Delk v. State

700 granted lightly. equally It is elementa-

be heavy bur- ry that a defendant carries DELK, Monty Appellant, Allen that he is showing den of with evidence cognizable entitled to a new trial on some ground. S.W.2d King v. 502 Texas, Appellee. STATE Additionally, one (Tex.Cr.App.1973). No. 70305. thought it that a trial

would have obvious trial may grant court a motion for new Texas, Appeals of Court of Criminal justice” standard under the “interest of En Banc. unless the defendant shows there genuine miscarriage might otherwise be a April 1993. justice. Wright, See 3 C. Federal Prac- Rehearing May Denied tice and Procedure: Criminal § (1982) utilizing (discussing federal case law justice” standard under

the “interests of 33); 23A

Fed.R.Crim.Proc. C.J.S. Criminal (1989) (discussing case law

Law 1428 § utilizing the “in- jurisdictions

from various standard). justice”

terests of

Here, appellee presented no evidence establishing in the trial court

whatsoever necessary prevent

that a new trial was justice. all

genuine miscarriage of For knows, testimony at a

anyone his uncle’s relevant, may only marginally

new trial be irrelevant, trial completely to the even punishment. assessment of

court’s

Finally, majority I note that has away prior ease explain

failed to our law

holding for new trial based that a motion properly denied

on an absent witness is

where, here, pre- evidence there is no testimony

sented as to what witness’ State, 460 have been. Webb (Tex.Cr.App.1970); King

S.W.2d (Tex.Cr. State, 374

ham v. S.W.2d view,

App.1964). my precedents these case. dispositive

are of the instant evidence appellee presented

Because no to the nature of his

in the trial court as I proposed testimony,

uncle’s believe granting its discretion in

trial court abused new trial. I would reverse

his motion for appeals the court of judgment its order

direct the trial court to vacate

granting trial. a new

McCORMICK,P.J., WHITE, J., join. Handorf, Atty. and

Richard Dist. Joe Palestine, Bridges, Atty., Asst. Dist. Rob- Austin, Huttash, Atty., for the ert State’s State.

OPINION WHITE, Judge.” Appellant was convicted of the offense of murder in the course of a rob- committed bery under V.T.C.A. Penal Code 19.- § 03(a)(2), jury’s and accordance with under affirmative answers to issues 37.071, (b)(1) (2), punish- Article § Appeal ment was assessed at death. (h). is automatic. this Court § challenge appellant does not While sufficiency support of the evidence to conviction, recita- we believe that short necessary. In Novem- tion of the facts is II, Allen ber of Gene Olan “Bubba” deceased, Sheila, wife running County an ad in the Houston Cour- offering ier to sell a Camaro. Chevrolet Friday, On November a man called and spoke to the car. She remem- Sheila about “part bered that of” the man’s name was him, “Oh, said to “Allen” because she had that's our name too.” The man told last calling pay phone, that her he was from a transportation, he had no and wanted the brought parking lot of Camaro Crockett, Store, Grocery so Brookshire’s It was that he could test drive it. shown just that at this time had been rooming and a evicted from a house block Brookshire’s, away half from and that resi- rooming to use a dents of the house had pay phone the street. across Volkswagen to anoth- recently had lost his Also, game. within poker er resident in a bought shotgun the last month he had and sawed it off. his house at about 9:00

Bubba Allen left 29, to Saturday, a.m. November wash then meet the caller from Camaro At the time he had at least day before. wallet, along in his with a one bill $100 her hus- payroll check. Sheila next saw House, Jr., Palestine, ap- morning M. as she William band at 11:00 or 11:15that Crockett, pellant. through riding in passing II,” although appellant told Coming upon car driven her sister. an “Gene Allen intersection, pull up the car from his police she saw the Camaro he had borrowed opposite police from the could see direction. She sister. Inside the car found side, passenger Bubba in the and a man shotgun, later shown to be con- sawed-off positively appellant, she identified weapon as driv- sistent with the that had killed ing. Appellant wearing army jack- They army jack- Allen. also recovered an et. photo- et. In his carried a wallet Allen, graph of taken from Bubba Sheila Shortly p.m. day before 1:30 Bubba wallet, copy as well of the ad Allen’s body Allen’s was found a ditch beside a listing County from the Houston Courier fairly remote stretch of road three miles police appel- At the the Camaro. station Palestine, County. south of in Anderson to kill if he said lant threatened Johnson emergency When units arrived and turned anything. over, body limp it was and still blood shotgun oozed from a wound above and

