later loved appellant’s that children testified reported Rideaux that Paris has care. still her, negatively impact it would and that arms, face, scars from the ant bites on her them if she received a death sentence. and stomach. testimo- presented Defense counsel Investigator appellant Beavers testified developmen- ny Oney Fitzpatrick, of Dr. her that Love first told she wanted Joskin who had done a social psychologist tal he hospital, take but instead study background. He re- appellant’s drove them out to Hillebrandt Road and shy socially ported that she was a and Bea- placed ground. Paris on the When un- cooperative, yet was isolated child and an appellant vers informed that Love had motivated, “good was a school. She alibi, that was not in- she admitted Love at the employed worker” when she sorry that for volved. She said she was Corrections, Department of Texas done, express what she had but she did not job had to leave that because of eventually remorse about the child. Beavers testi- thought that Fitzpatrick “absenteeism.” fied, biggest “Her concern when she was clinically de- appellant appeared to be the first time I talked to her was crying a condition that could cloud pressed, every- about what that she was worried decision-making judgment and affect her every- body going to think and what expressed love for processes. Appellant body say and how mad her momma would Keerstan, Jasmine, and and denied Joskin going coming to be at her for Fitzpatrick that killing Malachi. She told talking to us.” pregnant first became she wor- when she her mother disappoint oldest ried that she would

Rideaux testified that Keerstan, children, because she had failed grandmother had and two Jasmine Fitzpatrick up expectations. to their counseling since their mother had live been time, personally cir- she been aware mitigating there believed were pregnant of two cumstances “was under inmates who became and her had heard two to three others. She pressure,” an extreme amount of about extremely background pro- acknowledged that there was an [did] “sociocultural low likelihood that a female inmate would reaching mote out to others for assis- pregnant prison become while and that tance.” “possibility” “proba- it was a rather than presented Defense counsel also the testi- bility” a situation would occur. that such Gripon, mony psychiatrist Dr. Edward argues that was insuffi- Appellant there diag- who had been testified dangerousness cient evidence of future be- jail depression nosed with clinical prior no criminal back- cause she had placed antidepressants. on He had been experts ground, and the defense testified suspected had been de- danger- of future time,” that she had a low risk pressed “quite but had some Appellant ousness. also relies Ament’s He testified that sought never treatment. only knew about five depression impair appellant’s clinical could 3,000 in the female pregnancy instances of judgment decision-making processes. inmates she had encountered her twen- Malachi, but ex- killing denied years Appellant asserts ty-three at TDCJ. happened. remorse for what had pressed that “[sjimple that math establishes Gripon She told that she abandoned appellant becoming pregnant likelihood she could not care for her Paris because 3,000, in ... out of prison would be 5 relationship with and wanted to sever her that defense Appellant argues .16%.” thought that there Gripon Paris’ father. a threat experts established she “had been dangerousness was a low risk of future children, a only to two of her own threat involving because the incidents Malachi virtually by eliminated a [would be] which unique and Paris and that there was were throughout imprisonment sentence of life only possibility a remote that child-bearing years.” prison. pregnant would become Given circumstances, saw little likeli- those he to punishment, argued At the state being danger society a hood be as- jury penalty that the death should in the future. sessed. danger future You’ve heard about

