*1 5H COLBURN, Appellant, James Blake
The STATE of Texas.
No. 72236. Appeals Texas,
Court of Criminal
En Banc.
Feb. *2 Hall, Jr., Conroe, appellant.
Williаm E. Michael A. Ki- McDougal, Atty., Dist. Gail McConnell, Conroe, Atty., kawa Asst. Dist. Austin, Paul, Atty., Matthew State’s State.
OPINION MEYERS, opinion Judge, delivered the MeCORMICK, Presiding Court which 1VLANSFIELD,KELLER, PRICE, Judge, WOMACK, Judges, joined. HOLLAND and Appellant was convicted of murder County Montgomery committed in his execution. 26,1994. sane at the moment of will be about June Ann. Tex. Penal Code 19.03(a). argue presented issue punish- proper time to § answered the out in Texas Code of Crimi- of error after ment issues set first § 2 Article the trial nal Procedure 37.071 to death and appellant has been sentenced to death as re- court sentenced imminent. That would also his execution is *3 ap- § quired by 2(g).1 Article Direct 37.071 proper Court articu- be the time this peal Article this Court is automatic. determining applicable standard for late 2(h). § this previously 37.071 abated purposes of capital sanity for a defendant’s appeal,2 now reinstate it and affirm the and Thus, appellant’s addressing a claim. Ford judgment of the trial court. yet ripe claim is not Federal Constitutional in properly is not before this Court and error, Appellant points of raises five Further, appeal. note that instant we challenge sufficiency the evi- does not of psychiatric other information evaluations and Therefore, stage dence at either of triаl. necessary sanity at appellant’s to evaluate dispense a of the with recitation facts necessarily the time of execution will not be points of in the address the error order from A in the trial. record of found record presented. developed in such evidence is best the con- first of con- point he an hearing appli- of a held relation to text tends trial court abused its discretion corpus. cation for writ of habeas ExCf. sentencing appellant he has to death because Torres, parte history paranoid schizophre- an extensive of (Tex.Crim.App.l997)(recognizing that “[i]n argues nia. of imposition He the death instances, appeal most the record on direct is severely mentally person a ill sentence on develop inadequate to an ineffective assis- Eighth violates the and Fourteenth Amend- stating generally tance claim” and that while Constitution, ments to the United Ar- States previously rejected a claim raised and I, Constitution, ticle 13 of Section the Texas appeal cognizable, not this direct is doctrine and Article 1.09 of the Texas Code of Crimi- apply appeal not “where should direct cannot (regarding nal cruel unusual Procedure or expected provide adequate record to be punishment). particular, appellant points question, the claim and the claim evaluate Ford Wainwright, U.S. might through be substantiated additional (1986), in which gathering corpus pro- in a habeas Court held the Federal Consti- ceeding”). Appellant’s point of error is first “prohibits inflicting tution from State overruled. penalty prisoner is of death a who Appellant argues insane.” imposition further In his second of error penalty Eighth of the violates death claims the trial court abused its discretion have not Amendment because we articulated finding marriage there no valid between was legal by a if a standard which determine (“Martha”) Martha Colburn may is “insane” not defendant 11, 1990, couple prior January when therefore executed. a written of informal mar- filed declaration Ford, supra, authority pursuant Family riage and related to Texas Code Section (Vernon 1993). proscribe person, argues the Appellant the execution of an insane 1.92 mentally imposition couple informally not the sentence on a had been married since 4, 1988, person. marriage a August ill fact that which date given marriage mental when was sen in the informal declaration. illness tried and tenced contends that this was a determinative Any appellate appointed. will be to in the new counsel was New- reference articles those Texas at the ly appointed Supplemental Code Criminal Procedure effect filed Brief counsel time offense unless otherwise indicated. adopted original sup- which he brief and plemented two it with additional "issues” pursuant appeal 2. The was to motion of abated points points of error error. The from appellate counsel to withdraw. brief points original supplemental brief and already argument had Appellate been filed and oral made. opinion. error аre addressed in this permitted counsel withdraw marriage,
