Flores v. State

38.22(3)(c) art. Tex.Code Crim.PkoC.Ann. (West 1990). only warnings The which must

precede an oral confession admitted under 3(c)

section are the Miranda warnings. Per

illo v. t.

cer S.Ct. In this

instance, appellant Sergeant informed Medi crime,

na of the as well weapon as the crime

and its location. confessed to the

Sergeant that he had pis used a .38 caliber

tol, that gun he had stolen the from a car

parked Dallas, at a club gun and that the in jewelry box on the floor board in the

back seat of the stolen blue Cadillac. Pursu appellant’s directions,

ant to po Nevada

lice officers located alleged weap

on. That weapon was identified Texas

forensic weapon. authorities as the murder

Because the confession contains assertions of

facts which were found to be true and which

help appellant’s guilt, establish the confession 38.22,

was admissible under article section 3(c) of the Texas Code of Criminal Proce Appellant’s eighteenth

dure. and final

of error is overruled. judgement of the trial court is af-

firmed.

CLINTON, J., dissents.

Miguel Angel FLORES, Appellant, Texas, Appellee.

The STATE of

No. 71147. Texas,

Court of Appeals Criminal

En Banc.

Dec. 1993.

Rehearing Denied March Amarillo, Storrs, appellant.

Gene Cross, Roy Stephen Atty., Dist. F. Atty., Borger, Carper, ‍​​​​​​‌​​‌​‌​‌‌​​‌​‌‌‌​‌​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌‌​​​​‍Dist. Robert Asst. Huttash, Austin, Atty., for the State. State’s

OPINION MALONEY, Judge. capital murder. convicted of 19.03(a)(2). § After

TexPenal Ann. Code findings to the affirmative returned special under two issues submitted Tex. Code 37.071, trial court Ann. art. GrimPboc. This case imposed penalty death. appel- appeal. Because us on direct before sufficiency of the evidence challenges lant answer to support the affirmative issue, briefly re- we will the second light most to the in a favorable view facts verdict. morning hours of June early

