*1 ODOM, Judge, dissenting. join
I the conclusion that this conviction underlying
must be reversed for the factual Judge relied
events Roberts in his I only
dissent. differ from his conclusion I would hold support those facts prosecutorial misconduct,
finding instead
of ineffective assistance of counsel.
root cause in this miscarriage case
was not part ineffectiveness on the counsel;
pellant’s misrepresenta- it was the
tion prosecutor. made Cf. Ruth v.
State,
cast on placing counsel for re- representations
liance on the of another
professional. This conviction should be re- prosecutorial
versed I misconduct. dis-
sent its affirmance.
CLINTON, J., joins opinion. this ENGLISH, Appellant,
Sammie Norman Texas, Appellee.
The STATE of
No. 62778. Texas,
Court of Criminal Appeals of
En Banc.
Jan. 1980.
Rehearing Denied Feb. *2 Appellant
ing the murder of Samsel. testi- hearing Denno pretrial fied at Jackson only stop in order to that he confessed receiving beatings he was at physical his jail facilitate the release of and to of whom had girlfriend, his both sister and with him and detained at been arrested matter, jail. hearing on the After evidence found the confession to the trial court reached the same con- voluntаry. jury appellant reurg- appeal clusion at trial. On was his confession es his contention that involuntary.
According
he
arrested
appellant
was
handcuffed,
the auto
transported,
and
station,
police
where
theft division at
police
questioned by Houston
officers
was
concerning
of the van. The offi-
the theft
companions
his
questioned
also
cers
McGill,
Mary
his sister
Powell and
girlfriend Wendolin
and his
Lynn Reynolds,
Pasadena, Tom
Montgomery,
Robert
that when
Moseley. Appellant testified
Houston,
Isbell,
for
Stansbury, Allen C.
presence,
his sister
his
officers searched
pellant.
re-
alone.
In
told them to leave her
Vance,
Atty., James C.
Carol S.
Dist.
Bryan knocked
officer named
sponse one
Tobias,
Attys.,
Andy
Asst. Dist.
Brough and
him.
down,
beat
and several officers
him
Houston,
Huttash,
Atty.,
Robert
State’s
holding
to the
subsequently taken
He was
Austin, for the State.
tank,
jail.
in at the
prior
being
booked
holding
tank
Upon being
out of
taken
and searched.
appellant
photographed
was
reaching
as he was
According
OPINION
on after
put
his
them
shoes
PHILLIPS, Judge.
search,
the hand
him in
officer kicked
appeal
is an
from a conviction
This
eye,
then several
him in the
and
and hit
punishment
is death.
murder.
his neck.
on
him and stood
officers beat
fifth floor
jail on the
They
that his confession
took him to the
Appellant complains
cell,
still
to the
an isolation
involuntary,
placed
the court’s
him in
defective, and the
that offi-
fundamentally
Appellant
testified
handcuffed.
grant-
order
improperly set aside its
beat him for a
the cell and
cers came in
ing appellant a new trial.
testified
Appellant
period
days.
of three
placed in the isola-
he was
that soon after
Houston on
was arrested in
in,
him,
put
beat
cell officers came
tion
1977,
on
being stopped
Inter-
May
after
skin was
so that his
belt
his neck
around
He was
state 45 for a traffic violation.
beatings he
days of
scraped off. After two
Houston Police De-
initially
at the
detained
Bonds,
him
who told
J. L.
saw Detective
suspicion of auto
on
partment
and Jail
Bonds
sign a confession
if he would
8, appellant was
day, May
The next
theft.
beating him.
keep
from
would
the officers
concerning
death of
questioned
account,
Under
Samsel,
appel-
whose van
Harry
get
beatings
stop
and to
confession
traveling
Ap-
when arrested.
lant had been
jail.
girlfriend out
sister and
confess-
pellant
a written statement
made
hearing,
Osterberg
Houston Police
B.
is clear
their
Officers D.
