*1 COLELLA, Appellant, Paul Richard Texas, Appellee. STATE
No. 71541. Texas, Appeals
Court of Criminal
En Banc.
Oct.
836 *2 issues, special
answered submitted trial court sentenced to death. Ap- 37.071.1 Tex.Code Crim.Proc.Ann. art. peal to this Art. 37.071 court automatic. *3 2(h). § willWe affirm. error, point
In his first trial contends that the evidence at his was to insufficient corroborate the witness, accomplice Anthony “Red” Wils argues non-accomplice on.2 He evidence is not sufficient to connect him to 38.14, disagree. the crime. art. See We light to Viewed most favorable verdict, the evidence trial established the following: Taylor, Taylor, Rick David Lavesphere Michael arrived at South Padre pick-up Island a white truck on after- September driving noon of 1991. While beach, along they encountered a vehicle attempted stuck in the sand. The three un- successfully to help occupants vehi- ear. cle free the thereafter, wife, Shortly appellant, his sister, Lori, Bowling, Brenda Red Red, being inup Red’s Ford Bronco. drove sand, experienced towing cars out of the Rick, to free the car for a fee. offered David, to watch and Michael remained Limas, Brownsville, appellant. Abel C. for car, successfully After freed action. Red Olson, Attorney, A. David, Red, John Assistant District Rick, appel- and Michael asked Brownsville, Huttash, lant, Brenda, A. State’s they Robert if and Lori would like to Austin, declined, Atty., together. “party” group State. but testified that told the men where probably would be later would Red, join appellant, and like to them. Lori OPINION drop then to Brenda off so she could went MEYERS, Judge. get ready go to work. September con- Rick, evening, 5:00 and 6:00 that Between capital murdering David, murder for more victed of up and Michael met person group than one in the same criminal trans- and Red on the beach.3 The drank marijuana. Code Aim. alcohol and smoked Brenda ar action. Tex.Penal 19.03(a)(6)(A). later, affirmatively having apparently § been laid off jury After the rived indicated, and the State concede Red an ac- Unless otherwise all references Further, are to in the Texas Code of Crimi- complice articles those the trial court crime. nal Procedure. accomplice-witness on testi- instructed two, mony. error See infra. 2. An witness is a discredited witness corroboration, testimony, whose without will "party.” stay 3.Lori did not support a conviction. Walker (Tex.Crim.App.1981). Both work, joined stop public at some “partying.” Red decided and bathe played Afterwards, Red and Rick Frisbee water along one showers the beach. while the others remained the vehicles. bag or them and a brown both of stole blue point, began At one either David or Michael nearby from a boat at dock. leather case throwing sand Brenda. him to on She asked contained a revolver and ammuni- The case stop after him. told chased go then decided to tion. Red him, my “Hey, lady. Why old don’t that’s target shooting the beach. Af- farther down you apologized ap leave her alone.” He awhile, they got shooting for back into ter pellant saying that he did not Brenda know began driving up back Red’s truck was married. road. *4 eventually party Brenda left the ar- after locating appellant After Red and out on guing appellant drinking. with about his highway, them that the Vikki informed Bren- stop Red testified that she had asked him to raped. appellant da im- had been Red and appellant drinking any whiskey because Appellant mediately left for Jack’s trailer. “[appellant] gets [her] beats whenever he put revolver in the of his the waistband However, gets ormad drunk.” refused Red pants. thereafter, Shortly party to intervene. the up. Appellant and “look broke Red went to trailer, Upon appellant arrival at Jack’s 4 Rick, David, for a tow.” and left to Michael visibly upset. appel- was that Vikki testified dine town. “extremely going agitated, lant like cra- was zy.” Appellant testified that when he saw way On p.m., their to dinner at about 8:00 Rick, David, to upon “something Brenda he said the effect that happened and Michael hitchhiking Brenda who along go was side of to wanted catch the sons-of-a-bitches [he] highway. They Wilson, offered her a and ride neigh- kill Jack’s and them.” Sherie accepted. she Rick testified that after about bor, to came over the trailer. five to hysterical ten minutes Brenda became state, Sherie, began in an intoxicated ha- for some reason and to attempted unknown like, things rassing Brenda. She said “You jump from their truck. Rick restrained her fight rape willing.” can’t A then broke until the truck enough slowed down for her Sherie, Brenda, appellant. out and between get being injured. out without de- Rick slapped appellant Sherie and Brenda went nied raped that Brenda. He further finally got get uninjured testified that after her. Red back appeared she when Sherie truck, she left and that torn. got again. Appel- her clothes were not into her but she out The trio then on into drove town. lant that to come testified “she started back grabbed at I threw her on me. So her and p.m., Sometime between 8:30 and 10:00 ground.” get went to Sherie then her Brenda arrived at the trailer of Albin “Jack” husband, Sid. screaming hysterically Dunn. She was and her clothes and were wet tom. She claimed upon that his intention arriv- Sid testified raped by guys that she had been appellant ing at trailer was to hit because truck, pick-up but to call white did not want appellant appel- had hit his wife. police there out because was a warrant pulled lant the revolver on Sid before Sid for her arrest in Indiana.5 “Vikki” Victoria began Appellant could strike him. then Larsen, living Jack, got who with in her Appellant away run and Sid chased him. appellant. van and went to look that he did not fired two shots. He testified
Meanwhile, just aim and that he to scare him. driving stop- at Sid fired after around and store, ping at a and to chase him. When convenience Sid continued money Red and find- both from would earn Brenda were Terre ing people Indiana, gotten Haute, who had their only recently vehicles stuck and had moved to along to tow sand the beach and then offer the Island. them out afor fee. sand, appel- morning of fell in the Sid rushed at him and white truck were discovered the again. Martinez, lant fired This backed off County time Sid the 13th. Luis Cameron ran into the dimes. Red and Investigator, Office Criminal esti- Sheriffs eventually picked appellant up and Brenda pair approxi- that at mated was killed campsite. went back to their mately morning type 2 a.m. that used could have been fired from a bullet discovery camp- at After near Sid Dahm, patholo- Dr. revolver. Lawrence site, Brenda, appellant, and Red decided gist, that both victims had been shot testified packed up leave. Brenda and their Taylor range. had been shot once close belongings placed in Red’s Bronco. them Lavesphere had been shot head beach, they along the As travelled north twice, once the face and once in the neck. came across the white truck with the men weapon The murder was never recovered. raped allegedly They drove Brenda. truck; past told then David, he, Taylor Rick testified that go turn around and back. Red testified parked Lavesphere on the beach and settled said, “Well, I’m going get sleep approximately midnight. down to get away son a I let bitches. can’t them David truck and Lave- *5 took the cab the this.” sphere took truck. Because the bed Rick, no left he went to there was room for if Appellant asked Brenda one more time sleep so in the dunes that he would not be raped men her. said these who She That any passing run over vehicles. yes. appellant that then Red testified the last he saw of his brother Lave- Bronco, jumped out over to the went sphere. He further testified both David and truck, shot one victim the back of Lavesphere amounts of mon- had substantial truck, and ran to the then around driver’s ey possession prior to their deaths. their in the side to shoot the other victim who was money upon Little on the victims was found Red, Appellant, truck’s cab. and Brenda discovery. their left, appellant but told Red that needed go back to move truck so that it would Turning appellant’s now to conten complied. Red not be found. tion, provides: that article 38.14 we observe Appellant got into the truck with the vic- upon A conviction cannot be had highway. tims drove north down the testimony of accomplice an unless corrobo- Appellant and Brenda eventu- Red followed. tending to connect rated other bay ally put the truck in the water on the committed; the defendant with the offense side of the island and returned to Red’s if it and the corroboration is not sufficient point, appellant Bronco. At some threw merely shows the commission of the of- gun appellant then ocean. Red drove fense. and Brenda to mother’s home left
Port Isabel. Red testified that when he
accomplice’s
To determine whether an
testi-
them, appellant
containing sev-
had a billfold
corroborated,
mony
is
we eliminate
ac-
eral dollar bills of unknown denominations.
remaining
complice testimony and review the
appellant
had
seen
with a billfold
never
it tends to
evidence to determine whether
before.
appellant
connect
to the offense. Munoz
(Tex.Crim.App.
money
par-
853 S.W.2d
Appellant borrowed
his
1993). Further,
him and
ents for bus tickets and
drove
we have stated:
Victoria,
Brenda to the bus
Texas.
station
evidence need not establish
Corroborative
on
They purchased
at 6 a.m.
their tickets
charged
appellant’s guilt
offense nor
September 13th and boarded
bus
offense,
directly
link
to the
but
Haute, Indiana.
Terre
sufficient if it “tends to connect”
Each ease must be consid-
Taylor
the offense.
and Michael
The bodies of David
partially submerged
on its
facts and circumstances—
Lavesphere and the
ered
own
murders,6
on
Apparently insignificant
its own merit.
mit the
he fled
the State
incriminating
may
shortly
eliminating
circumstances
some-
thereafter.7 After
all the
satisfactory
record,
times afford
evidence of cor-
from the
we
roboration.
determine the other facts
circumstances
in evidence tend to connect
to the
(citations omitted).