valid common law the trial court DATE WE LIVED TOGETHER AS compelled should not have Martha testify HUSBAND AND "WIFE AND THIS IN against appellant punishment phase STATE WE REPRESENTED TO OTH- regarding certain events which occurred ERS THAT WERE WE MARRIED. early 1989 and in violation of her SINCE THE DATE OF TO MARRIAGE testimonial privilege under Rule 504 of the THE OTHER PARTY HAVE NOT Texas Rules of Criminal Evidence.3 BEEN MARRIED TO ANY OTHER PERSON. THIS DECLARATION IS spouse Under Rule 504 the of the accused TRUE AND THE INFORMATION IN privilege has a not to called as a witness IT WHICH I HAVE GIVEN IS COR- 504(2)(a). for the State. TexR.CRIM. Evid. RECT. privilege This does extend to matters occurring prior marriage. Tex. A properly recorded declaration of infor- *4 504(2)(b). R.CRiM. and Mar Evid. marriage prima mal proof constitutes facie married; tha ceremonially were never there marriage. of the informal Tex. Fam.Code fore, appellant prove had to that a common 1.94(d)(Vernon 1993); Russell, § Russell v. law marriage at existed time of the (Tex.1993). 929, Thus, 865 S.W.2d events to which Martha testified. See Welch trial may court the common find law mar- (Tex. 258, 264-265 riage proven upon based the declaration App. pet.); Paso no Anderson v. alone, may rebutting — El be offered 37 (Tex.App —Tyler marriage the existence of the as sworn to or . ref'd)(defendant pet. has burden of words, stated In declaration. other proving spouse that is common witness law the trial marriаge court is not bound to find a purpose excluding testimony under as stated in the declaration when there is privilege). marital contrary. reviewing evidence to the ruling regard, court’s this as with Family Section 1.91 of the Texas Code questions concerning other the admissibility provides part that: evidence, apply we abuse discretion (a) administrative, any judicial, or other 104(a); standard. See Tex.R.CRIM. Evid. proceeding, marriage of a man and (Tex. McVickers v. may proved by woman evidence that: Crim.App.1993). (1) a declaration of marriage [the] has evidence, been executed under Section 1.92 of The trial court into this admitted code; request, a written declaration of marriage complied informal
(2)
that
on its face
married,
they agreed to be
and after
requirements
with the
section 1.92. The
agreement they
together
lived
in this
January
declaration
on
was executed
repre-
state as
wife
husband and
and there
part
and stated in
as follows:
they
sented to others that
were married.
(or affirm)
solemnly
we,
swear
that
1.91(a)(Vemon
§
Tex
Fam.Code
Ann.
undersigned,
by
married to each
other
added).
1.92,
1993)(emphasis
Section
Decla-
facts;
following
virtue of the
on or about
Registration,
requires
ration and
that
married,
4, 1988,
August
agreed to
we
written declaration referred to in subsection
together
and after that
we
date
lived
as
(a)(1) above,
following
contain the
oath:
husband and
and in this
wife
State we
(OR AFFIRM)
I SOLEMNLY SWEAR
represented to others that we were mar-
WE,
UNDERSIGNED,
THAT
THE
ARE
...
ried.
MARRIED TO EACH OTHER BY VIR-
prima
TUE
THE
challenge appellant’s
OF
FOLLOWING
To
showing
FACTS:
facie
(DATE)
marriage
ON OR
ABOUT
WE AGREED
common
based
law
MARRIED,
declaration,
TO BE
AND AFTER THAT
the State offered Martha’s testi-
regarding
appellant's
3. Martha testified
an incident where
She also testified about
arson convic-
appellant
motorcycle
threw a
helmet at her in
setting
tion for
her
fire to
trailer which occurred
December of 1989 and "rassle tassle”
in which
point immediаtely prior
January
at some
appellant
cowboy
kicked her with his
boots while
ground
lying
she was
on the
sometime in 1989.
No,
generally
The
sir.