behind the left ear. Allen’s wallet was I. missing. neighbor yards A a hundred error, appellant In first of single gunshot down the road had heard a complains of the trial court’s decision to p.m. at 1:00 Sometime between 1:30 and impeachment not allow of State’s witness p.m., 2:00 a woman who knew Allen saw Phillip through proof prior Johnson of a twenty- what she took to be his Camaro Appellant conviction. asserts that Mr. eight Palestine, miles south heading of to- impression Johnson left a false on the ward only person Crockett. The she could that he had in a never been courtroom man, see in the Camaro was a but was before. further believes that his not Allen. primarily a case on circumstan was based p.m. appellant About 5:30 up showed evidence, portion tial a substantial of which Jasper and Phillip talked Johnson into ac- testimony was the of said witness. He companying him to New Orleans. Johnson therefore, argues, credibility of observed a shotgun sawed-off in the Cama- this witness was crucial to the State’s case. ro, and appellant atypi- also noticed had an pre-trial in li- The State filed a motion cal amount of possession. cash in his At prevent impeachment pri- mine to with two appellant first pur- told Johnson he was or convictions. The motion was sustained.1 chasing the Camaro from a relative named However, appellant questions believes “Bubba.” Later he told Johnson “he killed during direct examination of this witness somebody got Asked $75.” whether “opened the his criminal histo- door” about nervous, had seemed Johnson tes- ry should have therefore tified he “shaky Along had been a lot.” matters. been allowed to delve into these way appellant disposed of a wallet that following: transcript reveals the description fit the of the one that had be- Allen, longed explaining that “he had to Q: State) (by Okay. Phillip, you are get rid of some evidence.” Johnson saw nervous? up tear a check and throw it out window, purportedly Johnson) Yes, (by because he could A: sir. Mr. not cash it. Q: you’ve Is the first time ever this been in a courtroom—

Appellant and Johnson were arrested in Yes, A: sir. Winnfield, Louisiana, on December registered Q: The Camaro was in the name of a —as witness?

1. The turpitude. Additionally, State relied on Tex.R.Crim.Ev. 609 when involve moral the State urging 609(c)(2) pertaining its motion in limine to two contended that Rule directed that the prior against Phillip impeached through convictions secured John- be witness could not the use 609(a), prior felony son. argued accordance with Rule the State of a conviction for unauthorized impeached that the witness could not be use of a motor vehicle since it did not involve assessed, prior telephone turpitude, probation with a conviction for harass- moral was probation satisfactorily completed. ment since it was a misdemeanor did which was Yes, question

A: dant’s answer in relation to the he sir ... Id., question was asked. 131. Since the Mr. The State asserts that Johnson’s opinion pertained to the defendant’s of le- non-responsive first answer was because procedures employed by attorney, gal interrupted prosecutor he before that the use we did not believe defendant’s completed question. The State asserts phrase “going through sug- this” premature that Mr. Johnson’s answer was gested subject that he had never been the response preceding indicative of his to the proceeding. of a criminal at 131-132. question, where he said he was nervous. We held that the defendant’s answer was argues The State that the initial answer responsive question to the asked and the given by ignored Mr. Johnson should be interpretation of the obvious answer questions and the two viewed as one. opinion that he had no as to whether his attacking credibility When attorney’s decision to take two statements witnesses, prior evidence of criminal con day appropriate on one or unusual. victions shall be admitted if the crime Id., at 131. felony turpitude, was a or involved moral Hammett, charged the defendant regardless punishment, and the court driving intoxicated. with while Hammett determines that value out probative S.W.2d, at 101. direct On weighs prejudicial party. its effects to a examination, prior about a he was asked However, excep Tex.R.Crim.Ev. 609. Id., public for intoxication. conviction applies tion to Rule 609 when a witness attorney followed-up inquiry 104. His this concerning past makes statements con only you “Is that the time have been with suggest duct that he has never been arrest ?”, public arrested for intoxication ed, charged, any or convicted of offense. “Yes, sir.” which the defendant answered State, Prescott v. 744 S.W.2d 131 added). (emphasis prosecutor then Id. State, (Tex.Cr.App.1988);Hammett v. 713 the argued that the defendant had created (Tex.Cr.App.1986); S.W.2d 105 Ochoa impression that he had never been arrested State, 481 (Tex.Cr.App. S.W.2d 850 any public for other offenses than intoxi- 1972). Where the witness creates false prosecutor cation. Id. The therefore be- behavior, impression abiding of law he to ask the lieved that he should be allowed “opens the door” on his otherwise irrele secured defendant about other convictions past history opposing vant criminal agreed against The trial court him. Id. may expose counsel the falsehood. Pres prior convic- questioning and allowed on a State, S.W.2d, 131; 744 cott v. Hammett Id., criminal mischief. at 104-105. tion for State, S.W.2d, 105; 713 Ochoa v. holding In to admit the that it was error State, S.W.2d, at 850. impeachment purposes, prior conviction for Prescott, the trial court allowed the determining to we found that when what impeach State to a defendant who had used door”, “opened it is colloquy extent the phrase my the “this is going first time important broadly one to examine how ” through responding ques- this when to a that was interpret question would the attorney’s tion about his decision to secure Id., analysis, In our we asked. at 106. two day. statements one Prescott v. very impor- is recognized that intonation S.W.2d, State, added). (emphasis at 130 import reveal the attempting tant when though Even defense counsel clarified his looked question. of a This court therefore during subsequent client’s answer voir that would for evidence in the record dire, the trial court believed that the defen- question. reflect Id. the tenor impression dant created a false about his none, Finding question the we assumed history. criminal Id. It therefore allowed just appeared asked the record prosecutor felony to delve into a convic- than and that the tenor was no different against which was secured defen- tion the “black letters” reflected. Id. Addi- year finding major dant one earlier. tionally, Id. we that the sub- believed impeachment trial court’s decision to allow would influence stantive issue the case error, broadly question this Court focused on the inter- defen- how would be preted. question. Although Since the issue here or of the Mr. Johnson Id. prematurely question, whether the defendant was intoxicated answered stopped, interruption when his vehicle was we found record with a indicates “—” import question prosecutor’s that the narrower at the end of the first likely interpretation, Additionally, was the line question. more i.e. that unlike the Hammett, prosecutor had public questioning one conviction in- added). (emphasis immediately completed question toxication. Id. We here therefore found that it was error to allow phrase with the “as a witness” so that question prior the State to him properly about the re complete question would be misdemeanor conviction since the defen- flected in the record. We therefore believe dant open did not the door. The matter (as interpretation suggested that the broad Appeals was then sent to the Court of for a Hammett) ques to view the be Id., determination of harmfulness. at 106- complete, tion in form. its intended When done, open this is we find that it not did impeachment door to of the witness. See object The defendant in Ochoa failed to (Tex.Cr. Theus v. 845 S.W.2d 874 inquired when the prior State crimi- into App.1992). nal convictions. Ochoa v. S.W.2d, at 849. The State initiated the line Because Mr. Johnson’s answers did not questioning after the defendant failed to impression leave a false and therefore did prior mention four during convictions di- open impeachment, the door to we hold However, rect examination. at 849. prevent appellant that it was not error to since properly pre- the defendant did not inquiring from into Mr. Johnson’s criminal appeal, serve error for this Court did not history. Appellant’s first of error is rule fully on whether he “opened the door” therefore overruled. by detailing history. his entire criminal II. Id., at 850. Neither was finding there a about proper error, whether it was for the State his second inquire prior into his argues convictions. See that the trial court erred in admit- an, hold, however, Id. We did ting that where a in-court identification made the defendant details his complainant. convictions and leaves wife the impression others, the there are no Saturday, Sheila Allen testified that on “the may State testimony refute the de- 29, 1986, November her deceased husband spite the nature of the conviction used or II, Gene Olan Allen met a man was who its remoteness.” Id. buying interested in Mrs. Al- Camaro. Prescott, Instead, accordance with supra, go we len did not on the test drive. will examine Mr. response Johnson’s in con- she went on an with her sister. errand nection question errand, with the During process was asked. of this she en- gave When Mr. trial, Johnson his initial re- countered the At she testi- Camaro. sponse, prosecutor had not finished his passenger fied that her was in the husband question. full, question, in Although was “is seat. passenger side window this the you’ve Camaro, first time been in a up court- was in the the driver’s side room as a response witness.” The passenger the window was down. Prom “Yes, complete question was sir.” When seat of her vehicle she could also tell that interrupted gave Mr. Johnson wearing his first the driver was a male who was answer, However, brown, non-responsive. hair, it was army jacket. curly He had inquiry entirety, window, when the asked its hand was out of the and one of history the door to Mr. Johnson’s criminal jacket pushed up. sleeves on the opened was not since the answer to the observations, Based on her Mrs. Allen question misleading response. was not a police August made a to the statement on questions 25, Unlike the at issue in basically Ham- 1987. The statement included mett, supra, the description gave during record here reflects some the same which she light intonation that sheds testimony. complet- the true ten- her in-court After she 706 statement, that the in-court identification is asked the Sheriff evidence

