*1 Eugene DINKINS, Appellant, Richard Texas, Appellee.
The STATE of No. 71409. Texas, Appeals Court of Criminal En Banc. Feb. *5 Barlow, Beaumont, appel-
Douglas for M. lant. Maness, Atty. R. De-
Tom Dist. and John Beaumont, Witt, Atty., Dist. Robert Asst. Huttash, Austin, Atty., for State. State’s
OPINION
BAIRD, Judge. capital murder Appellant was convicted of Ann. pursuant Tex.Penal Code 19.03(a)(6). appoint- affirmatively Thompson had a 7:30 an- book indicated § appointment a 6:30 ment with Cutler and pur- punishment issues submitted swered Ricky Dennis. The book also con- with a Crim.Proc.Ann. art. suant to Tex.Code telephone number 37.071(b).1 tained a Lumberton Punishment assessed at listed patient application form Id., (e). Dennis. The Appeal to death. at this Court along tele- Dinkins Ricky with a different (h). a raises automatic. employment at place a of phone number and twenty-one points of error. We will affirm. Hydrant Company. and the American Valve names, similarity of the Because I. parties listed police attempted to contact the 12, 1990, September approximately On were telephone both numbers but discovered p.m., Beaumont Fire 8:00 members out of order. Department responded a fire alarm in a day, September Mike Shef- The next building located at 3420 Fannin Street field, investigator, and police Beaumont Showman, Captain Beaumont. John with Hobbs, County District Robert Jefferson Department, the Beaumont Fire entered Attorney investigator, went building waiting in the and located alarm and place employment, American Valve massage belonging therapy room of a office Hydrant Company, ques- Beaumont to one of the victims. noticed the Showman ques- appellant. In the course of the tioned appeared hazy air in the room and furniture sought tioning, the detectives consent around the room as if there had was strewn car but refused. search struggle. been a He also noticed a blood- knowing Thompson de- Appellant denied stained, partially opening into broken window being night nied Beaumont the another room. He then observed one point, appellant offense. At mentioned some victims, Thompson, lying injured Katherine *6 to talk to someone” and the he “wanted waiting on the room floor and to other called They questioning. their detectives ceased fighters fighters for fire assistance.2 As fire appellant outstanding then arrested on Thompson, medical aid to another rendered transported and him misdemeanor warrant Randall, fighter, peered through fire Mike County to the Jefferson Jail. the broken window and observed the second victim, Cutler, Shelly sitting afternoon, on the floor in while the detectives Later room, injured. Finding the the door second attempting to obtain a search warrant were locked, through the car, to room Randall climbed appellant contacted Shef- appellant’s for the and broken window assessed Cutler’s gave consent to search. field and his written condition. He observed had been Cutler stated that the detectives Appellant also shot the head. Both victims were trans- A revolver in the trunk. would find a .357 shortly items, ported hospital to a local and thereaf- of the car uncovered various search injuries. ter died their including and two boxes of a .357 revolver ammunition. scene, police investigating While the crime morning September Thompson’s appointment During and the
recovered book interrogated appellant application appointment Hobbs patient form'. The Sheffield and (2) probability the alleged whether there is a 1. The instant offense was to have been September committed on or about 1990. criminal acts of defendant would commit September continuing Art. 37.071 amended effective that would constitute violence All references herein refer to the Code of 1991. society; threat to and evidence, of the Criminal Procedure in affect at the time (3) whether the if raised the 37.071(b) provided: that time art. offense. At killing the de- of the defendant in conduct response to the was unreasonable in ceased (b) presentation conclusion of the of the On any, by provocation, the deceased. evidence, following the court shall submit the jury: issues to the policy to not refer to victims is the author’s (1)whether It the conduct of the defendant However, the factual cir- name. because of death deceased was that caused the of the case, policy cannot be of this deliberately cumstances with the reason- committed First v. expectation the de- followed. able that the death of result; 2n. ceased or another would County Attorney’s appellant step-sister’s in the Jefferson District went to his home to During interrogation, appellant p.m., Office. help appellant her move. At 6:00 left being admitted at the crime scene on the go Thompson’s p.m. to office for a 6:30 night Appellant had offense. stated he appointment which he had made under attempted Thompson to meet with to discuss Ricky Appellant name Dennis. arrived written, some bad checks had but p.m. p.m. around 6:45 or 7:00 Before enter- building was unable do so because the ing building, appellant placed a .25 cali- locked. He then heard a fire alarm and ber automatic and a .357 revolver inside a building a black male exit observed sling injured Ap- he wore for his shoulder. away. Appellant pur- run also stated he had pellant building and met with entered Leger’s chased a .357 revolver from Pistol Thompson talking for a her office. After Range and Rifle in Beaumont. The detec- while, began argue. argu- As the two appellant’s tives then obtained written con- progressed, Thompson pushed appel- ment locations, including sent to search various his waiting lant towards the into the room door locker at work and his home Sour Lake. During where another woman sat. the alter- Appellant accompanied the detectives as cation, appellant’s injured Thompson struck searching ap- executed the searches. While arm, hurting point during him. At one pellant’s pair home the detectives seized altercation, automatic fell out the .25 caliber jeans appeared blue which appellant’s sling. Appellant retrieved the legs have blood stains on the and cuffs. Be- shot, gun, gun jammed. fired a and the Beaumont, returning fore detectives appellant’s sling .357 also fell out of and hit grandmother’s escorted to his the .357 from the floor. retrieved appellant spoke grand- house where with his the floor but maintained he did not remem- mother. except a fire alarm ber other events Beaumont, Upon returning to the detec- sounding doorway leading as he ran out the again interrogated appellant. During tives lot, parking into the hall. In the interrogation, appellant to call asked appellant had car would not start and to raise Atlanta, Georgia mother in and the officers button on the steer- the hood and hit a reset complied request. with the After ing proceeded to drive to column. He then mother, speaking finished with his the detec- *7 in grandmother’s his house Sour Lake. At linking appraised him of the evidence tives point, appellant longer no one noticed he was point, appellant him to the offense. At this driving along the wearing sling. his While agreed provide on the a written statement from the highway, emptied he the bullets explain condition he could the stresses he Appel- out the window. .357 and threw them was under. grandmother’s house lant remained at his statement, appellant In his stated he was p.m. and then drove p.m. until 10:00 or 10:15 years age twenty-seven of and worked as step-sister’s house where he remained to his assembly specialist at Valve and American home, appel- p.m. Upon arriving until 11:00 Hydrant. professed He that he was under pond his house and lant walked to a behind of the considerable stress because recent unjam automatic. attempted to the .25 caliber up personal relationship as well as break of a it gun apart appellant threw The came required injury a from work which shoulder room, pond. He then to his into the went frequent injury, Because of his medication. medicine, asleep. pain and fell took some appellant employer was harass- believed his work, day, appellant drove The next before him. fur- ing attempt him in an to fire He coffee and grandmother’s to his house for having he was severe financial ther stated went to pain medication. He then took more many checks. difficulties and had bounced later met Sheffield work where he was offense, day appellant work On the left subsequently arrested on and Hobbs and go therapy. He p.m. around 1:15 left Appellant was indicted hot cheek warrant. p.m. or 3:30 the doctor’s office around 3:00 that, pursuant to Tex.Penal capital murder p.m. grandmother. and called his After 19.03(a)(6)(A).3 in sitting she had been shot § or when Code Ann. slug that a lead head. He also testified trial, presented testimony by At the State doorknob of the door to recovered from the Fincher, janitorial the owner of a
William discovered. the room where Cutler was service who was at 3420 Fannin Street 12, looking p.m. September on around 7:30 Klein, for the Ray a firearms examiner employee. for an Fincher testified he saw he con- Department, Houston Police testified looking hood of an old under the on revolver ducted ballistics tests the .357 thereafter, yellow Shortly model Chevrolet. appellant, seized from and the ammunition away. appellant started the car and drove slugs, casings the lead and bullet well as scene. Leger Leger’s fragments recovered from the crime Louis owner of Pistol September By rifling on ammunition test Range comparing Rifle testified that on appellant’s and two in .357 revolver with the he sold .357 revolver fired ammunition, slugs boxes of one of .38 caliber bul- from the crime rifling on the recovered Matching scene, slugs lets and the other of .357 caliber. Klein concluded the recovered the serial number on the .357 with the nota- fired from the crime scene were records, Leger in the .357 tion identified .357 revolver. seized the search of car as the Reem, serologist for the Richard a forensic
