*1 corpus. via habeas As a collateral attack practical indigent death row in- matter unrepresented lawyer
mate is in who is
danger meaningful being executed without
judicial outside trial of matters review unacceptable
record. risk is To me this unacceptable
should to most. Suffice it to be
say, lawyer problem exist because paid stage is not and those who habeas free are willing
are to work for few. (1) request applicant simple:
The
grant lawyer time to find a who additional (2) or; prevail upon
will work for free ap- its court to exercise discretion lawyer. response in its The State oppose appoint-
indicates that it will not affirmatively
ment counsel and will also
join any appointment request for the of coun- correctly
sel. The State also notes that the opportunity
trial court should have the applicant’s request
consider its exercise
discretion.
The of protecting issue should not be one jurisdiction judg- enforcing Court’s
ment of The this Court. issue should be judicial
providing meaningful review. majority by day
Because the its order this otherwise,
entered I am compelled decides
dissent the above comments. BURKS, Appellant,
John Albert Texas, Appellee. STATE
No. 70971. Texas, Appeals of
Court of Criminal
En Banc.
March
880
882 *6 Abies, Karels, Hoagie
Kenneth L. L. Waco, appellant. Segrest, Atty., Ralph T.
John W. Dist. Long, Asst. Dist. At- Strother Crawford Waco, Huttash, Atty., tys., Robert State’s Austin, for State.
OPINION WHITE, Judge.
Appellant was convicted of the offense of murder committed the course of a rob- bery. § TEX.PENAL See CODE ANN. 19.- 03(a)(2). jury’s In accordance affir- issues, special pun- mative answers to the ishment was assessed at death. See TEX. 37.071(b)(1) CODE CRIM.PROC.ANN. Art. (2). appeal Direct to this Court was (h). Id., § automatic. We will affirm. twenty-eight points was, argues: the evidence absent the testi- *7 mony accomplice testimony, of the witness’ insufficient “tend to connect” to offense; the the trial court instant erred quash when it overruled his motion to the venue; indictment, change and his motion to trial the court erred when it excused from jury persons those were over the service who age persons those un- and who were write; able to read and the trial court erred challenges when it overruled nine of his cause; admitting in the trial court erred by the victim and another statements made gave description witness which perpetrator, admitting ap- in evidence that pellant days prior asked for bullets offense, admitting in evidence of the instant soliciting help robbery in one offense, in prior month to the instant admit- ap- ting of a conversation between evidence ting” green late sixties model car pellant accomplices overheard on the towards and his the road near Jesse’s offense, parked on the side of in day the instant and admit- before got the Factory.1 The man into Tortilla by ting made the into evidence statements green car. When Macias backseat of the daughter; victim to his wife and statements Factory, Tortilla he saw arrived at Jesse’s during examination of made the State the Contreras, owner, running the store Jesse treating prejudicial doctor were so building he also towards the side of the inflammatory futile an instruc- as to render pavement leading to the saw blood on the disregard; the trial court erred in tion to building. No one was front door of the appellant’s as admitting evidence of arrest store; there was blood on the inside the but flight; the trial court erred when evidence Macias outside where he floor. went back right evi- it denied admit green speeding away. car Macias saw the person admitted to the dence that another and another testified that he saw driver offense; of the instant commission backseat, not see man seated in the but did argument guilt-innocence at State’s final anyone Macias went else the car.2 When inflammatory prejudicial as to render so building, inside the he saw Contreras back disregard; futile an instruction to daughter telephone. Maci- calling his on the punishment court at when it admitted erred stayed until she arrived. as murder; alleged capital prior evidence of a that when given an instruc- Diaz testified the trial court should have Gloria Contreras store, her mother was she arrived at the punishment mitigating circum- tion at on tending spitting up blood her father who stances; have defined the trial court should pain. Diaz testified appeared to be phrase “criminal act of violence” them a Black man with a that her father told charge punishment; the trial court erred money, but attempted had to steal his mask instructing jury punishment in not perpetrator can at the who he threw trash offenses and how the evidence of extraneous twenty-seven died then shot him. Contreras them; and, lastly, trial court to consider multiple gunshot days later as a result of “con- erred it failed to define the term when wounds. society” charge tinuing in the threat precluded jury punishment, which expert testified that two .25 A firearms mitigating giving consideration to evidence. body from Contreras’ caliber bullets removed sufficiency appellant contests the As gun, probably a the same .25 were fired from him in his fourteenth evidence to convict pistol Raven Arms caliber semi-automatic —-a a detailed discussion of pocket easily in a compact pistol carried necessary fully appellant’s address facts is and sometimes without notice or discomfort evidence. claim of insufficient “Saturday Night Special.” referred to as a spent found at the crime
Four other bullets evidence, scene, not identi- admitted while FACTS STATEMENT OF from the same having been fired fiable two, .25 caliber. Also gun as the other Non-accomplice A. evidence *8 spent were five .25 found at the crime scene Macias, approxi- According to Victor casings were casings. The shell caliber shell Friday, January mately 11:00 a.m. on manufactur- by three different manufactured Tortilla Facto- Macias drove to Jesse’s obtained could mean were ers which ry in Waco to cash number of bul- located on Webster Street sources. The from different caliber semi-automatic a Black man contained in a .25 He observed short lets a check. pistol “trot- Raven Arms is six. carrying object in his hand and a black trial, that Macias depicted no evidence in the record car 2. There is Macias identified the 1. At through lineup the same car not asked at two five as and he was State's exhibits ever viewed a parked of the road. Two he saw side he appellant was one of the men trial whether depicted identified the car other State's witnesses away. sped as it saw in the car through belonging Exhibits two five as in State’s McConnell, accomplice. to Mark an half-brother, McConnell, a Appellant’s up, him and that Mark would receive $10.00 Louis money. bag of marihuana and some Weeks testified that two weeks before the instant January, testified that sometime further appellant him offense asked whether he offense, him appellant asked but before did; gun or knew who owned someone any whether he had bullets.4 responded negatively. Louis Louis McCon- father, McConnell, Bishop nell lived with his Guillem, mechanic, Vincent testified Jr., brother, Bishop III. and his McConnell yard he in his between 10:00 a.m. and week, following The Louis came home from morning 10:30 a.m. on the of the offense p.m. work around 5 and saw a small caliber up green in his when Mark McConnell drove pistol navy stocking cap and a dark or black people in the Chevrolet.5 Guillem saw four III, Appellant, Bishop on a table. McConnell III, Bishop Mark McCon- McConnell car— Carlton Johnson and Victor Monroe were at nell, appellant, person. Appel- another the house. Louis McConnell testified that he got lant out of the car and asked Guillem appellant pick up whether he had .25 caliber bullets. gun saw walk no, appellant When he said walked across the though toward door. Even Louis street to his house and returned to Mark’s appellant saw McConnell leave with the appellant car. Guillem stated that left with stocking cap, appellant he did not see leave driving Mark the car. Mark McConnell left, gun. appellant with After Louis only person McConnell Guillem said gun longer McConnell noticed the was no appellant. left not mention with Guillem did his house.3 Bilton, accomplice, Bishop McConnell Cruz, Johnny grocer, being appellant. a local later Guil- testified that Sometime sirens, fif- offense, lem heard ambulance and ten to one week appellant ap- before the sirens, teen minutes after the he saw Mark’s proached him seeking .25 caliber bullets for by very car drive fast. handgun. an automatic shooting, After the driving Cruz saw Mark McConnell late Appellant’s days aunt testified that few green sixties model Impala. Chevrolet after the offense she accused having Factory been seen at Tortilla Jesse’s cousin, Weeks, Appellant’s Ike testified when was shot. denied Contreras that in late December asked him to this, claiming that no one had been there participate robbery, in a but he refused. left, he when he threatened her when day offense, before ap- Weeks saw notify police if she said that she would pellant, Mark McConnell and Aaron Bilton she found out that he had shot Contreras.6 standing alley. ap- Weeks overheard pellant tell Mark that he would call him the separately talking to Contreras and While day Macias, pick next at 9:00 a.m. so that Mark could Detective Price of the Waco Police Well, said, “Well, thought you [Appellant’s 3. Louis McConnell aunt]: also stated that he A. probably I you will do like did before and leave Bishop pick up gun, saw McConnell III but a witness." (Bishop) he “wasn't for sure. He said he thought picking up about but he didn’t.” you referring you Q. What were to when said "before”? 