ed her she 959; picture man at v. whether she could see a unreliable. Madden 683, (Tex.Cr.App.1990), for the murder of 799 who had been arrested S.W.2d — U.S. -, 1432, denied, complied with S.Ct. her husband. The Sheriff cert. (1991). 113 L.Ed.2d 483 request. her She then verified person person photograph in the was the step Turning to the first of the anal driving the whom she had seen Camaro. photograph im- ysis, find that the we that since Mrs. Allen believes suggestive. Mrs. Allen was permissably photograph was shown the at the time she picture. presented one It was shown man in gave her statement and knew the custody, person as the who was in to her picture was under indictment for the mur- indictment, for the murder of her under husband, impossible to der of her it is now possible procedure It is that this husband. have identi- determine whether she would suggested to Mrs. Allen that the Sheriff having fied been shown without person was the who believed photograph. However, killed her husband. this does not analysis two-step inquiry determining A is used to de reliabili end our admissibility of an in-court identification. We must ty termine of the in-court States, identification. v. United several other factors decid Simmons also address 967, 1247 ing 19 L.Ed.2d created a substantial like 390 U.S. whether this (1968); irreparable 738 S.W.2d 249 misidentification. Cantu lihood of First, (Tex.Cr.App.1987). photographic VIEW A. OPPORTUNITY TO sugges

display impermissably must not be tive. The second factor dictates that the opportunity Allen’s to view the Mrs. give suggestive procedure must not rise person was with her husband was who irreparable very substantial likelihood of vehicles to the time that the two limited totality A circum misidentification. Both cars were were at the intersection. approach stances is used this second However, there is no four-way stop. aat Brathwaite, step. Manson space of how much there was indication 53 L.Ed.2d vehicles. Nor was there between the (1977); State, 738 Cantu v. S.W.2d go the vehicles were evidence of how fast following approach 252. The includes the they passed ing when each other. Shorter 1) opportunity the of the considerations: and slower between the vehicles distances the criminal at the time of witness to view to see the speeds could have allowed her crime; 2) degree of atten the the witness’ merely significantly longer than driver for tion; 3) accuracy prior the of the witness’ stopped at the intersec when the cars were criminal; 4) the level of description cross-examination, Mrs. Allen During tion. by certainty demonstrated the witness at the the vehicles were estimated that confrontation; 5) length the of time the fifteen sec approximately intersection between the crime and the confrontation. onds; however, have period this time could Brathwaite, v. 432 U.S. at Manson on the aforemen longer depending been pertinent at 2253. “These and other speed and distance variables. While tioned against ‘corrupting weighed factors are is a consider length of the encounter suggestive identification it effect of the ation, necessarily find it control we do not ” S.W.2d, 252, self.’ Cantu ling. Brathwaite, supra. quoting Manson ATTENTION B. DEGREE OF testimony