In the body was found of the deceased had been The deceased her automobile. ten frequently stabbed times in the chest and back. have stated that “the circum- offense, may punc- enough, The immediate was a stances of severe cause of death alone sufficient to Upon wound to be an affirmative receiving ture the heart. answer” to second Id. at issue. questioning, word that he was wanted 355; Roney appellant turned law himself enforce- (Tex.Crim.App.1982). If the facts ment authorities. He did this on the morn- crime are not support itself sufficient to body the Appellant gave was found. four finding, affirmative “we look evi- for other tape recorded custodial statements. support jury’s the finding, dence to such as death, deceased, At the time of her the a evidence, evidence, psychiatric pri- character student, college working during was her record, prior or criminal offenses extraneous summer vacation at a rental store in video ... of of or state mind at the time the Borger. appellant tape After rented a video offense.” Kunkle v. store, shortly from the he returned before (Tex.Crim.App.1986). time, closing the and waited for deceased The maintains that the State facts her near automobile. the When deceased offense, in addition to intro- other evidence store, appellant exited the her forced into her trial, support jury’s duced at the affirmative automobile, which he then to a remote drove response to the special second issue. The sexually location outside of he town where that argues State several items seized from her.1 assaulted After the assault night the car driven of the city himself drove and the deceased to the murder, including the a brass knuckles-like dump site. There he was seen the de- club, implement “sap glove,” called a a father, looking ceased’s who for the was de- bullets, propensity for vio- several show ceased because she had not come home after addition, psychiatrist, lence. In the State’s work. father at- deceased’s testified, Clay upon Griffith Dr. based tempted apprehend appellant, to hypothetical substantially tracking facts successfully escaped and back to town. drove ease, of the instant be a would statements, According to his danger society. future to to When asked automobile, parked the and he and the de- give Griffith opinion, the basis for his testi- talking ceased sat without about ten min- very “this fied that vicious hideous murder utes. with a stabbed the deceased unprovoked,” “people and that with this pocket knife began when she to scream. type type personality who commit nine, of error going again.” murder are to be violent Grif- support claims evidence is insufficient to appellant going sleep fith also noted jury’s affirmative to the answer second following the offense indicated a lack con- resolving appellant’s issue.2 In con evidence, There was no tes- science. Griffith tention we look at all the in the evidence tified, from which he could deduce re- light most favorable to the verdict to deter part morse or concern for the victim on the mine whether rational of fact could trier appellant. Griffin stated that the lack of 37.071(b)(2) find all of the elements of article type person- remorse “further adds to this beyond a reasonable doubt. Black v. description, people ality without conscience. (Tex.Crim.App.1991). Things They bother them. act for don’t jury is please “The entitled to consider all the evi matter themselves no themselves Finally, phases property dence admitted at both of trial when life what the cost is.” deliberating on the Id. issues.” We Griffith testified various items (1) Appellant’s as to the conduct of the defendant that 1. statements are inconsistent whether the death of the deceased was commit- weapon caused at the whether exhibited the murder expec- deliberately and with the reasonable ted the deceased was her car and time forced into аnoth- death of the deceased or tation exhibiting weapon denied result; er would (2) during the sexual assault. probability there is a de- whether of vio- would commit criminal acts fendant following special were submitted to issues would constitute a threat lence that jury: society. testimony, criminal psychiatric prior no by appellant driven constituted was automobile violent in nature convictions were not going further evidence that “violence is character); maybe only one testified bad occur or has occurred and we don’t witness (Tex.Crim. go- it.... later Keeton v. know about Sooner or he’s (where insufficient, there