Denno
it
from
L.
they
T. Mаines testified that
arrest-
appellant
aggressor
accounts that
ed
May
2:55 a. m. on
fight
great deal
and that it took a
Both testified
belliger-
appellant.
Sepolio
force to' subdue
Officer
ent, used abusive language, and seemed
hand,
Chapman
suffered a broken
filed
prone to violent conduct. The officers
charges
appellant.
assault
The officers’
*3
appellant
handcuffed
and took him the
to
testimony
appellant received
indicated thаt
police
auto theft division at
station.
right
a cut on the
of his face and
side
appellant
rights
There Maines
his
read
and suffered some sort of blow to his mouth
questioned appellant regarding the
theft
lips
that caused his
bleed
swell.
to
and
the van.
that
Maines testified
when he
handcuffed,
Appellant
placed,
was
in an
sister,
questioned appellant’s
appellant be-
isolation cell. Zetsch and DeVille testified
came violent
“whip
and threatened to
his
during
appellant
that no one bothered
In response
appellant
ass.”
Maines told
to
m.;
a.
remainder of their shift until 7:00
a
be quiet and sit down. Maines testified
jail
appellant
report
quiet
reflects that
was
physical
that no
violence was used against
in
cell at
until
a.
the isolation
least
11:00 m.
appellant
presence.
in his
morning.
Osterberg
appellant
testified that
was
division,
at
at
belligerent
the auto
Dr. Mohammed Sarwar testified
theft
refus-
chair,
ed to sit down
a
appellant
and
him
kicked at
was treated at Ben Taub
get
when he tried to
appellant
to sit down. Hospital
May
at 5:30
the afternoon on
Bryan,
Officer W. M.
who assisted Oster-
report
1977. The treatment
indicated that
division,
berg at the auto theft
testified at
he
appellant’s lips were swollen and
had
appellant
trial that
cursed the officers and
eye.
right
received a laceration near his
expressed a
fight
desire to
Appel-
them.
right
Appel-
eye
His
also bloodshot.
lant refused to sit down in a chair and lant received three stitches for the cut near
finally
forced
the officers to sit on
eye.
Sarwar
the lac-
Dr.
testified that
the floor.
fight.
eration
have been received in a
could
He further testified that he did not notice
questioning
After
appellant the officers
any
appellant’s up-
bruises
on
took
or abrasions
him to the holding tank and removed
wrists,
per
his
Appellant
body,
or neck.
handcuffs.
was held there
being
jail
before
booked into
on the fifth
L.
that he
Detective J.
Bonds testified
Officer
floor.
L. L. Hillman testified that
jail
appellant
checked
out of
at
a. m.
10:00
appellant argued with
prisoners
other
May
magis-
appellant
8 and took
to a
holding
uncooperative
tank and was
when
who
trate
administered the Miranda warn-
the officers searched him
taking
before
him ings
appellant.
appel-
to
Bonds then took
to the fifth floor.
Chapman
Officer W. D.
police
to
lant
the homicide division
told appellant
bench,
to sit
dоwn on
questioned
concerning
station and
him
appellant
Chapman.
refused and hit
Hill-
death of David Samsel. Bonds testified
man
Sepolio
and Officers R.
and David
appellant
fight
that he knew
had been in
Chapman’s
They
Watkins went
to
aid.
police
with some
and
been
officers
had
barely
were
able
restrain
who
Hospital.
treated at Ben Taub
Bonds no-
man; however,
very large
was a
they man-
bloodshot,
ticed that appellant’s eyes were
aged
put
him on the elevator аnd take
right eye
bandaged,
his
swollen
him the
fifth floor.
When
elevator
Appel-
he
had red marks on his neck.
floor,
door opened
appellant
on the fifth
though
lant looked to Bonds as
had been
lunged forward, breaking free of the offi-
fight.
in a
grip,
cers’
against
and struck his head
questioned
Bonds
and a
Appellant
forcefully
appellant
wall.
one
subdued
hours,
appellant
rights,
with
half
his
the additional aid of two fifth
read
floor
officers,
typed
G. S.
and D. R.