The identification will that she reliability testimony Mrs. Allen’s revealed if the indicia of be admissible her hus- very attentive when she saw apparent corrupting effect of was outweigh description Her suggestive pretrial occur at the intersection. unnecessarily band fairly driving man the car was de- 827 S.W.2d 949 of the rence. Harris v. tailed, indicating examined the car (Tex.Cr.App.1992). The is on the that she burden passengers very closely while she by convincing and the defendant to show clear meaning eighteen months had May of 1988 stop sign. at the She testified that was per- down, Mrs. Allen had seen the passed since both windows in her vehicle were believe, how- driving son the Camaro. We that the driver’s side window of the Cama- ever, not detract from the down, that this does and that the driver had his ro was given the details she was able identification hand out the window. She was also able to consistency in and the her testimo- wearing army to recall recall that the driver was ny. jacket pushed- and one of the sleeves was

up. Additionally, paid she stated that she F.OTHER CONSIDERATIONS

special attention because she was interest- in seeing ed the man whom she talked to on fac- In addition to the aforementioned phone. This was corroborated tors, find two other considerations sur- we testimony get that she turned her head to import. rounding the identification of First good look at the driver when the two vehi- all, Allen had a it is evident that Mrs. passed in cles the intersection. She very high degree of concentration. amount of detail she was able to recall potential stated that she had talked to very demonstrates that she was attentive buyer night phone before on the person when she saw the who was test finding he very interested out who driving her husband’s car. Additionally, she remembered that was. at the other she turned her head to look C. ACCURACY OF DESCRIPTION through vehicle as the cars went the inter- her section. We believe this demonstrated gave fairly descrip- Allen Mrs. detailed heightened lends level of awareness and pointed tion as out above. of- credibility to her statements that she could proof fered no at trial to refute it. Circum- independent of have identified actually stantial evidence existed which photograph. supported description. Specifically, her when found arrested timing find the of the statement We also possession army of the Camaro and an photograph sig- presentation and the jacket was found inside. gave her statement nificant. Mrs. Allen photograph. before she was shown the D. LEVEL OF CERTAINTY Allen re- The statement reflects that Mrs. significant day high degree A membered details about certainty surrounded all, she someone in the car with her hus- Mrs. Allen’s identification. saw she re- degree that she called the band. The of detail shows surrounding details the identifi- First, memory a keen and reduces the likeli- gave cation three times. has she a state- photo- that she was reliant on the police ment to nine hood months after her hus- Next, graph identify appellant at trial. band was killed. she was called upon to recite the details of the identifica- summary, Mrs. Allen’s identification suppress tion at the motion to the in-court high reliability given the has a indicia of Finally, identification. she was asked to recall and the re- details she was able during about identification direct and peated, testimony. There is no consistent occasions, cross-examination. On all her evidence that Mrs. Allen’s in-court identifi- testimony was consistent. She further tes- appellant solely on the cation of was based ability identify person tified that her to photograph by shown to her the Anderson driving who appellant the car as County Sheriff. Nor is there evidence picture. not on the fervently based She description person of the that her initial appel- stated that she could have identified riding her husband was the car with photograph. lant if she had not seen the any- inaccurate or that she ever identified Appel- person one else as the in the car. E. TIME BETWEEN AND CRIME CON- by lant therefore has not shown clear FRONTATION convincing the in-court identi- evidence that totality car The Allen’s was stolen on fication From the November was unreliable. him, Appellant’s judge place trial took in of the evidence the trial before people Ap- and “shoot them in reasonably that Mrs. Allen’s the head.” could conclude sports pellant also “liked cars.” despite testimony was reliable the unneces- sarily suggestive pretrial occurrence. Con- presented pun- by Evidence the State at sequently, appellant’s point of error second proved appellant that told ishment both his is overruled. Frye wife and that he had killed a man in