4. Weeks testified that either asked for Well, A. I had heard— .25 caliber bullets or .32 caliber bullets. Okay. Okay. Q. Don’t tell Let me ask me— heard, you you had this. Don’t tell me what said, okay? you you When Let me ask this. 5. Guillem identified Mark McConnell's car as the you “you’ll probably did leave a witness like depicted through same car in State's exhibits two before," thinking shooting you five. Jesse Contreras? *9 Yes, A. I was. Upon by appel- direct examination statement, you Q. what Now after [appellant] say made that lant’s aunt testified as follows: you? did back to I didn’t know what the hell I was A. He said you Q. Now tell me what said [Prosecutor]: talking about. response [appellant's] to his statement. say Q. exact words or did he Is that his something different? hiding Detective observed Department description a Saldivar obtained possessing garage. saw suspect being a Black male in someone’s When mask, build, Saldivar, running again. 5'6" to 5'7". began black ski small Saldivar he during separate conversa- Price ascertained him to a fenced enclosure chased on foot vehi- tions with Macias and Guillem that the him weapon and told where she drew her green cle involved was a four-door mid to stop attempted to climb over the fence. as he specific with a late sixties model Chevrolet thereafter, shortly appel- Davilla arrived days plate license number. Four after the custody. lant was taken into driv- offense Price observed Mark McConnell description, ing matching a car which Accomplice-witness testimony B. Price later at trial as the same car identified through depicted in exhibits two five. State’s Bilton, According Aaron sometime offense, appellant January, but before the February, Detective Price notified money and on the him that he needed told police Harlingen that a warrant had offense, appellant him day told before the appellant’s for arrest connec- been issued Ap- going to “knock off Jesse.” that he was During the first tion with this offense.7 go pellant Bilton to inside Jesse’s wanted March, 1989, Harlingen police week of two Factory who was there. Tortilla first to see patrol officers in a car noticed noon planned had the offense for walking part in the west on a sidewalk day, Bilton had to be at the next but because up him. De- town and drove behind When a.m., appellant agreed to do it work at 11:00 appellant’s Davilla called name and tective planned the offense Appellant had earlier. police, appellant ran. identified himself as Friday, foot, day, because him then lost him. for the next which was Davilla chased on but No, said, ’nary when I left. dick over there he don’t know what the hell A. Wasn't A. "You you’re talking about.” Okay. you say? Q. then What did [appellant] you Q. use the word Have heard using I knew that had been Mark’s A. "dick” before? over at Jesse’s car and Mark’s car was seen Yeah, slang he words. A. uses place. you’ve Q. Okay. heard him use When by having "dick” him use the word word— have by you meant that word? learned what is you Jury Okay. Q. tell the After said that A. Yes. you. this Defendant said to what by [appellant] Q. mean the word What does Well, what the A. first he said I didn’t know “dick”? about, him, said, talking and I told I hell I was A. A man. you “you probably a witness like did will leave statement, Q. "there After arguing that time we was before.” About left,” 'nary there when I a dick around wasn’t my in. brother come you say anything to this Defendant what if did Okay. Q. Go ahead. you you do if found out what would about said, leave. He “You A. And asked me to did it? sure that he going get her because I’m better come and you was the if I know for sure A. I said fucking knock her head off.” Jesse, you. drop quarter that shot I’d one you Okay. you Q. this. Before Let me ask phrase you Q. mean the word What do that, you got indicated that he said I believe “drop quarter”? talking you’re you, "you what don't know A. Call the law. something you about And said to him about.” you [appellant] if you Q. When told you car was involved in Jesse, had heard that Mark’s you’d that he shot out for sure found driving shooting that he was Jesse's Jury quarter, what he said to drop tell this right? day, car that Mark’s you. going to knock A. Yes. he said he was A. That’s when having something you say my fucking Q. about head off. Did to Jesse’s? been appellant sometimes no— 7. The record reflects A. He said there wasn’t Harlingen. say resided in Q. You can it.
887 that after Friday.8 he checks on Mark to drive off. Bilton testified knew Contreras cashed morning, they dropped him off at work that appellant already Bilton testified had again until after appellant he did not see the matter Mark discussed with McConnell the offense.10 Bilton’s arrest for and that Mark was to receive his $100 offense, participation. morning of the On appellant and Mark arrived at Bilton’s home NON-ACCOMPLICE SUFFICIENCY OF in Mark’s car between 10:15 a.m. and 10:30 TESTIMONY a.m.. Bilton identified Mark McConnell’s car ap fourteenth his green depicted as the four-door Chevrolet in testimony pellant that absent the contends through State’s exhibits two five. three Bilton, accomplice-witness, evi Aaron proceeded
men to Bilton’s uncle’s house. On appellant’s support dence insufficient to way, appellant going stated that he was conviction. today.” they to “knock off ar- Jesse When rived, Bilton went into his uncle’s house and Article 38.14 of the Code of Criminal Pro- watched television while Mark drove Bilton’s provides: cedure Appellant go aunt downtown. with did upon conviction cannot be had the testi- [a] go Mark nor did he inside the house. When mony accomplice of an unless corroborated later, Mark returned five minutes the three tending to connect the other evidence Factory men in drove to Jesse’s Tortilla committed; with the offense defendant car. Mark’s is not sufficient if it corroboration there,
Once Bilton entered the store and merely shows the commission of the of- tortillas, attempted purchase some corn fense. they but Contreras said that did have Art. TEX.CODE CRIM.PROC.ANN. 38.14. any. Bilton returned to the car and told The test for sufficient corroboration is to appellant did not have corn tortillas accomplice eliminate from consideration the only Contreras was the one inside. testimony and then examine the other incul- Appellant go purchase told him to back and patory evidence to ascertain whether the re some flour tortillas and make certain that maining evidence tends to connect defen purchased Contreras was alone. Bilton dant with the offense. Cockrum v. appellant flour tortillas and reassured 577, (Tex.Cr.App.1988), S.W.2d cert. de Appellant Contreras was alone. told Mark nied, 1072, 1358, 489 U.S. S.Ct. to let him out and then drive around to (1989); Granger L.Ed.2d 825 park. Wearing Twelfth Street and a blue or 387, (Tex.Cr.App.1984) (quoting S.W.2d stocking cap, appellant got
black
out of the
(Tex.Cr.App.1968)),
Edwards
later, appellant
car. About five minutes
denied,
t.
472 U.S.
cer
holding
“trotted” towards the car
his stock-
(1985).
105 S.Ct.
Rougeau
controverting
that found in the
affida
State’s
also,
see,
486,
701,
Hillin v.
808 S.W.2d
fn.
vits DeBlanc v.
799 S.W.2d
—
3,
(Tex.Cr.App.1991).
denied,
at 488-489
We believe
(Tex.Cr.App.1990),
cert.
U.S.
the instant indictment is not flawed
the —,
111 S.Ct.
pursuant
his third
of
to TEX.CODE CRIM.PROC.ANN.
31.0414,
by
comply
argues
Art.
the trial court erred at voir dire
must
with Rule 602.
excusing people
age
Appel
over the
of 65.
purpose
controverting
of the
affi
excusing
group
lant states that
this
“excludes
provide
pleading
davit is to
a form of
which
population
of the
from
definable section
dispute in
establishes that there is a factual
serving
juries
and denies
his
Roy
need of resolution.
608 S.W.2d right
jury
fair
to a
chosen from a
cross
(Tex.Cr.App.1980).
There is no
thereby
population,”
violating
of the
section
requirement
controverting
that the
affidavit
rights
his
under the Fourteenth Amendment
face,
A
comply, on its
with Rule 602.
contro
to the United States Constitution and the
affidavit,
31.04,
verting
pursuant to Art.
is a
Appellant
Texas Constitution.
contends that
opinion
notarized statement of the
of the
discrimination,
age
practice
constitutes
opposing
compurgator that the
affiant is not
appellant’s right
equal pro
which violates
to
credible,
opposing
affiant’s means
and/or
right
jury
to a
tection of the laws and his
A
knowledge
of
are not sufficient.
contro
community.
from a
section of the
drawn
cross
verting
not a
affidavit is
witness’ sworn state Appellant
arguments under the
makes no
trial,
ment of fact as to a matter at
upon
relies
Texas Constitution.
contemplated by
compurga
If
Rule 602.
Supreme
discussion of the need
Court’s
hearing
tor takes the stand
the venue
discriminatory practices
racially
to eliminates
testify,
fall under the
would
jury
Kentucky,
selection Batson v.
proscriptions of R. 602.
(1986).