It
she
Witness:
mony, in
she indicated that
and
which
reason,
nearly always been the same
during
together
appellant did
live
having my pets and
me
due to
they
period, and that
were
relevant
time
differ-
that,
know,
you
ent, you
reasons
11, 1990,
January
on
law married”
“common
know,
being
with us
able
4,1988:
August
conflict
together.
to be
you
The
into the trail-
Before
moved
State:
added).
by
(emphasis
On cross-examination
down,
up getting
burned
er
ended
defense,
she had lived
Martha stated that
that,
you
live with
did
ever
on,
know,
you
“off
whatev-
with
[appellant]?
er,
managed
legally
up
finally
to be
until we
No,
The
sir.
Witness:
married_
11th,
Martha
January
1990.”
lived,
really you
have
So
never
State:
also
celebrat-
testified
she
you?
[appellant],
with
have
9th,
“getting
7th or
as their
August
ed
Well,
separated
we have
Witness:
been
day
day”
she referred to
acquainted
prison
everything
due to the
time and
away
pris-
going
knew
That
is true.
have been
else.
1990)
(in January
day
as
arson
separate more than we have ever been
August
if the
got
asked
she
married. When
together,
together, but when we were
appellant agreed to
day
date was the
she
really loved each other.
said:
be married Martha
*5
got
The
You married
he went
State:
Well,
I
I fell head over heels.
it’s when
arson, right?
prison
to
for
telling
he was
suppose so....
Because
her,
day
I
I
got
marry
The
married
the
that
I’m
to
love
everybody
going
Witness:
on
know,
definitely
just
his
and
as soon
got
everything, you
he
time
was
her and
away,
I
going to be sent
so would
to it.
get
as
around
we can
anyway.
papers
know I had
on him
requires
marriage
Common law
burned,
The
And
the
State:
after
trailer
agreement presently to
that there be some
now,
you
you
with
lived where
live
the
married,
in
marry sometime
the
not to
now,
you
you?
people
live with
didn’t
Employers’
Ins. Ass’n
future. See Texas
Borum,
395,399
(Tex.App.—
burned,
n. 3
yes,
The
After the trailer
Witness:
denied).
From
writ
Mar
San Antonio
sir.
testimony,
for the
it was reasonable
tha’s
The
you
And
have lived there ever
State:
to
that she and
trial court
infer
burned,
you?
the
since
trailer
haven’t
marry
the
merely intended to
sometime
Yes,
The
sir.
Witness:
actu
future
not consider themselves
and did
except
staying
The
And
State:
few
for
ally
they
until
filed the declaration.
married
nights
you and
sort
with
that
for the trial
it unreasonable
Neither was
your
thing,
husband never has resid-
court
conclude that Martha
to
you,
there
has he?
ed
with
possible,
together
but never
spent time
when
No,
you
actually,
The
not
know.
Witness:
While
as husband аnd wife.
together
lived
prison
got
When he
out of
for
State:
of a
prima
the
was
declaration
facie
arson,
you,
he
didn’t move with
did
did not
marriage, the trial court
common law
discretion,
he?
on Martha’s testi
abuse its
based
appellant and Mar
mony,
concluding that
got
he
out of arson
Witness: When
a common law mar
tha
not in fact have
did
apartment
He
him an
got
[sic]?
in the declaration.
riage
the date stated
on
with him
I cannot live
Therefore,
abuse its
the trial court did not
my
dogs
don’t allow
two
testify
at
compelling
Martha
discretion
you
a rich
pets or either
have to be
pri-
which occurred
punishment as to events
deposit
pay
the
person to
able
point of
second
this date.
pets.
able
have the
to be
error is overruled.
got
out
The State: And
after
appellant ar-
prison,
live
his third
he didn’t
with
Federal
erroneously refused
either,
trial court
gues the
you
did he?
then
—
requested
concerning
applica-
1996),
U.S.-,
instruction
117 S.Ct.
tion
parole
Appellant objected
(1997); Smith,
of Texas
law.
