Corwin v. State

18(b) (Vernon 6252-19, § art. Stat.Ann. 1970). light legislative history, of this the court appeals correctly that section concluded lb, predecessor, and its Article were

75.002 general application

intended be laws 101.022(a) predeces-

and that section and its 6252-19, 18(b),

sor, § specific applicable governmental landowners. laws conflict, specific two statutes con-

When general.

trols over the Sam Bassett Lumber Houston, City 145 Tex.

Co. (1947); S.W.2d Tex.Gov’t Code Ann. 311.026(b). addition, the more recent

statutory prevails enactment over an earlier 811.025(a).

statute. Tex.Gov’t Code Ann. apply

We hold section 75.002 does not governmental entities because the stan

dard of care owed to recreational users on

government property specified in section

101.022 Texas Tort Claims Act. We

disapprove County, of Martinez v. Harris (Tex.App

808 S.W.2d 257 [1st . —Houston denied) County Dist.] writ and Tarrant Imp.

Water & Control Dist. No. 1 v. Cross

land, (Tex.App 781 S.W.2d 427 Worth . —Fort denied) 1989, writ to the extent these cases contrary holding today. judg

are our The appeals

ment of the court of is affirmed. CORWIN, Appellant,

Daniel Lee Texas, Appellee. STATE

No. 71072. Texas, Appeals

Court of Criminal

En Banc.

Sept.

V.A.C.C.P., punishment was assessed ac- Id., (e). cordingly appeal at death. Id., (h). Appel- automatic to this Court. sufficiency challenge lant does support guilt evidence either to jury’s special affirmative answers to the issues.

7. CRIME point error appellant his fourteenth deny contends court erred to his the trial pretrial to dismiss the indictment as motion upon based a statute that is unconstitutional- Crow, Conroe, appellant. D. for Jerald ly vague. point In fifteenth of error he III, Speers, Atty., Peter C. Former Dist. contends should that his conviction be re- Huttash, Conroe, Atty., Robert State’s Aus- Appellant for reason. versed the same con- tin, for the State. argument points on these solidates his of error on will treat appeal, and we them to- gether. 19.03(a)(6)(B) Appellant argues § that is