Finally, the state called rebuttal witness by hired Ament, you Gripon, heard Dr. who was the former warden of Linda that she’s not a by the defense and he said prison employed women’s who had been pool danger future because the victim of Criminal Justice Department the Texas (TDCJ) go- prison was low because she’s twenty-three years. for She testi- Remember, we ing to have access. prisoners fied that female had become society was. you talked to about what having after sexual relations with pregnant time.... long talked it for a guards or other staff. She We about prison male society Imaginary circle—what does only way prison that “the acknowledged agreed it you mean to folks? You-all somebody’s preg- know that staff would all anyone around her. And we somebody tells them or nant is either that yourself you, you’re asking person’s preg- asked when they’re to see that that able you to assume question, have nant.” On cross-examination defense danger sitting a future counsel, that she had en- whether she’s Ament testified if 3,000 today, sits she was out inmates in her there as she countered over female children, us, among other is she a During among years employment at TDCJ. capital murder. just convicted danger. Everything Gripon future Dr. premise, said was based on one sentences for such only possible two up somebody, and that she’s locked in prison; and life conviction are death her, else, somebody murder, would intervene probation capital no there is Remember, protect that child. he said free world in the near no release to the Well, that up. that she’ll be locked as- was, doubt, going without term. up.... system locking sumes the death row or up,” “locked either on be up. locked That assumes she’s mini for a general prison population in the you you way I submit to answer The state’s forty years. mum of calendar out and she’s question is she was the law therefore both misstated argument if among her children or she has another jury the attention of and misdirected child, danger do think she’s a future away from a determination of whether just people to that child.... Some are danger in the actual continuing would be a added.) (Emphasis evil. living in which she would be circumstances argument clearly The state’s asked of her (prison) and toward determination jury that appellant to assume would be continuing dangerousness in circumstances living precedent the free world. Our assuredly would not be which she most clearly “society,” states as used in world).5 (the free 37.071, prison Art. includes both and the its We hold that the state did not meet world,” “free and the must consider beyond a reasonable proving burden See, dangerousness in e.g., that context. probability ap- that there is a doubt (Tex. Muniz v. S.W.2d live, if allowed to would commit pellant, Crim.App.1993)(state required prove future so as criminal acts of violence would, “appellant likely more than threat, continuing a whether to constitute not, commit in violent criminal acts prison. Holberg, in or out of S.W.3d continuing future so as to constitute a murdered one child and Appellant 138-9. society threat whether in or out of another, defense witnesses abandoned but prison.”); Jones 843 S.W.2d out testified that these two incidents were (Tex.Crim.App.1992)(“ ‘society in loving of character and that she was a only cludes not free in citizens but also to her other three children. caring mother in the penitentiary.”). mates The state’s expert opined witnesses Appellant’s therefore, argument, was a misstatement and under extreme depressed she was special argument of the issue4 in that the and, she killed Malachi five jury only society told the that the it should stress when later, had no jury years consider was the free world. The abandoned Paris. She 37.071, 2(b)(1): dangerous § predilection, 4. Code but remains Crim. Proc. Art. probability there is a that the defen- regardless spent prison "whether children of time in dant would commit acts (There criminal of violence age at the time of release. is also no continuing threat to that would constitute a persons mandatory minimum term and such society[J” are, parole theory, eligible for in at least in forty years.) calendar That is not fewer than parents com- 5. Children who kill their cannot shown to the case here. has been again, persons may mit that offense but such pose danger only She a to her own children. to- also be shown to have violent tendencies will, doubt, menopause be reach without parents. persons other than their If no ward before she has unable to bear more children shown, jury tendencies are a rational such forty years of calendar served the minimum finding justified a of future would be in lack age passed and has of 60. dangerousness. middle-aged A killer of serial subject "aging out” of children is not to the by inviting offense record, impact no presented and the state criminal All in its consid- past. improper evidence of violence her to use an standard other pregnancy, involved a dangerousness. of her offenses eration of future wit- testimony from both defense state that appellant The evidence indicates potential her for be- nesses showed that only those of dangerous toward has been coming pregnant while incarcerated would existence she her own children whose Further, “extremely be low.” mate, her favored wanted to hide from she was convict- her twenties when that, if very probability that there is a low If received a life capital ed of murder. she will have prison, to life in she sentenced years la- paroled forty sentence and were children, it and that therefore any more ter, likely in her sixties and she would be danger a unlikely be she would childbearing years and thus beyond her eight is sustained. future. Point of error repeat such an offense. could judgment a on a rarely We reverse Conclusion support evidence to claim of insufficient jury would have nec- Because a rational danger will be a finding that the defendant a reasonable doubt as essarily entertained future, lightly. in the and we do not do so of future dan- probability to the case, jury’s deci- In this we understand judgment affirm the gerousness, we to the death of one infant response sion the trial court’s conviction and reform another, if even abandonment of imprison- a sentence judgment reflect in law.6 The supported that decision is holding affects ment for life. Because evidence, appel- state’s which consisted any other only penalty the death Malachi, subsequent lant’s murder of jury’s find- of error relative to points Paris, lack of remorse abandonment appel- punishment, the issue of ings on crimes, unlikely possibili- for these and the error, in which point ninth she lant’s pris- might pregnant ty become insufficient “[t]he claims evidence on, beyond a reasonable prove does not negative spe- answer to the support probability that she doubt that there is mitigating circum- regarding cial issue criminal acts of violence would commit stances,” is moot. to so- continuing threat would constitute certainly ciety. quite reformed, the state While affirmed. is judgment, The as of pattern that showed a proved appellant man and HERVEY, J., dissenting opinion the children sired one