L.Ed.2d 69
106 S.Ct.
U.S.
specific authority for his
Appellant cites no
controverting affidavit in
We find that the
argument
Constitution.
wording
instant case is identical in
under
Federal
Art. 31.04 sets
602 sets out:
14. TEX.CODECRIM.PROC.ANN.
13. TEX.R.CRIM.EVID.
out:
may
testify
"A witness
not
to a matter unless
support
evidence is introduced sufficient
finding
credibility
persons making
affidavit
"The
personal knowledge
that he had
venue,
change
or their means of knowl-
personal
prove
knowl-
matter. Evidence to
edge, may
by
of a
be attacked
the affidavit
not,
edge may,
but need
consist of
testimo-
person. The
thus formed shall
credible
issue
subject
ny
rule is
of the witness himself. This
granted
by
judge,
and the motion
be tried
703, relating
opin-
provisions
to the
of Rule
refused,
warrant."
as the law and facts shall
or
testimony by expert witnesses.”
ion
1, §§
Art.
3 & 3a. The
substantively distinguishable
Batson is
from tion. TEX. CONST.
relying upon
Appeals,
Johnson
the instant case.
Court
legitimate
had a
inter-
found the State
We note that Batson dealt with a State’s
jury
providing
age exemption
an
from
est
efforts, through
prosecuting attorneys,
its
provides
orderly
because it
service
discretionary
challenges
peremptory
exercise
speeding up
operation
efficient method of
service,
jury
to exclude minorities from
judicial system.
Without
overloaded
compliance
statutory
trial court
excu-
exemption, persons
age
over the
of 65
case,
statute,
sáis.
In the instant
TEX.
individually
personally and
“would have to
62.106(1),
§
provides
ANN.
GOVT.CODE
hardship
present any
to the trial
claims
only
personal,
exemption
optional
for a
S.W.2d, at 374.
court.” Weaver v.
jury
may
service which
be invoked
Appeals concluded “that the
The Court of
venireperson.
provide
It does not
for a stat
age-based classification bears a fair and sub-
utory
mandatory disqualifica
or
exclusion
objects
legis-
stantial relation to the
that the
62.106(1)
§
Nothing
implies
tion.
accomplish.”
designed
lation
Weaver
for,
persons
age
are
fit
over
*14
State,
S.W.2d,
Though
at
not
823
of,
incapable
jury
or unwanted for
service.
reasoning
controlling, we finds the
of
controlling authority
Batson is not
for this
Appeals
persuasive.
to be
Court of
Weaver
point of error.
62.106(1)
§
We find that
does not violate
previously
equal
This Court has
dealt with
appellant’s right
equal protection
of
protection
against
juror exemption
claims
right
jury
a fair
laws and his
to a
drawn from
State,
statute.
In Johnson v.
language,
equals
society
English.”
are not the
of write
As the record is
we
English
upon
those who can read or
our decision
or
write
will
base
whether
language.” Appellant
preserved.
not the error
compares
then
illiter-
people
people,
being
ate
to deaf
the latter
Instead,
reject appellant’s argument
we
group
whom
states the
courts
adequately present
preserve
failure to
his
by obtaining interpreters.
accommodate
his claim of covert
racial discrimination
against Hispanics,
resulting
and the
denial of
authority
cites no
for this com-
rights,
through
his constitutional
the trial
parison.
He
has
overlooked TEX.
62.102(5).
upon §
In
court’s reliance
order
62.1041(b),
§
pro-
GOVT.CODE ANN.
which
to establish a violation of the fair cross-
vides:
requirement, appellant
section
needs to have
“A
person
disqualified
deaf
serve as
Hispanics
group
shown
are
distinctive
if,
court,
juror
opinion
in the
his
community,
representation
in the
that the
him
deafness renders
unfit to serve as a
group in
fair
venires is not
and reason-
juror
particular
in that
case.”
per-
able
relation to
number of such
group
community,
sons in that
in the
and the
62.102(5)
concluding
§
denied his
underrepresentation
systematic
is due to
ex-
right
jury
to be tried
as
drawn
group
jury
clusion of the
in the
selection
“proper
community”
cross-section of the
Missouri,
357,
process. Duren v.
439 U.S.
right
equal protection,
provided by
893
denied,
(Tex.Cr.App.1990);
v.
920,
3197,
Fearance
107
juror
objectionable.
cert.
113 S.Ct.
which he found
Id.
(the
(1993)
L.Ed.2d 732
requirements in
Appellant satisfied all four
questioned venireperson shall be reviewed
case,
showing
ultimately
instant
that he
whole”).
determining
of dis-
“as a
abuse
juror
accept
which
was forced
he found
cretion,
the record
shall review
this Court
objectionable,
Lavalta Willis.
has
supports
if it
the trial court’s
determine
preserved for review the issue of whether his
juror’s
implied finding
prospective
challenge
juror
for cause to
Grmela was
substantially
“prevent
views would not
or
properly overruled.
impair
performance of his duties as
juror in
with his instructions and
accordance
juror may
A
be excused for cause
Witt,
412,
Wainwright v.
oath.”
469 U.S.
if
prejudice
a defendant
he has a bias
852,
L.Ed.2d 841
S.Ct.
against
applicable
of the
law
the case
(1985);
Cockrum
upon
rely,
entitled
which
defense is
(Tex.Cr.App.1988); and
Fuller
phase
either as a defense to some
of the
Id.
being
prose
offense for which
defendant
mitigation
or as a
thereof or
cuted
The voir dire Grmela shows
punishment
therefore. TEX.CODE CRIM.
*16
agree
legisla
not
the
initially
she
could
that
35.16(c)(2). However,
Art.
PROC.ANN.
meaning
ture intended a different
between
deny a
trial court’s decision to
defendant’s
“deliberately”.
“intentionally”
the
and
words
challenge for cause should not be overturned
that
told counsel
Grmela also
for
unless,
light
of
entire voir dire
the
exami
the two words to mean the same
she believed
prospective juror,
preju
nation of the
bias
thing.
dice has been
as a
of
established
matter
law.
(Tex.Cr.App.1988),
State,
551,
rehabilitation,
explained to
v.
758
at
In
the State
Little
S.W.2d
556
denied,
934,
legislature
for
t.
if the
intended
488 U.S.
109 Grmela that
cer
(1988);
meaning,
two
to have
intentional act”
“will
juror
be
struck for cause when his
case,
In the instant
the six venire-
testimony taken as a
whole indicates
persons
question
exposed
to false
S.W.2d,
is not biased.”
Cooks
phrase
definitions
act of
“criminal
special
violence” in
second
Under
issue.
against property
the law of this
crimes
hold
judge
We
the trial
was in the
can
be crimes
violence.
In Hamilton v.
position
best
if
determine Grmela’s views
(Tex.Cr.App.1984),
impair
performance
would
her
duties
violence,
Court
that “arson is a
held
crime of
juror.
appel
as a
His decision to overrule
Hamilton,
per se.”
at 121. In
Gardner
challenge
lant’s
for cause
was not
abuse
*17
State,
(Tex.Cr.App.1985),
this
State,
S.W.2d,
discretion. Cooks v.
question
that
Court ruled
of
a
whether
711;
State,
924;
S.W.2d,
Fuller v.
burglary
ques
anwas
act of violence
a
“was
(Tex.Cr.
Ellason
denied for cause. The Ful- On sixth, seventh, ninth, tenth, eighth, replied “yes” thir- ton him if when asked points point teenth be of error are his “interest would diverted to the overruled. you probably should not on this sit Appellant challenged case?” Fulton
In then for appel his eleventh dire, cause. When the State voir resumed lant contends the trial court erred in overrul Fulton answered that felt that he could be ing challenge juror his second to Dan Fulton impartial juror. a fair and then ex- Fulton grounds on the that he would not be able to plained, give consideration case because of regarding concerns his business that he “Well, just I mean I want to elaborate peremptory
was forced to
exercise
strike
problem
serving
little bit.
I
no
have
with
cure such error.
jury.
on the
I
I
think that would be an
impartial juror
my
and as far as
work load
“personal
There is no
business” reason set
Dallas,
one,
at the office
or
I
here
either
grounds
challenge
out as
for a
for
cause
manage
managing
could
that.
I’ve been
it
the statute. See TEX.CODE CRIM.PROC.
long
going
time. That’s not
to influence
(b),
(c).
35.16(a),
ANN. Art.
or
is not a
This
me. The
new
situation Dallas is a
busi-
venireperson
case wherein a
sought to be
heading
I
up
ness venture that would be
for
excused
business reasons
under
dis
me,
which is a new circumstance for
cretion of
the trial court.
TEX.
See
even,
again the
though
chances
§
GOVT.CODE ANN.