weapon appellant. sold to Investigation testified he Federal Bureau Showman and Randall testi- William Mike jeans analyzed appellant’s blood stained blue concerning fied the circumstances in which Thompson. sample and a blood taken from answering discovered the victims while sequence enzymes Thomp- Based on the a fire alarm. sample, plus, haptoglobin son’s blood PGM Molina, 1-S, pathologist Dr. Thomas J. who and GC Reem determined that performed autopsies, Thompson appellant’s pants on consistent testified blood - wounds, gunshot Thompson’s type. suffered two one to her blood Reem ex- with twenty head and the other to her Both plained only person abdomen. one has were fatal. Molina further testified that the enzyme sequence in their blood. the same stippling body on the indicated that both case-in-chief, appellant presented In his extremely range, shots were fired at close witnesses, seven each of whom testified es- resulting the abdomen wound from a contact sentially aggressive was not autopsy shot. The of Cutler indicated she violent. single gunshot died of a wound to the head. appellant guilty found Tatum, sergent William in the identifica- murder. Department, tion section Beaumont Police police sling During punishment phase, testified the recovered an arm State witnesses, Tatum, only Sgt. from the appoint- presented crime scene as well as an two *8 ment and a con- book client information sheet and Detective Hobbs. Tatum testified appellant’s place employ- cerning with name and of on the details the murders based police ment. The also recovered four lead examination of the crime scene. Tatum his caliber, slugs, Thompson .38 or was shot in the ab- either .357 and a number testified first just doorway casings fragments.4 of shell and lead bullet domen outside the from the waiting Comparing Also recovered was a .25 caliber bullet. Ta- inner office to the room. entry Thompson’s in tum further testified that based on the the entrance and exit wound entry slugs, body position point of the bullet the wall made one of the he wall, Thompson Thompson kneeling had been either in the Tatum surmised was surmised 19.03(a)(6)(A) 19.02(a)(l)provides: § provides: § 3. Tex.Penal Code Ann. Tex.Penal Code Ann. ( n ) person (a) person he: A commits an offense if A commits an offense if he com- (1) knowingly intentionally or causes the as defined under Section mits murder 19.02(a)(1) individual. death an of this code and: ( n ) person per- The murders more than one caliber, slug, 4. A lead either a .38 or a .357 fifth son: (A) autopsy. during during Cutler the same criminal transaction. was removed from affirmatively appellant shot her in the answered the three doubled over when statutory punishment Tatum further testified that issues and the trial abdomen. position judge appellant of the bullet sentenced to death. based on the of one wall, entry points thirty-one inches off appellant’s points turn to of error. We now Thompson’s ground, in relation to head wound, appellant Thompson shot a second II. sitting kneeling time as she was either on error, points In his first two the floor. appellant contends the trial erred refusing to aside the indictment because concerning
Tatum the details set also testified allege capital it failed to the offense of mur of Cutler’s murder. Tatum testified the bul- in Specifically, appellant complains der. let in the of the room in which doorknob culpable dictment failed to assert a mental Thompson Cutler was found was fired after alleging state in the second murder and appel- was shot. He stated this revealed allege capital murder. therefore faded to get attempt lant’s to Cutler after she read, pertinent part: The indictment locked herself in the room. A wicker shelf receptionist which an unused window covered ... RICHARD EUGENE DINKINS looking into the room had removed and been intentionally know- did then and there glass speculated individual, Tatum window broken. ingly the death of an cause covering glass THOMPSON, came by shooting the blood the unbroken KATHERINE attempted from hands as he deadly weapon, her with a to wit: a fire- arm; the window. Tatum also testified the break and the said RICHARD EUGENE telephone in the room was off the hook when did then and there cause the DINKINS discovered, individual, indicating Cutler was she was death SHELLY CUT- LER, by shooting deadly weap- attempting telephone to make a call before her with a firearm, on, of said being possible Tatum it was to-wit: and both shot. concluded during the through murders were committed same for someone to reach the window transaction. and shoot as she crouched on the Cutler
floor. every general, plead In an indictment must proven which must be trial. element testified about Detective Hobbs (Tex. Whitehead during investigation. demeanor He stat- (citing Cr.App.1988) Harrell v. initially emotionless when ed Vinson interrogated no concern that he and showed (Tex.Cr.App. Further, suspected in a murder. 1981)). culpable Naturally, this includes the appellant appeared during to be unconcerned Thompson mental state of the offense. subsequent interrogations. much of his (Tex.Cr.App.1985). defense, appellant presented several allege culpable If an indictment fails to witness, offense, a Jeffer- character witnesses. One it mental state for an is defective County Department subject lieutenant quash. son Sheriffs a motion to Id. See jail duty acquain- also, assigned to testified he was Swope v. year
ted with from his and a half pending during trial incarceration Nevertheless, consistently we have time, problems. disciplinary had no *9 allege required to the held the State is not had, appellant He at one further stated of an offense constitut constituent elements reported possible jail break. point, a capital a mur ing aggravating the feature of der, quash. of a motion to on be- even the face Nine other witnesses also testified (Tex.Cr.App.1994); State, 316, essence, 323 testifying, in Barnes v. 876 S.W.2d appellant half of each 101, State, appel- orn v. 848 S.W.2d that the murders were aberrations Hath v. (Tex.Cr.App.1992); Ramirez normally character. Fur- lant’s non-violent State, 636, (Tex.Cr.App.1991); ther, appellant 815 642 expressed the belief S.W.2d each (Tex. State, 592, v. 815 619 acts of violence. Trevino S.W.2d unlikely to commit future
339 and, State, 713; Zuckerman v. Cr.App.1991); 661 Beathard v. 767 S.W.2d S.W.2d State, 495, 423, (Tex.Cr.App.1989); Marquez 431 v. 496 591 S.W.2d State, 217, (Tex.Cr.App.1987); 725 S.W.2d 236 charge alleged we review a When (Tex.Cr. State, 9, Hogue 711 14 v. error, charge must examine the as a we State, App.1986); Andrade v. 700 S.W.2d whole instead of a series of isolated 585, v. (Tex.Cr.App.1985); 589 Hammett State, Holley unrelated v. 766 statements. (Tex.Cr.App.1979); 578 S.W.2d 708 and, In and, v. Smith 540 S.W.2d (Tex.Cr. man v. (Tex.Cr.App.1976). Consequently, we hold App.1983). Capital murder and murder were us, presently in the case before the charge,5 portion in the abstract of the defined failing not defective for indictment was portion allege a application but the did not allege culpable a mental of second state the culpable mental state for the second murder. Appellant’s murder. first and second portion permitted jury application the points of error are overruled. appellant if it convict found
III.
intentionally
knowingly
or
cause[d]
error,
THOMPSON,
In his third
con-
of KATHERINE
death
jury charge erroneously authorized
tends the
deadly
shooting
weapon,
her with a
to-wit:
requir-
capital
a conviction of
murder without
firearm;
[appellant]
a
and the said
did
ing that
the second
be committed
murder
then and there cause the death of an indi-
intentionally
knowingly
required by
or
vidual,
CUTLER, by shooting
SHELLY
19.03(a)(6).
reasons,
§
following
For the
deadly weapon, to
a fire-
here with a
wit:
disagree.
arm, and both
said murders were com-
during
mitted
the same criminal transac-
indictment,
In contrast to the
which
tion,
guilty
you shall find the defendant
defendant,
serves a notice function to
Capital
the offense of
Murder.
jury charge
function of the
is to instruct the
jury
applicable
application portion permitted
jury
on
law
to the case. Abd- The
(Tex.Cr.
capital
only
v.
if it
nor
convict
murder
App.1994);
killings
Benson v.
were murders. “Murder”
found both
is a term of art which is defined in the Penal
Williams
18, 20,
See,
19.02(a)(1);
(Tex.Cr.App.
§
§
Code.
19.03. The
1977).
charge
charge provided that
portion
Because the
is the instrument
abstract
of the
convicts, Benson,
See,
Thus,
jury
jury
supra.
which the
n.
definition.
capital
charge
person
S.W.2d at
must contain an
instructed that a
commits
only
killings
accurate statement of the law and must
murder
were committed
set
both
intentionally
knowingly.6
Vuong
out all the essential elements of the offense.
or
portion
charge
jury
5. The abstract
of the
defined
further instructed the
that a conviction for
“capital
required
finding
murder" and "murder” as follows:
that the defen-
murder
Thus,
Capital
two or more “murders.”
Murder:
dant committed
person
Capital
A
commits
Murder if he com-
was not authorized to convict unless it
Murder,
person
and the
more
mits
murders
committed two "murders” as
found
person during
than one
the same criminal
charge.
portion
in the abstract
defined
Nevertheless,
transaction.
the dissent maintains "there is
Murder:
obliged
genuine possibility
not
did
feel
person
intentionally
A
commits Murder if he
was committed inten-
find the second murder
knowingly
or
causes the death of an individual.
Dissenting Op.,
tionally
knowingly
..."
added).
(emphasis
difficult
S.W.2d at 362.
It is
(Tex.
Citing
IV.