OPINION that, defective in he articulated it in his CLINTON, Judge. motion, pretrial ap- and reiterates now on peal, it not define scheme or of “does course murdering Appellant was convicted of arbitrarily conduct allows mur- and two person pursuant the same more than one conduct, regardless ders frame or of time location to capital of a offense scheme course Code, 19.03(a)(6)(B).1 § constitute scheme or course of con- Penal the same under V.T.C.A. jury “yes” spe- The duct.” He contends this indefiniteness ren- returned answers to the 37.071, (b), § the Due cial former Article ders the statute violative of Process issues under alleged appellant: description is exact of which unknown to the The indictment Jury; Grand day July, "... or about the 10th "And, there, 1987 in Walker then and while in the course of on or about October ... did there, attempting kidnap- Texas, committing County, and commit he did then and while in aggravated ping and sexual assault of Debra attempting kidnapping to commit course of Ewing, intentionally cause the Debra death of Mary aggravated Rising- and assault of sexual Ewing by stabbing her with a gling her with a stran- knife and er, intentionally Mary cause the death Ri- ligature, description the exact singer stabbing knife[.]” her with a Jury to the which is unknown Grand jury guilt the close of instruction at [he], during crimi- "... and ... different required jury to find of trial pursuant transactions and to the same nal Ewing, and he also thus murdered Debra conduct, course of murdered more scheme and Walker, or mur- thus murdered either Alice thus person, than one to wit: Mary Risinger, the same scheme or dered 10th, July Montgomery “On or about Oddly, the effec- course of conduct. indictment Texas, there, County, he did then while in and tively capital charges murders under three committing attempting to the course of and Code, 19.03(a)(2). V.T.C.A. Each of the Penal kidnapping aggravated and as- commit sexual allegedly murdered intention- three victims was Ewing, intentionally Debra cause the sault of ally, attempt- commission or and in the course of Ewing by stabbing with a death of Debra her one of the enumerated ed of at least commission strangling ligature, and her knife Nevertheless, felonies State's therein. description which is to the exact unknown theory prosecution was at times avowed all Jury; Grand 19.03(a)(6)(B), supra, and both the indictment February 1987 in Robertson "On or about County, Texas, there, finding charge require appel- he did then and while victims, committing attempting the course of two of the and that lant killed at least aggravated kidnapping and sexual as- pursuant commit those two were committed murders Martin, intentionally conduct, cause the sault of Alice in order the same or course scheme by stabbing Martin her with a death of Alice capital murder. to convict him of strangling ligature, her with knife and car, slashed her her out of the then forced of the United States Constitution.2 Clause heart, throat, left her her in the acknowledges prevail that in he stabbed He order Miraculously, Appellant she lived. persuade must the Court that the statute for dead. for forty year prison sentence vague applies specific to his own con assessed a statutory language gave no of 1988 duct—that this offense. October susceptible to in her own indication that he could be A & M co-ed a Texas abducted See, e.g., prosecution murder. There he park. her to a vehicle and drove (Tex. State, her, Vuong at 941 830 S.W.2d then tied her arms sexually assaulted Cr.App.1992); Johnson her and slashed and stabbed around a tree (Tex.Cr.App.1992). Appellant was also survived. throat. She during the serving for this last offense time in 1987 the course of nine months Over prosecution. instant abducted, assaulted, sexually women, attempted killed two and then argues that lack of definition killed, abduct, not, and when he could a third. con- phrase or course of “same scheme twenty-six year July of 1987 he abducted the statute so indefinite duct” renders Ewing from the Huntsville old Debra Vision killing his conduct in cannot tell whether Center, apparently where she worked. He person during trans- than one different more Montgomery drove her to a remote area of Moreover, he actions a offense. raped in of his County, her the front seat contends, cannot enforcement authorities law truck, strangled ligature a and then her with can, that any readily than he and tell more her twice in the of some sort and stabbed arbitrary prosecution. open him leaves February year appel- chest. In of the same Rockford, Grayned City See of seventy-two year lant had abducted a old 33 L.Ed.2d Martin, taking daily Alice who was her walk that, further Appellant complains without in along a farm to market road Madison definition, is unclear whether “same County. apparently a more He drove her to reaches over a scheme or course of conduct” County, raped remote area in Robertson her counties, as the span of nine months and four truck, in the front seat of his and then stran- proven alleged in the indictment and conduct gled ligature her a and her four stabbed at trial does. evening in times the back. On Halloween of year thirty-six tried to force thinking Appellant is mistaken in Mary Risinger a car old into his truck at 19.03(a)(6)(B) simply § be is indefinite that put up in Huntsville. she a wash When specify the different cause it fails to throat, struggle, in he stabbed her sever- during than one transactions which more major ing every blood vessel in her neck. occur over a definite person are killed must period time or in a definite location.3 Un punishment phase At the it was shown limiting doubtedly Legislature intended a appellant had committed similar offenses phrase in “same scheme or principle in both and after the three offenses before is no inherent course of conduct.” There high 1987. In 1975 abducted a requirement that there be such in her own constitutional school classmate and drove her however, limiting principle, much less that gravel pit, raped her. He a car to a where limited, grounds. ordinance was how- Appellant violates the ness ever, The 2. also contends the statute Constitution, argu separate adjacent premises but makes no Texas to noises made to school that effect. It has been the Court’s upholding ment to the con- school hours. In and practice pursue appellant’s to "decline to Texas ordinance, stitutionality States of the the United arguments for him.” Johnson v. Constitutional noted, alia, Supreme that the conduct Court inter 1992). (Tex.Cr.App. place. That proscribed limited in time and may ordi- contribute to render an such factors Rockford, Grayned City 3. cites sufficiently pass definite to constitutional nance muster, however, Grayned city supra, proposition. for this they indis- does not mean are proscribing diversion as ordinance such noise or every constitutionality pensable to the good peace to disturb the or "disturbs or tends statute. vague- on order of” school activities assailed Identical; “SAME, expressed temporal spatial adjective: it be or terms.4 1. alike in Nevertheless, kind, every degree, Legislature respect. it is clear 2. Alike every character, quality did intend that ... not different-transac- or killing comprise tion multiple capital mur- COURSE, regular ... 7. A noun: mode Legislature impose der. And while need behavior; pattern or or of action custom- limiting principle, any limiting no and while events; ary sequence or re- established principle impose need it does not be articu- according to certain currence of events place, lated Legisla- in terms of time or if the way, path, laws. A or channel of 8. impose limiting principle, ture does movement ... sufficiently principle must be definite that CONDUCT, ... noun: Personal be- defendant, putative prosecuting and the havior; deportment; way that one acts officials, can ascertain which different-trans- multiple capital, action murders are however, definitions, Given these do which are not. 19.03(a)(6)(B) unconstitutionally believe vague applied as conduct. hearing public At the of the House abducting, raping, killing Jurisprudence, Committee Criminal con attempting kill in more five women or less 11,1985, February sponsors ducted on way the same over the course some thir later promulgated House Bill which was years, only by a interrupted lengthy teen 19.03(a)(6), supra, made it clear that sub sojourn penitentiary, appellant can (B) section was meant to embrace “serial” reasonably engaged to have in “a be said Bill Analysis The Revised murders.6 regular pattern mode or behavior.”6 gives an example House Bill 8 of same Martin, Ewing, evidence shows who, “e.g. of conduct scheme or course one Risinger pursuant each murdered year kills the a all Senators over course of “regular pattern this same mode or of behav snubbing legislation.” for his It is true cases, Perhaps hypothetical ior.” the appellant’s does not this conduct indicate murders time and distance between commit objective over-arching kind of or motive. increases, during ted different transactions But example was not meant to be exhaus operandi and as the motive or modus actor’s view, appellant tive. In our had sufficient vary, puta it will more difficult become for proscribed notice that his conduct was as a agen tive defendants and law enforcement capital “pursuant offense because committed say certainty cies to that the with murders ... course of the same conduct.” ... “pursuant occurred to the same course of appellant following appellant sets out conduct.” But demonstrates no his brief “same,” “course,” facts, present uncertainty of and “con- such on the definitions duct” sufficient for a rational taken from Webster’s New Universal evidence was Unabridged Dictionary: “pursuant to find it to the same fact drafted, Indeed, originally as of November 12, 8, 1984, eventually which House Bill became 19.03(a)(6), simply supra, capital made it a person than one offense to murder more “wheth- er occur or not the murders the same Thus, pristine episode.” in its incarna- criminal tion, limiting legislation princi- no contained ple might Whatever else be said for whatsoever. permissible to this provision, it would not to suffer 6.We think it consider in such a seem punishment presented at the vagueness. context the evidence from pattern appellant's be- relevant to the all, question years. havior over the After is is sufficient to whether the evidence establish capital the 03(a)(6)(B), murder under 19.- offense of appellant supra, but whether had notice, indictment, prior ongoing prosecution conduct him liable to could make provision. under that