Florida. Neither witness believed this claim and it other was substantiated no III. Appellant made a death evidence. threat three, By way of error employee during dispute against a fellow a challenges sufficiency appellant training at a lumber mill. While as an evidence to establish the second is Hut, manager appel- assistant of a Pizza sue, maintaining could not ration mishap involving pan spa- a lant had a ally probability have found “there is a ghetti, employee laughed and when another would commit criminal of violence acts [he] him, get gun he threatened to a from his continuing that would threat to constitute head, car and “blow a hole in and ... [her] 37.071, (b)(2), society[.]” supra. Article § gun and kill stick the to stomach [her] [her] baby.” Appellant threatened his wife’s appellant maintains that had State mother when she came to retrieve her long planned to commit an offense of this daughter. After his wife did leave him he type and to the evidence was sufficient employer told her former she “live would support jury’s affirmative answer. At regret” informing him where to his punishment phase of trial the State physically gone. Appellant wife had did presented testimony past that on occasions wife, pulled shotgun abuse and once appellant contemplated had crimes similar her, him although she faced down. He eventually to the one he committed. Rich- Volkswagen. always kept shotgun in his brother-in-law, Frye, appellant’s ard testi- During year and a half of what amount- accompa- fied that on one such occasion he county jail solitary ed to confinement in the appellant they nied to Houston where trial, awaiting appellant made death appellant drove around while talked about against jail staff. He was once threats finding person place Frye to rob. jail at the overheard to tell a visitor help appel- maintained he never intended to Philip “Tina find a corner on could not crime, perpetrate any trying lant but was find the face of the earth that he would not get appellant out of the house because them, history.” they wife, threatening Frye’s he had been It had a was thus shown that They actually nobody. sister. robbed brief, history, in most cases albeit of what Delk, wife, Tina testified that would considered the least serious of be she left because she was “tired of laws, penal under our crimes of violence hitting trying get him me and me to do Code, simple viz: assault. V.T.C.A. Penal things, go people.” bad out and kill On occasion, 22.01(a)(2) (c).& one while On § plot “several” occasions wife, holding shotgun apparent- to his robberies: ly aggravated assault. committed an “Well, through paper, he looked Code, 22.02(a)(4). Al- V.T.C.A. Penal § something and he would see an ad for though no such threat of violence ever ring, ring, like a a diamond worth a lot of came to fruition until commission money; plan go and the was we would offense, instant the threats themselves house, say their we were married and predisposition towards vio- tend to show a everything, many in people see how amounting lent conduct under conditions to house, gunpoint, and hold them at tie provocation. Appel- less than substantial up them and and take their valuables compunction no lant showed about threat- them in the head and leave.” shoot kill, ening actually killing, to if not even appellant Sometimes would take Tina out after he of- was arrested for the instant driving hours[,]” Moreover, “for looking hours and fense. evidence that in there is places killing for isolated where he could appellant acting take Allen out what home to the unstable brought attention hastily too a may have been particulars in the appellant’s youth. during environment general in its out- plan, but what devised fantasy. long-recurring represented line a mental of moderate the evidence Unlike of future Though perceive we the evidence damage pre organic brain retardation minimal, in cause to be dangerousness this disruptive back Penry, proof a in of sented light, we favorable viewing it in the most to family life is unrelated tragic ground or have jury rational could say cannot penal why the death or aspect of how any acts commit criminal appellant found would inappropriate appropriate or be an ty would a continu- that constitute of violence Trevino actions. response a defendant’s to State, Burns v. society. ing threat to See (Tex.Cr. State, at 622 v. 815 S.W.2d Appel- cited at 355-56. supra, and cases spe Furthermore, the second App.1991). over- error is therefore point lant’s third of to jury for the a vehicle provides issue cial ruled. evi response to reasoned moral express its disruptive family life. Goss

dence of IV. Lackey v. 166-167; State, 826 S.W.2d (Tex.Cr.App. five, 819 S.W.2d points of error four and S.W.2d, at Trevino v. 1989); court’s de appellant complains of the trial 621-622. request give an instruction nial of his apply mitigating evi jury on how to of a presented evidence appellant Since punishment answering dence ad- family life identical to that turbulent four, Specifically, point of error issues. Trevino, Goss, Lackey, su- dressed Penry Lynaugh, argues he controlling. Con- find those cases pra, we (1989), L.Ed.2d 256 hold that this evidence sequently, we dictates that he was entitled to such special is- of the second the ambit within give could instruction so that is point of error Appellant’s fourth sue. reasoned, response moral to his back overruled. therefore ground, character and crime. point error alleges in Appellant then

Appellant’s mother testified that he had statutory scheme for Texas five that figures during numerous father his child- penalty is unconstitu- imposing the death However, hood. His natural father divorced appel- him. applied as tional year appellant mother when was one old. the scheme fails to indicate whether lant boating Her killed in a second husband was Texas by the protection afforded violates appellant years five old. accident when States Constitu- United Constitution marriage Her third to an individual named au- appellant provide tion. Nor does Phillip years. required lasted for three Green proposition Green this thority for appellant 74(f). and his to make Tex.R.App.Proc. was abusive to both We decline arguments Appellant’s yet married constitutional mother. mother state five is therefore up fourth time and until the time of the him. Point of error to maintain a offense continued overruled. Appel-