Moreover, appellant’s reliance on First
error,
points
In
fifth
his fourth and
punish-
19.03(a)(6)
misplaced because First addressed a
§
appellant contends
is both un
Id.,
under art. 37.071.
ment
issue
applied.
constitutional on its face and as
Be
First,
jury
only
challenges
charge
entertain
at 838. In
the
cause we will
constitutionality
applies to a
jury
of a statute as it
permit
it did not
the
defective because
defendant,
particular
McBride v.
provocation
to consider the
of the second
(Tex.Cr.App.1993);
deceased, thereby preventing
jury
the
from
(Tex.Cr.
84, 91
James v.
772 S.W.2d
considering mitigating
a
circumstance.
vacated,
App.1989),
493 U.S.
110 S.Ct.
case,
jury
instant
(1989), affirmed,
Amendment’s arbi- 311.011(b) (Vernon 1988). § The Penal Code trary capricious application of the death murder, imposition capital penalty permits prohibits because it of a which section aggravating 19.03(a), § death sentence when the offense further limits the kind of murder offense, does not rise to an intentional murder. He may capital of a which form basis 19.02(a)(1). further claims the statute is unconstitutional- § namely, pursuant murder interpreted ly vague because it can be Finally, nowhere our review of require- dispense with the mens rea either 19.03(a)(l)-(a)(6) § find an indication do we require or to ment for the second murder any type of homicide other than murder intentionally committed both murders be 19.02(a)(1) § suffice to form the under will knowingly. or Therefore, capital of a offense. we hold basis 19.03(a)(6) unconstitutionally vague § is not appellant’s argument was ad Much specify culpable mental state for failure point of dressed in our resolution of the third Accordingly, ap- homicide. the second application paragraph Although error. points pellant’s fifth of error fourth and culpable allege did not mental state with are overruled. murder, application regard to the second portion paragraph, as well as the definitional charge, required to find that of the V. killings in order for the
both were “murders” error, appellant con- point of In his sixth offense to be murder. The definition pursuant to right to be tried tends he had charge portion al defined “murder” 37.071, causing version of art. which intentionally knowingly the death the amended 171) added). (emphasis Cook v. 827, 828 manza, 686 S.W.2d at also, See Kelly Haggins State, *11 re-urged Appellant after lant’s motion. Ms motion applicable to offenses committed 1,1991.7 requested the September contends in the at the conclusion of trial and He also according point judge jury trial be instructed to the amended seventh of error the judge declaring learning a version of art. 37.071 but the trial erred mistrial after pursuant again to the venire had been instructed refused. 37.071(b).
the amended version of art. holding in that our concedes (Tex. 185, 204 The offense for which was Nichols v. 12, charged allegedly September Cr.App.1988), Ms claim that he had the occurred on belies dire, During appel- right prosecuted under the 1990. voir the and to elect to be State legal principles lant discussed with the amended statute.8 He adds constitutional claim, however, by raismg dimension to Ms upon veniremembers based the amended ver- Equal challenge Protection under the applied only of art. to sion 37.071 which Ap 1, Urnted States and Texas Constitutions. occurring September 1991. offenses after Equal pellant claims he was demed Protec proceedings, At one in the the State pro tion he the because was demed broader judge advised the trial it believed visions of the amended statute wMch were prosecution under the amended art. 37.071 available to those defendants who committed Appellant expressed would be void. his de- September murder after 1991. proceed sire to under amended the statute and refused to consent to a mistrial. The judge ap-
trial
then declared a mistrial over
only
We need
address
pellant’s objection. Following a second voir
Federal
claim because
failed to
dire, appellant filed a motion to declare the
raise Ms State claim at trial. Under
the
pre-amended
Equal
art. 37.071 unconstitutional and
Protection Clause of the Fourteenth
Amendment,
also elected to be tried under the amended
when a classification does not
art. 37.071.
appel-
implicate
right,9
place
The trial
denied
a “fundamental”
7. Prior
Penry Lynaugh,
Proc.Ann.
ed art. 37.071 to
burden on a
proper
light
Penry
Lynaugh,
for review is to determine
standard
islature in
v.
492
whether
there is a rational basis for the
302,
2934,
U.S.
109 S.Ct.
at 2843. See John (“A (Tex.Cr.App.1979) legislative Eighth Amendment is not violated clear the body right to make a classification has by sentencing pre-amended a convict under purpose serving legitimate aims for the precluded from art. 37.071 unless the is not unreasonable the limits of the class are mitigating considering giving and effect to Nowak, arbitrary.”); Rotunda & or evidence. Satterwhite Law: Substance Treatise on Constitutional In the in (1992). 18.3, Procedure, 2nd, p. § contend, ease, appellant not nor does stant suggest, was unable does the record Supreme nor this Neither the Court mitigating give effect to his to consider recognized criminal defendants Court has statutory punishment is evidence under constituting suspect general as class. time of his trial. applied sues which at the Therefore, subject is to ra appellant’s claim right Consequently, we hold shows he was tional basis review unless he Equal under the Fourteenth Protection right when he was deprived of a fundamental by prosecuting was not violated Amendment pre-amended version of prosecuted under the pre-amended art. 37.071.11 right at him under find no fundamental art. 37.071. We retroactively. Dissenting Op., applied “Suspect” been held to be not be classifications have race, reading ap- origin, upon at 363. The dissent errs in national classifications based Novak, making statutory point gender, illegitimacy. pellant’s of error Rotunda & Trea- application and Proce- of the amended tise on Constitutional Law: Substance claim for retroactive Rather, dure, 2nd, 18.3, (1992). being p. § he contends statute. equal protec- right to denied bis Constitutional their defendants who committed tion because that this discussion is un- 11. The dissent asserts of art. may the amendment necessary crimes before the amended art. 37.071 because important next of his affairs. We move sev the most contending Okay? enth of error the trial by declaring sponte erred a mistrial sua after head) (Nodding [Venireman]:
being litigants notified the had used errone Q: you sitting jury on the consider Would legal principles during ous the voir dire. impor- in a murder case the most Although jeopardy he concedes not at had your tant of affairs? judge tached the time the declared the Yes, guess. A: I mistrial, appellant nevertheless contends no Q: important That is. That’s the most necessity justify manifest existed to a mistri kind of— appellant’s legal analysis al. We believe is A: Um hum. necessity incorrect. doctrine of manifest inextricably jeop
is
concept
fused with the
Q: —jury
you
if
service
can render. So
ardy
upon
principle
and is based
that
you
pun-
have the kind of
at the
doubt
sworn,
impaneled
once a
is
but for a
phase
ishment
of a trial that
cause
would
exceptions,
few limited
a defendant has the
you
ques-
to hesitate to answer those
right
guilt
to have his
or innocence resolved
yes,
you going
tions
are
how
to answer
particular jury.
that
Oregon Kennedy,
them?
667, 671-672,
2083, 2087,
456 U.S.
102 S.Ct.
A: Be no.
(1982);
Washing
In his con- questioning proper. of Smith was tends restricting the trial erred in Honor, Okay. pros- Your [Appellant]: voir dire examination of a venireman con- poten- ecutor has asked almost all of the cerning During reasonable doubt. individual jurors proves tial if that the State it to voir dire of venireman Smith defense doubt, beyond they them a reasonable counsel, following exchange occurred: going yes, questions are to answer these [Appellant]: them, I think they prove the Court will instruct and if don’t it to are
you they going have a definition of My reasonable to answer them no. —now time, long questions doubt. We haven’t for a but deal with the definition of rea- law, last November the Court of Criminal doubt. sonable And under the Appeals gave us a definition that in- I believe the Court will instruct them they cludes this statement. A reasonable if have a doubt that would person doubt is the kind of doubt that would make a reasonable hesitate to person questions yes, make a reasonable hesitate act answer those then their provisions right 37.071 are not entitled to the broader of the amended statute. going analysis had a constitutional to avail him- Consequently, the fore- self of the amended statute. necessary to determine whether by way specific example and not of a requires oath them to answer no. And juror. juror I’d like to ask this order to the that’s what of doubt about is had kind keep I’ll it out. That’s fine. [The Court]: of reason- that falls under definition wrong, you got If I’m a free shot. doubt, they going able are to follow then- Bring him back. no, questions oath and answer the are through. We’re yes, in they going to answer them con- particular you [Appellant]: On that issue to their oath.
tradiction
would rule—
[The Court]: State?
Yes,
going
I’m
sir.
with the
[The Court]:
*14
State, and we’ll find out.
I
that’s what the
[The State]:
don’t believe
[Appellant]:
objection is
So the State’s
in con-
definition of reasonable doubt
sustained, Your Honor?
junction
Judge.
requires,
the oath
with
Yes,
Court]:
sir.
[The
example
in
an
I think that this is
here as
doubt,
I
think
of the kind of
and
don’t
[Appellant]: And I’ll not be allowed to ask
goes
specifics
partic-
that it
questions?
to
those
case,
you
juror says,
if
ular
where
That’s correct.