62.110.
as
may
fifty-fifty,
be a
than
little better
are
serts that
preoccupation
Fulton’s
busi
definitely not
at
point.
concrete
this
It’s
ness
prevent
giving
concerns would
him
fair
say
hard for me
that if
this new venture
case,
appellant’s
thereby
consideration to
starts,
problem
I’m alluding
rendering
incapable
him
being
a fair and
be
would
I’d have
be
two locations at
juror.
35.16(a)(9),
impartial
See Art.
Id.
In
Again,
the same time.
that’s
concrete.
State,
Smith
(Tex.Cr.App.
v.
it would some potentiality, told the lant the trial court erred when spite of Arredondo asserts to an selected, “of made if he would do his admitted evidence statements State that he was *20 investigating by questioning officer the deceased an- for after Victor Macias and Jesse State, S.W.2d, regarding description other witness of the Contreras. v. at Schaffer person perpetrated alleged improperly who offense.” 114. We hold trial court hearsay allowed the introduce testi- State to trial, At Detective J.R. Price testified for mony jury. Schaffer, before the id. appellant’s hearsay objec- State. Over tions, However, Schaffer, State asked Price: we unlike conclude in right instant case that substantial Contreras, talking STATE: After to Jesse affected was not this errone- please you let me remind not to tell ously hearsay. admitted TEX.R.CRIM. anything me what if Mr. Contreras told 103(a). testimony EVID. Other was admit- you, you go searching looking did for a proved ted at trial same facts the
particular description of an individual? sought prove through State the inadmissi- Yes, PRICE: sir. testimony hearsay ble of Price. Anderson v. (Tex.Cr.App. at 628 S.W.2d STATE: that? What is 1986). pointed opinion, As earlier in this out male, PRICE: A black somewhat smaller Victor Macias testified trial that he saw a Contreras, having build than Mr. in his running short black man Jesse Contrer- possession a ski toboggan black mask or Diaz, trial, as’ store. At Gloria Jesse Contr- type cap. daughter, eras’ that when ar- testified she scene,
rived at the
her father told
murder
her that a
black man
a mask had shot
Macias,
talking
STATE: After
to Victor
appellant objected
him. Even though
what,
again
telling
me
if anything,
being hearsay,
Diaz’ testimony as
the trial
you,
you
if you
told
would
tell me
went
court
concluded that was admissible as a
looking
particular description
for a
anof
dying
pointed
point
As
out in
declaration.
individual?
infra,
nineteen,
testimony
error
Diaz’
admissible for that reason. Because the tes-
Yes,
PRICE:
sir.
timony
proved
at trial of Macias and Diaz
STATE:
Jury
Tell the Court or the
what
sought
same facts that
the State
to admit
description
you
looking
of individual
went
Price,
through
testimony of
we conclude
for?
erroneously
hearsay
that Price’s
admitted
male,
build,
Again,
testimony
appellant.
PRICE:
a Black
small
did not harm
Anderson
S.W.2d,
See, also,
approximately
to 5'7".
at 628.
5'6"
(Tex.Cr.
Mayes v.
S.W.2d
Appellant
authority
cites no
for his asser-
App.1991);
and Love
testimony
tion that the
above
inadmissible
1992).
(Tex.App. Austin,
—
hearsay.
responds
The State
that Price’s
point
fifteenth
of error is overruled.
testimony
meet
does not
definition of
sixteen,
hearsay
By way
because it was not “offered in evi-
error
prove
argues
dence
court
in admitting
the truth
the matter as-
that the trial
erred
801(d).
attempting
purchase
serted.”
evidence of him
bul-
TEX.R.CRIM.EVID.R.
days prior
lets some seven to ten
to the date
regarding
We find that
statements
Price’s
Appellant
charged
offense.
believes
victim,
spoke
the fact that he
with the
Contr-
any way
such
evidence was not
connected
eras,
witness, Macias, and then
and the
is-
charged
the offense
inadmissa-
individual,
description
sued a
of an
ble extraneous act.
hearsay.
inadmissible
As in
Schaffer
(Tex.Cr.App.1989),
that the vic-
18. TEX.R.CRIM.EVID.R. out: other acts is 401 sets “Evidence of prove of a having not admissible character "Relevant evidence” means evidence any tendency person to make the fact to show he acted in con- existence order however, consequence that is of formity may, the determination It be admis- therewith. probable probable the action more or less than purposes, proof of such as mo- sible tive, other it would be without the evidence. intent, plan, opportunity, preparation, out, 404(b) part: 19. RULE sets (Texas 1988), 804.4, p. § Practice
In his nineteenth lan- omission argues the trial court erred when it admitted authors discussed allegedly guage: made statements “into evidence daughter, his deceased to wife 804(b)(2) “Third, requires that Rule while hearsay, and such constituted did statements believed that death the declarant Appel- dying not constitute declarations.” imminent, “be- not insist does claims lant the admission the deceased’s recovery.” hope no there was lieved dying comply did with TEX. declarations jurisdictions held that have Several 804(b)(2).20 R.CRIM.EVID.R. language Rule adoption the Federal re- and unrealistic abolishes the extreme supports argument with the *23 hope, of all quirement of abandonment essentially that Rule 804 “is a codi- assertion (and therein.)” cases cited of
fication”
TEX.CODE CRIM.PROC.ANN.
Relying
theory,
on this
Art. 38.20.
argu-
relying upon
the
Appellant erred
dying
that for a
declaration to be
states
prove
de-
the
to
the
ment that
State failed
admissible,
hope
must
no
the declarant
“hold
recovery
hope
had no
for
ceased believed he
recovery.” Appellant
for
the State
contends
at
We
when he made the statements
issue.
deceased,
prove
failed to
at trial that
the
State,
proponent
do not hold that the
Contreras,
aware that his
was
death was
statements,
burden,
had
this
admission
imminent,
had
and that he believed he
no
required by
longer
Rules.
which is no
hope
recovery. Appellant
for
claims the
our
to the
of whether the
We turn
focus
issue
predicate for the admission of the statements
proved that the declarant believed his
State
destroyed
treating physician
when
death was imminent.
explained that there was a
for recov-
chance
ery at the time the statements were made.
brief, appellant
not
his
does
only pre-Rules
for
cites
cases
au-
any place
cite
in the
where the de
record
thority
arguments. Appellant
for
con-
his
daughter
wife and
testified about his
ceased’s
dying
that the
cludes
declarations were inad-
declarations,
treating physi
dying
where the
missible because
State did not show the
cian
about the deceased’s condition
testified
deceased believed his death was imminent
statements,
ap
time of the
or where
recovery.
hope
and that he
no
for
had
objected
testimony
their
and ob
pellant
to
right
appel
ruling.
to
tained a
Because
getting
Before
into the issue of
only
complaints
late review extends
made
whether the record
indicates
de
appellate
with our rules
accordance
ceased believed his death to be imminent at
review,
pre
appellant’s complaint was not
statements,
the time he made the
we take
for our review. TEX.R.APP.P. Rule
served
804(b)(2)
note of
fact
Rule
does not
State,
74(f);
949, at
Harris v.
827
958
S.W.2d
antecedent,
require, as did its
that the de-
—
denied,
-,
(Tex.Cr.App.), cert.
U.S.
hope
recovery.
had
clarant believe he
no
381,
(1992);
292
Cas
113
121 L.Ed.2d
S.Ct.
language from
The drafters omitted that
State,
180, n. 1
tillo
S.W.2d
v.
804(b)(2).
State,
(Tex.Cr.App.1990); and
Foster
GOODE,
845,
(Tex.Cr.App.1989), cert.
at 864
In 33
WELLBORN & SHAR- S.W.2d
1039,
1505,
denied,
LOT,
110 S.Ct.
THE TEXAS RULES OF
U.S.
GUIDE TO
(1990).21
AND
L.Ed.2d
EVIDENCE: CIVIL
CRIMINAL
804(b)(2)
im-
he
to be his
of what
believed
20.
sets out:
cumstances
TEX.R.CRIM.EVID.R.
pending death.
(b) Hearsay exceptions.
following are not
The
is unavailable as a
if the declarant
excluded
805, at 805-806
Morales v.
820 S.W.2d
Cf.
witness:
(T
1991);
ex.Cr.App.
and Davis v.
(2) Dying
A statement made
declarations.