29 involuntarily under appellant given of conduct” that com statements were course may mitted murders. “That there be totality these circumstances. To the of the marginal cases in which is difficult to de appellant’s claim in- involuntariness extent partic on termine the side of the line which a others, corporates viz: that he several of ular fact falls is no situation sufficient reason counsel, and right to that the was denied his ambiguous language to hold too define defective, magistrate’s warning was we will a criminal offense.” United States v. Petril them, consider them first. consolidate lo, 1538, 1, 7, 1542, 332 67 at S.Ct. at 91 U.S. (1947). 1877, L.Ed. at 1883 See also United A The Statements Powell, 87, 316, States 96 S.Ct. 46 (1975); L.Ed.2d 228 United States v. Nation hearing ap- presented at the Evidence 29, Dairy Corp., al Products 372 83 U.S. suppress showed that on pellant’s motion to (1963); 594, S.Ct. 9 L.Ed.2d Goocher serving 15,1989, began appellant March (Tex.Cr.App.1982). year attempted sentence mur- for defining capital This is for statutes true even had der of the A & M co-ed he abduct- Texas States, offenses. Robinson v. United previous ed the On the afternoon October. 285-86, 668-69, U.S. at at Davis, Thursday, Lou March (1945).7 89 L.Ed. Whatever sociologist Department at the Texas Crim- periphery, may doubt exist at the we think Justice, Division, inal inter- Institutional proscribed by § that the conduct “core” 19.- viewed Unit in an at the Goree 03(a)(6)(B) enough, appel clear classify purposes assign- effort to him for lant’s fell within it. conduct Smith v. Go ing him to a unit. At the conclu- particular 577-78, guen, 415 U.S. interview, of the because sion normal he was 1249-50, 39 L.Ed.2d 614-15 “curious,” began question appellant Davis Accordingly, overrule four involved about three offenses points teenth and fifteenth of error. cause, had which he knew once

II. CONFESSION suspect newspaper clippings in been a his file. At first denied in- first, third, fourth,, Appellant’s sixth volvement, questioning but further points pertain way thirteenth all of error one admissibility readily killings another to the talked to Davis about the number gave, in writing statements he both and on Risinger Ewing. and Davis testified he videotape, pertaining to the various offenses promises appellant to made no to obtain argues, outlined respectively, above. He these admissions. These oral confessions given that the statements were after his not were admitted into evidence trial. right to counsel was invoked but no counsel interview, telephoned, After Davis provided, magistrate’s and after a defective Merillat, AP. a detective with the Huntsville warning; videotaped that confessions do Department, ap- him Police and informed 38.22, V.A.C.C.P.; comply not with pellant’s Merillat asked Davis admissions. in submitting trial court erred not appellant willing whether be to talk to would the issue voluntariness the confes- appellant him. Davis to his recalled office guilt sions to the at the conclusion of the trial; lastly, Appel- him to talk. and all of the and told Merillat wanted Eighth analyzed Eighth under the cites both the and the Four- ment statutes are characteristically points teenth Amendments in his statements of Amendment and challenged provision assert that the adequately body to error argument, and fifteen. In the his fails inform fourteen however, juries impose predicates they what he sole- must find to death claim and, appellate ly process analysis, penalty on a notice noted and a result leaves them and due as as ante, open-ended that under the Due courts with kind of discretion concedes Process statutory provision Georgia, which was invalid in Furman v. Clause he must show the held vague applied May- 33 L.Ed.2d to his conduct. But 408 U.S. see 361-62, (1972).” Appellant develops Cartwright, neither this nor nard vagueness specific Eighth Amendment 100 L.Ed.2d other claim, (1988) ("Claims arguments vagueness aggra- and construct his directed at we shall not vating capital punish- defined in for him. circumstances you say anything to for- “ultimately” agreed,8 and Davis sum- said didn’t want lant arrived, said, mally lawyer’s Merillat he He moned Merillat. When without a advice.’ appellant,9 appellant and ac- know, go Mirandized ‘I I’ve decided I want to but knowledged he understood. Merillat asked give you a ahead and statement.’” appellant he would make a formal whether meeting returned to the task force Merillat statement, appellant to do so but declined convey development. to this new talking attorney.”10 an Ne- “without first to force decided that Members of the task vertheless, he indicated that he “wanted to taken, appellant a statement was before chest,” get something began off his and by magistrate. This was should be warned Ewing Rising- and talk about the murders of office at the Goree Unit short- done Davis’ participated in er. Because Merillat had not Ap- ly 3:30 o’clock in the afternoon. before investigation the initial of either of those pellant indicated that he understood cases, appellant “more or less led the discus- form, signed warning and warning. He sion, questions [Merillat] and would ask request lawyer. began then did not He clarify for if didn’t understand [himself] [he] narra- narrate while Merillat wrote out the something....” lasted This conversation ap- Appellant read over and tion hand. hours, two to three and was recorded proved separate handwritten statements any fashion. Risinger. Ewing and to the murders of Monday, Sometime after lunch on March typewrit- reduced to These statements were weekend, 27, 1989, after the Easter Merillat form, over them appellant ten read spoke returned to the Goree Unit and again. signed He then both the handwritten visiting appellant in the room. He informed typewritten statement versions of each appellant inter-agency an law enforce- presence.12 Both and Meril- Davis’ Davis meeting force at the ment task Criminal promises were lat testified that no threats they spoke, in Huntsville as Justice Center statements; both made to obtain these and that he had been sent to tell voluntarily. opined they given considering seeking that the task force was Appellant agreed accompany Merillat to evidentiary search warrant point, Accordingly, the parent’s truck and his home.11 At this the offenses. the sites of Merillat, “interjected”: according morning, next March “ he, County, and bench-warranted to Walker thinking it over the ‘I’ve been about Merillat, Davis, another law officer visit- ready you.’ And I’m to talk to weekend. Center, said, night you where Ew- I “Youremember the other ed the Huntsville Vision statement,” agree "any did kind of formal but 8. Davis testified on cross-examination that was later, "informally,” to Merillat "possible” appellant had told him he talk to Davis that at first basically "just record.” to talk to the kind of off the "didn’t know” whether wanted police, and that "he wanted to think about it.” "possible” appellant it was also had He testified group why know the task 11. Merillat did not first, speak attorney to an told him he wanted to convey appel- information to wanted him to this so, any but if Davis did not remember it. Appellant threatened lant. testified that Merillat event, initially.” appellant "hesitant family appellant troop” co- to "storm his unless encouraged appellant police Davis to "talk to the operated by making Merillat a formal statement. assuring right,” "it and make it him that would appellant of a admitted he told that execution it, out,” get good to it or do him to talk about parents] [his "would be a hassle for warrant words to that effect. police there would be a lot of officers because roming around his house.” He denied [sic] however, 436, Arizona, threatening appellant, that “there 86 S.Ct. 9. Miranda v. 384 U.S. 1602, parents" going for his to be a lot of trouble 16 L.Ed.2d 694 event, any gave unless he a statement. might clearly hoped be able to Merillat task force Davis, testimony. who 10. This was Merillat’s appellant. obtain a written statement testified, however, present, that he was was also nothing wanting appellant "sure” said about warnings attorney. part, appellant These written statements contain all speak For his to an 38.22, 2, Appel- required by V.A.C.C.P. he did not want to Article testified he had told Davis admissibility challenge state- "any at all" before con- lant does not make kind of statement give or sulting attorney. telling on the basis of failure to Miranda He admitted Merillat ments making warnings. speak attorney Article 38.22 to an before he wanted abducted, following circumstances Appellant lists the the car wash where mg was and claims to render his statements memory combine apparently Risinger was killed. His first, involuntary: Davis failed to Mirandize stimulated, jail upon appellant to the return appellant questioning him about prior to were gave new statements. These taken during the interview instant offenses intake before, manner and also the same as were second, 23; appellant his invoked of March form, signed typewritten and reduced right to counsel before coerced, Fifth Amendment presence. Appellant was not Davis’ 23, but Merillat on March Davis, both Davis and opinions and and in the of Merillat third, honored; right appel- was never voluntarily. gave these statements agreed give lant statements on March 4, 1989, April appellant agreed ac- On only to “storm after Merillat threatened company Merillat Davis to the area and troop” family appellant co- unless Afterward, body found. where Martin’s operated; finally, magistrate’s and magistrate’s warning, appellant after another warning specify on March failed to statement, before, gave Merillat written as against appellant, required accusation as his regarding killing involvement in this 15.17(a), Article will take V.A.C.C.P. We prom- He was neither threatened nor well. up these seriatim. 27, 1989, anything. April appellant ised On recording videotape assented to a of an inter- i. Miranda Ranger Texas Ap- view with Stan Oldham. that when contends pellant participated “freely,” no threats questioned Davis him on 23 at the March promises Although were made. not do interview, intake conclusion of his us, videotape have the record before thus re interrogation, amounted to custodial appears appellant discussed all of the cases quiring warnings. con Miranda The State ante, including outlined the 1975 offense. cedes, least, custody. appellant was in The trial concluded was not court that Davis B. Voluntariness acting instigation police, not questioning of therefore did All of the written statements from interrogation.” amount Even to “custodial 4, 1989, April March March was, however, assuming give that it failure guilt phase into admitted evidence at the warnings Miranda before an oral confession An edited videotape trial. version of the automatically involuntary a does not render April punish was admitted at the confession, subsequent, ei warned written phase. ment filed findings trial court purposes, ther for Amendment see Ore Fifth required by fact and conclusions of law Elstad, gon v. 38.22, V.AC.C.P., albeit some (1985), purposes or for of due L.Ed.2d belatedly.13 Appellant argues what un State, process supra. Ap analysis, circumstances, totality der each of Griffin this, “re pellant recognizes but invites us to involuntarily. his statements was made It is holding in decline. consider” our We entirely clear whether is claim Griffin. right ing process that his to due was thus Right to ii. Counsel violated, or that Fifth waiver of his Amend against testimony privilege ment self incrimination was From the of Merillat and, matter, Davis, involuntary, or for that both.14 See Griffin (Tex.Cr. himself, reasonably concluded n. 11 the trial court 428-29 & right analyses appellant’s invocation to App.1989). are sub that of the “[t]he Because same[,]” id., 430, expressly to “formal” stantially the at will counsel was limited we long particular As as that wish both. statements. address parallel hearing suppress Again appellant under to 14. makes claims 13. The the motion ex- Constitution, analogous provisions period Texas over a five weeks and concluded tended 13, However, independent argument. As but fails to make before, on December the trial findings accord- will limit our consideration court’s of fact and conclusions of law we 1,991. 16, ingly. May not filed until 32 respected, there was no Fifth Amend tance of Merillat’s denial that he threatened further, voluntary,