[The Court]:
know, well, we need to think about this a
to
Appellant contends he was entitled
while, that that’s the hesitation that
little
concerning
un-
question
Smith
his
venireman
oath, they have to auto-
to follow their
derstanding of
doubt” to deter-
“reasonable
matically
questions
then answer these
properly apply
if
mine he could
the law.
I
statement
no.
think because the
linking
claims
his definition
State
out it is the kind of doubt.
It’s
starts
oath,
juror’s
of reasonable doubt with
giving
example.
It’s not
35.22,
im-
art.
was
Tex.Code Crim.Proc.Ann.
specific
to
to
delibera-
meant
be
their
juror into
proper because it misled the
be-
juror.
giving this
tions as a
And he’s
lieving
obligated
pun-
he
to answer the
juror
impression
a false
when he tells
deliberating over
ishment issues “no” without
oath,
any
him that to follow his
he has
disagree.
the evidence. We
hesitation,
ques-
to
kind of
answer the
acknowledged that
long
haveWe
tion,
no.
I
got
then he’s
to answer it
coun
integral part
voir dire is an
defense
think,
misleading.
I
in
think it’s
fact
legal
providing adequate
assis
sel’s role
attorney
past
the defense
has asked
intelligent
tance because it allows counsel to
questions,
similar
but not tied them
challenges and chal
ly
peremptory
exercise
questions
oath. And I think those
lenges
during the
selection
for cause
says
proper. But I think
he
were
when
State,
117,
process.
v.
837 S.W.2d
McCarter
required
his oath to automatical-
he’s
McKay,
parte
819
(Tex.Cr.App.1992); Ex
120
ques-
ly,
any
if on
hesitation answer the
478,
(Tex.Cr.App.1990);
482
Gardner
S.W.2d
way.
improper.
specific
tion a
That’s
675,
State,
(Tex.Cr.App.
689
v.
730 S.W.2d
saying
Okay.
you
And
are
Court]:
[The
941,
State,
1987);
953
566 S.W.2d
Graham v.
not
allowed to ask that
he should
be
State,
and, Naugle v.
118
(Tex.Cr.App.1978);
doubt?
question about reasonable
92,
566,
(App.1931).
94
40 S.W.2d
Tex.Crim.
ability to
No,
a defendant’s
I’m In order
effectuate
sir. That’s not what
[The State]:
scope of
impartial jury the
objected
past
in the
select a fair and
saying.
I have not
482;
broad,
at
McKay, 819 S.W.2d
fairly lengthy
confusing voir dire is
to some
and
and,
State,
467
My
v.
771 S.W.2d
doubt.
Guerra
questions about reasonable
gener
a defendant is
(Tex.Cr.App.1988),
it
and
problem with it is when he makes
jurors on
ally
prospective
dire
says that he’s
entitled to voir
specific to the answer and
an issue at trial.
oath,
any
which will be
required by
that if he hesitates
matter
his
121;
McCarter,
v.
at
any
got to then
837 S.W.2d
manner that he’s
Nunfio
know,
you
question no. And
answer the
and,
Shipley
v.
could
number of reasons
there
be
includes a venire-
by way
(Tex.Cr.App.1990). This
again, this is
hesitate. And once
trial,
presented
understanding
upon
man’s
“reasonable
tion
the evidence
at
the term
Therefore,
v.
question
proper
doubt.” Lane
828 S.W.2d
we hold the
Woolridge
v.
judge
abused his discretion
trial
(Tex.Cr.App.1992).
excluding it.
judge’s
We review a trial
decision
Although
generally pre
harm is
discretion,
to limit voir dire for an abuse of
judge improperly
sumed when a trial
limits
484;
Nunfio,
Allridge
808 S.W.2d at
dire, Nunfio,
find
voir
808 S.W.2d
146, 163(Tex.Cr.App.1988),
no harm in this case because
selection
and a trial
abuses his discretion when
reaching
prior
concluded
venireman
proper question concerning
he limits a
Smith was the 53rd venireman.
Smith.
Gardner,
proper
inquiry.
area of
730 S.W.2d However, jury selection concluded when the
689; and,
Powell v.
Thus,
limi
45th venireman was selected.
judge may
A trial
tation of
dire
not affect
voir
did
specific
limit a defendant’s
under
voir dire
ability
intelligently
per
his
exercise
question
circumstances: where a
commits a
emptory challenges
challenges
for cause.
facts,
specific
venireman to a
set of
White
Ratliff
*15
State,
629
706
S.W.2d
State,
(Tex.Cr.App.1985) (citing
Thomas
questions
duplicitous
repeti
where the
are
or
and,
658
175
S.W.2d
tious, Guerra,
467;
771
where the
S.W.2d
(Tex.Cr.
State,
Q: Okay. circum- What would those any got be? You ideas? stances A: No. time, Honor, Q: Nothing I’ll else. You wouldn’t consider Your this
[The State]: trying object, other kind of evidence? [Defense Counsel] Kyle bind Mr. to a verdict. Oh, All A: I’d consider all the evidence. in, I’d consider the evidence that comes objection. [The Court]: Sustain fact, every every I fact. I’d consider [Appellant]: there are those cases So maybe just look at the first wouldn’t you capital that would not think murder well, saying, say, thing person penalty. the death should have that, well, yeah. okay, I That believe IA: believe so. murder and could be true Q: you your telling But also me that are — penalty, you know. I’d consid- the death just you eases of murder that there are say, ques- everything that both sides er you might want to would believe know, everything you consider tions somebody penalty? give the death somebody’s life on put I’d—I’d before situation, might. I According A: positive got the line. I to be the most says you do Q: You the law can’t man in the world. realize that? capital murder Q: And there are those you imprisonment think life cases A: Um hum. punishment? appropriate be would you Q: you says Though know the law A: Yes. *16 that, you to? can’t do would still want Q: right? that Is to, you necessarily said I want
A: Not Yes, A: sir. know, gonna always go by the law. I’m you law. And know like I The law is the Okay. Question number one. And Q: circumstances, know, said, you again going questions we’re over these just give I want to the death me. don’t ago? prosecutor] a moment with' [the everybody that mur- penalty to commit Yes, A: sir. know, der, you no. guilty Q: Okay. you If found some everybody Q: How that commits about murder, always capital you an- would capital murder? question yes? this first swer (Pause) A: No. capital they If found of A: murder, always yes? I answer would Q: Don’t to do that? want Yes, Q: sir. along, just everybody Not that come A: necessarily. murder, A: Not penalty,
okay, capital death murder, penalty. No. death your in Q: can conceive of an idea You may appropriate an where there be mind thought? Q: give it a lot of going You question no? You time to answer that Yeah, really giving a lot of I been A: you think of circumstances can questions. This the thought with a lot of might question no? answer me, brought up to first time it ever been Yes, A: sir. many ways, got and I a lot of in different circumstances Q: Okay. would the I What penalty, opinions on death particular— one lot, you think be? Can yes, it a I have. thought about Objection, Your Honor. [The State]: death Q: your opinion on the What is trying Again, [appellant] is to bind Mr. penalty. on some facts. Kyle to a verdict based penal- in death Basically, I believe A: objection. Court]: Sustain [The say, just give I ty, like I wouldn’t but Honor, trying to I’m not somebody [Appellant]: Your because penalty death him, trying how is just I’m to see up bind a murder. It —it’s committed
347 State, 111, 801(d); thinking looking v. 115 might and what he be 111 S.W.2d Schaffer State, (Tex.Cr.App.1989); for. Barnard v. 130 723 S.W.2d ruling I understand. The [The Court]: (Tex.Cr. McKay v. 707 S.W.2d still the same. extrajudicial App.1985). An statement or The voir dire the instant case is writing purpose which is offered for Boyd that in similar to 811 S.W.2d showing what was said rather than for the (Tex.Cr.App.1991), wherein defense matter therein does not truth of the stated prevented asking pro counsel was from hearsay. Crane v. constitute spective explain venireman to is a “what Porter v. S.W.2d proper penalty case that is for the death to State, 374, 385 (Tex.Cr.App.1981); imposed?” judge be We held the trial did Nixon v. excluding not abuse his discretion in (Tex.Cr.App.1979). In Gholson v. question question because the committed the (Tex.Cr.App.1976), we ex Id., particular venireman to a fact situation. extra-judicial plained statement or writ “[a]n (citing Allridge, at 120 at 162- ing may be admitted as circumstantial evi 164; and, Cuevas may dence from an which inference be (Tex.Cr.App.1987)). question n. 6 drawn, and not for the truth of the matter indistinguishable the instant case is from stated, therein, violating hearsay without Therefore, Boyd. ninth rule.” point of error is overruled.