get App.1987) evidence ing to be violent. You can’t worse than except psychiatric no or character he did in terms of what numbers.” acts); Roney, past and no evidence or violent Considering pun case at the State’s (where held in 632 S.W.2d at 603 ishment, extent, to some rested Dr. testimony, psychiatric sufficient was no there testimony, Griffith’s we conducted review prior and no criminal no character evidence of cases in which we held the evidence was record, cooperated po and defendant insufficient affirmative State, 67, lice); 69 v. 618 Wallace S.W.2d answer to the second issue. (where (Tex.Crim.App.1981) insuffi evidence repeatedly recognized psychiat we have cient, prior evidence convic there was no of testimony support ric “is not essential tions, psychiat no no character evidence and finding affirmative to the issue of dan future State, testimony); ric v. 600 S.W.2d State, Brasfield gerousness[,]” v. 746 S.W.2d Huffman (where 288, (Tex.Crim.App.1980) 293 evi 212, it is (Tex.Crim.App.1988), equally 224 insufficient, there dence held was no evidence true that we have found the evidence in not acts, prior psy criminal record or bad no to be case insufficient where State evidence), chiatric evidence or character psychiatric testimony that the offered defen grounds, overruled v. on other Janecka continuing danger dant would constitute a State, 813, (Tex.Crim.App. 819 739 S.W.2d See, State, e.g., society.3 v. Ellason 815 State, 1987); 474, 476- Warren v. 562 S.W.2d 656, (Tex.Crim.App.1991) 664-65 S.W.2d (where held (Tex.Crim.App.1978) 77 evidence (where insufficient, only evidence held insufficient, psychiatric no testimo there was psychological testimony was to de favorable violent). ny prior and acts criminal were fendant); State, 417, v. Smith Moreover, have held the evidence suffi (where we (Tex.Crim.App.1989) 421-22 evidence cient on the second issue where the State’s insufficient, psychiat produce Statе failed exclusively punishment at rested case almost testimony prior or ric evidence of criminal State, testimony, psychiatric see v. violence, on Moore history record or and the facts 664, (Tex.Crim.App.1976), 542 676 S.W.2d plan showed defendant did not 2666, denied, 97 53 cert. U.S. forethought); 431 S.Ct. Huffman, with 746 S.W.2d at (where (1977), insufficient, other L.Ed.2d 266 overruled on 225 evidence State of Texas, psychiatric testimony, grounds, v. 448 U.S. reputation fered no or Adams ‍​​​​​​‌​​‌​‌​‌‌​​‌​‌‌‌​‌​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌‌​​​​‍(1980) (evidence crimes); prior or S.Ct. 65 violent Marras State, (Tex.Crim.App.1987) light issue of facts v. sufficient on second 395 (where insufficient, robbery shooting of rape, and evidence held there was offense — jury testimony); v. psychiatric testimony psychiatric to victim—and Smith no and unable offenses); prior felony 540 693 consider Beltran S.W.2d 51 cert. S.Ct. 388-90 (1977) (evidence (where (Tex.Crim.App.1987) insufficient, on sufficient there L.Ed.2d 601 evidence held testimony from his exception might It was Landrum's one be the case of Dr. 3. The (Tex.Crim.App. able to Garcia silent minute observation he was There, 1981). we the evidence was insuffi necessary held satisfy elements to of all the himself finding cient to affirmative probable that it was make the determination psy despite of a the second issue acts appellant would commit criminal that the chologist that the defendant would be violent continuing of violence that would constitute However, the aggressive in the facts of future. nothing society. to indicate threat There testified, unique. psychologist case are instant Dr. knew the facts of the that case, Landrum thirty of a minute silent observation on the basis did, took them into consideration if he defendant, that he would be violent reaching evaluation. aggressive was no evidence in thе future. There at 51. Id. psychologist knew the facts offense making his into account in conclu or took them sions: second issue based on facts of offense—kill the fact that acting was not under grocery operator store in course of party the influence of a third psychi- and the robbery , prior marijuana conviction and testimony, atric we hold a rational could — psychiatric testimony that defendant dis beyond conclude ap- a reasonable doubt that played apparent no remorse and that his pellant would commit criminal acts of vio- future change).4 conduct would not lence the future. Point of error nine is overruled.