ment barrier to appellant promised otherwise anything or him in order police ap informal conversation between cooperation. to obtain his Barrett, pellant. Connecticut v. 479 U.S. (1987). 523, 828, 107 S.Ct. 93 L.Ed.2d 920 Magistrate’s Warning iv. By appellant all willing accounts to magistrate’s On the form contained record,” were, speak to Merillat “off the as it record, signed by appellant in the and the presence attorney. without the of an Given magistrate Merillat, witnessed Barrett, holding in the trial court’s con provided space to show the offense for which categorical prohibition clusion that person charged simply ap the arrested is against police initiation of further communi notation, pears handwritten “No attorney, cation an without announced in Ed Charge.” Appellant acknowledges that a Arizona, 477, wards v. 101 S.Ct. causal connection must be established be 1880, (1981), apply 68 L.Ed.2d 378 did not properly tween the failure to admonish under Furthermore, proper. the trial court 15.17(a), supra, making and the aof testimony was entitled to credit Merillat’s E.g., confession. Black v. during just such an informal conversa (Tex.Cr.App.1968). argues 951 He that the appellant “interjected,” prompt tion without else, magistrate, anybody failure of the or ing, apparent willingness an to make a “for susceptible prosecution him inform he was mal” statement sans benefit of counsel after murder is another circumstance all. Under circumstances the trial court showing the state involuntariness