We addressed a similar issue in Jones VII. trial, testifying police While officer re- points his tenth and eleventh of error peated several out-of-court an- statements contends the trial erred in implicated other witness which the defen- admitting hearsay police evidence. The dis- explained began dant. The officer that he Thompson’s covered in appointment office an suspect ultimately the defendant and ob- Dennis, containing book Ricky the name upon tained arrest warrant based those patient application listing form the name statements. at 499. We held the extra- Ricky Dinkins which were later tendered *17 judicial statements were not inadmissible appellant’s objection. into evidence over De- hearsay because were not admitted appellant tective Sheffield testified became a asserted, prove the truth of the matter but suspect in the investigation upon based the explain rather to how the came defendant appointment application Ap- book and form. suspect. be a Id. pellant argues appointment ap- the book and plication form constitute inadmissible hear- by The instant controlled case is say. appointment Jones. The tendered the State
Hearsay
statement, including
is a
application
book and the
form to show how
statement,
written
than
appellant
suspect
investiga
other
one made
became a
in the
trial,
Therefore,
testifying
the declarant while
appointment
tion.
we hold the
prove
which
patient application
is offered to
the truth of the
book and the
form were
Appellant’s
matter
asserted.
hearsay.12
Tex.R.Crim.Evid.
not
inadmissible
Jones,
Despite
applicability
supra,
the clear
The dissent further contends the documents
12.
case,
ap-
to the
pointment
State,
instant
the dissent contends the
excluded
should have been
because the
patient application
book and the
form
articulating
admitting
not
the basis for
the evi-
hearsay
should have been excluded as
because
dence,
relevancy
failed
establish the
of the
they permitted
to draw the inference
required by
evidence as
Tex.R.Crim.Evid. 401.
appellant
Thompson
night
met with
However, appellant
object
Id.
did
not
Dissenting Op.,
offense.
However,
tenth and eleventh might help him? confession] overruled. No sir.
[Sheffield]: him for or Q: you Did tell it could be used VIII. him? against error, his twelfth Yes, sir. A: admitting judge the trial erred contends
appellant’s written confession because
involuntary, resulting from
statement
advice that it could be used “for or
Sheffield’s
Later, on re-direct examination:
against” appellant.
you specifically
Do
remem-
[The State]:
ber, Detective,
telling [appellant], you
that a confession
It is well settled
could
telling [appellant] statement
uncontradicted evi
is not admissible
him or that a statement
be used for
person
who obtained the
dence shows
against him?
could be used for or
accused that his con
confession informed the
usually say
I
for or
A:
I don’t recall.
might
against”
“for or
him.
fession
be used
exactly,
I
but I
against, but
don’t recall
Sterling
v.
against.
probably said for or
(1990);
Dunn v.
S.W.2d
However,
the record also contains evidence
v.
Walker
testimony.
which contradicts Sheffield’s
(Tex.Cr.App.1971); McCain
613, During
hearing Hobbs denied Sheffield
139 Tex.Crim.
could
informed
his confession
be
(1940); and,
Tex.
Guinn
against” him. Hobbs testified
(1898).
used “for or
A confession
A: we held the confessions admis . testimony sible because the was contradicted. Q: give Did him Detective Sheffield Freeman, interrogating In officer testi warnings on the 14th? fied he informed the defendant his statement gave warnings. A: I I him believe his Id., against” could be used “for or him. Q: ifSo Detective Sheffield said that he However, he later denied he him and him warned told that statement phrase against” had used the “for or when him, against you could be used for or warning his the defendant and attributed just didn’t hear that conversation. Is prior testimony misunderstanding his that correct? questions. defense counsel’s He further tes many A: There were times when we were tified he the defendant from the warned talking together, I but I believe read form, warning standard which tracked the warnings. him the language holding of art. In 38.22. Id. Q: if Detective him So Sheffield told admissible, explained confession was this statement could be used for or judge trial has the discretion to resolve factu him, just against you didn’t hear the testimony. discrepancies al in the Id. right? conversation. Is that Coursey, the defendant contended the A: if I warnings Well read him his County Attorney advised him that his confes- may I then —Detective Sheffield and them, against have asked him if sion could be used either for or him. he understood police present do I A interrogation remember those words verbatim? officer at the No, sir, I County Attorney don’t. testified at trial advised the defendant that his confession Q: Okay. Id., against could be used for or him. said, A: But could that sup- have been I However, S.W.2d at 567. the officer subse- pose explain so in an rights. effort to his quently warnings testified the read off were The trial overruled mo- form, warning the standard which conformed suppress tion to the confession and filed find- statutory warnings in effect at the ings of fact and conclusions of law in which Further, County Attorney time. Id. specifically he found confession advising denied the defendant his statement by any was not induced advice that the con- against could be for or him. used at 568. fession against” could be used “for or him. County Attorney’s We held the and the offi- testimony sufficiently cer’s controverted the Evidence that a defendant received and, therefore, defendant’s claims the confes- improper warning wholly need not be rebutted, sion was admissible. Id. merely but contradicted order that a confession be admissible. Muniz v. Although Sheffield’s'testimony per Moore, 202; and, 700 S.W.2d at Barton v. appel mits the conclusion he informed (Tex.Cr.App.1980) lant his confession could be used “for or (defendant’s claim his confession resulted him, against” testimony was contradicted. beating from testimony contradicted Sterling controlling and Dunn are not be police up jail used force to break altercation testimony cause unquali Sheffield’s is not an another.). between defendant and In Ster against.” fied admission he said “for or *19 Dunn, ling, and we held the confessions were significantly, testimony More Sheffield’s interrogating inadmissible because the offi Hobbs, he, by contradicted who testified that testified, contradiction, cers without that the Sheffield, appellant day not warned his defendants were advised their confessions confession was taken. To believe the testi against” could be used “for or them. Ster mony testimony of one is to disbelieve the of 518-519; and, Dunn, ling, 800 S.W.2d at Accordingly, the other. it was within the S.W.2d at 340-342. judge’s trial discretion to resolve this factual Freeman, Freeman, 53, and,
By contrast,
52, discrepancy,
S.W.2d at
(Tex.
record,
Coursey
light
and
351
(1980);
Arizona,
attorney
interrogation
Miranda v.
384
an
and the
U.S.
wanted
1602, 1628,
86 S.Ct.
Davis makes prior to appellant requested counsel mined clarifying questions when a required to ask trial de- making his confession. equivocal invocation of suspect makes an request submitted the and nied —Id., at -, counsel. U.S. S.Ct. jury: general following instructions additionally detectives note the 2356. We you if believe You are instructed that only re questioning appellant ceased evidence, you have a reason- or it from the questioning him after re- sumed thereof, alleged state- that the able doubt later that initiated contact with Detective Orr not voluntari- of the defendant were ments day. hold state We therefore made, you the state- ly will not consider unequivocal invoca not a clear and ment was any as a result evidence obtained ments “are right to counsel. While there tion of the any purpose whatso- of the statements required to invoke an ac magical no words ever. counsel,” Russell, right cused’s Davis, requires, at a that we believe you unless be- instructed that You are minimum, suspect express a definite that a beyond reason- lieve from the evidence someone, person speak to desire to [ap- #42 Exhibit able doubt State’s — U.S, at -, See, Id., attorney. be an into evi- introduced pellant’s confession] at 2355. S.Ct. voluntarily made freely and dence was you persuasion, or compulsion or in the record without further indication We find no thereof, you shall right an have a reasonable doubt clearly invoked any Exhibit #42 for consider State’s Ap- not attorney prior giving his confession. as a obtained purpose nor evidence con- question to Detective Sheffield pellant’s thereof. attorney tell him to result cerning would what
353 Now, you if appellant find from the evidence or if er was entitled to the instruction he you thereof, have a reasonable that requested. doubt Officer Sheffield told defendant before he those have cases where we re signed any, State’s Exhibit # that it sufficiency jury viewed the instruc him, could be used for and that such state- tions, consistently we have held that when by ment Officer Sheffield was an induce- raised, the issue of voluntariness is a defen ment to defendant such as to render only general dant instruction on entitled wholly voluntary, State’s Exhibit # 42 not State, voluntariness. White v. 779 freely then such statement shall not be and also, S.W.2d 827 See made, voluntarily you and in such case are State, Burdine v. wholly disregard #42 State’s Exhibit State, (Tex.Cr.App.1986); Hawkins v. 660 any purpose and not consider it for nor (Tex.Cr.App.1983) (plurality 77 S.W.2d any evidence obtained as a result of State’s op.); Moon v. S.W.2d # 42. Exhibit Moon, (Tex.Cr.App.1980) (panel op.). In judge’s jury The trial instructions to the did jury example, the defendant contended the appellant not address whether had invoked charge fundamentally was defective for fail right prior making his to counsel his con- ing police to include the issue of whether the fession. maintains the submitted making threatened him into a confession. instruction,
jury
apply
failed to
the law to the
upheld
We nonetheless
the instruction as
specific
facts
the case.
given, stating:
charged
“The trial court
presented
When the evidence
at trial
essence,
jury,
they
in
could consider the
dispute
raises a factual
over whether a defen
only if
appears
confession
‘it
that the same
voluntary,
dant’s written statement was
he is
freely
compulsion
per
was
made without
or
jury charge
entitled to an instruction in the
charge
adequate
pro
suasion.’ This
was
advising
jury generally
per
on the law
Id.,
appellant’s rights.”
tect
at 570. See
taining to such statement.