Id.
testimony.
offense and
Red’s
corroborate
See Richardson v.
light
Viewed in the
most favorable to
—
denied,
(Tex.Crim.App.1993), cert.
U.S.
verdict,
non-accomplice
evidence in
(1995).
-,
(1)
S.Ct.
during in his second party, appellant error warned one of the (3) alone; challenges punish men to leave the trial court’s failure at his wife Brenda later special ment very claimed that these men are to submit the second issue re the ones (4) her; raped garding parties jury. became See en Article (5) 2(b)(2).8 raged; § had a 37.071 avers revolver He (6) possession; appellant stated that he convicted him aas co-defendant under the go Therefore, “wanted to catch parties. the sons-of-a-bitches law of argues he (7) them;” Red, kill accomplice, gave submitting “anti-parties” issue was a Brenda and ride to his mother’s mandatory requirement 37.071, under Article (8) home; opportunity had the though even request he no at trial made kill the victims because were killed at have the issue submitted. *6 a.m., approximately 2 he still had kill time to pertinent jury of portions charge the by
them and arrive Victoria 6:00 a.m. provide: (9) (approximately trip); a appel four-hour lant and Brenda fled the island and the
State.
In
case,
Now,
the
non-accomplice
instant
the
bearing
foregoing
in mind the
in
testimony places appellant
company
structions,
you
the
of
if
from
find
the evidence
the
beyond
witness.
It further tends to
doubt
reasonable
that on or
men,
he
kill
1991,
show had a
day
September,
desire to
the
he had
about the 12th
of
possession
weapon
Texas,
of a
of
type
the
County,
alleged
used in
Cameron
as
in the
murders,
opportunity
indictment,[9]
defendant,
the
he had the
to com-
the
Paul Richard
9.Further,
opportunity
6. An
jury
accused’s
to commit the offense
the indictment was read to the
as
may
suspicious
be a
objection:
circumstance. Gill v.
follows without
45,
(Tex.Crim.App.1994).
873 S.W.2d
authority
“In the name and
the
of the
Texas,
grand jurors
County
State of
the
the
repeatedly
flight
7. We have
that
held
is evidence
Cameron,
aforesaid, duly organized
of
State
as
of a circumstance
which
from
an inference of
term, A.D.1992,
January
such at the
of the
guilt may be drawn.
Foster
District,
County,
107th Judicial
in and for said
denied,
(Tex.Crim.App.1989),
cert.
Court,
upon
present
their oaths in said
that
U.S.
110 S.Ct.
841 929, (Tex.Crim.App.), Tex 942 cert. Article 37.071 revised S.W.2d de Legislature nied, 997, 595, 1991 to all applies 506 U.S. 113 S.Ct. 121 1, occurring September (1992); State, offenses on or after Moody 533 v. 827 L.Ed.2d 880, 5, Leg., 875, See Tex.S.B. Sec. 72nd (Tex.Crim.App.), S.W.2d 888 cert. de (1991) Chapter in R.S. V.T.S.L.S. 838. The nied, 119, 839, U.S. S.Ct. 121 506 113 September stant offense occurred on (1992). 75 the former L.Ed.2d Under ver Therefore, statutory uti scheme Article sion of 37.07110 a veniremember’s charge punishment lized stated: acknowledgment that toward his attitude penalty
death would “affect” his deliberations challenge a was not sufficient sustain 1 SPECIAL ISSUE NO. Texas, 38, 49-50, Adams v. cause. 448 U.S. defendant, probability Is there a that the 2521, 2528-2529, 100 65 S.Ct. L.Ed.2d 581 Colella, crimi- Paul Richard would commit (1980); Riley v. S.W.2d nal acts of that violence would constitute 1994). (Tex.Crim.App., op. reh’g, on Dec. continuing society? threat Rather, dispositive question was whether venireperson give could honest answers fact, questions if meant that even it might penalty death as a result. assessed SPECIAL ISSUE NO. 2 Id. Taking into consideration all of the evi- scheme, however, our statutory Under new
dence, including the of the circumstances jurors only upon are called offense, answer the defendant’s character background, questions factual but decide personal culpa- and the also to whether moral circumstances, bility defendant, mitigating including there are is there a sufficient mitigating “personal culpability” circumstance or circumstances moral of the defen- imprison- dant, to warrant justify imposition sentence of life that would of life ment rather than death be im- imprisonment sentence appro- instead of death as an posed? priate punishment. Because this task in- volves the exercise of discretion moral dis- 2(b)(1) (e). § See Article 37.071 & objective tinct determination facts, Staley held in Wainwright Witt, we v. venireper- Under (Tex.Crim.App.1994) potential capital punishment son’s sub- support views on substantially only exclusion mission to an issue for cause when such are “prevent pursuant as that substantially would or same submitted stat- impair performance pro- ute in the instant meant that of his as a cause11 duties juror lawfully *8 spective jurors might in be accordance his instructions and excluded 424, 852, unwillingness impose his oath.” 469 U.S. 105 for their to the death S.Ct. 841; circumstances, Vuong any 83 L.Ed.2d also penalty see v. 830 under even if (now statute, 10. The former version of Article 37.071 Under this version of the was not 37.0711) applicable codified at Article which is required to consider what sentence defendant 1, 1991, occurring September to offenses before jury's duty only would receive. The was to an- provided following special for the issues: questions. swer these abstract (1) whether conduct of that the defendant caused the death deceased was commit- special Staley provided: 11. The fourth issue in deliberately expec- ted and with the reasonable tation that the death of the anoth- deceased or you beyond Do find from the evidence result; er would doubt, considering mitigat- all reasonable after (2) probability is a de- whether there that the evidence, ing any thereby, considering if fendant commit of vio- would criminal acts culpability, level the defendant's character continuing lence that constitute a threat would background and the circumstances of the society; to offense, penalty appro- that the of death is the (3) evidence, by if raised the con- whether priate punishment? killing duct of the defendant in the deceased response provoca- was tion, in to unreasonable any, by the deceased. 842 though person they could even I feel that under the were not first asked whether questions it,
honestly problems answer of fact also law I inside deserves have their submitted for consideration. I whether I can with it. have reservations you kill have reservations? this.” Would actually Staley, the trial court instruct- A. Yes. additional, jury to or ed the answer an
fourth, issue, not special then authorized n n n ‡ n n ease, statute. In that veniremember Chan- she responded dler that did “believe your Q. you feelings would Do feel that appropriate” feeling and “that would death you making in the decision? affect special issue] her to fourth [the cause answer A. Yeah. had previously ‘no’.” Chandler stated Id. spe- Q. to you she her answers Do feel that all the evidence that would base Yes? This Court held: may you cial issues on evidence. but not kill them? show that could juror Today, presented it, with a give we are A. I kill another wouldn’t be— who, absent under our former caselaw and being. human issue, special arguably would the fourth you Q. you feel that So do not challengeable not have been for cause. it? give could opposed For while Chandler was head.) (Shaking A. may penalty death have been able she Adams, Riley, supra; follow the law. See Q. Okay. matter the cir- And didn’t special supra. the fourth cumstances, something just personal? it’s issue, in no uncertain Chandler stated A. Yeah. morally death terms that she believed appropriate and would answer was not she during voir dire as a whole Although his Recently question negative. state that he could follow Bristol seemed to jurors Supreme stated that Court scheme, statutory nev- answers were unalterably in of or “whether favor con- support a rational ertheless sufficient every opposed penalty death judge the trial that he would clusion are cannot by definition ones who case — automatically mitigating find circumstances perform their accordance with duties justify avoiding of a death assessment law, protestations their notwithstand sentence, regardless adduced of the evidence Illinois, ing.” Morgan U.S. State, 757 at trial. Hernandez v. 2222, 2283, 119 L.Ed.2d S.Ct. Therefore, tri- (Tex.Crim.App.1988). (1992). grant- its not abuse discretion al court did juror be- at 894. was such Id. Chandler challenge ing the for cause. State’s always would answer the fourth cause she remaining venirepersons, three support a sentence. Our special issue to life Vermaas, Esparza, em Baughman, and each holding Staley applies equally to the new would never phatically stressed version of Article 37.071. special give issue answer the second case, venireperson In the instant any circumstance. death under sentence *9 Bristol, Chandler, dis emphasized his like juror that he or she Any potential who states penalty: agreement with the death pen automatically against the will vote death is an alty regard to the evidence without say done Let’s we’ve PROSECUTOR: in to follow the nouncing an intention not phase guilty in the that. Now we are —I’m to consider the evidence structions sorry, punishment phase. And this the preclude the if it is insufficient to decide punishment. And jury has determine Illinois, penalty. Morgan v. 504 death See are, example, one these you say, let’s for of 2234, 736-738, 119 evidence, 112 at at S.Ct. you the U.S. jurors. And listen to Therefore, “Well, again, trial know, you the you say, know L.Ed.2d 492. you
843 granting sufficient to a sentence court did not its discretion in stances warrant abuse imprisonment opposed death. challenges for cause. Barnes of life State’s See 2(e). State, (Tex.Crim. § will address 316, See Article 37.071 We v. S.W.2d 876 325 — “continuing denied, sufficiency of the threat” evi- U.S. -, App.), cert. 115 S.Ct. (1994). 174, dence first. 130 110 Point of error L.Ed.2d