fairly good relationship with him. V. reappearance of implies lant that the brief error, was four- ar- his natural father when In his sixth license, him, proof of vehi- effect on however gues teen had some that his driver’s wallet, photo support nothing registration, in the record to cle there is found the wallet deceased’s wife this. evi- into have been admitted should not brings special attention to Appellant also Specifically, he asserts at trial. dence testimony. grandfather’s While illegal of an product these items were appellant spent two or three stated that amend- under the fourth search and seizure Worth, boys’ near Ft. months at a ranch States Constitution. ment to United anything which indi- the record is devoid of that on Testimony trial established impact stay for the or the cates the reason mother, 2, police officer Winn- 1986 a he December it had on him. Like field, Louisiana, ran a license Appellant check on a probable believes that no vehicle with Texas plates justify license cause existed to that was this arrest. Fur- thermore, conceding seen on the while not po- streets of that the Winnfield. The re- lice suspicion had a port reasonable to detain stolen, came back that the car was him, appellant believes that the actions of owner homicide, had been a victim of a and police the Louisiana officers exceeded the Texas authorities wanted the vehicle held temporary sort of investiga- detention and fingerprints. However, latent by the permitted tion Ohio, under Terry v. back, time it came the officer long- was no 1, 1868, (1968). U.S. 88 S.Ct. 20 L.Ed.2d 889 following er the vehicle. The car was Although he asserts Terry that allows found day parked later the same in front of momentary detention pub- of someone in a a house at 405 Elliot inSt. Winnfield. Sev- semi-public place, lic or he does not believe eral other officers were called to assist at the facts here amounted temporary to a the scene. p.m., Sometime around 4 two stop. Specifically, argues po- that the policeman proceeded then to the front door lice encircling officer’s actions of a house and occupants asked all of the house to demanding and person that a exit into the Meanwhile, come outside. approximately presence police of several officers exceeded four other officers went to the back of the Terry temporary guidelines. detention house. Although most of people in the police If have a reasonable sus complied, residence Phillip picion, grounded specific and articulable Johnson remained in the house. When facts, person they that a encounter is in they were advised to come outside a second volved in activity, they may criminal inves time, they cooperated. They were then tigate suspicion by making stop asked for Appellant pro- identification. identification, check posing questions to the duced a Department Texas Safety of Public person, detaining briefly or them while at Driver’s License. When an officer asked tempting to obtain further information. vehicle, who was the driver of the 221, 105 United Hensley, States v. identified himself and stated that it be- (1985); S.Ct. 83 L.Ed.2d 604 Terry, longed to his Appellant sister. was then supra. a temporary Such detention is registration asked for of the vehicle and he known “Terry” stop. as a See United produced a receipt plate for a Texas license U.S., Hensley, States v. at sticker. It was in the name of the de- S.Ct., Furthermore, at flyer 678-79. if a or ceased. A second check of the car was run by police bulletin has depart been issued using the vehicle identification number ment on the sup basis of articulable facts receipt found on the report and the once porting suspicion a reasonable again reflected that the auto was stolen. person offense, wanted has committed an Phillip Johnson were then then reliance flyer on that or bulletin handcuffed, rights, read their Miranda police another department justifies a Terry police taken to the Upon arrival, station. 232, 105 stop. Id., at 682. It is the appellant’s pockets emptied and he objective reading flyer or bulletin placed in a room which normally is that determines whether other officers can used public to hold suspects. intoxication Id., defensibly act reliance on it. at 232- He was to be held until more information Moreover, 105 S.Ct. at 682-83. if the could be obtained from Texas authorities. police Terry stop objective make a reli Additional information was received from bulletin, ance flyer on a or evidence uncov p.m. Texas sometime before 6 and a Louisi- stop ered in the course of that is admissa- ana search warrant was issued for the car. police flyer ble if the who issued the The search approximately was conducted at possessed bulletin suspicion a reasonable p.m. 6:23 An inventory was made of the justifying Id., stop. 105 S.Ct. at during items found including the search However, stop may 682-83. not be shotgun. sawed-off One of the Louisiana significantly more intrusive than would police officers testified that permitted by have been issuing depart formally arrested at p.m. 11:15 ment. 105 S.Ct. at 682-83. issuing department. challenged the the at Hensley, the mitted In defendant at 682-83. 105 S.Ct. legality temporary stop of a which was by flyer” on a issued made based “wanted case, In the a curious instant neighboring in state. police department a a while ran a a vehicle police officer check on at Hensley, States v. United Winnfield, public the streets of it was on in at 677. officers St. Police check, From this the officer Louisiana. Cincinnati, Bernard, Ohio, is- a suburb of the computer that via the NCIC discovered flyer such a for the defendant based sued the The in stolen. information car was robbery. Id. on information obtained at a by issued computer was based on a bulletin investiga- that he was wanted for It stated authorities, in much the bulletin Texas like him, robbery, the date described tion case, the We find that in this Hensley. the oth- robbery, location of and asked report computer on the information NCIC they police departments him if er to detain believe, to lead the officer based Coving- encountered him. Id. Officers defensibly act in that he could experience, suburb, ton, Kentucky, another Cincinnati the it. The from reliance on information with the and saw were familiar defendant police the offi computer supplied Louisiana days him later a vehicle within the six ques to suspicion the reasonable cers with Covington city limits. recall Id. Unable to at the 405 Elliot St. appellant tion house at a warrant for was whether the defendant questioning, appellant to said response outstanding, temporari the defendant was the car under his control stated that was a run. ly detained while radio check was by owned his sister. When although it was 224, 105 During S.Ct. at this Id. 677-78. proof asked of owner appellant was for detention, police recog one of the officers a a Texas ship, produced receipt he for passenger nized the as a convicted felon. name plate sticker in the license that was looking passenger Id. While inside the owner. A second check of the deceased window, performed on the handgun protruding he saw was based the vehicle verify the passenger’s from underneath the seat. Id. vehicle identification number it showed that report. again, initial Once performed A search of the car was then stolen and the owner was the car was two 224- guns. which revealed more Id. at there a murder. victim of 105 S.Ct. at defendant 677-78. The may of a car that possession fore in stolen suppress moved to evi firearms from At a homicide. have been connected with grounds police that Covington dence on held suspicion the reasonable this stopped had him in violation of the Fourth cause to probable officers elevated to the principles Amendment and announced theft, but for not auto arrest 225, 105 Terry. Id. S.Ct. at 678. probable suspicion of murder. Since also Supreme flyer held Court that a wanted if existed, justification tempo for cause on the has been issued of articulable basis required. ceased Un rary to be detention supporting suspicion facts reasonable Hensley, firearms uncovered like the person that wanted has committed an formally, lawfully under ar appellant was offense, flyer justifies then reliance on that license, insurance the drivers rest when identification, stop pose ques to cheek card, photo were discovered. wallet tions, person briefly or to detain the while longer con respect, Hensley was no this attempting obtain information. further uncov trolling since addressed evidence Further, 105 S.Ct. at 682. Id. deten temporary course of a ered in the police assuming court held that that tion. Terry in reliance on a stop can make in the course tes- flyer, Deputy Doug the evidence uncovered Prescott note that We formally un- stop police if the who is admissable was not tified transported and flyer possessed a reasonable issued the arrest when der justifying long police station. suspicion stop, so at the Winnfield detained merely de- significantly stop that occurred was not He stated disagree. questioning. per- We intrusive than would have been tained more 712 back, the report