reasonably concluded that met the State its ments. prove burden to a constitutional ly permissible police appel conversation with Strictly speaking, failure to in validly right lant waived his to counsel to the subject an form accused of the of the interro limited extent he had earlier invoked it. See gation following warnings goes Miranda Butler, 369, North Carolina v. U.S. knowing intelligent of the nature 1755, (1979); Oregon S.Ct. 60 L.Ed.2d 286 waiver, its voluntariness. Colorado Bradshaw, U.S. 573, 107 Spring, 479 U.S. at (1983). ample L.Ed.2d 405 There is thus 93 L.Ed.2d support in the record for the trial court’s think, true, same is of failure to inform depriva conclusion that suffered no possible accused of the full extent of his right tion of his Fifth Amendment counsel. exposure under the law. Because voluntari reject argument depri We therefore per implicated, appellant ness se thus not right vation of that was a circumstance that process deprivation. suffered no due More rendered either waiver of his Fifth Amend over, informing the full the accused of sub right involuntary, ment to silence or the ject interrogation is not essen matter involuntary statements themselves under finding validly tial to a that he waived his Due Process Clause. Id., rights. Fifth Amendment 479 U.S. at 573-75, 857-58, 93 107 S.Ct. at L.Ed.2d Hi. Threats 965-66. Here of the was informed Merillat denied on March 27 he subject every matter of statement he was troop” appellant’s par threatened to “storm that, give. Spring, asked to We hold agreed give ents unless written the fact that he was not informed of the also statements. The trial court is the institution charges extent of the to which he was sus admissibility al arbiter of fact matters of only ceptible “could affect the wisdom of a 104(a). Tex.R.Cr.Evid., evidence. See Rule waiver, essentially voluntary Miranda not its Although express the trial court made no Id., knowing nature.” U.S. finding particular dispute, on this factual 107 S.Ct. at 93 L.Ed.2d at 967. trial court did “find” that none of product statements The record bears out the conclusion that was “the of coercion improper any appellant’s inducement of The rec all made volun- kind.” statements were supports implicit accep- tarily It ord the trial court’s under the Due Process Clause. directly supports pertaining that ments to the statement likewise the conclusion waiver say rights voluntary question, or in of his Fifth Amendment discussion we cannot any individual’s voice remains ‘unidentified’ as well. We therefore overrule 38.22_” first, third, Article points purposes of error. for thirteenth in in opinion Our Lucas was handed down C. Other Points Confession March of 1989. i. Voices Bill became the Senate which later (e) that to Arti- amendment added subsection point four error contends 38.22, § cle to conference committee went videotape recording April that made on the dispute May in 1989. matter in One 27, 1989, should not have been admitted keep provision to of the Senate whether punishment stage every the because calling strict construction of the version for videotape speaker on the is identified. Old- 3(a), 38.22, § includ- requirements of Article punishment phase ham testified the ing requirement at here that all the issue only he and were involved the The full House had voices be identified. conversation, and that other voices altogether. rejected provision The con- this coming “would from the door ... be outside compromised by reinstat- ference committee doing. to what It unrelated we would provisos, ing provision, the but certain working be ... in the normal other officers “only one that are of which was voices apparently course of their duties....” It is compro- The material” need be identified. these other voices that are not identified. adopted promulgated mise in Article 38.22, 3(a)(4), V.A.C.C.P., § Article 3(e)(1), 38.22, supra. § prohibits admission of an oral recorded state history, reject we legislative of this view recording ment “unless voices on all appellant’s argument the addition Legislature are identified.” In 1989the add (e)(1) as serves evidence that subsection (e) that, § aed subsection to to elaborate (a)(4) Legislature meant for subsection to be alia, “only inter voices that are material to strictly prior construed the 1989 amend- [need be] See Acts 71st identified[J” contrary, we consider the ment. On 3406, 2, Leg., § p. Sept. eh. eff. 1989. (e)(1) evidence the addition of subsection expressly applica This made elaboration was Legislature abrogate want did not to only ble to oral recorded statements made given had to subsec- liberal construction we Id., Thus, ap after its effective date. (a)(4) by tion two months earlier Lucas pellant’s videotaped April statement is require- imposing on it a strict construction prior controlled statute as it read to law, ment. Lucas still authoritative contends, Appellant the 1989 amendment. appellant's Accordingly, controls contention. therefore, that even immaterial voices must point his fourth of error. overrule a prerequisite be identified as to admission of videotaped disagree. his statement. We Revisited ii. Voluntariness statute,

Construing the unamended Court held Lucas v. S.W.2d complains in his sixth (Tex.Cr.App.1989), at 57-58 incidental point error that the trial court failed satisfy not be voices need identified to Article requested jury to the his instruction submit 38.22, 3(a)(4). distinguished: There we pursu his voluntariness of statements 38.22, 7, supra. §§ actively one ant to & “between who contributes per whether “evidence videotaped recording one whose issue boils down to “submitted to background taining in the to such matter” was voice is and whose com- jury” guilt of trial. Id. have no material relevance ments requested taped The instruction would interview. Where all the actors who viewer, disregard all of speaking are have authorized the are visible another, here, his if it determined that “was one time or and where statements request persuaded of an to abandon there is no instance off-camera actor interject making interjecting attempting attorney a formal statement com- before by 27, when advised A.P. Merillat on March Merillat testified at trial joint [sic] that a group law enforcement 27, meeting appellant appel- with on March had been formed and that warrants would be subject giving lant had broached the obtained to search par- the residence of [his] spite formal statement in of his earlier invo- instruction, requested ents^]” Given his we counsel, right cation of the and that he had appellant take to mean that the trial court promised not threatened or him failing erred in jury to submit to the anything. contrary There was no evidence factual issue of whether the waiver of his jury. admitted before the Evidence Fifth right Amendment to counsel was volun- anticipation State admitted in aof claim of tary whether the statements them- —not by involuntariness does itself raise the voluntary selves were under the Due Process State, 2, issue. Brooks v. 567 S.W.2d at 3 State, supra.15 Clause. See v. Griffin (Tex.Cr.App.1978). Appellant alleges certain testimony inconsistencies between Merillat’s out, however, points