(wherein
345,
(Tex.Cr.App.1991)
believing
at 346
by a
while
that his death
declarant
imminent,
compliance
concerning
held there was substantial
the cause or cir-
Court
more,
What
objection
we find the state
trial court sustained the
and in-
jury
disregard
pur
ments
the witnesses were
structed the
the state-
admissible
804(b)(2).
any purpose.”]
ment “for
suant
to Rule
The deceased’s
daughter testified that at the time
de
instances,
In both
the witness did not answer
ceased told her
happened
what
and described
question. The
trial court overruled both
assailant,
her,
also
told
“I think
appellant’s requests
to declare a mistrial.
got me
my
heart.” The
also
deceased
questions,
sought
We hold
both
which
her,
repeatedly
thought
go
told
“I never
I’d
out the
effect of
absence of the
like this.”
forgive
He also asked
him
her
deceased
community
from the
where he
“if
daddy.”
he’d been a bad
The deceased’s
worked,
inflammatory
were
so
that their
got
wife testified she
to the scene before her
impression
could
have been withdrawn
daughter.
her,
The deceased told
“I have
Any
trier
fact.
harm was cured
my
been hit.
hit
They
me in
I
heart.
am
by the trial
disregard.
court’s instructions to
dying.
you
forgive
And I want
me.”
(Tex.
Cooks v.
844 S.W.2d
at 735
Cr.App.1992);
746 S.W.2d
daughter
Huffman
deceased’s
(Tex.Cr.App.1988);
Living
218-219
wife, concerning
the deceased’s state-
(Tex.Cr.App.1987),
ston
at 335
him,
happened
ments about what
*24
denied,
t.
487 U.S.
cer
admissible because
were made while the
(1988).
S.Ct.
arresting flight, as evidence of flight where no point ap his twentieth arrest for the offense charge was shown. pellant argues prosecutor’s repeated the statements during questioning his of the de Davila, Louis a former detective with the physician ceased’s treating “were so inflam Harlingen Department, Police testified that matory prejudicial and that an to instruction driving he was down Commerce Street disregard futile, them the was court and Harlingen during March of 1989 ob- and [appellant] trial, process denied a fair due appellant walking served down the sidewalk. equal protection law and Appel of the law.” Davila knew at the time there was points following questions: lant to the two outstanding arrest for appellant warrant for capita] murder. Davila testified that he was (STATE): “If Jesse Contreras not had car, clothes, in an unmarked in civilian and dog been shot by somebody—” like his badge exiting had visible. heWhile was objected [Appellant question that the was car, appellant began the run. The record “inflammatory.” The trial court sustained appellant by reflects that Davila called his objection
the
jury
and instructed the
name, although
last
it
unclear
whether
disregard
any
the
“for
purpose
statement
appellant began to run
or
before
after Davila
whatsoever.”]
state, however,
so.
did
did
Davila
that he
loudly
very
police
identified
as a
offi-
himself
(STATE): “Doctor, if Jesse Contreras had
just
appellant began
cer
to run
as
January
shot
been
the 20th of
twenty
was
time
fifteen
feet
very Friday
would this
be
he
over at his
away
approxi-
from him. The chase lasted
factory making
sitting
tortilla
tortillas and
mately four minutes.
cashing
there
checks?”
[Appellant objected
question
the
nonspecific
Appellant made several
speculation by
objections during
testimony
called for
the
The
witness.
of Detective
74(f),
case).
preserved
with Rule
appeal,
so
error was
review on
unlike
instant
prior
sworn,
ly,
his
to the court
despite
notice
Davila. Just after the witness was
even
objection
testimony,
was
following:
stated the
the witness’
Furthermore,
it
vague and multifarious.
honor,
agree-
Your
this time with the
any
put
trial court on notice of
failed
ment of
State I would like
Court to
objection
for his
specific grounds
notice that when I refer to the United
Lankston, supra. Given
remedy
sought.
objec-
State’s Constitution
make
objections, we find that error
the insufficient
referring
I am
tion thereunder
however,
preserved;
was
we will address
Fourth, Fifth, Sixth, Eighth
Four-
jus-
appellant’s argument in
interests
Further,
Amendments.
that when
teenth
tice.
I refer to the Constitution of
State
One,
referring
I
Texas
am
to Article
Sec-
flight
Evidence of
is admissible
9, 10, 13, 15, and 19.
tions
from which an inference
circumstance
objection
by appellant
The next
offered
came
State, 779
guilt may
Foster v.
be drawn.
describing
when Detective Davila was
what
Rumbaugh v.
(Tex.Cr.App.1989);
S.W.2d 845
police
happened the moment
unmarked
(Tex.Cr.App.1982);
S.W.2d
pulled
appellant began
car
over and
to run.
(Tex.Cr.App.
Valdez v.
following:
Appellant stated the
admitted,
1981).
such evidence is
Before
however,
some
appear
it must
has
honor,
object
Your
at this
I’ll
under
prosecution.
relevance
the offense under
the Texas Constitution and the United
S.W.2d,
Rumbaugh
at 752
State’s Constitution.
(wherein
escape
from custo
defendant’s
objection
other
overruled. Several
dy
guilt).
held
on issue of
admissible
objections
during
were made
met,
relevancy requirement is
evi
Once this
*25
witness,
they
of the
however
either took the
custody
“escape
flight
of
or
to
dence
from
preceding
simply phrased
or
form
were
de
arrest” are admissible unless the
avoid
honor, object.”
“(y)our
Appellant
as
I
never
flight
escape
or
fendant shows
explained why he
of
believed the evidence
the
to circumstances unrelated to
related
objected
flight
or
on
(In
was irrelevant
even
Rumbaugh this
charged offense.
Id.
relevancy grounds.
flight
escape
equally
as
Court discusses
guilt).
on the issue of
Further
admissible
timely
reasonably
objection
specific
A
only
more,
if it
flight is no
relevant
is
less
preserve
necessary
is
in order to
for
error
custody
flight
to avoid arrest. Fos
52(a).
appellate review. TEX.R.APP.PRO.
S.W.2d,
lapse
A
of
ter v.
at 859.
regards specificity,
party
all
to
“As
has
do
of the offense and
time between commission
complaint
to avoid the forfeiture of a
flight
always
not
ad
the defendant’s
does
appeal
judge
is to let the trial
know what he
admissibility
flight.
versely
Id.
affect
wants,
it,
why he thinks himself entitled to
clearly enough
judge
the
and to do so
for
to
flight
of
We find that the evidence
understand him at a time when the trial
record,
appears
it
was
From the
admissible.
proper position
something
do
court is
to
in
relevance to the
that the evidence had
it.”
about
Lankston
An arrest warrant had been
stant offense.
907,
(Tex.Cr.App.1992).
party
If a
the
appellant
time Detective
issued
desire, reviewing
to
courts
fails
indicate his
attempted to effectuate
arrest.
Davila
may
appellate complaints have been
hold that
already fled from Waco
had
lost.
Id.
Harlingen
the
of the instant
after
commission
as
clearly identified himself
preserve
find
offense. Davila
We
failed
get appel
objection
police
attempting to
his
officer when
error at trial. The basis for
already
stop.
appellant was
proper grounds
lant to
Since
was not the
for exclusion
case,
flight
suspect
as
in the
his
flight
proof
guilt,
identified
evidence of
i.e.
police was
when
the
relevant
testimony was not relevant. Additional-
confronted
the
to the issue of whether or not
subject
he committed
said so far
tended
declarant to
Rumbaugh, supra.
the instant crime.
Since
person
liability
criminal
that a reasonable
relevancy requirement
satisfied,
would
have made the
unless he
statement
prove
burden was on
that his
or she believed it to be true. Tex.R.Crim.
flight to
arrest
avoid
was related
circum-
803(24).
803(24)
significantly
“Rule
is
Evid.
charged
stances unrelated to the
offense. more liberal in the admission of statements
No
showing
by appellant.
Id.
such
was made
against penal
prior
interest
than was
law.”
We therefore find
that was not error to
(Tex.
Nauert
838 S.W.2d
point
admit the evidence and overrule
ref'd);
App.
pet.
also
see
— Austin
twenty-one.
error
Goode,
G.
III & M.
Steven
Olin Wellborn
Sharlot,
Michael
Guide to
Rules
Texas
twenty-second
appel-
§
803.29
of Evidence:
Civil
Criminal
argues
lant
the trial court
by excluding
erred
(Texas
Supp.1992).
Practice 1988 &
Under
testimony
of a defense witness that an-
rule,
admissible,
such statements are now
person
killing
other
admitted
the deceased.
if “corroborating
clearly
circumstances
indi-
jury’s presence,
Outside the
Regina Burks
cate the trustworthiness
statement.”
testified that three or four
after
hours
803(24).
offense,
Tex.R.Crim.Evid.
