*1 рre-meditated murder. that in this case the interest than does we have determined suicide, 22.08, the less penalty aiding This is evidenced severe Art. is a offense of provided which for the man- is offense of charge lesser offense to the of included slaughter provided murder, that which is 15.03, versus to commit Art. solicitation V.T.C.A., the offense of See Pe- murder. supra. upon the trial It was incumbent nal Code Secs. 19.02 19.04. court an instruction to that effect. to issue error, The to do so failure was reversible Similarly Legislature, making seriously compromised which V.T.C.A., (aiding Penal Sec. 22.08 su- Code right lant’s to a fair trial. icide) clearly a class c misdemeanor has expressed public policy state of this Appeals of judgment The of the Court is is aiding suicide a less serious threat reversed and the cause remanded to the public preservation to the of of life interest trial court. than is the of solicitation offense to commit murder, V.T.C.A., 15.03(a). Penal Code Sec. involving
As all cases or at homicide
tempted homicide, the defendant’s intent degree injury pub
determines the protected.
lic interest must In which be only dispute
this case the between the state
and the
is his intent.
sole
question
is did the
make
intend to
Barry BUSH, Appellant,
Paul
poison
available
someone and thus
aid a suicide
he
or did
intend to
it to
feed
an unwilling
Texas,
Appellee.
victim
thus commit mur
The STATE
der.
When the
No. 69076.
alleged
and his
question
victim raised
as
committed,
to which crime
actually
Texas,
Appeals
Criminal
Court of
there was sufficient evidence to
entitle
En Banc.
appellant to an instruction on
in
a lessеr
24,
July
1985.
thereby
cluded
allowing
offense
jury
decide the
Simpkins,
supra,
issue. See
Rehearing Denied Oct.
on a lesser included offense is received.
First, the lesser included offense be must proof
included within the necessary to es charged.
tablish the Secondly, offense
there must be some evidence in the record
that if guilty, the defendant is guilty he is only the lesser offense. Aguilar See (Tex.Cr.App.
1985). clearly
This case guide- falls within the analysis,
lines of our All Aguilar supra. tending prove
elements the crime of prove
solicitation to murder also could aiding
the offense of a suicide intend-
ed. importantly, ample More there is evi-
dence in the record that is
guilty anything, guilty is only of
lesser applying analysis, offense. In *2 Holder, Jr., appointed,
Floyd D. court Lubbock, appellant. Hardin,
Guy Atty., Pampa, Dist. Robert Huttash, Austin, Atty., for the State’s State.
OPINION McCORMICK,Judge. appeal from a conviction for
This is an
assessed
capital murder. Punishment was
previously con-
at death.
However, this Court
of this offense.
victed
in Bush v.
reversed that conviction
(Tex.Cr.App.1982),
professional opinion,
because
tified
in his
con-
of the erroneous admission
evidence
accuracy
predictions
of future danger-
After a
cerning
extraneous offense.
wrong
ousness was
two out
three times.
trial,
again.
now
new
case is
before us
psychiatric
psy-
State offered no
or
in admitting
Because
trial error
evidence
chological expert
either
by appellant,
of an oral statement made
we
their case in
or on
chief
rebuttal.
*3
again
are
to
compelled
appellant’s
reverse
However,
conviction.
before
address
we
recognized
This
evi
Court
that
particular ground
of error we will
presented
stage
at
the
guilt
dence
the
of
ground
appellant
address a
of error
raises
may
by
jury
trial
be considered
the
when
sufficiency
the
of the evidence.
issue,
determining
punishment
the second
offense,
and the circumstances of the
ground
error, appellant
In his
of
second
may
enough,
severe
alone be
to
sufficient
argues that the evidence was insufficient
support an
jury
affirmative answer
the
to
an
support
affirmative
to the
answer
Roney
on
issue.
issue,
punishment
is,
second
whether
(Tex.Cr.App.1982).