We conclude that the evidence of future dangerousness introduced the State was of error one sufficient to convince a rational trier of fact claims the trial excusing court erred in veni- was a threat reperson Rodriguez Black, Ernesto society. cause. The supra. The abduction of the Rodriguez record challenged shows that victim in the instant offense committed was. deliberation, inability State for his to read or forethought certain write. be- 35.16(a)(ll). ing contemplated by appellant Tex.Code CRIM.ProC.ANN. art. for over an video, renting appellant Appellant hour. After Rodriguez asserts that was literate part went home subject and watched challenge movie and was therefore not to a returning 35.16(a)(11) before parking the store lot to under article and also that the departure wait for the victim’s from work. challenge racially motivated. decline We addition, In appellant opportunity had the to address the latter assertion аs it was not committing rape after the to release the vic- Tex.R.App. 52(a). raised at trial. P. As to tim, but chose not sighted by to. When the assertion, the excusing venireper- former murder, prior victim’s appellant father to the 35.16(a)(11) pursuant son to article is a mat Further, fled with stabbing the victim. after ter within the discretion of the trial court and repeatedly the victim in the chest and back will not showing be disturbed absent a knife, pocket with his sleep went to State, abuse of Allridge discretion. 762 in Although appellant another car. turned 146, (Tex.Crim.App.1988), S.W.2d 165 cert. in voluntarily following day, himself the he denied, 1040, 1176, 109 S.Ct. 103 attempted persons twice to blame other (1989). There is no abuse if the Appellant the ultimately offense.5 confessed See, supports record the court’s decision. acting that he was not under the duress or e.g., Goodwin v. 799 S.W.2d 736 party. dominatiоn of a third of- State — denied, (Tex.Crim.App.1990), cert. U.S. psychiatric testimony fered -, 111 S.Ct. would be a society. threat (1991); Johnson v. 332 Pointing appellant’s apparent lack of re- Texas, (Tex.Crim.App.1989), Johnson v. aff'd morse, Dr. per- Griffith testified that such a — -, U.S. 113 S.Ct. 125 L.Ed.2d son lacked social conscience and would defi- (1993). 290 nitely Although be violent in the future. Rodriguez during stated offered no voir dire that he State character evidence or evi- record, prior very explained dence of a could not write criminal view of well and itself, inability deriving facts the offense to write as calculated from his difficul- actions, appellant’s ty deliberate nature of reading. He admitted that there vez, by 4. We do instigated Appellant not these observations intend to who the abduction. suggest psychiatric that where the State offers raped stated that after the two had the victim testimony that the defendant will be town, a future and returned to Chavez with left danger society, the evidence will never be stabbing denied victim. the victim and support finding insufficient to an affirmative stated that Chavez must have done it since he However, the second issue. we make the obser- knew Chavez had a knife. In third statement psychiatric vation that where there is such testi- appellant recanted his second statement and stat- mony, likely it is more that we will come to the friend, Ponce, ed that a different Carlos had conclusion that a rational could find that the participated taped in the offense. In his fourth defendant will constitute such a threat. statement recanted both his second and third statements and stated that he had acted tape In his first recorded statement alone, originally as he had confessed in this first committing confessed to the offense on his own. taped statement. statement, tape In his second recorded friend, claimed he had been with a Romolo Cha- by challengeable is venireperson A of the second were about ten words 35.16(b) not He testi under article based issue that he could understand. for cause State newspaper, fied that he could read failure that the defendant’s upon their belief children, in the second and that his who were guilt. an admission of testify constitutes him to read grades, helping were learn third Guerra v. court from their books. We hold the trial t. U.S. cer granting did not abuse its discretion 3260, 106 L.Ed.2d 606 Ven- 35.16(a)(11). challenge under Article State’s repeatedly that ireperson testified Holman (where Goodwin, at veni- See the issuance of an indict she would consider repеrson only read a few words and could against ment a defendant and defendant’s name, only juror literacy could write her guilt. Hol testify as indications of failure to Johnson, met); requirements were not repeatedly stated that she would be man (challenge at for cause not im issues, change opinion her on those unable to granted venireperson did not properly where court. otherwise even instructed juror some of the words on the understand might have been in favor of That such a bias issues). questionnaire Point from prevent does not the State the State of error one overruled. Nethery, challenge on that basis. making a point In of error two claims Further, may supra. the fact State excusing venireperson the trial court erred challenge is have had another motive for its pursuant challenge to a Linda Holman that Holman irrelevant in view of the fact cause the State. the State set subject challenge properly to a on the forth a number of reasons in of its grounds. Point of error two is over stated challenge, expressly granted the trial court ruled. challenge based Holman’s demean- testimony that or and her voir dire she would error three testify consider a defendant’s failure to by admitting into trial court erred claims the guilt. Appellant admission of claims that the automobile, evidence items seized from an challenging true motive in Holman State’s allegedly illegal search. The pursuant to an equivocal responses regarding was her as appel from the automobile items were seized penalty. of the death sessment night lant to the video rental store drove 35.16(b) provides a chal Artiсle that the car in the the murder. left of lenge may by for cause be made the State if lot, it was searched the next parking where venireperson prejudice “has a bias or day pursuant to a search warrant. against any phase of the law which the issue, legality of a search is in When rely State is entitled to for conviction or proving of bears the burden the defendant punishment.” venireperson’s The fact that a privacy rights violated. his own were that against bias the law was favorable toward the 1, Illinois, 128, n. 99 439 U.S. 131 Rakas v. initiating State is no bar to the State (1978) 1, 421, 424 n. 58 S.Ct. State, 686, challenge. Nethery v. 692 S.W.2d suppress has burden (proponent of motion to denied, (Tex.Crim.App.1985), 691 cert. 474 establishing Fourth Amend- that his own 1110, 897, 106 S.Ct. 88 L.Ed.2d 931 U.S. State, violated); rights were Wilson ment (1986). above, challenges As stated under 661, (Tex.Crim.App.1984) 669 692 S.W.2d 35.16(b) the trial article are matters within (defendant’s rehеaring) privacy (opinion on discretion, and the court’s actions court’s ele- in area searched is substantive interest granting denying challenge will not be claim on which ment of fourth amendment See, supported the record. disturbed burden). Sup- Appellant’s Motion to bears (Tex.Crim.App.), State, e.g., Pyles v. 755 S.W.2d of “Defen- complained of the search press denied, 986, 109 t. cer However, hearing at the automobile”. dant’s 543, (1988); 102 L.Ed.2d 573 Farris S.Ct. Suppress, evidence appellant’s Motion to 490, on State, (Tex.Crim.App.1990), 501 819 S.W.2d — automobile searched ‍​​​​​​‌​​‌​‌​‌‌​​‌​‌‌‌​‌​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌‌​​​​‍denied, U.S. -, was admitted 112 S.Ct. rt. ce Ran- registered in the name of Cesarea 1278, 504 117 L.Ed.2d