When second came imposition penalty NCIC of the death him upon handcuffs, appellant placed by given in pre read his a senteneer no means to scribe, rights, squad based on put mitigating Miranda and car. such evi He dence, was, punishment. a less severe however, Penry was not free to leave. He 302, 2934, Lynaugh, v. 109 S.Ct. probable under lawful arrest based (1989).” 106 L.Ed.2d 256 cause. Appellant years was nineteen at the old license, Since the drivers insurance iden- time he committed the instant offense. His card, wallet, tification photo and were the mother appellant testified that soon after arrest, products of a they lawful were they by appel- was born were abandoned properly Appellant’s admitted at trial. lant’s natural father. She was six- then point sixth of error is therefore overruled. teen, appellant and took home to with live Having appellant’s considered each of six parents. appellant her When was almost error, points of we that any do not believe five she remarried a man “loved judgment of them merit reversal of the of much,” very but this man and a died three Appellant’s the trial court. conviction and half later in boating months accident. his sentence of death are affirmed. stepfather’s “large His death had a effect” on appellant. year appel- Later that same MALONEY, J., point concurs in of error again remarried, lant’s mother to this time 4; joins no. otherwise he the remainder of proved a man appel- who abusive to both opinion. the years lant and his mother. After three they Appellant divorced. was raised his CLINTON, Judge, dissenting. mother the next years, for three after point In his fourth of error yet again. which married she Her fourth complains that the trial erred in court fail- “fairly good” husband shared a relation- ing give to requested jury instructions at appellant. ship eight with For weeks six or punishment phase of trial which would when was thirteen or fourteen allow the to effectuate “reasoned old, years father, natural who response” moral to evidence adduced at the again, life. had married resurfaced in his punishment phase having of mitigat- trial marriage apart, appel- But when fell significance ing beyond scope of the again. lant saw his natural never father special 37.071, issues contained in Article Appellant quit high tenth school after the (b), supra. agree. I § grade, although at some he did obtain 65, In Gribble v. 808 S.W.2d 75 home, his At fifteen he living GED. left (Tex.Cr.App.1990),the Court observed: Orleans, variously in New off with and on Neches, “The capital sentencing grandparents Texas Port scheme and boys’ time at ranch does not near Fort Worth. invariably operate way such a army; For three months he was in the to Eighth violate the Amendment. of his not discharge circumstances Franklin 487 Lynaugh, See v. U.S. early disclosed. married Tina in (1988); 101 155 L.Ed.2d they place place moved from to Texas, 96 Jurek U.S. Texas, working jobs. east various menial (1976). But, 49 L.Ed.2d 929 After Tina’s mother took her back to Chica- capital pro- least whenever a defendant go, appellant attempt in an followed character, duces evidence of his own He getting retrieve her. succeeded in background, or the circumstances sur- roughed up by himself her members of rounding which, according offense family. standards, contemporary social has a ten- dency culpability to reduce his moral in a Appellant specifically in- requested three way exclusively related the delib- that would structions have authorized conduct, erateness of his other, criminal jury to answer either one or the victim, provocative behavior of both, or the issues “no” should probability dangerousness, of aspect his future any “find of the Defendant’s charac- United States Constitution forbids ter or record or circumstances tran- culpability that bearing on moral mitigate offense as factors which penal- questions imposition particular death factual against scends in- three ty.” The trial court denied all deliberateness, dan- provocation and future structions, gave no other instruction See Elliott gerousness. jury to to allow the consider sufficient (Clinton, dis- (Tex.Cr.App.1993) S.W.2d any mitigating evidence of value effectuate who be- senting). juror Even a believes that, though scope special of outside capital that a de- yond a reasonable doubt issues, persuade jury could a nevertheless deliberately without killed fendant response” moral to assess in its “reasoned to com- likely continue provocation, will v. Penry punishment less than death. a of crimes, judge youth may yet mit violent 322, Lynaugh, 492 U.S. at at 109 S.Ct. penalty a less a valid reason to assess to be event, 2948, 106 at 280. In L.Ed.2d death. than pre- objected to appellant need not have State, Penry Ohio, See Black 586, v. v. 816 438 U.S. 98 S.Ct. Lockett serve error. In J. (Tex.Cr.App.1991) (Campbell, 350 (1978), S.W.2d of 2954, plurality a 57 L.Ed.2d 973 concurring). invalidated the death Supreme Court a Un- year of 21 old defendant. sentence volatile, time proving a and at one governing capital then der the Ohio statute family unremitting- history, and an abusive adolescence, sentencing, impose a ap- judge trial to ly itinerant childhood and pellant presented may reasonably be what one of sentence of death unless found “a construed as substantive evidence of statutorily mitigating circum- three defined disadvantaged background,” at least and of 1) viz: stances, “induced that the deceased “emotional,” problems.” if not “mental offense, 2) the ac- facilitated” the that or Id., 319, 2947, U.S. at at L.Ed.2d at S.Ct. “duress, or coercion cused acted under Brown, v. 278, quoting 479 U.S. California 3) the ac- strong provocation^]” that 538, 545, 837, 841, at 107 93 S.Ct. at product “psy- conduct was a of cused’s 934, (1987) (O’Connor, J., L.Ed.2d at 942 deficiency[.]” at mental U.S. chosis or concurring). Although may that evidence Al- 607, 2966, L.Ed.2d 991-92. S.Ct. answering relevant to be both the first and age as Lockett’s though such factors special issues, second I have believe it to in the record be considered criminal could potentially mitigating impact beyond those statutory any of whether determination parameters.1 personal- Whether or not we existed, they mitigating circumstances Penry Court’s ly perception share the a of justifications as regarded not be could “belief, long by society,” held that such right less than own sentence their culpable “may defendants less than de- be factors such as the ac- Nor could death. id., excuse[,]” fendants who have no such relatively role the events cused’s minor say juror we cannot consider not murder, or of an leading up to the absence instructive, notwithstanding such evidence A part. plurality of to kill on her intent statutory spe- affirmative answers to the held that this limitation Supreme Court issues, tending cial in a broader sense mitigating range of circumstances State, Gribble v. “ameliorate fault.” su- Eighth its incompatible with recent pra, at 76. Where evidence of this kind is adduced, notably Eighth requires jurisprudence, Amendment Amendment most Carolina, jury empowered 280, consid- that the be both to v. North Woodson respond it. er and 2978, (1976). In a L.Ed.2d 944 96 S.Ct. 49 Ohio, Lockett, Bell v. companion case to Moreover, minor, although appel 637, 2977, 57 L.Ed.2d 1010 U.S. 98 438 only years nineteen Notwith lant old. (1978), overturned Collins, plurality the same U.S. -, Graham standing 506 had been penalty of a defendant who (1993), ju death 113 S.Ct. 122 L.Ed.2d 260 age years has a at the time his offense. rors are entitled to believe that sixteen old Indeed, danger- persuade to the to answer second relative issue of future ousness, appellant's may only ag- "yes.” evidence See Burns v. 761 S.W.2d have issue is, value; 1988). gravating (Tex.Cr.App. may n. 3 tend Oklahoma, Penry Lynaugh, express will. Eddings v. their U.S. (1982), supra.” majori- 71 L.Ed.2d Supreme adopted ty the hold- Court ju- Gribble v. supra, 76. Because of Lockett. ing capital sen- Oklahoma precluded, cause were so rors tencing provided for statute consideration his fourth error. we should sustain “any circumstances,” mitigating and the not, majority respect- I Because the does judge Eddings’ age, years trial did take fully dissent.2 old, assessing punish- into account in Supreme ment. Thus the Court observed