As the State gave there was trial and that which he jury no evidence before the earlier at the appellant’s pre-trial right suppress hearing,16 waiver of his motion to counsel on but 27, 1989, anything voluntary. March was jury privy but was not to the latter. Without State, 38.22, cites v. jury Anderson 635 S.W.2d that issue should be submitted to the 1982, ref’d), (Tex.App. pet. State, charge. Paso for the E.g., Bandy in the v. 143 Tex. —El proposition dispute 457, that a factual whether waiver Legis- Cr.R. 159 S.W.2d 507 If the right of the Fifth Amendment to counsel was toto, adopt Lopez lature meant to notwith- voluntary support jury will instruction under standing language process its use of the of due 38.22, 7, supra. arguable, §§ Article however, 6 & It is 38.22, § voluntariness in what is now 6 of Article provisions that at the time these may questions then it well be that later of the drafted, originally only Legislature issue the rights voluntariness of waiver of Miranda intend- contemplated placing jury before the was due prophylactically ed to insulate the Fifth Amend- process question whether the confession itself guarantee against compelled ment self-incrimi- voluntary- rights protec- whether other —not ought regarded nation also to be as within its privilege tive of the accused’s Fifth Amendment Thus, 38.22, scope. §§ Article 6 & could be against compulsory self-incrimination were vol- read to contain: Indeed, untarily waived. when what were at the separate "two and distinct directions to a trial (b) (c) time subsections of Article 38.22 were charging jury respect court in with to state- promulgated essentially it was in re- ments and confessions. [6] [is] Section limited Denno, sponse to Jackson question to those cases 'where a is raised as to (1964) opinion 12 L.Ed.2d 908 —an statement,’ of a voluntariness confession bearing solely on the voluntariness of confessions broadly appro- whereas Section [7] direct[s] an under the Due Process Clause. Miranda v. Ari- priate general instruction on the more law[.]” itself was not decided until 1966. There- zona fore, State, (Clinton, L, supra Moon v. concur- State, State, supra, Anderson v. and Moon v. ring). By this construction we could hold that a (Tex.Cr.App.1980), at 571 & 572 voluntariness, non, charge on the of waiver vel notwithstanding, may argued be that current right the Fifth Amendment to counsel is autho- 38.22, §§ supra, Article 6 & should not be read rized, evidence, by where raised under Arti- jury to authorize instruction to resolve the issue 38.22, parties cle if not 6. The have not right of whether the Fifth Amendment to counsel issue, however, briefed this and we need not voluntarily waived. today, decide it since in event the evidence plausible argument On the other hand a can be before the here did not raise the issue of beyond process made that matters due voluntari- text, post. voluntariness of the waiver. See contemplation ness were also within the Legislature of the (b) promulgated when it subsections him, appellant complains 16. As we understand (c) provi- of Article 38.22 in 1965. These that at the trial Merillat testified that the task obviously codify sions were meant to this Court’s “suggested” force that Merillat return to the Go- judicial response own to Jackson v. Denno in ree Unit to talk to on March 27. At the Lopez (Tex.Cr.App. 384 S.W.2d 345 contends, pre-trial hearing, appellant Merillat 1964). "[tjhe Lopez opined And in same testified instead that he had been "advised” to do procedure may involving be followed in cases accurate, Assuming signifi- precise so. this is questions comply raised about the failure to cance of this distinction as it [Miranda-like, relates the volun- pre-Miranda ] albeit terms of right [1925], tariness waiver of the relating Vernon’s Ann.C.C.P. making counsel before a formal statement eludes though voluntarily to when a confession made presented us. There was no evidence either at shall not be used.” Prior caselaw held that pre-trial hearing where or at trial that evidence raised an issue such as whether unwilling speak informally officers had warned the accused as mandated to Merillat without predecessor former Article to Article counsel.