We
the
have read
probability
there is a
that he will commit
guilt-innocence
from
phase
record
the
of
criminal acts of violence that would consti-
the trial and find that the facts adduced
continuing
tute a
society.
threat to
great probative
therein
in
furnish
еvidence
punishment stage
At the
of the trial the
support
jury’s
finding
affirmative
as
State
introduced the
of two law
special
the
to
second
issue.
enforcement
from
County.
officers
Potter
Viewing
light
Sheriff T.L. Baker
Deputy
and
Jim Hands
the evidence in
most
both
verdict,
testified that
reputation
favorable to the
we find
the community
being
peaceful
for
a
guilt stage
and
evidence
at the
adduced
law-abiding citizen was bad. The State
trial
appellant
showed that while
was bur-
then introduced into evidence a
glarizing
letter writ-
Pharmacy
Ladd’s
for
Canadian
ten
appellant while on Death Row after
drugs,
M.L.
Deputy
responded
Guthrie
his first conviction
for
offense. This
trig-
the silent
that appellant
alarm
had
letter was written to another T.D.C. inmate
gered.
pulled
up
As Guthrie
his car
to the
appellant
and in it
pay
offered to
the in-
store,
drug
front of the
but before he could
$20,000.00
mate
if he would kill the individ-
ignition off, appellant,
even turn the
who
uals
had
against
who
testified
appellant at
store,
still
drug
was
inside the
fired a blast
his first trial. The State then rested.
through
shotgun.
from his
This blast went
Deputy
the front windshield of
Guthrie’s
Appellant then introduced the testimony
pharmacy,
car.
then exited the
psychologists.
two
Dr. Richard Wall
leaned over the hood of
car and
Guthrie’s
testified that he
examined
on
through
fired
another blast
front wind-
June
and found him have
Appellant then
shield.
climbed over the
personality
big
immature
be a
talker
front of
wedged
the car which was
very
but аlso
nonconfrontive. When the
store,
against
the front
went around
by appellant
letter written
T.D.C.
open
door on
driver’s
front
side
Wall,
inmate was shown to Dr.
he testified
car,
shotgun through
of Guthrie’s
stuck his
good example
that it
a
of appellant’s
opening
again
point
shot
at
Guthrie
“king
world,
controller of lives” atti-
range,
pleading
deputy
blank
while the
again reiterated, however,
tude. He
that if
help
for
over his radio.
confrontation,
was in a
he would
passive. Finally,
remаin
Dr. Wall testified
Wright,
Sheriff C.H.
who was the first
very
predict
that it was
difficult to
future
shooting,
one to
scene
reach the
after
dangerousness
probably
no
than
better
leaning
testified that Guthrie was found
predictions
one in three
was accurate.
car, bleeding
over
the front seat of his
Dickerson, formerly
badly.
Dr. Wendell L.
had
wounds on his
Chief
Guthrie
several
T.D.C.,
large
Mental Health Services with
tes-
face and a
wound under
left arm.
engine
running,
guilt-innocence phase,
was still
Guth-
Also
car’s
strap
рistol
rie’s
was holstered and
took the stand and testified that
unsnapped.
Larry King burglar-
over his
had not been
sat
the car while
Pharmacy
ized Ladd’s
Deputy
and shot
King
appellant began
Larry
testified that
cross-examination, appellant
Guthrie. On
staying
early part
July
him in the
with
prior
admitted that he had four
convictions:
thereafter,
Shortly
of 1980.
theft,
burglary,
one for
one for
one for
King if he
him to
asked
would drive
Cana-
delivery of a controlled substance and one
drug
a
store of Preludin.”
dian to “rob
passing
forged prescription
in an at-
King replied that he did not
to be
want
tempt
possession
to obtain
of a controlled
evening
July
involved. On
substance.