All
aup
appellant
Zetsch
DeVille.
confession
of these
officers testified at
Jackson v.
J.
signed. Detectives E. Uresti and M.
F.
holding
re-
signing
injuries appellant
tank.
Donovan witnessed the
the con-
no
fight
fession. Bonds testified that
threats or
ceived in the
were consistent
appel-
were
appellant
coercive tactics
used to induce
was treated on
those for which
sign
lant to
the confession. Bonds testified
and which the detectives observed
May
next,
appellant
signed
never discussed the
day
appellant
when
alleged beatings,
promised
and he never
appel-
confession. The doctor who treated
exchange
stop any
beatings
such
for the
injuries
appel-
any
lant did not notice
requested that
Appellant
confession.
neck,
complain
did not
lant’s
him,”
jail
one
“mess with
but accord-
any
testified that
injury.
such
important
ing to Bonds this did not seem
cell for two
he was beaten in
isolation
appellant. Bonds testified that neither he
actually
confessing,
days prior to
when
anyone
presence
nor
in his
told
day after he was arrested and
confessed the
girlfriend would
sister or
handled
detained. All the officers who
if he
the statement.
released
pellant
that he was abusive and
testified
*4
ap-
belligerent
aggressor.
the
It
and was
helped
Detective Uresti testified that he
pears
appellant
quiet
became
once he
appellant
jail. Ap-
Bonds check
out of the
safely secured
the isolation cell.
was
though
pеllant appeared as
he had been in a
fight,
complain
magis-
he
not
to
did
the
told
detectives he had
Appellant
the
any
trate about
ill treatment. Uresti testi-
jail
injuries
the
gotten in trouble at the
any
fied
he
not
or
did
witness
threats
nothing to do with his
he received had
against appellant,
coercion used
and the
undisputed,
It
signing the confession.
is
product
be
appeared
confession
to
he
not threat
by appellant, that
even
pellant’s free will.
during
questioning that
enеd or abused
the
re
Bonds
led to
Detective
the confession.
Detective
that before
Donovan testified
sis
appellant’s
appellant’s
futed
claim that
statement,
(Dono-
appellant signed the
released
girlfriend
ter and
would
injuries
van)
appellant
asked
whether his
totality of
unless
confessed. Under the
anything
had
to do with the confession.
circumstances,
the
we conclude
the
Appellant replied
he had some trouble
proving the volun-
State met its burden of
to with his
nothing
and it had
do
jail
confession, and the evidence
tariness of the
signing the confession.
findings. The confes
sustains the court’s
findings
extensive
trial court filed
admissible; appellant’s
contention
sion
detailing
fact
much of what was testified to
is overruled.
obviously
police
the
The court
officers.
urges
assertions of coer-
court in its
disbelieved
that the
gave
appel
cion.
It concluded that
the
to convict
the
authorized
will,
they
confession of his own free
without
that he
cаpital
murder if
found
lant
threats,
abuse, promises, or other
physical
of David Samsel
the murder
committed
improper
conspiracy
The confession was
to
during
influences.
of a
commit
the course
points
at
out
robbery. Appellant correctly
admitted
evidence
trial.
during the course
that a murder committed
judge
is
of the
the sole
robbery is not
conspiracy
commit
of a
to
weight
testimony
credibility
the
of the
under V.T.
designated
as
murder
Denno
of the witnesses at a Jacksоn v.
19.03(a)(2)—only
Code,
C.A. Penal
Section
or disbelieve all or
hearing,
may
believe
during the
murders committed
intentional
part
testimony. Alon
any
any
witness’s
attempted rob
robbery
of a
or
course
842;
State,
Hughes v.
zo v.
591 S.W.2d
Appellant filed
bery
designated.
are so
State,
(Tex.Cr.App.1978).