Bishop
she overheard
McConnell III
men,
repeatedly state to two
whom she did
803(24)
Rule
Texas Rules of Crimi-
know,
“at the tree”
shot Contrer-
804(b)(3)
nal Evidence is fashioned after rule
as. She further
very
testified that he was
of the Federal Rules of Evidence.
In deter-
“[njobody
pays
intoxicated and
ever
attention
mining
sufficiently
whether a statement
is
to him when he’s drunk.” The trial court
trustworthy, Federal courts have looked to
objection
sustained the
Regina
State’s
surrounding
the circumstances
the state-
Burks’
hearsay
and did not
(1)
ment, including:
when and to whom the
requirements
meet
of the statement
(2)
made,
statement was
the existence of
against penal
exception
interest
hear-
evidence,
(3)
corroborating
the extent to
say rule.
really
which
against
the statement
penal
declarant’s
interest. United States v.
Both
rely
and the State
(5th
Pena,
Cir.),
527 F.2d
cert.
(Tex.
upon
Ramirez
*26
denied,
949,
3168,
426 U.S.
96 S.Ct.
49
State,
Cr.App.1976). See also Erwin v.
729
(1976) (citing
1185
L.Ed.2d
v. Mis
Chambers
(Tex.Cr.App.1987);
S.W.2d 709
and Perez v.
284, 300-01,
1038,
sissippi, 410 U.S.
93 S.Ct.
State,
474,
(Tex.Cr.App.1979),
590 S.W.2d
480
1048-49,
(1973));
gun at Bilton’s uncle’s However, appellant. Bilton recovered from mind, principles in we these With people in the only were three there testified present Bishop to turn case. McConnell McConnell, himself, Mark appellant and car: were Ill’s drunken admissions this offense the driver. penal against his interest since statements subjected have him the admissions could Re sufficiently corroborates The evidence therefore, liability; the issue criminal it admissible testimony to render gina Burks’ sufficiently
whether
the statements were
R.803(24).
Regardless of whether
under
trustworthy.
Bishop’s
admissions
actually believed the state
jury would have
people
made
while he was
to two unidentified
ments,
under
entitled
intoxicated,
indicating a lack
circumstances
R.803(24)
jury.
present
We
them the
However,
of trustworthiness.
the statements
excluding Regina
court erred
hold
only
oc
were made
hours after the offense
testimony.
Green v.
Burks’
Cf.
curred,
and the record
not reflect
does
394,
(Tex.Crim.App.1992),
411-12
S.W.2d
Bishop
or that he would
had
reason
lie
— U.S. -,
denied,
113 S.Ct.
cert.
by admitting
gain
advantage
the of
some
(1993).
next decide
ing Contreras. He testified that did testimony proffered with other tion of the any gunshots and that he did not see hear Regina Bishop Burks day about appellant gun with on the of the of- evidence from 1111, However, 792, only he saw 26. Macias testified that 469 U.S. 105 S.Ct. L.Ed.2d (1985). car, driver and the man who two men in the the jumped the back seat. left the crime scene and Oliver, F.2d 25. See United States v. car, he saw the Mark Guillem testified when (statement (2d Cir.1980) against penal interest driving. was McConnell custody by person implicating also others held in untrustworthy). was deemed proffered testimony McConnell’s statements. She the upon would also the trier of fact would, best, Bishop have testified that “staggering” negligible. was at been The have drunk, fall,” State “pretty prove by appel- “about and out was able to statements of it” veracity when he lant himself that the of made the statements. cast doubt on She would proffered testimony. the explained “nobody have The other evidence pays that ever no trial, by drunk,” including introduced at the attention to him when the State he’s and that Guillem, testimony nobody impli- of contradicted the believed him when he made the Bishop riding cation that was with McConnell statements. Burks would also have testified scene, appellant to the much less that he initially that she told Detective Price that it could have committed the instant offense. mother, her, was her and not that heard The trial court’s the decision to bar testimo- conversations, these though at trial she ex- ny Regina of Burks could not have interfered plained prior inconsistency the by saying her integrity process, the mother heard it first before did. she She prejudiced the decision of the trier of fact. telling also admitted Detective Price that find, beyond doubt, We a reasonable that the said, Bishop Jessie,” though “We shot she proffered testimony of exclusion the did not explained inconsistency Regina also. guilty contribute to the verdict of or the then testified that was she at Vincent Guil- penalty by jury. the assessed Perez v. day lem’s house on the of offense. When S.W.2d, 568; at and Harris v. off, Mark McConnell drove she said that S.W.2d, at twenty-two of Point error Bishop did not leave with them. overruled. upon state’s case was based testi- mony Bilton, appellant’s accomplice, twenty-third point In his testimony. corroboration of that See appellant repeated injec that the contends point of error above. That corroboration during argument tion of facts not in evidence appellant’s aunt, included statements to inflammatory preju State so Christman, appellant Norma which made two disregard dicial instruction to them days to three after murder futile, Contreras. by the court was and denied admission, See note appel- trial, process equal a fair due lawof infra. lant stated there was not witness left at protection Specifically, of the law. he con scene when he left Ap- Contreras’ prosecutor business. tends that not have should pellant also threatened his aunt if she “stocking called used the terms mask” “ski police. during closing argument guilt-inno mask” Although appellant identify cence. fails to only Guillem’s Mark distinction, the relevance of this the record McConnell left with appellant car im- accomplice reflects that an witness testified peaches Bishop’s both drunken statements to was seen with such an article tree, two accomplice, men and the clothing immediately after the commission Bilton’s, impeachment statement. In its (See fourteen, of the offense of error statement, however, Bilton’s Guillem’s testi- supra). mony combines with Macias’ statement following The record reflects that the tran- strong proof form was the man spired during closing argument the State’s Macias leave get saw the scene and guilt-innocence: seat the car back Mark McConnell *28 above, driving. Regina As mentioned Burks .. THE His STATE: brother later saw supported would have the that (appellant) handgun with a small caliber Bishop appellant. leave didn’t mask, stocking left and that he the house put stocking with and the mask— fight questionable credibility In of Bish- op honor, statements he object. McConnell’s when I APPELLANT: Your I drunk, Honor, Regina prior object, your as well as incon- Burks’ not the those are facts Price, impact sistencies with Detective the and the There no evidence evidence.
907
initially
dining
He
referred to
room table.
any
mask at all. There was evidence of
cap”
cap,
“stocking
and “winterized
stocking
stocking
a
not a
mask.
the hat as a
Later,
being ques-
type
while still
hat.”
THE COURT: Sustained.
State,
to it
a
by
he referred
as
tioned
the
APPELLANT:
I ask the—
that
did
know
hat added
he
“toboggan”
eye
During cross ex-
holes.
whether it had
jury they’ll
THE
I instruct
COURT:
the
amination,
a
appellant read
statement
disregard the last statement of counsel for
given
police
about
McConnell had
any
They
purpose.
will recall the testimo-
statement,
17,
the
the
February
ny
they
to from the
as
heard
testified
as a ski mask
referred to the hat
McConnell
stand.
witness
eyes.
the item had holes for
and said that
a
APPELLANT: Move for mistrial.
alleged that he had not included
The witness
regarding
in the
the hat
state-
such details
THE
I overrule our motion.
COURT:
Go
without
ment
had been added
his
and
ahead.
only
He
that he
knew
knowledge.
asserted
you
gentlemen,
THE
Ladies and
STATE:
cap.
stocking
a
that the article was
heard Louis McConnell talk
how this
about
examination,
Upon
McConnell was
redirect
stocking cap,
stocking
man
stuck
black
question
cap
questioned concerning
recorded
or ski mask in—
by the State at
and
session conducted
answer
honor,
going
APPELLANT:
I’m
Your
Attorney’s
County District
the McLennan
object again.
There’s no
evidence
23,
February
attempt
1989. In an
Office on
ski
in this case. The
for the
mask
Counsel
witness,
impeach
McConnellwas asked
arguing
State
outside the record on facts
is
during
giving
if he
two answers
remembered
not in evidence.
directly
stated that he
session where he
objec-
again
THE COURT: I
sustain the
Finally,
eye
saw
holes in a ski mask.
Jury
disregard
tion
they’ll
and instruct the
during recross examination
McConnell stated
statement of Counsel for the State
last
by appellant that he did not see holes
Jury
they’ll
recall
instruct
the mask
on the table.
he saw
by
testimony as it
was testified
witness
witnesses
stand.
improper
is
argument
be
Where
record,
may
the error
cause it is outside the
mistrial,
APPELLANT: Move for a
disregard
jury
be cured
instruction
Judge.
evidence. Hammond
your
THE
Motion.”