Muniz
also,
Hawkins
lution of this factual
has
that the
found
had been warned
upon
sions
the voluntariness of the state
rights
voluntarily
his
waived
ment, see,
518-519,
Sterling, 800
making
rights prior to
a statement.
clearly
entitled to a
in
Muniz,
struction on
Noting
voluntariness.
851 Id.
that the defendant failed to show
erroneous,
question
S.W.2d at 254. The
remains wheth-
how the instructions were
we held
XI.
charged on the issue of
properly
voluntariness.
Id.
points
In his
and seventeenth
sixteenth
error,
complains
sepa-
that on
two
*23
jury
instant
The
instructions
instances, police
rate
officer was allowed to
case are similar to those
Burdine. The
testify-
impermissible speculation while
offer
jury was
that
believed
instructed
During
Sgt.
Tatum at
ing.
examination
appellant
advised
his confession
Sheffield
following testimony
punishment phase, the
him, it
could be used for
would constitute
ensued:
improper
inducement and the confession
your opinion,
And in
Mrs.
[The State]:
voluntary.
that this is
would not be
We hold
Thompson’s head could have been no
38.22, §
art.
a sufficient instruction under
higher than 31 inches above the floor?
Burdine,
See,
and art. 38.23.
Yes, Sir.
[Witness]:
320.
Ex-
Q:
you
Now when
first saw State’s
here,
hibit
the door over
was there
appellant’s
turn to
conten
We now
in the doorknob?
bullet
failing
tion that
trial
erred in
to
Yes,
A:
sir.
regarding appellant’s
include an instruction
Q:
your
your opinion
it
that
And is
—is
A
right
invocation of the
to counsel.16
defen
Thompson was
was fired after Katherine
jury
only
is entitled to a
instruction
dant
shot twice?
dispute
there is a factual
before the
where
Yes,
A:
sir.
Thomas,
However,
jury.
of error is overruled. IX, supra. substantially this issue in Part pause we have addressed We to note that case, ques gun directly fire a into the In the instant the State’s window and clearly speculative called for a answer. top of her head? tions objection ground apparent for when Yes, A: sir. However, question was asked. failing object explanation no Q: you Is that what believe occurred? offered hold, answered. before the witness We Exactly. A: therefore, failure to make a also, timely objection for review. waived error [Appellant]: object I’ll to that Your Appellant’s Honor, sixteenth and seventeenth speculation part on the points of error are overruled. *24 Tatum. Officer [The Court]: Overruled. XII. points eighteen In of error number and timely A defendant must make a nineteen, appellant contends a State’s wit- objection preserve to an error in.order impermissibly on ness commented State, admission of evidence. Johnson v. 878 post-arrest silence. The State examined 164, (Tex.Cr.App.1994); Ething 167 S.W.2d during punishment phase Hobbs of the State, (Tex.Cr. 854, v. ton 819 S.W.2d 858 regarding appellant’s trial demeanor while State,
App.1991); Sattiewhite v. 786 S.W.2d accompanying point, the detectives. At one 271, and, 283 Tex. prosecutor asked whether had 52(a). R.App.P. objection An should be police shown remorse for his crime while in ground objection made as soon as the for custody and Hobbs answered he had not. State, apparent. becomes Johnson v. 803 objected testimony that Hobbs’ 272, S.W.2d 291 appellant’s right constituted a comment on to State, (Tex. Thompson v. 691 S.W.2d 635 judge ap- remain silent. The trial sustained Cr.App.1984). general, In this occurs when pellant’s objection and instructed the the evidence is admitted. v. Wilson disregard it. 511 (Tex.Cr.App.1974). S.W.2d But later, following Moments Hobbs made the see, Johnson, Therefore, supra. question if a during comments cross-examination: clearly objectionable response, calls for an [Appellant]: testimony your And from I objection defendant should make an before gather appeared that he to be in some- responds. the witness Webb what a different state of mind than what (Tex.Cr.App.1972). S.W.2d If he you expect somebody would from who object objectionable fails to until after an investigation mur- under for answered, question has been asked and der? legitimate he can show no justify reason to Certainly way delay, objection untimely displayed his he [Hobbs]: and error his emotions was different than I
is waived. Girndt v. experienced. had 934 (Tex.Cr.App.1981); Guzman v. (Tex.Cr.App.1975) Q: Okay. your And it’s that he testimony (Error was waived you because defendant failed single question? never asked object objectionable until questions three A: No. That’s not —he never —he would answered.); were asked and Sikes pose questions, example like the one (Tex.Cr.App.1973) previously regarding we talked about (Where object Judge’s defendant failed to giving whether or not the of a statement question constituting a comment on the evi charges, would affect the level of what question dence until after was asked and him, attorney an far as would tell but as answered, waived.); Webb, error was questioning, regarding —when 400; questioning were him where about his Crestfield (Where (Tex.Cr.App.1971) abouts, wit comings goings the eve already completed offense, that, ness had answer before ning of the such as its been objected testifying my experience defendant the witness was that most times when waived.). someone, they expertise, you’re questioning outside area of error will innocence, will, be- you we have found such protest their where comment cure, know, yond held suggest things that would clear the Court has nevertheless very it can constitute harmless error context themselves. He did their —clear particular case. little of that. being
[Appellant]:
object
I’ll
to that as
also,
at 753.
Jones v.
See
non-responsive, Your Honor.
case,
trial
sustained
the instant
[The Court]: Overruled.
objection
and instructed the
object
[Appellant]:
I
also
on
And would
Therefore,
testimony.
disregard
Hobbs’
the basis that
it’s a comment on
Appellant’s
we find the error was cured.
testify.
defendant’s election not to
eighteenth
error
is overruled.
Overruled.
[The Court]:
testimony regarding appellant’s
Hobbs’
A comment on a defendant’s
protest
his innocence was also
failure
post-arrest silence violates the Fifth Amend
appellant’s post-
on
impermissible comment
prohibition against
ment
self-incrimination.
However, because the trial
arrest silence.
Ohio,
610, 617-618,
Doyle v.
426 U.S.
96 S.Ct.
*25
objection
and
overruled
(1976); and,
2240, 2244-2245,
v.
829 S.W.2d
State,
by
response
but was in
not elicited
the
1992)
(citing
v.
638 S.W.2d
Thomas
additionally
by
question
appellant. We
to a
(Tex.Cr.App.1982)).
484 and n. 8
attempt during clos
note the State made no
testimony
regard to Hobbs’
With
appellant’s failure
ing argument
emphasize
to
apparent
lack of re
regarding appellant’s
Therefore, bad
protest his innocence.
morse,
agree
this
with
here.
faith
the State is not
consideration
appel
testimony
a comment on
constituted
Further,
testimony
not believe the
we do
silence, and was therefore
post-arrest
lant’s
jury’s
In con
deliberation.
influenced
However,
does not lead to
inadmissible.
this
ap
testimony regarding appellant’s
trast
explained in
As we
an automatic reversal.
remorse,
testimony
Hobbs’
parent
lack of
(Tex.Cr.App.
Waldo v.
protest his
appellant’s failure to
regarding
1988):
culpability for the
alluded to his
innocence
offense,
it. The
than his contrition for
rather
presumption
...
that an instruc-
at
augment the evidence
testimony did not
disregard] generally will not cure
tion [to
to be de
punishment
to the issues
accused to testi-
relevant
on failure of the
comment
punishment: deliber
it
point
termined
fy ... has been eroded
ation,
provocation.
dangerousness,
future
examples.
applies only to the most blatant
Thus,
unlikely
have
would
Otherwise,
find
it
has tended to
the Court
testimony. Finally,
any weight placed
force....
Even
to have
the instruction
encourage
finding the error harmless
not
such comments amounted to automatic re
will
error,
repetition by
despite
an instruction
disre
State because
versible
(Tex.