We have
suggesting
possibility
held that
before
a
of
eligibility
proper
a
parole
is not
consideration
that the defendant did not have the
See,
sentencing
addition,
e.g.,
opportunity
ease.
explain.
a
San
to rebut or
In
(Tex.
State,
155,
juries
tellan v.
939 S.W.2d
170
South Carolina
determine
State,
Crim.App.1997);
get
Ford v.
919 S.W.2d defendant should
a lifе sentence or death.
107,
(Tex.Crim.App.1996);
116
v.
a potentially
Smith
The Simmons
was under
State,
838,
(Tex.Crim.App.
898
846
S.W.2d
mistaken belief that it had to choose between
1995)
denied,
opinion),
(plurality
period
cert.
516 death and
limited
of incarceration.
843,
131,
Texas,
permit
U.S.
S.Ct.
Finally,
116
517 Texas, 38, 2521, v. 100 (Tex.Crim.App.1996); Eldridge 591 v. Adams S.Ct. Rachal, (1980); supra. (Tex.Crim.App.1996). Appel 940 646 581 65 L.Ed.2d requiring argues lant the current Texas law reviewing court’s deci imprison In the trial to life
that a defendant sentenced
venireperson
a sus
becoming
years
eligible
ment
40
sion
dismiss
serve
cause,
def
challenge
considerable
parole
pa
is
without
tained
tantamount
life
(35
case,
it
considering
age
trial
is
given
role in his
his
is
court
erence
health,
years),
past drug
ill
and
use. See
the venire
position
in the best
evaluate
42.18(8)(b)(2).
disagree.
responses. Wainwright
These
Article
man’s demeanor and
429,105
844,
Witt,
law the
facts
not elevate Texas
level
854-
do
U.S.
S.Ct.
469
parole present
(1985);
life
Carolina.
without
South
83
Chambers v.
L.Ed.2d 841
Further, they
negate
other distin
do
(Tex.Crim.App.1993),
22
Smith,
guishing
supra.
denied,
factors discussed
114
511
S.Ct.
U.S.
point
third
of error is overruled.
reviewing
128 L.Ed.2d
action,
we ask whether the totali
court’s
error,
con-
his fourth
testimony
ty
supports
voir dire
improperly
court
tends the trial
sustained
prospective juror
finding
court’s
that the
is
challenge
prospective
for cause to
State’s
instructed,
unable to follow the law as
juror
rеligious
his
Bishop
J.
because of
scru-
only if a
abuse of discretion is
reverse
clear
ples
punishment, in
against capital
violation
Chambers,
po
supra. When the
evident.
rights
of his
under
Six and
Amendments
juror’s
vacillating, un
tential
answers are
Constitution,
Fourteen of the United States
clear,
contradictory,
particular
we accord
Illinois,
Witherspoon
U.S.
decision. Ra-
deference to
trial court’s
(1968).5
In his
Chambers,
And,
supra
when the
chal
supplemental point
second
persistently
uncertain about his
venireman
regarding prospec-
makes the same assertion
law,
ability to follow the
we will not second
juror T.
tive
Wertz. We will address these
Rachal, supra.
guess
trial court.
points together.
may
A veniremember
not be struck
ease,
juror
prospective
In the instant
merely
opposed
for cause
because he
Bishop
opposed
his church
the death
said
522-23,
Witherspoon,
penalty.
death
religious
his
penalty
initially stated that
1777;
S.Ct. at
Rachal v.
substantially impair him in
beliefs would
—
(Tex.Crim.App.), cert.
*7
penalty. Upon fur
ability
give
the death
-,
614, 136
U.S.
117 S.Ct.
L.Ed.2d 539
defense,
by
he
questioning
ther
the
said that
(1996).
jurors
Prospective
oppose the
who
punishment questions
could answer the
he
penalty,
death
but
would follow
law
However,
on the evidence.
when the
based
issuеs,
honestly
special
answer the
are not
questioned
again
him
about whether
State
State,
challengeable. Ramos v.
opposition to
personal moral
the death
his
(Tex.Crim.App.1996),
368
cert. de
you
go
in how
penalty “would interfere
—nied,
,
117
137
U.S.