three is overruled. sufficiency reviewing In of error, point In fourth he of phase, punishment at the we the evidence denying trial claims that the court erred light most favorable view the evidence challenges against his for cause venire- any whether to the verdict determine Moreno, Reyes, After members and Torres. finding of fact could make the rational trier denied, appel- challenges
his for cause were beyond Stoker v. a reasonable doubt. See peremptorily lant struck each of them. State, 1, (Tex.Crim.App.1989), S.W.2d 7 788 denied, 951, 371, 112 cert. 498 U.S. 111 S.Ct. deny a trial When court errs (1990). on L.Ed.2d 333 The burden was cause, ing for challenge a the defendant is punishment beyond prove State to issues only peremptory harmed if he uses a strike 2(c). § a doubt. reasonable Article 37.071 and, thereafter, suffers a from the detriment State, loss of that 731 strike. Demouchette v. jury permitted A is to consider a 75, (Tex.Crim.App.1986), S.W.2d 83 cert. de variety determining of factors when whether nied, 920, 3197, 482 U.S. 107 S.Ct. 96 continuing pose will threat defendant (1987). preserve L.Ed.2d 685 In order to State, society.12 Keeton v. 724 See S.W.2d error, (1) per must: use all of his 58, jury (Tex.Crim.App.1987). The is en 61 (2) strikes; emptory ask refused for and be presented all titled to consider the evidence (3) strikes; peremptory additional be trial, in guilVinnocence phase of the objectionable ju forced to take an identified presented at the addition to ror whom would not have otherwise State, punishment phase. 776 Valdez v. accepted granted trial chal had the court 162, (Tex.Crim.App.1989), 166-67 S.W.2d lenge granted or for cause him additional denied, 2575, 109 963, 110 495 cert. U.S. S.Ct. peremptory Id. strikes. (1990). L.Ed.2d 757 case, In only ten instant used In some instances the circumstances of his peremptory fifteen allotted strikes. surrounding and the the offense events 35.15(a). Therefore, See Article if the even may “yes” to sustain answer to be sufficient in denying challenges trial court erred Vuong issue. special the first See cause, for can not show he 929, (Tex.Crim.App.), 830 935 cert. S.W.2d any suffered the loss strikes nor that he 595, denied, 121 506 U.S. 113 S.Ct. Demouchette, was harmed. Stoker, (1992); at 7. L.Ed.2d 533 788 S.W.2d four Point of error is overruled. necessary held that We have also it is not error, his fifth asserts future dan to buttress its case on State jury testimony. the evidence insufficient for gerousness psychiatric Nar (Tex.Crim. finding to make an affirmative that he would vaiz v. denied, “continuing society.” App.1992), threat Article cert. 507 U.S. one). 2(b)(1) (1993). (special 1422, 122 § 37.071 issue L.Ed.2d number S.Ct. judge credibility of argues mitigating
He also that his circum- exclusive of the record, (1) prior Among severity factors circum- and the those are: criminal crimes; offense, (5) capital personal including age de- stances of the defendant’s offense; (6) at the fendant’s state mind and he was circumstances time of the whether *10 (2) working parties; acting or under duress with other whether the defendant was alone acts; (3) of the of another the time of the calculated nature defendant's or the domination offense; evidence; (8) (7) psychiatric forethought and char- deliberateness exhibited and execution; Keeton, (4) prior at 61. a acter crime’s existence of evidence. 844 (7) woman; weight given year-old
witnesses and the to be their of an residence 88 Barnes, 321; testimony. appellant’s 876 La home found at S.W.2d knives (Tex.Crim. (8) State, 617, burglary; appellant v. 548 620 was S.W.2d scene foon App.1976). eight years sentenced as an adult to for the (9) paroled 1990; during
burglary, but was crime, arraignment appel- his for instant The evidence the instant case re lant acted hostile a camera man and toward appellant that vealed murdered two men with (10) restrained; Douglas had to be Officers point-blank range a revolver at while Brentzinger Joseph and Newport of the Earlier, slept. appellant expressed had a Department13 gave Terre Haute Police each alleg desire to kill the men had because opinion appellant his that he would believed edly raped Additionally, his wife. a consider continuing society be a to because threat money able amount of taken from had been appellant his was “career criminal” and appellant his victims and tried to hide the worse; gotten progressively had crimes by driving bodies the victims’ truck into the (11) Tosser testified he Monte also that be- appel water. The evidence also that showed appellant continuing threat lieved would be gun day lant had stolen the same that society. Sid, “friend,” during felt free to it at fire his Further, argument. an Sid was not armed. conclude We there was sufficient ground threw Sherie because jury’s support finding affirmative that slapped insulting
she had him and him was probability there was a would Although and Brenda. we hesitate to con continuing society. be a threat to support clude this evidence alone would finding dangerousness, of future the State his also maintains that presented more. mitigating out evidence was sufficient to trial, punishment phase
At the of State weigh any life other factors warrant (1) following introduced the evidence: imprisonment This opposed as to death.14 1982, appellant charged of summer was with previously Court has held: child molestation which was later reduced to Texas, mitigating this evidence is ad- (2) 1982, battery; in December punishment phase capi- at the of a missible burglary building, confessed of but he admitted, tal murder trial. Once charged part plea not bargain; was of a may give weight, if in individ- then their (3) 1984, charged with was false appropriate, it is ual minds when answer- scare; creating information for a false bomb ing questions which determine sen- (4) appellant placed in was then the Jabalt weight tence. amount of “[t]he Boys, an Indiana for School institution might give any particu- that the factfinder minors, delinquent but was released because piece mitigating lar of evidence is left taking advantage” pro- was of “he range judgment ex- ‘the discretion’ (5) Tosser, offered; grams the Monte school juror.” by each ercised counselor, ap- a Jabalt School testified that (Tex.Crim. problems pellant had at the 54 behavioral school Banda S.W.2d including peers;” App.1994); “physical Johnson v. altercations (6) sixteen, (Tex.Crim.App.1989), part, age at the December affirmed Texas, 350, 113 burglarizing convicted for Johnson v. 509 U.S. S.Ct. was Brentzinger Newport hospital for one 13. Officer were inves- and was admitted to a mental tigating burglary month; (4) therapy period officers for and were he was in for a each familiar with record. Coffee, time; (5) employer, David former good employee; was a testified that Appellant's mitigating circumstances includ- (6) appellant told few before the Coffee a weeks (1) hyperactive diagnosed as ed: was going he "back move murders North;” four; (2) age special at the he classes attended (7) Taylor's David mother didn’t disturbed”; (3) “emotionally attempt- for the he killing appellant for son. hate her eight-years hang ed to himself when he was old
845 (1993). 2658, by judge he L.Ed.2d 290 burden of rational conclusion the trial 125 No automatically mitigating find circum- would the defen proof for either the State or exists of a justify avoiding assessment stances to mitigating disprove prove or evidence. dant to sentence, regardless death of the evidence nes, 876 at Bar Op. did trial.” at 842. But he adduced at particular a defense de- Unlike offense or I not. He not come close. therefore did contains fined in Texas Penal Code which dissent. met, specific “mitigat- elements that must be separately I to also write add to ing specifically is not In- evidence” defined. analysis part of that Court’s of juror’s is to stead it left each individual own claims, essentially, point fifth error of fact, 37.071 determination. Article jury’s negative to Article that the answer 2(f)(4) § “mitigating defines evidence” to be 37.071, 2(e) against § greater issue was juror might that a as regard “evidence re- evidence, weight preponderance of ducing the defendant’s moral blameworthi- and that should therefore reform his sen- we (Emphasis provided). ness.” There is no imprisonment. appel- tence to life Because by per evidence that a se must be viewed briefing no this provides lant whatsoever for juror creating mitigating as a effect. sub-contention, the Court would better do “mitigating weighing Because the of evi- Tex.RApp.Pro., not to it all. See address subjective 74(f). anyway, is a dence” determination under- Because the Court Rule does juror, I to address that taken each individual decline to write further as well. we sufficiency. the evidence for review We de- jury’s fer to the conclusion evidence that the I. sufficient to warrant a sentence of in this The offense cause was committed imprisonment. Appellant’s point