keeping filed a men, by other discarding KELLER, P.J., the children sired in MEYERS which any other stimulus led prove KEASLER, it did not that JJ., joined. in dangerous any act other

to a violent or HERVEY, J., dissenting which that she had It did not show context. KELLER, P.J., MEYERS of her any to harm attempted harmed or KEASLER, JJ., joined. child, children, an unrelated other least, very Further, respectfully I dissent. the state’s final person. other At jury have found that there a rational could heavy emotional argument exacerbated Hanssen, society.” an FBI appellant threat to Robert repeatedly described as 6. The state Ames, evil, agent, a CIA counter-intel- jury may well and Aldrich powerful The a word. officer, assessment, spied for Rus- ligence both of whom "just agreed that but have sia, per- by many likely considered "evil” probability that are equate with "a evil” does not sons, they never been accused but have criminal acts of defendant would commit committing acts of violence. continuing criminal a that would constitute violence dence, appellant’s consisted of a that would be which probability is Malachi, subsequent A dangerous to her unwanted babies. ra- murder of Paris, jury tional could even have found that her lack of re abandonment would, fact, crimes, very danger- be unlike morse for these and the segment society. ous to that This ly might that she become possibility should, review, appellate as a matter of be prove be pregnant prison, does sufficiency chal- dispositive that there is a yond a reasonable doubt jury’s on the future- lenge finding to the crim that she would commit probability dangerousness special issue. consti inal acts of violence would continuing society. threat to tute a nevertheless decides that the Court proof State failed to meet its burden of on Maj. op. 863-64. future-dangerousness special issue. the evi- analysis This does “view opinion The Court’s states: light dence in the most favorable to the hold that the state did not meet its We Virginia, verdict.” See Jackson v. beyond proving burden reasonable 318-19, U.S. 99 S.Ct. 61 L.Ed.2d probability doubt that there is a (1979). It credits evidence and infer- live, appellant, if com allowed to would jury ences therefrom that a rational could mit criminal acts of violence in the fu rejected other evi- have and discredits continuing ture so as to constitute a therefrom dence and reasonable inferences threat, prison. whether or out of jury a rational could have upon which (Citation omitted). Appellant murdered based an affirmative answer to the future- 1], one child and abandoned another[ dangerousness special issue. But see id. but defense witnesses testified that (sufficiency permit ap- standard does not these two incidents were out of charac subjective court “to make its pellate own ter and that she and car loving determination”). usurps jury’s This ing mother to her other three children. in the role of places role Court Appellant’s expert opined witnesses believes, whether it instead of ask- asking depressed she was and under ex a rational could have ing whether treme stress when she killed Malachi believed, probability there and abandoned Paris. She had no dangerous. But id. appellant would be see record, criminal presented and the state presented The State evidence no other evidence of violence in her murdered her new-born past. Each of her a 1998 offenses involved by duct-taping his pregnancy, from both de child named Malachi alive, by duct-taping fense and state witnesses showed that mouth shut while still him, and potential becoming pregnant his arms to his side to immobilize “extremely by placing garbage bag incarcerated would be Malachi while Further, throwing dumpster in her him in a trash where low.” later, years cap convicted of he suffocated to death. Five twenties when she was another of her If a life sen tried to murder ital murder. she received by placing paroled forty years la new-born children named Paris tence and were naked, ter, Paris, a fire-ant mound at a likely beyond be her she would extremely location where it was childbearing years and thus could not remote unlikely that would be found alive. an offense. The state’s evi Paris repeat such entirely merely jury could have found that it was 1. It is not accurate to state A rational conscious desire to kill Paris. abandoned Paris. Malachi, my trial about A. This is were calculated crimes conceived