35 concern- cross-examination it, support no instruction under confrontation evidence to a Amend- 38.22, 7, drawing, but this is Sixth supra, required. ing” §§ or the 6 was objection (Tex.Cr. claim, State, by the preserved ment not Hernandez v. 819 S.W.2d 806 Moreover, appellant did supra. We at trial. App.1991); Brooks v. he made at the vocational instructor appellant’s point sixth of cross-examine the therefore overrule trial, testimony phase eliciting of punishment error. character appellant displayed positive other, benign prison, in that he made traits III. PUNISHMENT there, “had drawings and that the instructor point appellant fifth In his of error drawing putting particular the problem” no punishment complains of the admission at the front at Halloween here on his door at issue phase drawing by appellant of which a made children to see. for prosecutor during the his clos characterized Maryland, supra, Supreme v. the In Booth ing argument, objection, por a sans as “self impact ruled statements that victim height, feet in on Court Approximately trait.” six punishment the of drawing depicts, the in the were inadmissible paper, butcher of risk that brief, such green of “a a case because appellant’s large words only sentencing will divert the holding bloody-bladed monster a in one evidence axe constitutionally its mandated task scalp of in from hand and the a woman the other of appraise the character the defendant body wrapped a in tail.”17 A voca Appel no such risk here. his crime. We see Department tional instructor the Texas drawing bearing has an on appel lant’s inferential of Corrections testified that violence, in character for which relates penitentiary lant’s he re his first stint question dangerousness. of quested something he turn to the future draw event, Supreme put Court reversed could on his front door as a Halloween later, years overruling four Booth and suggest appel He did itself decoration. what draw, holding that is no reason treat “[t]here lant should At however. the time drawing impact] differently than appellant objected, admitted in evidence oth [victim alia, sufficiently Payne v. ter that it was not er relevant evidence treated.” reliable Tennessee, 808, at -, 111 pass muster, citing 501 U.S. S.Ct. Eighth Amendment (1991). 2597, 2609, Maryland, Booth v. 115 L.Ed.2d 482 U.S. 107 S.Ct. (1987). drawing Appellant’s 440 to the sec L.Ed.2d He makes the relevant issue, special perceive Eighth and we no appeal. same contention ond basic on Amendment to its admission. We there bar Appellant does not contest point of appellant’s fore overrule fifth error. drawing spe relevance of to the second issue, inquires eighth through points cial is a twelfth which “whether there his error, inclusive, challenges probability that commit criminal of ad [he] would missibility of offenses com acts violence would constitute a con evidence two juvenile, tinuing society.” including Arti was a threat See former mitted when he 37.071, (b)(2), abduction, high rape and assault of a supra. cle Probable future took permissible conduct in de classmate. The evidence is a consideration school testimony ciding acceptable live from victims punish whether death is an form of them selves, case, Eighth pen packet showing the 1975 convic particular ment under the tion, E.g., portions videotaped Skipper Amendment. South Car olina, April He claims use 90 L.Ed.2d confession 1989. 476 U.S. (1986). aggravating as fac appellant specify juvenile in what misconduct Nor does capital punishment proceeding vio respect drawing is tor in a unreliable evidence Amendment, again citing complain Eighth this issue. He does lates the bears on supra, Thomp- “deprived rights Maryland, as well constitutional Booth reproduction original has for- has attached exhibit itself not been 8½" Court. warded to this asks that paper adequate appellate find which we 11" may direct the trial court send it to us that we post. disposition, purposes, in view of our However, appreciate its full his brief effect. Oklahoma, son v. dangerousness,” define “future as that 101 L.Ed.2d 702 statute, term appear does not in the but is only frequently a shorthand rendition used Again, appellant dispute does not the rele- by this spe- Court to denominate the second vance of this evidence to the special second general. cial in persistently issue We have issue. For given the reasons in our treat- held that failure to define the terms that are error, ment of point his fifth reject we also 37.071, (b)(2), be found in Article does Maryland, supra, Booth v. as the basis for any Eighth provision unconstitutionally not render that Amendment claim. Nor do we is, vague holding, Eighth believe the under the Thomp- such as it in and Fourteenth Oklahoma, son v. supra, State, appellant’s E.g., advances Amendments. Caldwell v. 818 claim Thompson 790, here. plurality of the at (Tex.Cr.App.1991); S.W.2d 797-99 Supreme Eighth State, Court held that the 560, Amend- Lewis v. at S.W.2d 562-63 ment categorically prohibits execution State, of an (Tex.Cr.App.1991); Smith v. younger offender who years than sixteen (Tex.Cr.App.1984). S.W.2d at 410-11 age when he committed the offense. Jus- Accordingly, appellant’s we overrule seventh tice O’Connor concurred on the narrower point of error. ground that legislation the Oklahoma under review did not reflect “the earmarks of care- Finally, appellant’s point in second ful required consideration that we have for of error he contends the trial court in erred leading other kinds of decisions to the death denying following his motion for mistrial al penalty.” at U.S. 108 S.Ct. at leged improper argument by prosecutor the later, 101 L.Ed.2d at 734. One term Stan- punishment the of trial. Toward Kentucky, 109 S.Ct. ford argument prosecu the end of his rebuttal the (1989), majority 106 L.Ed.2d 306 of- tor killings alluded to the three for which the Court categorical concluded there is no trial, concluding was on with the prohibition against execution offenders six- Risinger murder of October 1987. He years teen age or older. The record aggravated then mentioned the October 1988 shows twenty-eight and twen- sexual assault appellant nearly which ty-nine years old when he committed the co-ed, killed a A Texas & M which had been murders for which he has been assessed the proven punishment phase, and re penalty death Thompson this cause. does marked: proposition not stand for the that use of “... gentlemen, you Ladies and I think juvenile help misconduct to resolve a fact reasonably can assume from the evidence punishment stage issue at the of trial violates that there are more dead women out there Eighth respect. Ap- Amendment in just that we haven’t found out about. I pellant authority prop- cites no other for this you submit way that there’s no Daniel osition, and we know of none.18 We there- year Corwin went an entire based on his eighth through fore overrule his twelfth track record and the track you record that points of error. know—” point In his appel seventh of error point At complains appellant interposed lant counsel for that the trial court failed to objection argument charge jury submit definitions in its that this to the was outside punishment phase the record. immediately of the terms The trial court sus- “future dangerousness,” objection “probability,” “criminal tained the acts and admonished the violence,” “continuing prosecutor stay Appel- threat to soci within the record. ety.” 37.071, (b)(2), requested See former Article jury lant be instructed to dis- supra. regard There was no need for the trial argument, court and the trial court Florida, State, Appellant E.g., cite does Gardner v. cess. Williams v. 622 S.W.2d 116 (1977), U.S. 51 L.Ed.2d 393 (Tex.Cr.App.1981). Appellant explain does not process but Gardner is a due case. haveWe held unadjudicated how the fact the offenses were prior unadjudicated that admission of miscon- juvenile committed when was a punishment phase pursuant duct at the of trial changes process due calculus. 