Therefore,
testimony.
gard.
we held such analyzed of Rule under the framework XIII. 81(b)(2). Id., at 129-130. in his contends twentieth during closing of error that error occurred disagree with the State that the We argument prosecutor when the made com- permissible prosecutor’s comment was as re striking appel- ments which amounted to prior argument counsel’s buttal defense lant over the shoulders of defense counsel. concerning the voluntariness of prosecutor following made the comment Although prosecutor’s state confession. during closing argument in the State’s rebuttal, may ments have been intended as guilt/innocence phase: aspersion on also cast defense counsel’s jury. Compare, Lopez, veracity with the coming The case starts to- [The State]: (reversible occurred at gether, and we Ex- S.W.2d at 846 error know without State’s voluntary hibit comment that defense counsel and defen 42—Folks this is as as it pled guilty). liars when not But any question can be. There’s not about dants were see, Now, that. Gorman [Defense Counsel] wants *26 (comment you by saying you (Tex.Cr.App.1972) [de “don’t let
mislead little bit you” per was counsel] find— fense smoke-screen rebuttal). Nonetheless, prose missible the judge objec- The trial sustained egregious cutor’s comment was not as tion and disregard instructed the the Gomez, (reversible supra, in error re those statement, but denied motion for from comment counsel sulted that defense a mistrial. now contends the com- “get paid to “manufacture evidence” and ment constituted reversible error. hook”); and, Bray this off the v. defendant jury argument lim Permissible State, 89, (Tex.Cr.App. 478 89-90 S.W.2d 1) ited to four areas: summation of the evi 1972) (reversible error resulted from com 2) dence; reasonable deductions from the prosecutor grateful ment that for not 3) evidence; responses opposing counsel’s defendant). having represent someone like and, 4) argument; pleas for law enforcement. Moreover, appel the trial sustained (Tex.Cr. State, 192, Coble v. 871 204 S.W.2d objection lant’s and instructed State, 85, App.1993); Felder v. 848 S.W.2d Finally disregard the statement. the State and, State, 94-95 Todd v. impugning made no further comments de 286, (Tex.Cr.App.1980). 598 S.W.2d veracity. therefore hold fense counsel’s We Generally, argument when an falls outside of Appellant’s the error was harmless. twen areas, However, in these error occurs. an tieth of error is overruled. disregard argument general struction to State, ly cures the error. McGee v. 774 XIV. 229, and, 238 S.W.2d error, twenty-first point of In his (Tex. State, 851, Anderson v. 633 855 S.W.2d challenges sufficiency of the Cr.App.1982). support evidence to an affirmative answer consistently argu punishment issue. con have held that the second When We sufficiency ducting which at a a review of the of the ment strikes defendant over the evidence, light in the improper, shoulders of defense counsel is we view the evidence Coble, and, 205; Fuentes v. most favorable to the verdict order to 871 S.W.2d State, 333, (Tex.Cr.App.1984), any rational trier of fact 664 S.W.2d 335 determine whether 81(b)(2), and, affirmatively pun- prior to the enactment of Rule could have answered 358 (Baird, J., dissenting). at 336 How- beyond a reasonable doubt. S.W.2d
ishment
issue
(Tex.Cr.
ever,
State,
316,
that each case must
pause
to note
322
Barnes v.
876 S.W.2d
Vuong,
be resolved on its own facts.
830
776
App.1994);
Valdez v.
S.W.2d
(citing
v.
714
S.W.2d
Santana
162,
In Keeton v.
1,
(Tex.Cr.App.1986)). We
will
(Tex.Cr.App.1987),
of the instant case
therefore review the facts
factors which we consider
we listed several
light
of the aforementioned factors and the
sufficiency
evaluating
when
of the evi
authority.
relevant decisional
support
dence to
an affirmative answer
in
punishment issue. These factors
second
the Offense
1. Circumstances of
clude:
§
Code Ann.
19.03
Tex.Penal
(1)
capital
the circumstances of the
of-
the circumstances under which the
“limits
fense, including the defendant’s state
may
penalty to a small
State
seek the death
working
and whether he was
mind
narrowly
particularly
group of
defined and
parties;
alone or in concert with other
State, 779
brutal
Smith v.
offenses.”
(2) the calculated nature of the defendant’s
(quoting
(Tex.Cr.App.1989)
Jurek
actions;
(Tex.Cr.App.1975)
(3)
forethought
and deliberateness ex-
added)).
the commission of
(emphasis
While
execution;
hibited
the crime’s
undeniably
offense is
brutal
(4)
prior
of a
criminal record
the existence
is committed
mere fact that such
offense
offenses;
severity
prior
prove
danger
future
is insufficient
itself to
(5)
personal
age
the defendant’s
cir-
ousness.
Green
cumstances at the time of the commis-
den.,
(Tex.Cr.App.1984), cert.
offense;
sion of the
Bogges v.
855 S.W.2d
(Tex.
O’Bryan v.
591 S.W.2d
v.
Johnson
example, in Joiner v.
Cr.App.1979). For
(Tex.Cr.App.1992),
825 S.W.2d
Valdez v.
support
we found the evidence sufficient
(Tex.Cr.App.1989).
disposi-
factor is
No one
punish
to the second
an affirmative answer
tive,
jury’s
to the
and the
affirmative answer
murdered
ment issue where the defendant
may
a
punishment
second
issue
withstand
A medical examiner testified
two women.
sufficiency
notwithstanding the
challenge
complainant, was found to
first
“[t]he
relating
lack of
to one or more of
evidence
in
chest
four times
the
have been stabbed
Vuong
these factors.
lacerations on
and ...
a series of
received
complainant suffered
her neck. The second
chest, blunt
forty-one
wounds to her
the evi-
stab
In order to determine whether
head,
to the
her
lacerations
support an affirmative
force trauma to
dence is sufficient to
”
head,
...
issue,
‘slashed.’
her throat had been
punishment
we
answer to the second
suggested that
Physical
further
in
have
evidence
those eases which we
should examine
Keeton,
sexually assaulted
complainant
each
insufficient.
found the evidence is
Id.,
Wilkerson,
In
61; and,
at 704.
appellant after their deaths.
724 S.W.2d at
boy. A
six-year-old
a
napped and murdered
support
the
finding the evidence sufficient
as-
the deceased died of
sentence,
pathologist testified
we stated:
Additionally, the deceased re-
phyxiation.
in this case
presented
The evidence
head, leaving a
heavy
blow the
ceived
disregard for the
complete
demonstrates
wounds,
bruise,
well as numerous stab
not
sanctity
for human life.
Id.,
The de-
death.
at 292.
inflicted after
complainants
two
only took the lives
the
around
pulled down
trousers were
ceased’s
their
disfigured and brutalized
herein but
body
in too advanced a
legs,
his
but
cold,
Appellant’s
appear
actions
bodies.
whether
stage
decomposition to determine
and calculated.
deliberate
sexually
The State
molested.
he had been
Id., at 704.
punishment that
no evidence at
offered
Vuong,
we
Similarly, in
continuing
constitute a
would
defendant
the offense alone
found the circumstances of
pre-
society. And the defendant
threat
jury’s affirma-
support
were sufficient
Reviewing
mitigating
no
evidence.
sented
systemat-
answer where the defendant
tive
evidence,
although “... we
we held that
ically
patrons
game
in
room with a
shot the
adequately sup-
of violence
have a crime
rifle, killing
injuring
two and
semi-automatic
evidence
ported
the circumstantial
seven.
that the
inescapable
to the
conclusion
are led
support an affir-
contrast,
Smith,
insufficient to
evidence was
By
Id.,
issue.”
mative answer to the second
course of
defendant committed murder
entry
293-294.
gaining
After
a sexual assault.
apartment,
deceased’s
the defendant tied the
Keeton,
defendant
In
to the headboard of her bed and
deceased
and, without warn
grocery
entered a
store
Id.,
sexually assaulted her.
at 419. He then
fired at the store owner.
ing, shot a clerk and
untied her and stabbed her fourteen times
counter and stole
He then went behind the
back, including
through
the chest and
once
Roney
complainants’ purses.
confession,
In a
the de-
the heart.
written
during a
(Tex.Cr.App.1982),
was “a
sex murder” and while it
shot
the de
Cr.App.1987), the defendant
death,”
“extremely”
was “a brutal
it was not
him the
immediately after she handed
ceased
brutal.
Id. We held:
*28
during
money
cash drawer
a rob
from the
...
cannot
the circumstances
We
conclude
acknowledging in
bery
While
of a tortilleria.
evince an
of the offense are so heinous or
killings were
three cases that the
each
peculiarly
“aberration of character” so
unnecessary, we nevertheless
senseless and
justify an affirma-
“dangerous” as alone to
were
of the offenses
held the circumstances
special is-
response
tive
to the second
in
prove
as to
themselves
not so brutal
in this
sue ....
To hold the offense itself
posed a continu
three defendant’s
prove future dan-
cause was sufficient to
society.
ing threat
undermine
gerousness would threaten to
37.071, supra,
the function of Article
in
circumstances of the offense
death-eligible
class of
further narrow the
distinguishable from
case are
the instant
who have
offenders to less than all those
Keeton,
Smith,
Roney, and Bel
Brasfield,
guilty
as defined
found
of an offense
been
twice;
Thompson
both
Appellant shot
tran.
§ 19.03-
Code]
under [Penal
range
close
fired at extreme
shots were
Smith,
at 419-420.