life fifth 37.071, after amendment to Article the 1991 error overruled. is 1991, Leg., See Acts ch. V.A.C.C.P. 72nd Finding error, no affirm reversible we 2899, 838, 1, 1, Sept. § eff. Under p. judgment of the trial court. 37.071, 2(e), reads, § currently Article as punishment capital jury phase of a is instructed to murder trial answer whether CLINTON, Judge, dissenting. mitigating is sufficient to warrant I to disposition ap- dissent the Court’s imposing life a sentence rather than recognized pellant’s penalty. Riley of error death We that: number three insofar grant as it holds the trial court to did not err categorical arguable opposition “it is challenge against the State’s for cause veni- penalty support can trial to the death a reman William I first Bristol. am the court’s that a is ‘sub conclusion venireman acknowledge that a venireman indicates who impaired’ v. stantially Wainwright under always, invariably special he will answer 844, Witt, 83 U.S. 105 S.Ct. [469 37.071, 2(e), § issue out current set Article (1985)], opposi at least if that L.Ed.2d 841 VAC.C.P., way prevent such a invariably cause the tion would venireman penalty subject imposition of the death to a special required issue answer challenge ground cause on the that he [2](e) submitted subsection in such against phase a bias of the law harbors prevent imposition death way as to rely, upon the State is which entitled Staley penalty. v. 887 S.W.2d Cf. 35.16(b)(3), Article under VAC.C.P. See (venireman (Tex.Cr.App.1994) who 290, 301, Riley v. n. categorical opposition maintained (Tex.Cr.App.1993). given any Had Bristol invariably him penalty death would cause dining his he would indication voir dire that nullification to answer instruction juror, agree Penry I would the Court Lynaugh, be such 492 U.S. satisfaction support record that the was “sufficient to 109 S.Ct. L.Ed.2d *12 846 State, 744,
(1989), (Tex.Cr.App. way in as to v. 757 753 prohibit imposi- such a S.W.2d 1988) (plurality opinion). proponent The properly tion of death sub- sentence cause.)” ject challenge until has for does not meet that burden he to State’s the shown that the venireman understood Id., 301, in Staley n. 4. made it clear at We requirement of not the law and could over that trial court did not violate the the Sixth prejudice enough to it. come his well follow by granting challenge a Amendment State’s applied eminently prin sensible We have this against for cause a venireman who indicated ciple capital a enough often when it was always Eighth he answer the Amend- would challenge for making the cause defendant way a special ment in such as to block issue against regard a who held in low venireman imposition penalty. of the 887 death S.W.2d upon the aspect of the law which defen some however, context, at Even mere this rely. E.g., v. dant was entitled to Cuevas opposition penalty, categor- even death State, State, v. supra; Trevino justi- to opposition, ical does not alone suffice State, 592, 614, Teague v. (Tex.Cr.App.1991); fy granting challenge the State’s cause. (Tex.Cr.App.1993). 864 513 S.W.2d Cf. must further that the State establish (Tex.Cr. v. 655 Martinez opposition capital punishment to venireman’s (defendant’s 1994) App., challenge Dec. invariably cause him to answer the would where, even appropriately for cause denied (or, case, Eighth issue as in this Amendment opined response to though venireman 2(e) issue) 37.071, special § Article questioning that he not be able inartful would way as to of such a insure that the sentence apply to law to follow court’s instruction not imposed. Riley, death not See would be trial, parties punishment phase of of coun- supra, n. “confusing and not questions were sel’s questioning” up pinpoint followed more supposedly All of Bristol’s that law). regarding ability to It is follow supports he the conclusion would automati- beyond my why the is comprehension State 2(e) cally special § so to answer issue as obligations required explain not to of death is out in the penalty avoid the set equal clarity law this Court is before enough majority opinion. It is that true say has its to willing to the State met burden had some nebulous “reservations” Bristol it. In the a venireman cannot follow show he not penalty; about the death that could Bristol, the State did not ease of venireman being[;]” he “kill human “[did] another explain obligations of the law at all. give of it[.]” not feel that could None [he] Thus, it has to meet its burden to show failed remotely these establishes that he answers 2(e) challengeable for cause be- that Bristol was special § automatically would answer the against phase upon of the law prosecutor cause biased affirmatively. The did not issue rely. See Article which it was entitled explain operation special of the even 35.16(b)(3), him, supra. inquire much less whether his issues impose a apparent inability personally to majority upon Inexplicably, the also relies consciously to penalty death would cause him part colloquy Bristol and between response one of distort his them. Op. appellant. at 842. con- counsel for colloquy it is clear that A law text of the whole must be told what the venireman attempting to appellant was not ascertain requires him it can said that he before be always Bristol would answer follow it. S.W.2d whether cannot Cuevas 331, 343, special way as to avoid (Tex.Cr.App.1987). issue such n. That Rather, inquiring penalty. he was attitude antithetical death venireman harbors some might any mitigating set of long as there law is of no moment so he can whether 2(e) § answer lay circumstances sufficient that attitude aside and abide “yes,” special so that Bristol could ever requirements proponent of a issue the law. The penalty. against imposition the death vote challenge for cause has burden estab- any aspect of law challenge proper. Hernandez This does address lishing his rely. “Currently, upon which the State Article 37.071 mandates was entitled even interest beyond Not the State’s so-called finds a reasonable insuring capital that a receives a defendant doubt, required by (e), that Subsection *13 play impartial trial into (b) fair is called special issues under Subsection the here, acknowledged apparently since Bristol affirmatively go answered should be must that there were circumstances in which he (e) pursuant on to Subsection to decide special answering could envision issue the mitigating whether circumstances never- State, affirmatively. Nethery 692 See v. a life sentence. theless warrant 686, (Tex.Cr.App.1985); Phillips 691 S.W.2d (e) (c) neither nor Subsection Subsection State, 875, 884-85 (Tex.Cr.App. 701 S.W.2d expressly assigns particular itself burden 1985). portion This of voir Bristol’s dire It proof mitigation. of the issue of on support grant challenge not the does certainly might argued, although be we against him at for cause all. hold, here to have no occasion that Subsec- (c) assigns the implicitly tion the burden to The trial court abused its discretion beneficiary finding of a of ‘sufficient miti- granting challenge the State’s for cause gating ... circumstances to warrant that against Bristol. We should at least vacate ... Ar- imposed.’ sentence of life Cf. the death sentence and remand the cause for State, (Tex. 295, 786 nold v. S.W.2d at 298 punishment hearing, a new under Article (State 44.29(c), V.A.C.C.P., Cr.App.1990) has proof burden of if not for whole new State, trial. See harmless [1994 Ransom v. WL establish error under Tex. 71,633, (Tex.Cr.App., 81(b)(2), 259057] No. delivered R.App.P. beneficiary the of 1994) 15, (pending error). June motion for That, course, State’s of would be the de- 5). rehearing) 5, (Slip op. at n. The Court fendant.” to. errs not Id., n. agree I with the Barnes footnote that Arti- II. 2(e) 37.071, assigns § cle at least a of burden Appellant nakedly miti- contends that the production capi- to the defendant. Before gating compelling evidence was so that we 2(e) issue, jury § tal even reach the it can reform imprison- should his sentence to life affirmatively must have found the existence “sufficiency” ment. Whether this is a review 37.071, aggravating of facts under Article requests, majority thus char- as the 2(b), § expressly the for which State shoul- it, Op. acterizes or a that the claim 2(c). proof, § of ders the under burden Once against great pre- weight verdict have been established to the these facts evidence, ponderance upon of depends jury’s satisfaction a level of confidence proof carries the
who burden of under Article doubt, beyond jury proceeds a reasonable 37.071, 2(e), § supra. yet to We have resolve 2(e) issue, special § ... viz: “whether question. this mitigating there is a sufficient circumstance or circumstances warrant that a sentence came We closest Barnes v. 316 (Tex.Cr.App.1994), imprisonment S.W.2d where we of life rather than a death added.) question passing. imposed.” on the (Emphasis commented sentence be argued Barnes had that the trial court erred mitigating If sufficient there are not circum- punishment jury instruct at the stances, position default is that a sen- phase capital of his murder trial imposed. tence of will be This means death negate prof- had a burden to State capital that it is the defendant who stands mitigation penalty. fered the death presentation mitigating benefit from This Court held that the trial court had not evidence. Eighth because neither Amend- erred is, thus, beneficiary Because ment, any implementing provision nor state evidence, it, mitigating produc- the burden of assigned had such a burden to State. State, supra. tion him. Arnold v. a footnote we remarked: falls to him, BAIRD, Therefore, against Judge, dissenting. if the verdict is argue only appeal on that the can pro- Crim.Proc.Ann. art. 38.14 Tex.Code against greater weight verdict was upon had vides that a conviction cannot be Cf. preponderance of the evidence. Meraz v. of an “unless cor- (Tex.Cr.App.1990) tending to con- roborated other evidence (defendant prove has burden to affirmative commit- nect defendant with the offense insanity, appellate review of a defense ted; the corroboration is not sufficient against inquires verdict him verdict whether merely commission of of- shows the against great weight preponder- My fense.” review of the instant record *14 evidence); Bigby of ance the non-accomplice reveals the evidence estab- (same). (Tex.Cr.App.1994) at 875 offense; only commission of lishes the an Strictly speaking, majority the errs to char- tending ap- there no connect is evidence a appellant’s acterize contention as claim that Accordingly, I pellant commission. with its the is evidence not “sufficient.” point disposition the of the first of dissent to error. any majority is correct that event the appeal, we the claim on cannot review howev- major- Initially, it be noted that the should 2(f)(4) er it. we characterize Subsection opinion accomplice the ity separate fails to mitigating anything Article 37.071 defines as This is con- non-accomplice and evidence. juror reducing might regard “that a as trary long standing rule this Court (Em- defendant’s moral blameworthiness.” that, accomplice to determine whether added.) phasis assigns Thus the statute ex- corroborated, eliminate testimony is we must clusively evaluating the task of accomplice testimony from the witness proffered mitigation what of the in- other record and determine whether the penalty death is sufficient and what not. culpatory and circumstances in evidence facts say mitigating evidence was We cannot tend to connect the offense. any say, ean as a matter of law more than we (Tex.Cr. 558, 559 Munoz v. case, non-capital the evidence is App.1993), cited therein. Conse- and eases year support twenty insufficient to sen- I quently, will set forth the evidence tence, greater weight prepon- or that the proper framework. of the that the derance evidence establishes years, proper sentence would have been ten