S.Ct.
questions,” Bishop an
ing to answer these
State,
(1997); Riley
704
v.
889
L.Ed.2d
swered:
(Tex.Crim.App.1993), cert.
296
Well,
probably
it
would.
I would
denied,
I think
515
115 S.Ct.
132
U.S.
not,
know
(1995).
say
that it would
but I
it
However,
love
821
a venireman
L.Ed.2d
I
degree.
if
an-
prevent
would to some
Because
may
if his
or
be struck
views
sub
questions,
I
then would
stantially
performance
of his
swered both
impair
got
if
death
in
with
have
deal with
he
juror
as a
accordance
duties
pеnalty
juror’s
and the
oath.
[sic].
court’s instructions
X,
Although appellant
or Texas Code of Criminal
also cites Article Sections
Texas Constitution
only
arguments
We
address
of the Texas
Procedure.
will
Ten and Thirteen
Constitution
appellant
by
brief.
P.
Tex.R.App.
discussed
his
Article 1.05 of the Texas Code Criminal Proce-
Riddle,
7-8;
error,
dure,
38.1(h);
support
also
S.W.2d at
point of
he
see
888
of this
bases
(Tex.Crim.
only Witherspoon, supra.
533
argument
on
He
Johnson v.
his
separate
App.1992).
arguments
articulate
under
does not
cause,
up by asking
challenge
point
The
him if his
sion
State followed
to sustain the
Illinois,
“substantially
ing Morgan
view would
interfere with how
U.S.
2222,119
(1992),
you
S.Ct.
where
quеstions
would answer
these
even
L.Ed.2d
you
jurors,
though
try to
Court said that
“whether
would
be fair and base it
unalterably
opposed
in favor of
Bishop
on
responded:
the evidence?”
penalty
every
by
the death
defini
it,
probably
To be honest about
it
case—
would.
perform
tion are ones who cannot
their
say,
questions,
Like
I could answer the
law,
pro
duties
accordance with the
their
I don’t
my
want
take a chance of
notwithstanding.”
Staley
testations
See also
misleading
religion
it.
(Tex.Crim.App.
519
apartment
apartment
Demanche’s search of
neighbor’s
and arrested
hold
justified
Emergency Doctrine.
under the
was
met him at the door. Demanche en-
who
point of
is overruled.
Appellant’s fifth
error
apartment
to
once more
tered
rear
to the
make sure there was no
door
point of
supplemental
In his first
but,
process the
apartment,
again, did not
court erred
appellant contends the trial
Later, police obtained
for evidence.7
scene
motion for mistrial based
failing to
his
grant
apartment
appellant’s consent
search
misconduct,”
juror
“patent
allegations
pro-
search
and obtained a
warrant
phase
trial.8
during
sentencing
any
seizing
physical
cessing the scene and
jury
out a
During
sent
deliberations
evidence.
sentence,
read,
life
is
“Given a
note which
parole in this case?”
a
possibility
there
Although
Fourth Amendment
reply
read:
court’s
pro
generally
States Constitution
United
searches,
Constitution,
jury
the Su
hibits warrantless
both
Texas
Under the
recognized
any
preme
considering parole
this
prohibited
Court and
Court have
from
De-
considering
that
in limited situations an immediate
whether a
manner when
to life or
search without a warrant
reasonable where
fendant should be sentenced
instructed,
therefore,
v.
injury
Brimage
a
or death
You are
risk of
exists.
death.
State,
of this state and not consid-
918
500-501
follow the law
any
reh’g),
parole
cert.
manner.
(Tex.Crim.App.1996)(opinion on
er
(1996);
denied,
Mincey
117
115
also
S.Ct.
see
re-
objected to
Appellant
the trial court’s
Arizona,
385, 392,
v.
U.S.