COURT: Overrule
(citations
(Tex.Cr.App.1990)
omit
98,
ted);
Pyles v.
755 S.W.2d
that the
believes
use of “stock-
(Tex.Cr.App.1988); Drakes
ing
injected
and “ski mask”
facts
mask”
However, if
(Tex.Cr.App.1974).
S.W.2d 892
He further
evidence.
contends
manifestly improper or
argument
such
is
so
manifestly improper
statements
de-
not work to
extreme that
instruction will
trial,
process,
equal
nied him a fair
due
will be mandated.
cure the
reversal
protection
degree
to the
laws
(Tex.Cr.App.1986),
Kunkle v.
a dark
blue or black hat were
cap
place during
issue of whether the
burglary
item was a ski
took
of a Texaco in
Therefore,
August
ski mask unresolved.
without
of 1982. The
who
witnesses
testified
finding whether a ski mask was or
not in
concerning
Gary
was
this offense included
evidence,
jury
we find that
Bridgewater, appellant’s
instruction
cousin
a
fellow
sufficiently
any possible
cured
appellant’s
error. See
inmate of
while he
incarcerat-
was
Pyles, supra.
Hammond and
County
August
Because of the
ed
the McLennan
Jail in
of
conflicting testimony,
appellant
we cannot
that
Bridgewater
find
asserted that
closing argument
manifestly
State’s
im
him
during
told
that
that
he
month
had
Kunkle,
proper or
supra;
extreme.
cf. Go
broken into a service
in
in
station Waco and
mez v.
(Tex.Cr.App.
process
doing
therefore overruled. Nicoletti, Mike an with the officer Waco Department, Police testified that he was in- twenty- asserts in of error in burglary volved case in allowing four that the trial court murder erred August murder, of 1982 at a Texaco station on prior IH-35 alleged capital evidence in Waco. Nicoletti testified that he took including photographs, horrendous alleged to photographs of the crime He scene. ex- have been by appellant, committed when plained photo- that several crime scene charges against such him were dismissed introduced, graphs, which were that revealed because of insufficient evidence. brutally the victim had been cut and beaten. Nicoletti believed the victim “received severe begin We noting appellant’s that head”, blows to the that such the victim’s argument in comport his brief does not cross-examination, ap- head was swollen. On objection trial, appellant his trial. At pellant charges asked Nicoletti if the argued to the court that the State should not dropped because insufficient evidence. have been allowed to introduce extrane Nicoletti he that answered that believed prove ous offenses unless could them the cause. beyond a Finding reasonable doubt. 37.071, not a requirement this was Trantham, Depart- Mike a Waco Police appellant’s request. Appellant court denied detective, ment also testified about his in- argues proof extraneous, now an investigation August, volvement of
unadjudicated capital murder should not robbery station 1982 service and murder. charges against have been admitted since the signed sup- He stated that he an in’ affidavit dropped. him were port appellant. of an arrest for warrant Ac- Trantham, cording was arrested. objection An stating legal one basis custody, an While he told assistant district may support legal not be used different attorney nothing had to do with the theory on appeal. Rezac v. 782 S.W.2d crime. Trantham further stated (Tex.Cr.App.1990). We find that against appellant ap- case was “retired” objection did not make the same pellant prosecuted was never indicted or trial that he Consequent makes his brief. implied the offense. While Trantham also ly, preserved. we find that no error is How point- that there was additional information ever, justice in the interests of we ad will ing that was obtained from other argument. dress inmates, appellant’s the court sustained ob- jection during questioning the line of which Appellant complains Although have nature. would revealed its given concerning during that was of extraneous Trantham also mentioned capital investigation fense that involved murder that he had received information
909
crime,
an
“clearly
trial
that
prove” to the
court
committed the
that someone else had
that the accused
was committed and
enough
never
infor-
offense
he commented there was
State,
Kemp v.
846
suspects.
perpetrator.
This
the
mation to arrest
the other
was
289,
(Tex.Cr.App.1992); Tur
hearsay
Gary
at 307
from a
S.W.2d
information included
(Tex.Cr.
State,
668,
673
allegedly had
from a
ner v.
S.W.2d
Hawes who
heard
663,
State, 647
Elkins v.
S.W.2d
App.1988);
had
James
that Shaw
admitted
Shaw
In
the
(Tex.Cr.App.1983).
applying
gas
in
breaking
August
into a
of 1982 665
station
review,
appellate
proof’ standard on
process
doing so
a man.
“clear
and in the
stabbed
solely to
ruling
the
court’s
all
sus-
“we evaluate
explained
Trantham also
that
other
in
zone of
it was
that
pects,
appellant,
whether
except
had been eliminated
determine
‘(Reasona
disagreement, in which
consideration. Trantham testified
reasonable
may disagree whether in common
still
men
direct examination that
was
ble
avail
particular
inference is
suspect
experience
in the
the number one
case.
” Kemp,
quoting Montgomery
supra,
able.’
Finally, appellant
testimony
admitted the
372,
(Tex.Cr.App.
v.
Murphy by deposition. Murphy
was
Pat
1990).
so,
doing
a de
we will
conduct
attorney in
an
district
McLennan
assistant
superim
so
review of the evidence
as to
novo
County at the time of the offense and was
pose
analysis of the evidence over
our own
attempting
to formulate a case
involved
interpretation
the trial
equally plausible
against appellant.
had to
He stated that he
keep
perform
We
in mind while
court. Id.
appellant.
against
the
Most
“retire”27
case
ing
review that once evidence is deemed
this
importantly, knowing
Bridgewater’s
that
admissible,
judge of
jury
the
is the ultimate
against
primary
statement was the
evidence
weight
credibility
and
of witnesses
the
offense,
appellant for this extraneous
Mur-
testimony.
their
See Bonham
given
to be
phy
Bridgewater’s reputation
that
stated
(Tex.Cr.App.1984).
Id., necessary, however, special the trial court It issue at 162. relevant obliged present the State to is was allow evidence extraneous transactions jury with the discre- and vest the to be relevant and the accused witnesses shown of We find actually participated in the extraneous whether or not to believe them. tion Id., that, testimony of 161; aggregate, Harris v. in the fense. placed Murphy (Tex.Cr.App.1992); Bridgewater, Beltran Trantham S.W.2d (Tex.Cr.App. of whether committed the issue 1987). in the zone of reasonable offense extraneous per- among reasonable
disagreement which may disagree. Kemp, supra. There- may offenses sons Before extraneous fore, allow find it was error to punishment phase we during the be introduced of- trial, testimony concerning the extraneous capital must of a murder State prosecution.” "re- Murphy explained that when a case was tired”, “simply proceed with we did not means *31 point twenty- fense and we overrule of error time been instant the he had arrested the four. offense and the time of his trial.
By way
point
twenty-five, ap-
of
of error
Evidence
mental
of limited intellectual and
pellant argues that the trial court
in
capability
spe
erred
may be
within the
addressed
failing
give
to
an
in
punishment
instruction
the second
questions and
not re
cial
does
charge
main
the
concerning
of
court
the con- quire
jury
Lackey
instruction.
additional
by
jury
sideration
the
mitigating
State,
of
circum-
(Tex.Cr.App.1989);
v.