probated. simply way no for an There is I. THE EVIDENCE ACCOMPLICE jury’s appellate review the norma- court to Anthony he was “Red” Wilson testified judgment “that the evidence was not tive thefts, previously burglary, convicted of two warrant a of life im- sufficient to sentence possessions for two of marihuana and twice prisonment.” Op. Though it should at 844. driving Although intoxicated.1 Red while ap- not have this sub-contention reached murder, capital instant was indicted for the error, majority pellant’s fifth an as result of his secured correctly disposes of on merits. whereby he agreement with State would immunity provided did receive absolute he hold fails to Because Court actually kill the victims.2 Bristol trial court erred to excuse venireman cause, respectfully for I dissent. on the beach Red lived in his Ford Bronco Island, money earning as a Padre
at South J., OVERSTREET, towing vehicles which became joins. mechanic statement, Red omitted In his initial written witnesses in this case with the There are three witness, regarding participation any accomplice his information last name “Wilson”: An- Wilson; and, Wilson; possible locations thony the instant offense or the Sherie Sid "Red” “Red”; any Only was arrested evidence. after Wilson. I will refer "Sherie”; and, concerning par- provide did Red information Sid Wilson as Sherie Wilson as ticipation. "Sid.” pills, They stuck in the sand. He met and a camera. drove to the beach Brenda, wife, items; appellant’s inspected four both fired the or five months men helped weapon the murders. often cans. before some beer up rope portion Red hook the tow Shortly flashing Red saw the thereafter night tow fee.3 The before the murders Red headlights Lar- of Vicki Larsen’s van. When stayed sister, on the beach with raped, sen told them Brenda had been joined Lori. Before noon Lori Red and went to Dunn’s trailer. After by appellant lunch Brenda. After Brenda, arrived and talked to upon Ricky Taylor came and the victims raped kill wanted to the men who her. Red attempting pull a vehicle from the sand.4 going him told he was not to take Taylor’s unsuccessful, proved efforts When anywhere gun. while he had the Red be- Red and were hired to tow police call lieved could not because so, doing group vehicle. After sat there was an arrest warrant for Brenda from around and talked. Red told them where the Indiana. people “partied” on the beach and stated he *15 Red, appellant, would meet them later. and Sherie arrived and did not Wilson believe drink, marihuana, Lori left to smoke and look raped. things Brenda was Sherie said such people They dropped for more to tow. Bren- rape willing.” Appellant as: “You can’t get ready da off at Jack Dunn’s trailer to up slapped told Sherie to shut and Sherie Taylor work and met and the victims on the appellant. At this Brenda and Sherie group beach later. The smoked more mari- began fight. put Red Sherie in her vehi- huana, drank, and listened to music. put gear cle and it to make her leave. She stopped began Appellant and to cuss. Shortly Brenda arrived an hour later. grabbed pulled Sherie’s hair and her from thereafter, brother, Watts, Steve her vehicle. returned to her vehicle Sherie stopped by picked up and Lori. one of When and left. Brenda, “messing” the victims started with angry husband, she became appellant and told the Sherie returned with her Sid Wil- victim to leave approached Brenda alone because she was appellant, appellant son. As Sid lady.” responded: “Hey, “old The victim stepped began ap- backward. Sid chase sorry. I am I didn’t know pellant gun she was married.” and Red heard several shots. Red further approached stated that Brenda When Sid returned he asked Dunn to drive keep appellant and asked Red to police from drink- him to the station to tell them about ing any liquor hard appellant appellant. Appellant because beat Dunn refused. re- got turned, Brenda again when he drunk. Red re- him When Sid chased Red heard fused, appellant gun got Brenda left. Red and also more shots. Red and Brenda into left to look for another tow. the Bronco and left to find and Sid. them, locating After Red drove Sid back to Red stated he and went to the stayed ap- Dunn’s trailer while Brenda with public store and then to a shower. While pellant. Red returned to appellant stayed Red showered outside with Brenda, camp- and all three returned to their the Bronco. When Red returned to the site. Bronco, appellant coming from the boat around, appellant got they driving docks area. When into the later heard When Sid jackpot showing Bronco he he hit stated Red and Brenda left the Bronco while revolver, bag appellant stayed campsite.5 Red a a tote at the After fif- bullets average $20.00 3. Red’s fee for a tow was 5.On cross-examination Red testified that he averaged day. $30.00 and he three or four tows a “pop" thought heard one which he was Sid shooting with a rifle. Red stated: "I my policy It is to not refer to crime victims letting [appellant] it Sid know he had believe was necessary name unless to understand the facts or gun, too." the law. laying victim was they four wheel drive. One teen minutes returned appellant moved him so across the seat and told them had returned with a rifle. Sid get to the lever. When Red was Red could camp- if the three decided it would be safer drive, they engage the four wheel unable to They gathered their tent site was relocated. pull pickup up rope the tow hooked in the Bronco. and left However, they were unable from the sand. Red, appellant and Brenda drove down As the drive shaft on the to do so because they pickup. saw the victims’ beach Bronco broke. get police appel- stated should but Bronco, began on his As Red to work go to lant and stated could not Brenda engage the four wheel was able They pickup police. drove closer to the Appellant pickup. drive on the victims’ passing the and saw no movement. After away pickup. he returned drove Later pickup, appellant told Red to turn around. repairing completed wet and on foot as Red why, appellant “[d]on’t said "WhenRed asked away appel- shaft. As drove his drive Appellant then stated “I’m worry about it.” wallet, going through pulling out lant was I going get the sons of bitches. can’t let an “ID” from the several bills. He took get away them with this.” They wallet and threw out window. gun into the stopped threw the Appellant lights Red to turn on his told They campsite where ocean. drove pickup and fired and ran to the back of the belong- appellant and Brenda retrieved their Appellant then went to the into the bed.6 pay phone ings. Red then drove them to pickup into the driver’s side of the and fired edge the Tiki Restaurant. at the of town near open jumped door.7 returned *16 got appellant Appellant and Brenda out and away. the Bronco. Red drove the back of Red’s shirt.8 then asked for Shortly to turn appellant thereafter told Red police if went to the he Red that he warned past pick- victims’ around and drove regret it. would appellant up. Appellant stop him to told brother, morning The next get pickup. rid of the stated he needed to Watts, saying awoke Red he wanted Steve Bronco and told Red Appellant got out of the alright. stated make sure Red was Watts began driv- him. Red and Brenda follow night with a appellant arrived the before appellant passed ing the beach and down money town. lot of and wanted to leave pickup. them in the victims’ appellant had killed was worried Watts money. left and taken his When Red Red upon came and Brenda followed and Red coffee, get they saw the go with Watts stated pickup. Appellant came over and dropped bay. then pickup Watts Red to in the sand and wanted he was stuck to Sid’s and at the Bronco. Red drove off positioned the Bronco to pull him out. Red the Bronco. Red a broom to clean borrowed Red told pull pickup from the sand. laying found on his gave Sid a bullet he pull pickup appellant he did not want to keep.”9 [Sid] as a “token for floorboard worry about “[d]on’t out and stated As rap.” I’ll Red went Red left to tow a vehicle. it. take the Sid and vehicle, Ricky Taylor towing drove engage appellant how to the were pickup to show re- why for a shirt. On know asked Red testified at one 6. On cross-examination gun asked never saw reload the Red testified that he direct examination day he testified reloaded after long later sleeves. for his shirt because had they shot at the beer cans. knowing the Red denied 9. On cross-examination Red admitted his testi- 7. On cross-examination testified a nine millimeter bullet. Red bullet was mony trial estimated the murders at another Sid, size "I don’t know if this is the that he told p.m. and 12:00 between 9:30 occurred sometime not, Sid told him it was a nine of it or but here.” midnight. instant case Red millimeter. it was." he "never knew what time testified appel- Red testified that 8.On cross-examination already that he did not had a shirt on and lant However, Boyd