98 S.Ct.
that
indirectly informing
jury
sponse as
(1978).
exception,
This
57 L.Ed.2d
parole. Ap-
eligible for
appellant would be
Doctrine,
Emergency
or the
known as the
for mistrial on the
pellant further moved
a
Doctrine,
an
Exigent Circumstances
allows
jury
considering parole
ground that the
was
immediate,
police
search where a
warrantless
objection
in deliberation.
that,
has
if
officer
reasonable cause
believe
for mistrial were overruled.
motion
warrant,
delayed
a
search were
obtain
law, parole is not a
Texas
Under
might
harm
bodily
serious
or death
result.
See, e.g.,
jury
proper topic for
deliberation.
apply
objective
Brimage, supra. We
838, 849
v.
Smith
determining
standard
reasonableness in
prohibits
(Tex.Crim.App.)(Texas Constitution
justified,
a
warrantless
search is
during
jury
parole
sentenc
consideration of
taking into account the
and circum
facts
legis
ing phase of
murder trial unless
police
stances
at the time
known
denied,
contrary),
lature enacts laws
search.
Id. at 501.
843, 116
professing upon know the Judge, concurring relied (5) by jurors, dissenting. other for who that reason changed punishment). their a vote to harsher I majority’s holding dissent
three,
by
which avers error
the trial court
supplemen
The trial
reply
court’s
refusing
requested pun-
appellant’s
to submit
jury
tal
instruction was a
jury
correct statement
ishment
charge
regarding
instruction
law,
assertion,
parole
i.e. that he
Contrary
appellant’s
of the law.
would
become
eligible
parole
on a life sentence until he
jury
it did not inform the
“will
years.
40
age,
served
view of his
eligible
parole.”
jury
simply
The
was
parole eligible
would not have
until
become
parole
any
told “not [to] consider
manner.”
years
Surely
70
over
old.
such a fact
implication
There is no
in this statement as
jury’s
would be relevant to the
determination
applicability
parole
appellant.
to the
of
dangerousness special
of the future
issue.
majority
And as the
notes in
of
its discussion
generally presume
jury
appellant’s supplemental point
error,
of
follows the trial court’s instructions in the
jury expressed just
during
such concern
de-
State,
presented.
manner
See Williams v.
by asking
liberations
the trial court whether
479,
937
(Tex.Crim.App.
490
parole
possibility in
was a
this case.
is
Such
1996)(jury presumed to follow court’s instruc
proof positive of the
of
acuteness
this error.
State,
given);
tions as
Waldo v.
746 S.W.2d
I
majority’s
continue to dissent
to the
(Tex.Crim.App.1988)(jury presumed
750
See, e.g.,
treatment of this issue.
v.
Smith
evidence);
follow instruction
disregard
(Tex.Cr.App.1995)(plu-
cussion and Otherwise, dispo- I concur
ber three. points.
sition all other GONZALES,
Jerry Appellant, Texas, Appellee.
The STATE of
No. 136-97. Texas, Appeals of Criminal
Court
En Banc. March 1998. Jr., Austin, Appel- Segura, for Richard J.
lant. Atty., George- Sparks, Asst. Dist.
Grant Austin, town, Paul, Atty., Matthew State’s for State. APPELLANT’S PETITION
OPINION ON REVIEW FOR DISCRETIONARY MEYERS, Judge, the unanimous delivered opinion of Court. driving for while
Appellant was arrested pretrial hearing, Appel At the intoxicated. suppress were motions lant’s plea agreement, Ap to a denied. Pursuant pled Appellant was sen pellant no contest. county jail in the tenced to confinement $2,000.1 a fine of six months and assessed appealed the trial court’s adverse pretrial suppress ruling on his motions Appeals affirmed evidence. Court No. 03- his conviction. Gonzales slip op. (Tex.App. 95-00266-CR — Austin 1996) (not Nov.20, granted published). We discretionary rev petition for Appellant’s the Court of iew2 determine $1,250 pro- ground is: "The 2. sole for review jail fine tíme and were holding Appeals years. erred Third Court bated two