Sammie find from the English, Norman evidence with either Kyle beyond a Powell, McGill and/or Aaron reasonable doubt that Earl Sammie unlawfully did appropriate English Kyle Norman either from David with McGill Samsel, or attempt unlawfully appro- to Earl and/or Aaron Powell entered into a priate from David Samsel said property conspiracy to rob David Samsel and carry belonging to pursuant they David Samsel that Sam- thereto did out or attempt carry conspiracy mie English Norman while the course to out such to of committing of property such theft rob David and that on or Samsel about
the day May, preceding paragraph 6th immediately Harris Coun- ty, Texas, with the intent deprive to you find guilty, him not unless have owner, Samsel, personal guilty found the terms of him under to-wit, property, a motor vehicle and Paragraph [Emphasis 4 above. added] consent, credit cards without his effective 7.02(b), supra, does not ad English, Sammie Norman with either conspiracy, dress itself to the offensе of Kyle McGill and/or Aaron Earl Powell attempt carry conspiracy; to an to out a it did unlawfully appropriate from David encompasses completed attempted of Samsel, attempt unlawfully appro- object the conspiracy. fenses that are priate from David Samsel property said how an actor can spells statute out belonging to David Samsel and that Kyle for an responsible held offense criminally while committing McGill in the course оf another, when the actor by committed does such of property theft from David Samsel specific not have intent commit the and with intent to obtain or maintain In other. accord intentionally offense committed property control of said 7.02(b), bodily injury language ance with of Section caused to David Samsel. to- required jury charge the court’s to find wit. death David Samsel with gun McGill, intending conspired thereby and Powell to kill the said carry to rob then “did out or Samsel and David Samsel and that attempt conspiracy by carry out” English, Sammie Norman pursuant Samsel, robbing or to rob attempting any, if the intent to during robbery ap course such promote, assist or aid Kyle the said intentionally pellant or killed McGill Sam- McGill and/or Aaron Earl Powell in the sel. The did authorize court’s commission of said then and jury it found that convict there at the shooting, time of the during the the murder was committed aiding with and the said course of a to rob Samsel. See conspiracy and/or Earl McGill Powell in the charge. of the portions underlined execution or robbery execution of said Samsel, find that required of David and that *6 capital was a party the offense of mur shooting to the of David Samsel in followed 19.03(a)(2), as designated by the der Section execution of the of conspiracy, any, if supra. English Sammie Norman with either Kyle McGill and/or Aaron Earl Powell court, The act of cau- commendable in a
rob property of his and Samsel tion, jury also as follows: charged thе by the of David Samsel Kyle McGill, such, if there was was done rob, in Before be warranted in con- you of if would conspiracy furtherance the defendant, victing Norman any, the Sammie and the rob- murder, English, capital you must find any, if of bery. and was offense that beyond from a reasonable anticipated should have been a result the evidence as of Norman carrying only the out of the doubt that Sammie not English McGill you will find the and/or Sammie with either guilty Norman of English, capital mur- on the occasion Earl Powell you beyond der. Unless so find a question engaged reason- in the commission were if you able doubt or have a reasonable the or at- felony of offense of thereof, acquit you will tempted doubt the defend- robbery of David Samsel as ant, English, capital Sammie Norman of also that dur- charge, defined in this murder. robbery, ing the the commission English shot David you beyond so a Sammie Norman
Unless find reasonable doubt, killing him. you a the intention have reasonable doubt Samsel with therеof, you beyond acquit will the Unless from the evidence you defendant of find capital the the Norman murder under terms of a doubt that Sammie reasonable
955
16,
English
the
question spe-
day,
occasion in
The next
December
the Honora-
cifically intended to kill the said David
hearing
ble Joe
a
to establish
Wade held
him,
did,
when he
Samsel
shot
if he
underlay
signing
facts
of the mis-
you
beyond
unless
find from the evidence
Judge
taken order.
Smith testified that
act,
a reasonable doubt that said
signed
by
group
when а
the order mistake
was committed
the course of commit-
him;
were
time
papers
handed to
ting or attempting
robbery,
to commit
jury
calling
quite busy picking
you cannot convict
Eng-
Sammie Norman
Judge
the docket.