approvingly: judge recognized “The trial youth must be considered a relevant

mitigating factor.” 455 U.S. at at 11. 71 L.Ed.2d Because the judge

trial declined to consider troubled Eddings’ upbringing, circumstances of CAIN, Appellant, Leamon however, his death sentence was also over- turned, on authority of Lockett. Texas, Appellee. The of STATE Lockett, Eddings, all supra, Bell No. 1331-92. support youth the proposition that neces- sarily Eighth has Amendment relevance as Texas, Appeals Court of Criminal evidence, mitigating quite apart from what- En Banc. bearing 37.071, may ever have on Article V.A.C.C.P., 1993. special June issues. Especially in combination with evidence Eddings family history,” “turbulent Oklahoma, supra, U.S. 11, including 71 L.Ed.2d at his own marriage,

broken fact of his relative

youth takes significant mitigating po- fully encompassed

tential which cannot be the statutory

within issues. The requested by appellant

instructions

sufficient to alert trial court that his

jury expressing lacked a mechanism its response”

“reasoned moral to that evidence punishment

in its deliberations. Of course:

“[tjhis say is not to must penalty

assess a less than death for all mitigating

defendants who offer evi- jurors may

dence at trial. But not be doing

precluded from so omission charge

from the court’s of a means to majority correctly appellant’s they initially The identifies time surrounded the house. did, raising majority they of error sixth contention concludes and that their rea- ripened suspicion probable his initial outside detention the house in sonable into cause Winnfield, Louisiana, produced after law officers had sur- after came outside and occupants registration receipt "advised” the rounded house and Texas auto the name out, deceased, belonged come amounted to more than a mere but claimed the car "Terry” stop, required probable Slip op. and thus cause. his sister. at 711-712. due With all Slip op. Inexplicably, majority respect, offering opinion at 710. then on the and without claim, proceeds question to answer a I different alto- ultimate merits of actual viz; gether, simply point majority’s whether officers had a reason- out that the anal- suspicion justify "Terry” ysis stop unresponsive. able at the is

Case Details

Case Name: Delk v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 21, 1993

Citation: 855 S.W.2d 700

Docket Number: 70305

Court Abbreviation: Tex. Crim. App.