They simply applied to in “their usual are be CLINTON, Judge, dissenting. Lackey, acceptation language.” in common 105, King supra, quoting 553 S.W.2d v. opinion join Maloney’s dissenting Judge I (Tex.Cr.App.1977). Because there at 107 additionally to address in this I write cause. definitions, provide to was no need these of seven- appellant’s treatment the Court’s twenty-sixth appellant’s twenty-eighth error, trial court teenth of the points are of error overruled. testimony Ike Weeks from erred admit offense fully before the instant a month twenty-seventh point of In his him to in an appellant participate solicited in argues that trial court erred the unspecified robbery. majority The holds failing give an in the instruction second admissible, this is Tex.R.Cr. evidence charge regarding main court evidence 404(b) Evid., notwithstanding, because Rule offenses, the “manner” in extraneous rob Tortilla “plan” it shows Jesse’s jury which the consider such evidence. Factory, it is “same transaction and because Specifically, he there contends that should majority parades The contextual evidence.” some instruction have been which established appli- meanings, these if their words as presenting proof the burden of when State’s case, in were self- cation the context the extraneous offenses. While be that, articu- suspects evident. forced to One “beyond be lieves should the reasonable “plan” as late how shows Weeks’ standard, doubt” he states that burden properly in context word is understood proof instruction have been would suffi 404(b), exactly it can be of Rule or how cient. part of the “same transac- construed to be here, or as the charge punishment tion” “context” offense required The court’s be, majority ironically, prove punishment at a loss State all issues would beyond a reasonable doubt. re- words. quested charge an additional that instructed 404(b), supra, evidence of Under Rule jury not to of- consider extraneous crimes, wrongs, or “other acts” is not admis beyond proven fenses unless simply person] [a “to show that acted sible reasonable doubt. The instruction was de- may conformity To extent it therewith.” nied. “plan,” just propensi be relevant to show charge jury properly crimes,
Where the to the wrongs, or acts ty, of other evidence requires prove spe- the State to each plan may The of a be admissible. existence punishment beyond a cial issues reasonable may evidentiary an fact constitute doubt, proof instruction fact, no burden of con- identity which elemental such as cerning required. is extraneous offenses intent, Montgomery v. may inferred. be 105, at Boyd v. 123-124 State, S.W.2d (Tex.Cr.App. S.W.2d (Tex.Cr.App.1991); Lewis 815 1991) (Opinion rehearing own on Court’s (Tex.Cr.App.1991). at 567 motion). Judge late Davis But as the W.C. opinion plurality in Boutwell observed in his charge in the instant ease Given that (Tex.Cr.App. at 181 properly burden of established the State’s 1986) (Opinion for rehear on State’s motion proof regard special punishment to the is rele ing), extraneous misconduct before questions, Point of we find no error. error “plan,” there must be evidence vant to show twenty-seven is therefore overruled. and the that both the extraneous misconduct steps the accom- charged “are toward judgment of the trial court is affirmed. offense plishment plan.” robbery, A Factory. real or That solicited someone to inchoate, December, in late (or, it, is not unspecified admissible commit an as he now calls prosecution robbery/murder “generic”) of a robbery one month before does January, late guise at least under the of not likely tend to make more that he robbed “plan,” unless there is some basis in Factory, Jesse’s except Tortilla to the extent evidence to believe that both robberies were that one general who commits robberies in part of an overarching “plan,” such that likely it more particular have committed a can be said planner that the committed both. robbery. The rulemakers have deemed the Otherwise, proof of the earlier robbery probativeness of that kind of evidence to be probative serves no function substantially but show that outweighed by danger perpetrator general, is a law, robber prejudice, unfair as a matter of under likely 404(b). therefore more committed the later Montgomery supra, Rule *33 404(b) robbery inference Rule forbids. —an State, supra, See Boutwell v. at 180-81. Testimony appellant solicited another absolutely There is no evidence of an over- help him unspecified robbery to commit an arching “plan” in this cause. rationally month earlier cannot be consid aside, “Plan” evidence that solic- ered “same transaction contextual evidence” ited help specifically to rob Jesse’s Tortilla either. certainly It cannot be said that the Factory in late December would charged constitute offense “makes little no sense” some evidence that part he took State, the rob- absent testimony. Rogers v.
bery of
29,
that establishment in
January.
late
S.W.2d
at 33 (Tex.Cr.App.1993). The
evidence,
It would
not,
thus be some
therefore,
however
“necessary.”
was
tenuous,
identity,
of
per
and would not be
recently
se
Id. That the Court has
held extra
404(b).
inadmissible under Rule
It might not
neous misconduct admissible as “same trans
highly probative
be
evidence relative to
despite
its
action context
failing
evidence”
its
potential
prejudice;
for
but it
“necessity”
would be rele-
Rogers
meet the
test of
is bad
apart
vant
from
conformity
its character
enough.
val-
Lockhart v.
847 S.W.2d
ue,
Tex.R.Cr.Evid.,
and I do
(Clinton, J.,
not understand
(Tex.Cr.App.1992)
575-76
dis
Indeed,
Rule
be
issue here.
senting);
this is
Camacho v.
864 S.W.2d
agree
the reason I
majority
with the
(Clinton, J.,
(Tex.Cr.App.1993)
537-38
dis
appellant’s eighteenth point of error is merit-
senting). Here the solicitation of Weeks was
less.
Evidence that
was overheard
remotely contemporaneous
even
with the
day
before the
engaged
offense,
offense
in con-
charged
and did not
reference
rationally
versation that could
be
Factory
construed
Jesse’s Tortilla
at all.
It cannot
planning
as
logistics
reasonably
that offense cer-
be
during
said to have occurred
tainly
likely
tends to make more
identity
transaction,”
of,
the “same
inor
“context”
perpetrators.
as one of
offense,
But
charged
understanding
even
was not overheard in late December to solicit
those words in their
acceptation.*
common
specifically
someone
to rob
Apart
Jesse’s Tortilla
misbegotten
its
conclusion
*The Court
Mann
watching
cites
Crim.App.1994). admissible, MALONEY, testimony was as the Judge, dissenting. Regina’s holds, correctly slightly majority albeit for majority’s dis- respectfully I dissent Maj. Op. at 904-905. reasons. different point of appellant’s twenty-second position twenty-second point Regina’s In his testimo Having error. determined that *34 the appellant admissible, contends trial court erred question the is whether ny was testimony excluding Regina Burks’ that Bish- appel the error of exclusion contributed killing op III the de- McConnell admitted punishment. Harris lant’s conviction jury’s presence, Regina the ceased. Outside (Tex.Crim.App. 790 S.W.2d 585-88 that three or hours after the testified four Tex.R.App.P. 81(b)(2). Hands, 1989); this offense, Bishop repeatedly she overheard recognized that of error is harmfulness Court state to two men whom she did not know by the of over not determined existence fur- Bishop had shot Jesse She Contreras. evidence, fac although it can be a whelming Bishop very intoxicat- ther testified was tor: “[njobody him pays ed and ever attention to analysis making [harmless the [I]n error] he’s drunk.” The trial court sustained when must be the er- predominant the concern objection Regina’s the State’s error is If the court rules that an ror. hearsay require- did which not meet the asserting that the harmless it is essence penal against ments of the statement interest error is that it could nature of the such exception hearsay to the rule. jury jury, the the must have affected so against penal interest are ad- Statements overwhelming evidence have relied on 803(24) rule missible under of the Texas overwhelming place. guilt in the first If only Rules of Criminal Evidence if “corrobo- dissipates upon the error’s effect evidence
rating clearly circumstances indicate determining facts jury’s function of the statement.” trustworthiness Tex. not contribute to the verdict so that did 803(24). respect to the With R.CRIM.Evid. Otherwise, it error is harmless. then the against penal of a determination statement is not. trustworthiness, recently we wrote: interest’s writes, correctly majority As the Id. at 587. Any may be considered number factors then, is a rational question, ‘whether “[t]he guilt inquiry, including whether the might have different fact reached a trier of with the of the declarant inconsistent had not if the error its effects result accused, guilt of the whether the declarant (quoting Maj. Op. at 905-906 resulted.’” might have com- so situated 588). Harris, crime, timing of the declara- mitted authority January. Factory no appellant’s Weeks in in late Mann is all between solicitation holding today. robbery Court’s and the of Jesse’s Tortilla for the late December The record hour reflects that one before away
the offense and a few blocks from the Farm STATE FARM LLOYDS and State scene, Bishop crime was in same car Casualty, Appellants, &Fire Victor Macias saw at the crime scene. Maci- as never identified man he running saw from the crime scene. The Marilyn MOWER and Ronald fingerprints Waco Police did not obtain from Mower, Appellees. crime Arguably, Bishop scene. could person running have been the saw Macias No. 01-91-00216-CV. Bishop gun crime scene. owned a Texas, Appeals Court of similar, identical, if weap- murder (1st Dist.). Houston gun on. A was not recovered from (whose accomplice-witness capital and the Dec. 1993. charges
murder his testi- dismissed mony) saw testified that he never Dissenting Opinion by Justice And, gun day on the of the offense. Cohen March despite aunt, appellant the threats to his did committing not admit the offense her or
anyone else.
Regina’s testimony was not inconsistent appellant.
with the against State’s evidence evidence,
Given weakness of the State’s
Regina’s testimony shortly after this occurred, Bishop repeatedly
offense admitted it, committing believed, if have could cre- jury’s
ated minds a reasonable doubt
as to whether shot Contreras.
Therefore, beyond I cannot a rea- conclude
sonable doubt that the trial error in court’s
excluding Regina’s testimony did contrib- appellant’s subsequent
ute to conviction or Tex.R.App.P. 81(b)(2). death sentence. I judgment
would reverse the the trial court remand court this cause to that for a not, majority
new trial. Because the does I
respectfully dissent.
BAIRD, J., joins.