up anyone pickup bay. made and asked had seen the victims. into attempt pickup finger- for Taylor Taylor no to search Red told he had not. Sid told prints, preserve boots or to secure the that Brenda had accused him and the victims tire tracks as evidence.10 rape. Taylor rape stated: didn’t “[w]e nobody. you’re talking I don’t know what away bag
about.” Red later threw the tote ii. Martinez and sold the camera. County Detective Martinez Cameron ap- months Several later Red talked with investigator. Sheriffs Office was the lead pellant County in the Cameron Jail. When and discovered Martinez secured scene Red asked how found him in tire tracks blood stains the sand well as Indiana, appellant stated he and Brenda had appeared which to have been made anoth- fight living and Brenda was with another pushed pickup into the er vehicle which Brenda, get man. When came to bay. did not recover the boots on Martinez go she told the other man she had to preserve and took no action to shore appellant because he was wanted Texas bloodstains or tire tracks as evidence.11 Ad- killing guys; some she did not want ditionally, attempt Martinez did not to locate appellant to hurt the other man. any pickup fingerprints on the or the items pickup, within the but did interview the vic- persons tims’ friends and the who lived on II. THE NON-ACCOMPLICE the beach.12 At the time of trial Martinez EVIDENCE investigated had several murder hundred and, opinion, oc- cases the murders Physical A. The Evidence approximately curred at 2:00 a.m. or 3:00 a.m., 12,1991. September i.Boyd 12, 1991, September Boyd On Detective iii. Batsell Department the South Padre Island Police dispatched Upon to the murder scene. at Bat- Gordon Batsell testified he worked *17 arrival, Boyd pickup observed a white truck Sporting in sell’s Goods Brownsville and was partially submerged bay in the of South Pa- weapons. trained in ammunition and Two Boyd pickup dre Island. waded to the handgun marketed three dif- manufacturers victims, observed in two one the bed of the revolvers, ferent nine millimeter the latest pickup Boyd and one the front seat. manufactured in 1985. Nine millimeter re- pair cowboy observed a boots on the shore popular not volvers are and are considered appeared and tire tracks that to have been recovered rare. Batsell examined bullet pushed opinion, made another vehicle In his which from one of the victims. Municipal Judge ceming investigation proper called the at South of murder scenes. Island, Hunsaker, testify Padre Brian concern- pictures Roscoe was shown of the instant murder ing Boyd's investigative techniques. Hunsaker scene and the various vehicles and tire tracks approximately was called the scene at 12:00 within scene. Roscoe testified such scenes Boyd open noon and stated he observed the door only police investigators must be secured and truck, get attempt to the steering in and to turn the should be allowed within area. The the secured Further, talking Boyd wheel. after photographed must and then a thor- scenes Martinez, and Detective Hunsaker indicated on ough Everything search for evidence conducted. report approx- his that the had been dead victims any possible evidentiary weight which has should imately six hours. and, possible, fingerprinted. be retrieved If it, something you is wet at the time encounter Paz, 11. Robert De La a retired U.S. Marshal and fingerprinted can be after it has dried. When that, investigator appellant, an testified prosecutor if investi- asked he could have past, plaster impressions he had made cast of tire better, gated replied, this case Roscoe "absolute- tracks in conditions similar to South Padre Is- ly.” land. 12.Appellant called Detective Merlin Roscoe of Department testify Police con- Brownsville vi.Taylor weight, it on its diameter and was
based millimeter bullet.13 consistent with nine Ricky Taylor testified he was the brother However, Batsell testified that without fur- brother, Taylor, victims. of one of the testing distinguish ther the bul- he could B worked for & W and the other victim .357, a .380 or a .38 because the let company. Enterprises, exploration a seismic of these bullets is difference the diameters Taylor paid Septem- on and his brother were less than two one-thousandths of an inch. 5,1991, remaining victim was not ber but the large paid until later and should have had
iv.Dahm money him at the time of the amount of murders.14 performed autopsies Dr. Lawrence Dahm on and determined died as a the victims work was rained out so The seismic crew’s range. gun result of shot wounds at close Taylor and the victims went to South Padre suggested The bullet and wounds a medium driving weekend. While on Island for the weapon millimeter. caliber such as a nine beach, they another vehicle encountered position The wounds and the which the attempted in the sand and which was stuck suggested victim’s were found both were shot A males and to remove it. Bronco with two pickup. passenger from the side of the Fur- of the males was two females arrived. One ther, photographs of the at the mur- victims Taylor much he appellant who asked how rigor der scene indicated the bodies were charging pull the vehicle from the normally develops within two mortis which just get- Taylor sand and stated death, fully developed approx- hours of and is Taylor was unable to ting some beer. When imately Rigor Mortis six hours after death. vehicle, appellant and Red freed the free the eight to twelve hours. Dahm
will remain for group then talked for while vehicle. developed rigor could not when mortis state agreed to meet later on the beach. in the victims.
Taylor on the beach and the victims were juice, drinking orange as well as vodka and v.Marchan beer, appellant, they again saw when Later, Marchan, and Brenda ar- Depart- and Lori. Lori left supervisor Joe Laboratory They played frisbee and talked for Safety rived. ment of Public Crime McAllen, Taylor two hours. and the victims left retrieved crime scene about who often 1) something to evidence, change get eat. the officer’s clothes testified: it is within they picked up As drove toward town whether to retain evidence at a discretion 2) scene; approximately five Brenda. after spots blood in the sand are crime *18 3) hysterical, and, became it is or ten minutes Brenda analyze; to more benefi- difficult pick- screaming wanted out of the photographs began of tire and and far easier to take cial jumped they stopped, Brenda from plaster up. im- As rather than make a cast tracks time, Tay- according to However, pickup. At that photographs taken pression. lor, were not torn and she Brenda’s clothes in case were not beneficial. the instant time; paid at this in- Sergeant The other victim was Appellant Alfredo Petrarca called training assigned company division of the cashed a check and who was later stead depart- Department and is the Brownsville Police him. forwarded the cash to He in- firearms instructor and armorer. ment’s Ramirez, Jerry evidence officer custodian of autopsy spected the bullet recovered from office, County testified Sheriff's for the Cameron bullet, opinion, his was a nine millim- and that Taylor’s $249.11 when he was brother had bullet. This was different eter hollow money. Dur- other victim had no found and the Sid, gave was a full which the bullet Red truck, ing inventory Ramirez found jacketed bullet. metal shaving kit. $8.00 in a $20.68 and an additional check that she sent a 14. Delora Waldroff testified Taylor September brother on and his Taylor B. The Beach Witnesses16 and the victims was not scratched.15 They to the beach. ate town and returned in a that he lived Jack Dunn testified p.m. stopped about 11:30 and the victims beach. Larsen near the trailer with Vicki pickup. Taylor slept sleep- in a slept in the six weeks appellant approximately Dunn met feet ing bag in some sand dunes about 50 and appellant when before the murders morning away. he awoke the next When had lived moved to the beach. Red Brenda pickup gone. and victims were approximately years. two on the beach for people on the beach Most of the who lived Taylor began walking to town and was money by towing vehicles which were earned visiting picked up some co-workers also in the sand. Brenda worked at stuck they looking South Padre Island. As were Pizza Hut in Padre Island. victims, South Taylor for the encountered Red and quiet Tay- Sid. Red seemed and said little. Appellant dropped Red Brenda at and they lor if had seen the asked victims could shower and Dunn’s trailer so she However, told stated had not. Sid change work. and Red clothes for night stating him Brenda returned before to the beach to look for a tow and returned raped by guys in a white she had been “three After dark Larsen drove Brenda to town. pickup.” Taylor or denied he the victims evening stopped car outside Dunn’s Taylor raped Brenda. also told there Sid Dunn Brenda scream. trailer and heard police up were some cars and an ambulance clothes were Brenda was scratched her Taylor the beach. and the drove co-workers she, appellant tom. stated and Red She up pickup the beach found the socializing Taylor and the victims bay. argu- appellant got into an when she and group Brenda left the