Smith further testified
capital
lish
the offense of
murder.
If
grant appellant
that he did not intend to
doubt,
you have such a
you
reasonable
trial,
nothing
appel-
new
he knew
about
acquit
will
English
Sammie Norman
case,
hearing
lant’s
no
had been held on the
capital murder.
matter,
impres-
and he had been under the
This paragraph
jury
insured that the
would
signed
sion
form
a motion
not be confused
the conspiracy language
for a
leave
file an amended motion
the court
in applying
used
the law to the
hearing
new trial. At the conclusionof the
facts.
Judge
the court found that
Smith
This Court has held
law
order
inadvertence and mistake
of parties announced in
7.01
Sections
Judge
granting
Smith had
intention
applicable
7.02
the Penal
capi
Code is
new trial. The court found the order
State,
tal murder cases. Wilder v.
583
granting the new trial to
void.
(Tex.Cr.App.1979); Livingston
S.W.2d 349
State,
State,
v.
542
(Tex.Cr.App.1976).
655
S.W.2d
v.
40
This Court held Matthews
responsibility
of criminal
set
316,
(1899),
Tex.Cr.R.
50
368
that after
S.W.
7.02(b)
forth in
applied
has been
grants
a trial court
a motion for new trial it
State,
Ruiz
cases.
956 “(2) acting promote with intent or
Further, in case does the court’s error this offense, error, certainly as judicial not strike us as a of the assist the commission in The error here was the case Matthews. aids, attempts or aid the ” error, can be is more to clerical which akin . . the offense person other to commit trial court’s au- Compare the corrected. entry its thority improper to correct an produced by mix of that hybrid The thus State, judgment. v. 543 S.W.2d White n legal theories of distinct two оtherwise State, 535 (Tex.Cr.App.1976); Savant v. lowers the level re- responsibility criminal This (Tex.Cr.App.1976). Court S.W.2d 190 is, 7.02(a)(2) quired by Section —that State, pointed in 446 S.W.2d out Moore v. responsible for the act of to be trial court that a (Tex.Cr.App.1969), shooting to intentionally kill Sam- McGill judicial as commit clerical error as well may to promote sel with intent appellant, error. of mur- commission of the offense or assist distinguishable is We case hold this der, attempted to aid must have aided Matthews, supra, in that thе court from offense murder. McGill to commit the trial, new knowingly granted here never could be held charge appellant Under only signed order form mistake. of McGill in inten- responsible for the act clear, holding how- perfectly To make our to kill Samsel tionally ever, to can be con- the extent Matthews or aid McGill promote, with intent to assist holding, it is strued to conflict with this robbery, or Powell the commission setting did not err overruled. court aided either in the execution acted with аnd appellant’s motion granting aside the order robbery. of the execution new trial. responsibility diminution of criminal Such a affirmed, judgment is law, court and the trial is not authorized consider it. permitting erred in CLINTON, dissenting. Judge, I dissent. Accordingly, majority of the Contrary to the notion charge apply paragraphs 4 and 5 of ROBERTS, J., responsibility joins. set theory of “the criminal Code, Section forth V.T.C.A. Penal is 7.02(b)” clear conspiracy theory —the —it to inter- the trial also endeavored responsibility
twine the of criminal id., prescribed in
for the conduct of another Thus, 7.02(a)(2). midway in each
paragraph posited: there is
“. . . Sam- said English, pursuant mie Norman COMPANY, H. E. BUTT GROCERY pro- with the intent to Appellant, Kyle McGill mote. assist or aid the said Aaron Earl Powell and/or [sic] then and commission of PENA, Appellee. Mary shooting, of the there at time No. 13088. *8 aiding the said Earl Powell McGill and/or [sic] Texas, Appeals Court Civil attempted execution of the execution or Austin. Samsel, if of David . Jan. of David Samsel was done in furtherance . attempted robbery.” language be drawn can underscored 7.02(a)(2):
only from Section