37.071, supra, pro- does not violate due punishment at the impact statement then victim immediately The trial court did so. capital murder trial violated phase of a appellant’s motion mistrial. denied Id., 482 at 501- U.S. Eighth Amendment. presents us with no reason stated: 502, 107 S.Ct. at 2532. Court pre- general appellate not follow should [Wjhile has never said this Court sumption that trial court’s instruction characteristics, record, defendant’s jury argument disregard an will be improper are the of the crime circumstances Gardner v. efficacious. consider- sentencing only permissible (Tex.Cr.App.1987). Here ations, consid- requires a state statute infer prosecutor invited the must factors be scrutinized eration of other pattern past other misconduct bear- evidence has some to ensure that the past affirmatively of misconduct not incidents responsi- ing “personal the defendant’s by reasoning is the record. established This guilt.” To otherwise bility and do moral jury may validly by unlike that which a not risk that a death sentence would create the predict past future from miscon- behavior are be based on considerations will prosecutor’s To the extent the remark duct. totally “constitutionally impermissible or jury unproven speculate the as to invited sentencing process.” to the irrelevant pre- its past misconduct and factor that into conduct, future how- appellant’s as to diction Id., 502, 107 S.Ct. at 2532-2533 482 U.S. at ever, may improper. have been But well (citations omitted; original). emphasis in say cannot remark was so inflamma- we the impact statements The Court found victim tory jury consciously that the could not dis- unknown contained information which was in its count it deliberations in accordance defendant; decision the irrelevant timely trial the court’s instruction offense; and, rebut. the difficult to commit disregard. supra. We Gardner jury’s the atten- could divert The statements point of therefore overrule second constitutionally re- away from “... tion its error. quired determining the death whether task — light in the back- penalty appropriate is of judgment The the trial court is affirmed. and the ground and record of the accused MILLER, J., in concurs the result of the Id., the particular crime.” circumstances point joins fifth of error and the otherwise The at 107 S.Ct. at 2535. 482 U.S. opinion. jury found that the conclusions the Court clearly is in- draw “from the could evidence BAIRD, concurring. Judge, making with the reasoned decision consistent separately ap- I write to further address cases,” require capital in held the and point pellant’s fifth of error. the admission of such evidence violated Id., 482 at 508- Eighth Amendment. U.S. I. 509, 107 at 2536. S.Ct. majority The states that does notes, majority Supreme Court theAs drawing in unre- “specify respect what Tennessee, Payne v. 501 Booth in overruled evidence it bears on issue.” liable 808, 111 115 720 L.Ed.2d U.S. S.Ct. Majority op. pg. disagree. Appellant I (1991), holding the exclusion victim drawing lacks the specifically contends “deprive[d] impact statements the State reliability required by Eighth standard ... of its and the full moral force evidence capital Appellant’s cases. Amendment having it all prevente[d] the from before pgs. support proposi- of that brief 41-42. necessary to information determine Maryland, on Booth relies tion first-degree mur- proper punishment for a 440 L.Ed.2d -, Id., der.” U.S. (1987), several other cases that “the assessment 2608. The Court noted Appellant’s Supreme Court. United States defendant” has histor- harm caused pgs. 44-45. brief appropriate ically been consideration that, Booth, punishment al- Supreme assessment of the United States capital though of a defendant is entitled whether the considered admission Court consideration, individualized such consider- [appellant]. That creature lives within We “wholly apart ation is not from the crime any way don’t have available to us to exor- Id., which he ha[s] committed.” U.S. [appellant]. cise that demon from within -, 111 S.Ct. at 2605-2607. certainly way, you But we a have have way, by answering yes yes to those Court, Payne however, The did not alter special exorcising [appellant] issues of requirement punishment evi- society. you from our I submit that’s what Supreme dence be reliable. The Court has should do. stated: Death, finality, in its differs more from III. imprisonment 100-year life prison than a only year holds, term differs majority from one of The without citation to au- qualitative two. Because of that differ- thority, “[a]ppellant’s drawing has an ence, there is a corresponding difference bearing inferential on his character for vio- reliability in the need in the determi- lence, question which relates in turn to the nation that death appropriate pun- is the dangerousness.” Majority opinion pg. future specific ishment case. disagree. only present- 35. I evidence Carolina, regarding drawing ed Woodson v. North this was that 428 U.S. 2978, 2991, 96 S.Ct. intended 49 L.Ed.2d 944 to be a Halloween decoration. (1976).1 Eighth requires showing The Amendment There is drawing no that the is adequate guidance “have punishment reliable evidence relative to the perform enable it to sentencing See, its function” punishment second issue. Tex.Code arbitrary to avoid 37.071(b)(2). infliction of the death spec- Crim.Proc.Ann. art. Pure Texas, penalty. 262, 276, Jurek v. 428 U.S. ulation, basis, devoid of factual does 2950, 2958, 96 S.Ct. 49 L.Ed.2d 929 provide reliability required under the also, Georgia, See Furman v. 408 U.S. See, Woodson, Eighth Amendment. (1972) (decided 33 L.Ed.2d 346 Further, at 2991. defen- Texas). conjunction with Branch v. drawings historically dant’s have not been an appropriate consideration in the assessment II. punishment. Compare Payne, U.S. In the instant case the State admitted a six -, 111 S.Ct. at 2608. drawing by appellant argued foot and later light foregoing authority, of the it is {See, drawing portrait.” ap- was a “self presented pun- clear that the evidence at the pendix.) drawing completed The in 1981 ishment of a trial must be or years six or seven before the com- showing reliable. Since there no offenses, mission of the instant request at the drawing, request drawn at the of a third LeNorman, of Mark an instructor at party years prior six to the date of the Department Texas of Corrections Windham offenses, ap- instant was reliable evidence of System. Although School LeNorman did not pellant’s “personal responsibility and moral draw,” “suggest what should Ma- guilt,” judge I believe the trial erred ad- jority opinion pg. ap- the State concedes Booth, mitting drawing. U.S. pellant something was asked to “... draw 107 S.Ct. at 2533. pg. Halloween.” State’s Brief 33. The State testimony, otherwise, expert offered no or IV. Nevertheless, interpreting drawing. question argued: The becomes whether the admis-

State drawing appellant’s- sion of the contributed to the, ... Presented what I call the self 81(b)(2). punishment. Tex.R.App.P. portrait. A real indication ... I submit to record mur- you [appellant] this demonstrates up shows what comes separate by stabbing dered three something when he’s asked to create women on his them; following copying own devices. Not two of the women were found nude or Further, up some proved model. He comes with a monster. semi-nude. the State three emphasis supplied 1. All unless otherwise indi- cated. disposition appellant’s fifth in the appellant physically concur where

other instances point of error. knife-point. sexually assaulted women at evidence, upon as well as Based this disposition of Part only in the I also concur beyond by appellant, I given find statements B, II, majority opinion and otherwise ii of the error in admit- a reasonable doubt that the join opinion. appel-

ting drawing did not contribute MALONEY, J., joins opinion. comments, I punishment. lant’s With these

Case Details

Case Name: Corwin v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 15, 1993

Citation: 870 S.W.2d 23

Docket Number: 71072

Court Abbreviation: Tex. Crim. App.