ment. vii. Watts and Red left to look for a tow. Brenda saw the three men some time later and brother, Watts, Appellant’s testified Steve informed her had asked them regularly he went to South Padre Island appellant. take Brenda told Dunn and her appellant. day check on mur- after the got pickup she into the but the men Larsen ders he went to look for and found two of the took her elsewhere. She stated Red. He asked Red he had seen raped men held her down while one her. and Red stated he had not. Red told him police would not call the because she Brenda raped night Brenda was before and that hys- was “wanted” Indiana. Brenda was fought had with Sid. con- Watts’ and, opinion, terical Dunn’s had been tinued search for was unsuccessful. raped. unsuccessfully attempt- Dunn Larsen viii. Pflaum through ed to locate Amy September (cb) Pflaum testified that on radio. citizen’s band Sherie 12, 1991, Greyhound she worked for Trail- answered and came to Dunn’s trailer. Sher- that, ways in Victoria. She remembered ie was intoxicated. Larsen asked Sherie a.m., Friday September, get up 6:00 on a in mid help Brenda cleaned and Larsen left *19 1991,appellant purchased appellant appellant. and Brenda tickets to find Larsen found just Dunn’s trailer. Appellant to Indiana. stated he had and Red and followed them to Brenda, very Upon seeing appellant became traveled from Brownsville to Victoria. and, pistol. Appellant angry pulled and a stated: Brownsville is miles Victoria my going rape experience, Pflaum’s it take at least “There is no mother fucker would lady. I’ll kill the son of a bitch.” Red four and one-half hours to make that drive. old similarity Taylor later heard that Brenda had seen the 16. Because of the Dunn, Larsen, Wilson, and Sid Jack Vicki Sherie hysterical. became before she Wilson, testimony. I have combined their appellant. ar- and Brenda tried to calm Sherie music and drank. Watts and Brenda got argument into an alter she rived. Brenda stated she was told she did not have to and her son left with you rape willing?” stated can work. Lori “[h]ow began slapped appellant Watts. Brenda and one of the victims Then Sherie and Brenda Appellant to throw sand at one another. yelled “[y]ou slap my don’t husband.” Sherie nothing left, husband, Sid, said until one of the victims but returned with her and “grabbed Appellant butt.” then [Brenda’s] argument began chasing resumed. Sid “[h]ey, my lady,” victim stated that’s and the appellant pulled gun and a and shot thereafter, got apologized. Shortly Brenda stopped twice. and Sid returned to Dunn’s upset drinking “hard because was pickup departing, trailer to Sherie. While (he liquor” supposed going was to be appellant yell something. heard Sid left, Anonymous). Alcoholics Brenda as did Later, on Red knocked Dunn’s trailer and Red. and (Red, they appellant) stated Brenda and Appellant and Red went into town and going campsite. back to their Sid bought gas drinking way and water. On the campsite drove to the found no one but there. public they stopped back to the beach at the appellant again, Sid never saw but Red showered, showers. After both Red asked brought day. over a bullet the next This appellant to be a look-out while Red entered police.17 bullet was turned over to the carrying
the boat dock. Red returned a blue bag tote and a brown leather case. There Testimony18 Appellant’s C. camera, expensive tripod lenses and a was an Appellant bag testified he moved from Indiana large in the tote and a silver revolver September Appellant to Texas of 1990. in the brown case. Red stated he bullets previously burglary, gun convicted twice of sell the wanted to could juvenile. money. They an split once as adult and once as drove out to the And, can, juvenile, as a he committed a criminal at a beach and fired the revolver trespass boy’s stopping sign. and was sent to a school. then drove further shoot They got put into the Bronco and the revolv- July appellant, Brenda and Lori er on the dash. moved to the beach on South Padre Island. Appellant July. They stopped they met Red late be- and Red when saw together they flashing lights came friends and towed vehi- and Lar- Larsen’s van day cles from the sand. On the before the them that Brenda had been sen informed trailer, murders, raped. ap- and Brenda saw Red and As Red drove to Dunn’s town, revolver, They bought pellant picked up put Lori. went to food and beer, waistband, said, go.” ap- and returned to the beach where “[l]ets When day drinking looking hys- spent pellant crying most of the saw Brenda she was They notify police for a tow. Some time after lunch came could not terical. upon unsuccessfully attempting previously pickup rape Brenda stole and because They Appel- pull a car from the sand. waited to see check in Indiana. cashed welfare people help. During very upset this time wanted needed lant became and stated he Taylor they met and the victims. After the and kill them.” to “catch the sons-of-a-bitches argument began car was freed took Brenda to Dunn’s An Sherie called when get ready Ap- you “can’t trailer so she could for work. Brenda a liar and stated that Red, pellant, unwillingly.” slapped appel- left to return raped Lori and her son Sherie began fight. campsite stopped they saw lant. Brenda and Sherie to their but when group put into her vehicle and when she pickup again. listened to Red Sherie *20 Testimony by from a witness called mentioned in n. elicited This the same bullet the accused and offered the accused is not supra. State, accomplice testimony. Selman v. witness 310, (Tex.Cr.App.1991). 807 S.W.2d grabbed They further got again appellant belongings. and some of their de- out her stay on cided it would not be safe to pulled ground. her Red restrained vehicle, always beach was around. because Sid put and her back into her Sherie Sid, appellant and Because of their fear crying still when re- Brenda was Sherie Appel- Indiana. Brenda decided to return to jumped turned with Sid. Sid from his vehi- appellant’s lant asked to drive them to Red going cle to bash yelling appellant’s he was mother’s in Port Isabel. As home ap- appellant, head. When Sid came toward town, passed through a band at the Third away. Appellant pellant pulled the backed playing; Country Coast was still there- Club swung air and shot when revolver Sid fore, appellant midnight. knew it was before laughed at appellant. appellant Sid said home, at his mother’s When arrived than Appellant would have to do better that. they unloaded and Red left. being through turned and ran. After chased appellant fell sand dunes and Sid rushed Appellant on the door and knocked asked at Appellant him. shot several times to more his mother outside. He told to come her away. Appellant back Sid ran across the about the situation with Sid and asked her yelled appellant, “[y]ou sand dunes. Sid enough money a bus to to take Indiana. away get easy” can’t from me and “I’ll step-dad Corpus going His Christi was get you eventually anyway.” asked him to leave earlier so catch a and Brenda could bus. began Sid to walk back his vehicle and Christi, they got Corpus the bus When followed. Sid saw They station was drove to the Victo- closed. began chasing him. After some time Sid station, arriving ria at 5:00 or 5:30 a.m. bus away. returned to his vehicle and drove trip The total took about five hours because picked up appellant, When Red and Brenda night. there was a As rain storm soon crying. “[g]ive Brenda was still Red stated opened, appellant pur- as the ticket booth gun you me got the damn because ain’t chased to Indiana. tickets it,” guts appellant gave to use Red the revolver. There were no live shells Indiana, his While mother gun at this time —all the shots had been fired informed him that he and Brenda had war- chasing appellant. They while Sid was re- Appellant out rants for their arrest. stated campsite. turned to their away they caught stay he would until person murders. Appel- who committed the campsite the At the three discussed what lant did not to be “railroaded” on this want They to do did about Sid. not believe Sid history. case because his criminal “get away would allow They shooting him.” heard Sid’s vehicle coming
and Red stated Sid was with the rifle. III. stated he heard further Sid shoot An accomplice witness is discredited Bronco, and Brenda left in rifle. Red witness her or his alone because appellant stayed but to make sure did Sid cannot basis for the conviction. furnish the destroy campsite. Appellant hid complete may No matter a case how up. sand dunes and watched Sid Sid drive accomplice made out witness or wit- an son-of-a-bitches, yelled, up you I’m “[w]ake nesses, permitted is not unless conviction a rifle back.” had a stick or and knocked Sid he or are corroborated. down tent. un- waited pick up (Tex.Cr. til and then went to Sid left Walker Brenda, campsite. Red returned with who App.1981). facts and circumstances All the upset crying. was still Red informed to determine evidence are looked (Red) him that Brenda told about non-accomplice whether evidence corrobo testimony. rape. The three decided was not safe rates the Mitchell v. 807 (Tex.Cr.App.1983). night up campsite packed use the *21 856 non-aceomplice
The
appellant
go
evidence is sufficient if it
6.
stated that he “wanted to
tends to connect the defendant
to the of-
catch the sons-of-bitches and kill
fense;
guilt
them;”
this evidence need not establish
directly
or
link
even
the defendant
Red,
accomplice, gave
7.
Brenda and
State,
775,
offense. Gosch v.
829 S.W.2d
777
home;
appellant a ride to his mother’s
State,
(Tex.Cr.App.1991); Cox v.
830 S.W.2d
State,
(Tex.Cr.App.1992); Granger
609
v.
683
appellant
opportunity
8.
kill
had the
387,
and,
(Tex.Cr.App.1984);
S.W.2d
392
victims because
were killed
State,
(Tex.
535,
Castaneda v.
682 S.W.2d
a.m.,
approximately
2:00
he still had
However,
Cr.App.1984).
each case is deter-
kill
time to
them and arrive Victoria
merit,
State,
mined on its own
Mitchell v.
(approximately
6:00 a.m.
a four-
non-accomplice
and the
evi-
and,
trip);
hour
dence must
toward the defendant’s
appellant
9.
and Brenda fled the island
Munoz,
commission' of the offense.
and the State.