King’s
pretext
lant borrowed
car on the
going
girl. Appellant
to see a
did not
evidence,
We find the
taken as a
morning.
return until 6:30 the next
When whole, was sufficient to sustain an affirma
*4
King began questioning him as to
he
where
punishment
tive answer to the second
is
gone, appellant
King that he
had
told
had
sue. The cirсumstances of the offense it
cop”
King
in
“killed a
also re-
Canadian.
yes
they
self can sustain a
if
are
answer
how,
prior
July
appellant
lated
had
State,
Burns v.
enough,
severe
gotten
12-gauge
repaired
shotgun
his
(Tex.Cr.App.1977),
sup
270
or can fail to
bought ammunition for it. After he had
port
they
unsupplemented by
it if
are
other
killing, King
been informed of the
drove
State,
evidence,
Warren
Larry acquaintance an support nal record were sufficient to the lant’s, day testified that the after the mur- finding jury’s as to the issue of der, appellant came to his house and asked dangerousness. ground This of er future stay Appel- if he could there for awhile. ror is overruled. bragged killing to Austin the lant about officer in Canadian. error, ground appellant In his fourth complains the trial court erred in ad- that Heard, Larry King’s
Carrie common-law led mitting his oral statements which wife, appellant that tell- testified when was weapon. murder After discovery of the ing shooting them the he did not about the Jackson v. Denno hearing the trial upset seem at all. He told them that while voluntarily appellant court ruled that burglarizing pharmacy he was the he saw knowingly made the statements and waived lights it a pull car and when he' saw was rights, right to specifically his his counsel car he shot at it three times. The police previously he had invoked. We now which through first shot went the front wind- findings quote portion a of the trial court’s head. shield and hit the officer of fact: appellant Carrie could remember where Court, the evi- upon all of
said the shot she did re- “The based second went but hearing, finds that appellant stating he shot the dence at such member Dumas, window, Tex- hitting was arrested through third shot the side Defendant (sic) Nuggent as, told Officer Robert Deputy Guthrie the arm. Dumas, Department and that Police King he shot Guthrie Heard and that after given was his arrest he help shortly he after pleading he heard him because rights not to warnings bleeding to death. statement; given talking throughout make a he was all continued duration Rights he stated forty-five Miranda which he the one hour and minute understood, sign but refused written to Canadian. trio When the reached Cana- rights waiver of until he such had an dian, appellant arraigned by Justice of attorney. Following such he was nоt the Peace Frankie Hill. Batten testified questioned further at that time. That arraignment that at no time did Attorney Investigator District Jack Pow- appellant request attorney. On the ell saw the in the office Defendant trip, return Batten testified that neither he assistant chief of and read the Roper nor an interrogation conducted Rights Miranda Defendant and appellant did but Batten ask arraigned thereafter he was before Jus- where was and told tice of the Lorraine Peace E. Brown. he could save them a lot of work Following that time Defendant Bush weapon would tell them the murder where advised both the Justice of the Peace and was response located. At first to Bat- Investigator District Attorney Powell inquiry, just ten’s asked Bat- that he attorney ques- desired an and no ten thought where he it was. Batten re- tioning following was made time. plied it thought probably that he had been The Court finds that the Defendant was thrown into Lake Meredith. Batten also Cоunty Dumas, confined in the Jail at testified that he told several Texas and on July Ranger Texas any times that in Texas oral statement he W.P. Batten contacted the Defendant for against made could not be used him unless purpose of transporting him to Amar- *5 it discovery led to the weap- murder jail illo safekeeping; for Ranger that on or some other fruit crime. The Batten and Deputy Hammond read the ap- conversation continued Batten told Rights Defendant his Miranda and thе pellant about a he had up case worked on transported two the Defendant in an Spearman. around appellant Batten told County automobile to the Amarillo Jail. that this case had been written in True That Ranger neither Texas Batten or though Detective and even Batten had Deputy questioned Hammond the De- arrest, made the some other officer had fendant during the time he was trans- given Approximately been credit it. for ported to Amarillo....” Amarillo, ten appellant miles east of told According testimony Ranger the of going Batten he was to make a hero out of Batten, on July 14, the of Rang- afternoon him proceeded and then he to tell where er Batten investigator and D.A. Kirvin they weapon. could find the murder Roper transported appellant to Canadian to Roper, investigator Kirvin the for the arraigned by be justice the local office, Attorney’s 31st Judicial District tes- peace. During trip Rangеr the Batten trip tified that on the from Amarillo to appellant asked if he knew the deceased. appellant Canadian and Batten carried on a appellant The replied that he did not and general conversation about the location of why then asked the ranger he had asked. gun. Roper during the testified that the Ranger appellant Batten the advised that arraignment justice in Canadian when the appellant both and the deceased had both of peace appellant the told that he had a County lived in Wheeler at one time. The right attorney appellant to an informed her appellant asking began ranger then the questions attorney. Appellant that he did want an whereupon ranger the advised justice peace also told the appellant that he that under warnings the Miranda examining attempt wanted an trial. No he did not have to discuss the case at all. appеllant get attorney was made to for replied that he understood appellant and, arraignment warnings at that time after and he also knew concluded, Roper placed appel- would probably testimony hear and Batten regarding ranger trip his conversation lant the return someday with the back the car for in a courtroom. Appellant ranger Roper Amarillo. the trio testified
talked about the location of
on
stant situation to the “Christian burial”
trip.