These Paris. by appellant appar- carried out alone ently keep motive to the father of with the jury you did to Paris. Q. Tell the what discovering from her other three children charged capital I’m with murder. A. else. “messing” that she was with someone Paris is still alive. whatsoev- Appellant has shown no remorse I would ask PROSECUTION]: [THE and successful acts of attempted er for her witness to an- the to instruct the Court any has failed to take infanticide. She question. the swer for Malachi’s death. She responsibility trying else for to murder blamed someone Berry, going I’m Ms. [THE COURT]: Paris, deception but this could not with- question. the you to instruct to answer scrutiny. “plead the Fifth” and stand She murder trial. capital A. This is a having “per- prosecutor accused the Q. took Paris out on Hillebrandt You against pros- her when the sonal vendetta” an dumped her in Road last summer her at trial about began question ecutor to bed; alive, I isn’t she? ant and she’s a fire-ant up how Paris ended naked on today. saw location.2 mound a remote Q. you did What [PROSECUTION]: Really? A. do with Paris? Yes, from Q. complete with the scars Honor, Your I have [THE DEFENSE]: you jury the what the ant bites. Tell object any to extra- reference did to Paris. appropriate neous matter that’s Honor, I have Your [THE DEFENSE]: jury. thing, prosecu- object. For one COURT]: Overruled. [THE inap- that’s screaming; and I think tor’s I submit [THE PROSECUTION]: And sec- propriate the courtroom. Honor, 404(b), Your to show intent. testifying as to ondly, prosecutor’s Q. you do Paris? did What take if he wants to what he’s seen and (No response)