Non-accomplice testimony
S.W.2d 558.
accomplice testimony,
which corroborates the
Ante,
857 appellant. Sid, anger toward and Sid’s testimony op- as preference appellant’s for trip appellant’s that indicates Red Such evidence accomplicewitness. posed to that of the flight following com- may Indiana at the appellant and Brenda he left testified rather, but, offense the instant mission of edge Padre on the of South Tiki Restaurant one cannot Consequently, flight from Sid. Island; testified comparatively, appellant indeed departure was appellant’s conclude mother’s home appellant’s them to Red drove flight. factor In event this in Port Isabel. either appellant with the not tend to connect
does of the offense.
commission B. eighth of the majority’s consideration The lacking and fails majority’s analysis is The puzzling. Because the piece of evidence is authority in its resolu- any controlling to cite approximate a time pathologist did not However, my point of error. tion of this death, majority police officer to looks to a In strikingly similar case. reveals a research testimony. important The non- supply this State, (Tex.Cr.App. 690 246 v. S.W.2d Cruz concerning time of accomplice evidence non-accomplice 1985), presented the State from Detective Martinez the murders came near testimony proving: the defendant was around opined the murders occurred who rifle pistol of the crime with the scene And, the time a.m. even within 2:00 or 3:00 shot; time the victim prior to the Martinez, majority frame established wife, defendant, accomplice disap- com- assumes the murders must have been approximately peared from the area majority’s 2:00 a.m. The need mitted at shot; belong- gift victim was same time the early as establish the time of the murders found in the defendant’s ing to the victim was apparent consider possible becomes when we vehicle; arrested and the defendant was testimony was Vic- Pflaum’s 248-250. We held Id. at California. majority’s 6:00 a.m. But the toria before testimony tend to non-accomplice did not undisputed is too close. The testi- time line to the offense because connect the defendant mony approximately that it took established only extraneous corroborated the evidence hours to travel between and one-half four sig- proved the and the never matters State and McAllen. And we know Victoria gift. Id. at of the nificance of the location from Island is even further South Padre Accordingly, this cannot Victoria. case, appellant was seen In the instant It appellant to the offense. tend to connect time the victims prior to the with a revolver committed two improbable that someone is left the Appellant and Brenda were shot. a.m.; Padre Island at 2:00 murders on South in Indiana. later arrested area and were caught city of camp; a ride to the broke However, property was of the victims’ none Island; pay phone to call Padre used South appellant or Brenda. Con- either found with Isabel; and, finally, ar- to Port for a ride non-accomplice evidence sequently, the Victoria, arriving the bus ranged a ride to than that Cruz. bar is weaker case at at 6:00 opened booth station before the ticket a.m. (Tex.Cr. State, 728 v. Walker case con- accomplice an witness App.1981),is piece of evidence is
The ninth
instant
to those
taining facts similar
majority is
The
correct
trip to Indiana.
weapon.
murder
they relate to the
accomplice
case as
may
to corroborate
flight
serve
Walker,
policeman was murdered.
758
testimony.
S.W.2d
Cockrum
accomplice, the
of an
appel Through the
(Tex.Cr.App.1988).
accomplice and Walker
necessarily flight
proved
State
trip to Indiana is not
lant’s
evening
See,
on the
looking
guns
to steal
murders.
the commission of the
(Tex.Cr.
accomplice testified
offense. The
Moron v.
from a
rifle and ammunition
stole a
es Walker
non-accomplice evidence
App.1985). The
light and stated
shot a street
truck. Walker
altercation between
tablished the
that he could shoot the victim from
Similarly,
case,
the same
in the instant
when consid-
problem.
distance with no
accomplice
ering only
evidence,
non-accomplice
there
plans
testified that
were made to kill the
ample
evidence to establish the murders
victim. The
drove Walker to his
*23
occurred at South Padre Island. And there
car and left
driving through
alone. "While
ample
is
evidence that
possessed a
town,
accomplice
the
stopped
spoke
angry
revolver and had reason to be
with the
briefly
Later,
with the victim.
the accom-
However,
victims.
there is no evidence
plice drove down the street and saw the
which tends to connect
or the re-
leg sticking
victim’s
out of the car. The
volver with the commission of the murders.
Walker,
accomplice picked up
stated,
who
And motive is insufficient corroboration un-
“well, I
accomplice
did it.” The
and Walker
Leal,
also,
supra.
der art. 38.14.
See
Mu-
drove to a
accomplice
lake where the
threw noz,
(Evidence
only
S.W.2d at 564
which
police
rifle into the lake. The
recovered
suspicion upon
casts
the defendant is insuffi-
two .22 caliber rifles from the lake. Walker’s
requirements
38.14);
cient to meet the
of art.
fingerprint was
pickup
recovered
State,
(Tex.Cr.
Adams v.
685 S.W.2d
stolen; however,
which the rifle was
expert
State,
App.1985);
Gardner v.
730 S.W.2d
testimony
positively
failed to
identify the re-
and,
(Tex.Cr.App.1987);
678-679
Forbes v.
covered
weapon.
rifle as the murder
Id. at
(Tex.Cr.App.
75-76
729-731.
1974).
We held the evidence insufficient to cor-
Moreover, the
especially
instant case is
testimony
roborate
accomplice
of the
wit-
disturbing
non-accomplice
because the
evi-
position
ness.
complainant’s
of
leg
dence
reliability
easts serious doubt on the
sticking
discovery
out of the vehicle and the
accomplice testimony.
Red testified he
provided by
the rifle at the location
saw
run
pickup
to the rear of the
accomplice did not tend to connect the defen-
victim,
and shoot the first
and then run to
dant with the commission of the offense.
pickup
the driver’s side of the
to shoot the
only
Evidence which
corroborates the testi-
Dahm,
coroner,
second victim.
mony
testified
accomplice,
of the
but does not tend to
offense,
passenger
connect the
victims were shot from
defendant to the
is insuf-
ficient
pickup.
corroboration on which to
side of the
base a con-
Red also testified that
Id.,
viction.
at 732.19
disposed
pick-
alone
of the victims’
case,
yet
accomplice
another
witness
Cas-
bloodstained knife connects
[Castaneda]
(Tex.Cr.App.
taneda v.
However,
S.W.2d 535
only
linking
offense.
1984), we stated:
[Castaneda] to the knife came from the accom-
Although
...
great
the State's case contains a
plice witness. No one else testified that the
amount of detailed corroborative evidence
[Castaneda],
belonged
knife
[Cas-
or that
murders,
which shows the commission of the
possession
taneda] was ever seen in
of the
there is no corroborative evidence which links
Finally,
argues
knife ...
the State
that the
argues
[Castaneda] to the crime. The State
evidence shows that [Castaneda]
[the
co-
that blood found on [Castaneda’s] discarded
killings
pres-
defendant] admitted the
clothing
[Castaneda]
links
to the crime. We
persons shortly
ence of several other
after the
initially
only testimony
would note
that the
However,
only testimony
offense.
con-
clothing
which identified these items of
as be-
cerning these admissions came from the ac-
longing
hearsay testimony
[Castaneda]
complice
any
witness. The State did not have
investigating
from one
officers. The
persons
of the other
who heard these admis-
emphasizes
yellow
State's brief
that the
coat
testify.
sions
Thus there is no corroboration.
''[Castaneda’s]
was found in
bedroom.” How-
testimony
There is no evidence other than the
ever, the record does not bear this out. The
places
of the
witness
[Castane-
testimony only
officer's
refers to "the b.edroom
pool
any
da] at the
[co-defendant]
hall at
of the home.” The evidence showed that [Cas-
produced by
time. The corroborative evidence
taneda] lived in the house with his mother and
way
the State in no
[Castaneda]
connects
brother and there is no
that shows
the crime. Because of the lack of evidence in
occupied
Secondly,
who
“the bedroom.”
regard,
this
we find that the evidence is
there
insuffi-
is no evidence in the record that [Cas-
wearing
clothing
taneda] was
cient.
this
at the time
Castaneda,
argues
of the murders. The State also
that the
scene COUNTY MUNICIPAL HARRIS pushed been pickup clude the victims’ had UTILITY DISTRICT NO. bay vehicle. into the another 48, Appellant, own a and Red controlled the did not vehicle only which means of Bronco
transportation. Independent Edna Jean MITCHELL as Mitchell, Ray Estate Executor suggests that The evidence in this record Deceased, Trustee for the Beneficia- Red, committed murders. Mitchell, Ray Trustee, Appellee. ries of likely following: A more is the after scenario *24 Brenda, dropping pro- off Red No. 01-94-00712-CV. murders, beach, committed the ceeded to bay pushed pickup disposed Texas, Appeals of Court of weapon. murder This scenario consis- (1st Dist.). Houston death, time of tent with estimated Pflaum, Amy coroner’s and that of Nov. 1995. the bus station attendant. Because this sce- Rehearing Overruled Dec. likely much than nario is more the State’s theory prosecution, my jury’s confidence in
guilty verdict is undermined. conclusion, painstaking after review record,
the entire I am convinced the non-
accomplice evidence is insufficient corrobo- testimony.
rate the I witness judgment
would reverse the of the trial court acquittal. Judge
and order an Learned procedure once
Hand wrote that has “[o]ur
always ghost been haunted of an man
innocent convicted. It is an unreal United, Garsson, dream.” States 291 F. (S.D.N.Y.1923). fear, I in- case, reality.
stant dream is a I unreal
respectfully dissent.20
OVERSTREET, J., joins opinion. this insufficient, footnote, may Appeals As a final the reader interest- Court of held that, separate to know trial judgment ed where trial court and reversed the exchange immunity, also testified Brenda acquittal. ordered an Colella v. capital sen- 1993). Colella convicted of murder and (Tex.App.. Corpus Christi S.W.2d 618 — Corpus imprisonment. tenced to life Christi