lapse
speech
Williams,
return
Then a fifteen minute
in Brewer v.
430 U.S.
subject
Ranger
occurred in this
Batten
(1977).
97 S.Ct.
Appellant argues that
the conduct of
we now hold that
when
accused has
Ranger Batten
investigator Roper
right
and
vio-
present
invoked his
to have counsel
lated the law as set out in
during
interrogation,
Edwards v.
custodial
a valid
Arizona,
477,
1880,
451
right
U.S.
101 S.Ct.
68
waiver of that
cannot be estab-
(1981),
L.Ed.2d 378
and
by showing only
responded
he likens the in-
lished
that he
brief,
weapon
1. In its
the State makes a one-sentence
as to the location of the murder
and his
appellant’s allegation
story
statement
TrueDetective
were in fact means of custo-
interrogation:
interrogation.
of custodial
dial
As Justice Stewart wrote in
291,
Innis,
Rhode Island v.
446 U.S.
100 S.Ct.
agree
"The State does not
that the facts
1682,
(1980),
403
carry
inter-
find that the State has failed to
police-initiated
to further
custodial
We
heavy
proving
rogation
if he has been advised of
burden of
even
rights.
knowingly
intelligently
ac-
his
We further hold that an
waived
cused,
Edwards, having
right
presence
such as
ex-
to the
of counsel. Thus we
appellant’s
pressed
police only
his desire to deal with
hold that the use of
oral state
counsel,
through
subject
is not
to further ments at trial and the introduction of the
interrogation
shotgun
by the authorities until
into evidence violatеd
him,
rights
made
the Fifth and Fourteenth
counsel
been
available
under
fur-
unless the accused himself initiates
Amendments
United States Constitu
State,
communication,
(Tex.
Evans v.
exchanges
ther
or con-
tion.
484, 485,
(cita-
(Tex.Cr.App.1981).
at
S.Ct.
Contra: Griffin
State,
omitted)
(Tex.Cr.App.1983).
tions and footnotes
curative
The mony.
attempted
does not
The State has not even
any argu-
State has not favored us
argument
with
to make such
appeal
in their
ment on this issue.
showing,
brief. Because there is no such
we hold that
did not waive his
The doctrine of curative admissi
State,
v.
Sherlock
objection.
632
S.W.2d
bility provides
improper
that the
admission
State,
Benavides v.
(Tex.Cr.App.1982);
604
objection
of evidence over
is rendered
Howard
(Tex.Cr.App.1980);
392 U.S.
88 S.Ct.
(1968). Harrison, ‘question
“Under is not
whether petitioner knowing made a why. testify,
decision but If he did so impact order to overcome the illegally confessions and hence obtained GUZMON, Moises A.K.A. Jose Jose introduced,’ imprоperly is Romero, Appellant, Moises illegality tainted the same that ren- dered the confessions themselves inad- missible. Texas, Appellee. The STATE of Harrison does “We find that fact No. 69326. corollary add a to the doctrine of curative i.e., admissibility, the harmful effect of Texas, Appeals of Court of Criminal improperly admitted evidence which is En banc. by illegal practices obtained is not gives testimony cured when a defendant Oct. on direct examination which establishes the same or similar facts unless the State *8 illegal
can show that its action obtain-
ing introducing the evidence did not
impel testimony....” the defendant’s State, supra
Thomas v. p. at showing
In the case there is no instant improper admission of State that impel appellant’s testi-
this evidence did