A. [APPELLANT]: stand, happy I’ll to cross examine be Honor, And Your [THE DEFENSE]: him, he’s not a witness. 404(b) object under we would also Berry, Ms. Overruled. [THE COURT]: outweighs any pro- prejudicial effect again to an- you I’m to instruct going particular thing. to that bative value question. swer the That’s overruled. [THE COURT]: okay yell- that he’s It’s [APPELLANT]: on Hille- Q. Didn’t take Paris out got that he vendetta ing. personal It’s in an ant dump brandt Road me. against bed? I once would PROSECUTION]: [THE I the Fifth. plead A. instruct Ms. Ber- Judge again ask Q. plead the Fifth. You can’t question. ry to answer Well, lam. A. going Berry, I’m Ms. you’re COURT]: on the stand. Tell Q. [THE Because Paris, you again to answer Ms. to instruct you did to what you. asking he’s questions that Berry. explained, either di- garbage. She never on direct-examina- 2. had testified cross-examination, or on a natural death and rect-examination tion that Malachi died happened what to Paris. duct-taped and him in the that she him threw jury arguments at the During closing If it noth- don’t have [APPELLANT]: phase, prosecution stated ing punishment to do with this trial— jury way to the that to answer if special issue was future-dangerousness among her appellant “was out she’s Q. jury you Tell the what did to Paris. child, you do children or she has another A. You tell them. danger think a future to that child.” she’s her, Q. you Berry? did do to Ms. What also deduced from the prosecution you anything Did do to her? evidence that is “evil” asked “imagine someone more evil (No A. response) things than do these two to two would expert (Gripon) Even own days different children on two different provided supports finding that years apart.” five probability that there is a that Now, you’ve testimony. heard bunch dangerous would be the “free world” to danger about future You’ve heard her unwanted babies. hired you Gripon, heard Dr. who was Q. If she in a gets [PROSECUTION]: the defense and he said that she’s not circumstance where she is around a danger pool future because the victim child that she doesn’t want or doesn’t prison go- she’s not was low because future, you care for in the think what do ing to have access. Remember we going she’s to do? you society talked about what was. Well, A. I don’t think [GRIPON]: long talked about it for a time. So- We going happen. that’s ciety you guys I talked to —when —I’m Q. ifBut it does— going Imaginary to do this. circle—what society does mean to folks? You— A. Given her circumstances. If it were anyone agreed all it was around her. a child that given she had birth to under you, you’re all ask- And we asked when similar that circumstances to those ing yourself question, you that have to here, we’ve looked at I would consider danger a future assume whether she’s high that a risk In cir- situation. other today, if cumstances, sitting there as she sits she was I would not consider it to be children, us, among among out other is substantially all; risky certainly but I Dr. danger. Everything she a future suggest would not she become Gripon premise, said was based on one pregnant give unsupport- birth in an up somebody, locked and that she’s setting ed alone and kind face whatever else, her, somebody would intervene she feels that have on impact would Remember, life, protect that child. he if possible, although that were I said, oh, Well, up. locked she’ll be can’t conceive of a set of circumstances system locking up. assumes possible. which that’s Well, somebody That would catch her. Q. already But it she’s done five times. somebody assumes else will see what, given A. Done birth? pregnant, somebody she’s that’s more Q. Getting pregnant people without family than the that she’s hid perceptive knowing. pregnancies these from. That as- all Well, baby I all of after she has the A. don’t know whether sumes even get intervene to her. they those were unknown. I know that most could up. That that she’s locked were. That’s true. assumes you way you I submit to answer this child into a fire ant bed. What has if question is she was out and she’s changed day today from to as she among her children another or she has nothing, Absolutely sits there? abso- child, you think danger do a future she’s nothing. lutely that child. asked of to What was not showing There has been no of remorse. Dr. how in her Gripon many victims showing psycho- There has been no way does it take convince him or to logical damage drug ábuse. or She A anybody danger. that she’s a future came from a a lov- beautiful home with repeatedly kill her chil- person trying to family. just ing people Some are evil. dren, you, .1 to an obvious submit that is I people just are evil. And want Some Regardless answer. the answer of what evil you imagine to someone more than is, your question to second the first one to differ- things would do these two two a resounding “yes.” should be She mur- days ent children on different five two Gripon, dered She lied to Dr. [Malachi]. years apart. “Oh, So, I it.” didn’t do did he assume future-dangerousness special The issue truth; telling that she’s him the do jury to “whether there is a asks decide you assume she was The materi- lying? that the probability defendant would com- al-the information he bases his answers acts mit criminal of violence would partially story were based on society.” a threat continuing constitute you And got big from her. a taste 37.071, 2(b)(1), § Article See Tex.Code yesterday. lying. She’s still She PROC., (emphasis supplied). Crim. family, Gripon lied to her she lied to acknowledge opinion also seems to Court’s So, you. many she lied to children how jury special this issue asked bury you’re do we have to con- before appel- probability decide if there is danger? vinced that she’s a future “in or out of dangerous lant would be you-all hope I Some said one. would (“state Maj. op. did not prison.” at 23 you say all of two. beyond proving meet its burden rea- a probability doubt that there is sonable live, if appellant, allowed to would There is an evil and dark side to this commit criminal acts of violence that her not know. family woman does continuing so as to future constitute an evil to this There is and dark side threat, prison”); whether or out of see very have real- people woman that few State, 141, v. 145-46 Salazar 38 S.W.3d creates be- ized until we see what she (defendant, who (Tex.Cr.App.2001) opposite is de- cause the of creation two-year-old murdering convicted of struction; destroyed and she lives has girlfriend, presented ex- daughter of his goes. everywhere she And ask admitted that who defendant pert witness yourself danger today, is she a future world”); in the “free dangerous would be danger she a future in 1996 when 838, n. oh, 898 S.W.2d yeah. Smith baby, she had her first Was (future dangerousness (Tex.Cr.App.1995) danger a future was she a if decide special requires jury future issue danger future was she a day “whether danger dangerous on June the defendant would be 5th This dropped prison prison”).3 most recent or out of before she he is special supports Legislature’s use instead of also claim that 3. The of "would” sue decide, among special future-dangerousness is asked the other "will” in the issue