779 S.W.2d
appel
Significantly,
fatal.
shots were
both
she was
Thompson in the head as
lant shot
Similarly, in
600 S.W.2d
Brasfield
sitting
the floor after
kneeling or
on
kid-
either
(Tex.Cr.App.1980), the defendant
the infliction
the first wound to her abdo
... There is no evidence that
Appellant’s
preplanned
burglary
multiple
men.
infliction of
or the murder.
range
Appellant’s
ap-
of [the deceased]
wounds at close
indicates a wanton and
murder
pears
disregard
to have been an immediate reaction
present
callous
for human life not
being
recognized
[the deceased]
in the
after
aforementioned cases.
Johnson
(Tex.Cr.
Moreover,
unexpectedly
she
853 S.W.2d
awoke
[the
facts show that
entered
de-
App.1992); Bower v.
ceased’s] residence unarmed and did not
Livingston
weapon
look for a
with which to arm him-
(Tex.Cr.App.
1987).
burglarizing
self while
res-
[the deceased’s]
idence.
greater significance
Of even
for our review
Id., at 662.
appellant spent
is the indication that
consid
Smith,
417, despite
In
evidence
in hunting
erable effort
down the second
the defendant loitered around the de-
deceased, Cutler,
killing
before
her. After
apartment complex, ostensibly
ceased’s
look-
room,
adjacent
Cutler locked herself into an
ing
opportunities
engage
in sexual
appellant attempted
get
by shooting
relations, we held there was no evidence the
Appellant
doorknob.
then tore down a wick
pre-planned
rape
defendant had
either the
window,
covering
receptionist
er shelf
Id.,
the murder.
at 420-421.
window,
broke the
reached inside and shot
(Tex.
In Warren v.
Cutler as she
in a
crouched
comer. We
Cr.App.1978), the defendant was convicted of
suggests appellant
believe this evidence
com
murder committed
the course of a
mitted the second murder in order to elimi
burglary.
burglarizing
While
the deceased’s
nate a witness to his first
In
murder.
John
home,
Later,
pistol.
the defendant found a
son,
532-533,
upheld
we
the deceased discovered the defendant and
jury’s
pun
affirmative answer to the second
response
threatened to kill him.
In
ishment issue where the defendant commit
threat,
In
the defendant shot the deceased.
purpose
ted two murders for the
of eliminat
sentence,
reforming the defendant’s death
ing
burglary.
to an
witnesses
extraneous
only
burglarize
noted that he had
intended to
We believe the
circumstances
the second
the deceased’s home and had acted under
homicide likewise
evince
intent to elimi
provocation.
at 476.
We concluded
nate witness.
“the facts of
instant
a crimi
case reflect
violence,
nal act of
but it was not a calculat
Forethought
2. and 3. Calculation and
ed act.” Id.
of the Offense
cases,
In
there
contrast to the above
have also
We
examined the calculated na-
pre-planning
is evidence of
in the case before
ture of a defendant’s acts and the fore-
Appellant
us.
stated
his confession that
thought
planned
which
with
he
and executed
meeting
arranged
Thompson
he had
with
propensi-
his crime in order to determine his
purpose
dissuading
filing
for the
her from
ty to commit
acts of
future
violence.
charges for
had
her.
bad checks he
written
O’Bryan, 591
appointment under a
made the
(Tex.
meeting,
day
Ellason v.
Keeton by limiting trial abused his discretion only questions. we can counsel’s Therefore *30 5. Other Evidence majority in result holds concur the since the alleged pre We otherwise appellant Neither the nor harmless the error. State evidence, majority opinion. any psycho- join the sented other such as MALONEY, J., in concurs the result 266 (Tex.Cr.App.1976) (burglary joins in reached Part III and otherwise allege entry indictment which did not with opinion. “theft,” intent to commit alleging instead en- try requisite with intent to commit the ele-
CLINTON, Judge, dissenting. theft, ments of but which left out one element thereof, In points appellant offense, his first two of allege error did not an and there- argues that failing the trial court erred in support burgla- to fore could not conviction for grant quash his motion to ry). the indictment. That the indictment here later alludes appeal He claims on that it, the indictment is to “said murders” does not save Davila v. allege
defective in that it
not
culpa
does
(Tex.Cr.App.1977)
not-
ble mental
knowing
state of intentional or
withstanding, because the indictment has
alleged
vis-a-vis the second
murder victim. only alleged the constituent elements of one
In
quash appellant complained
his motion to
up
point,
murder
to that
and hence has not
that the indictment was deficient in
it
Thus, my
theretofore “said murders.”1
in
allege
failed to
“all
view,
the essential acts and
appellant
had
raised his contention
necessary
omissions
the Defendant
to con
court,
timely in the trial
it would have been a
stitute
violation of Section 19.02 [sic?] of
complaint.
valid
the Penal Code of the State of Texas.” He
event,
any
In
adequately
did
call
however,
complained,
nowhere
of a failure to
jury charge,
attention to the defect in the
viz:
allege every requisite culpable mental state.
application paragraph
failure of the
to re-
He
particular
has therefore forfeited that
quire
jury
to find that
caused
complaint
1.14(b),
appeal.
on
Article
“intentionally
the second victim’s death
or
Y.A.C.C.P.;
Studer v.
text this designated Court has indeed join. this I cannot “merely aggravating second murder as ‘capital’ circumstance that Simply put, application paragraph renders the mur here person” aUeged every requi- der of the first require jury the indict did not to find ment. Narvaiz v. capital site murder element the offense 19.03(a)(6)(A) predicate § It seems me this under as a to con- not, proposition requires searching a more scruti that it viction. The Court holds need ny than application the Court has afforded it so far. in the because the allusion later that, Failing paragraph the Court here falls back on a to “both of said murders” was holding host necessary enough of cases that it is not refer the back the abstract allege ag appearing the constituent elements of the in the definition of murder earlier gravating charge, whereby recog- feature of a murder to al have would lege complete Maj. op. offense. at 338. nized the need to find that the second mur- held, essence, intentionally knowing- But the Court has also der was committed or observation, allege aggravating ly the State chooses to it This before could convict. by simply naming compelling ap- feature not it in the indict in combination with evidence ment, by alleging pellant intentionally knowingly but the constituent ele did indeed thereof, murders, allege might ments it must all con commit both be sufficient to Cannon, parte egregious stituent elements. See Ex establish did not suffer emphasis 1. All added. *31 when the para in States Constitution application
harm
the defect
to the United
from
the
Thus,
special
graph.
might
persuaded
I
there
the
be
court declined to submit
trial
charge,
jury
error
was no fundamental
in the
trial
punishment phase of
that
at the
issues
as
Almanza
defined
legislative
in
amend-
contained
the
are
(Tex. Cr.App.1985) (Opinion
on State’s
the
Applying
pre-
to Article 37.071.
ment
rehearing).
the
motion
But that is not
for
37.071, appel-
version of Article
amendment
here,
appellant
used
standard to be
since
contends,
of
him the benefit
the
lant
denied
objected
jury
cause.
charge
to the
this
added to
mitigation instruction that was
the
question is simply
the
whether
Instead
838,
1,
2899,
1991,
p.
§
by Acts
ch.
statute
Ar
harm” resulted from the error.
“some
1,1991. However,
5 of
Sept.
Section
eff.
(Tex.Cr.App.
line v.
appropriate question next, course, to ask whether the substance of the out of court
declaration —“what any was said” —has rele- apart vance at all from the truth of the matter asserted. How came to be suspect in the case does not seem to me to “any tendency have to make the existence of any consequence fact that is of to the deter- probable mination of the action more or less parte Ex Charles Lewis HATCHER. probable than it be without would the evi- Tex.R.Cr.Evid., dence.” any Rule 401. No. 72027. event, proponent of the evi- Appeals Court Criminal of Texas. dence, did not articulate this or other non-truth-of-the-matter-asserted basis March 1995. admitting the evidence at trial. suggests
This that in all likelihood the purpose State had no other in mind. The appointment “matter asserted” in the book is somebody very with a name similar to appellant’s was scheduled to be at the scene killings very they at the time occurred. probative “[T]he value” of that statement “as offered flows from declarant’s belief as to the 801(c). Tex.R.Cr.Evid., matter.” Rule Like- wise, implied” by patient the “matter ...
application form somebody appel- is that with actually lant’s up name ap- showed at the time; pointed and one would assume that the value of this statement “as offered” also
“flows from the declarant’s belief’ that that was indeed his name. Id. These statements
have no apart relevance that I can see from express implied
these matters asserted. Obviously hoped the State would infer writings from these killings. scene the time of the probative
Because that is the most obvious appointment pa- value the book notation and indeed, application tient only form have — probative I can value hear- see— say objection should have been sustained. Having already concluded the trial court cause, reversibly erred in this I need not R.Cr.Evid., 803(6), proffered they Had the State these items as business Rule would have been records, argue However, it would not now have to purpose. admissible for that the State were admissible for reasons other than the truth proffer. made no such therein, of the matters asserted since under Tex.