869 cold-heartedly murdered one closing jury consistent with the State’s on.” She also during punishment phase to murder another arguments attempted child and “if she dangerous that would be years la- on different occasions five child or among out and she’s her children was and fails to take ter. She is unremorseful she has another child.” evidence satisfies ev- responsibility. This ery future-dangerousness of measure issue, future-dangerousness special See, Salazar, e.g., applied. this Court has therefore, exempt does not from the death (lack at 145-46 of remorse danger- 38 S.W.3d penalty those defendants who are factors only society they responsibility a of to take are segment ous failure prison not encounter in probably jury’s will affirmative answer support issue).4 likely again they if are not encounter A “future-dangerousness” special forty years later. paroled are or so See jury appel- could have found that rational true, If that future- Footnote 3. unremorseful, cold-blood- lant is the same dangerousness special exempt issue would killer that in 1998 when ed she penalty parents from the death most who murdered Malachi and that she was in children, contrary murder their to the 2003 when she tried to murder Paris.5 legislative expressed clear intent in Section appellant might pris- That be controlled 19.03(a)(8)making it capital offense for way on in no detracts from this or a ration- person to murder “an individual six under finding probability al that there is a years age.” It exempt would also from dangerous to she would be her unwanted penalty many the death other killers such children. parents as children who murder their respectfully I dissent. middle-aged serial prey killers who young children. case,

In this a rational could have probability ap-

found that there is a

pellant dangerous pris- would be “out of things, acting probability whether there is a whether alone or with oth- [s]he dangerous parties; would be "if she was out er among (2) dispositive appellant's us." It is not the calculated nature of the defendant’s acts; sufficiency might claim that she not murder (3) any forethought more her children because of a low and deliberateness ex- execution; probability that she will not have more hibited the crime’s children, (4) prison. prior if sentenced to life in This record the existence of criminal crimes; only “society severity prior Court held that has includes not and the (5) peniten age personal free citizens but also inmates in the cir- the defendant's State, 607, offense; tiary.” See 939 S.W.2d at time cumstances McDuff v. State, (6) (Tex.Cr.App.1997); acting 620 Jones v. 843 whether the defendant was under (Tex.Cr.App.1992). S.W.2d the duress or the domination of another offense; the time of the commission of

4. This evidence satisfies at least five of evidence; (7) psychiatric eight may "non-exclusive list of factors that (8) character evidence. determining a de- be considered in whether continuing fendant constitutes a threat to so- very from other 5. different ciety” out in set numerous decisions of defendants who have been convicted and sen State, Court such as Solomon v. 49 S.W.3d murdering tenced death for their children. (Tex.Cr.App.2001). 362-63 These non- See, State, e.g., 112 S.W.3d Routier v. are: exclusive factors (Tex.Cr.App.2003); O’Bryan 464, 467-70,480-81 offense, (1)the capital (Tex.Cr.App. S.W.2d circumstances 1979). including the defendant's state of mind

Case Details

Case Name: Berry v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 23, 2007

Citation: 233 S.W.3d 847

Docket Number: AP-74,913

Court Abbreviation: Tex. Crim. App.