720 Flores, objections appellant’s at trial do not gel appellant’s mother.6 No evi de hearing at demonstrated comport complaints appeal. dence offered any expectatiоn privacy had in the car. None of the evidence offered appellant objected At trial to the ad demonstrated that had interest sample mission of the blood on the basis that right in or to use the car. In the absence of rights had not been informed of his showing had a taking and had not consented to the legitimate privacy in expectation of the vehi sample.8 blood Because never as cle, appellant standing to con did not have objection as an that the warrant serted had State, test its search. Green v. 682 S.W.2d properly presented not been in accordance 271, 294 cert. 18.06(b), the trial with article court did not 1407, 470 105 S.Ct. U.S. ruling, rule on that issue. Absent there is (1985) (defendant standing did not have Tex.R.App.P. 52(a). nothing for us to review. car); Esco v. contest search his brother’s (Tex. at Bower v. 769 S.W.2d 887 (Tex.Crim.App. Crim.App.1989). Appellant does not in this 1982) (defendant standing complain lacked appeal complain that he was not informed of co-defendant); of car search owned rights. respect appellant’s claim With Goodwin, compare at n. 2 search, that he did not consent to the lack of (defendant standing had to contest search of taking of a consent does invalidate car where defendant co-defendant’s asserted sample pursuant blood to a valid warrant. ownership luggage seized from the vehicle Ferguson v. See luggage and such was found at defendant’s denied, 442 (Tex.Crim.App.1978), cert. U.S. place).7 feet when took Point of error search (1979) (for 61 L.Ed.2d three is overruled. blood, taking of warrant must be obtained or point In of error claims the four consent). must autho accused warrant by admitting trial cоurt erred into evidence a appellant’s rized the seizure of blood. More sample Appellant argues his blood. over, appellant appeal does not in this con sample the blood was taken as a result of an tend that the was invalid. Point of warrant illegal search because he did not consent to four error is overruled. executing the search and because the officer present copy him failed to with a of error five claims

warrant accordance with Tex.Code CRiM. 18.06(b). admitting into evi- PROC.ANN. art. The State asserts the trial court erred affidavit, standing 6. The search warrant admitted evi- evidence failed to establish as a mat- into law, purposes hearing together though dence for ter of even the record does not warrant, the search stated that the automobile in reflect that the issue was ever considered “registered Rangel issue was to de parties Cesárea or the trial court. Flores, [appellant].” mother of Id. at 671. 7. We note that the State did not raise the issue of following objections 8.Appellant at tri- made the However, standing appeal. until its brief in this al: Supreme we have held that the Court’s decision Illinois, 128, 421, going object to to the admission of [W]e're in Rakas v. 439 U.S. 99 S.Ct. concerning taking (1978), a blood "put defendants on no showing [ap- sample of a that privacy premises in the absence tice that the interest in the rights concerning pellant] informed of his was searched is an element of their Fourth Amend claim, sample they and in the absence that he ment which bear the of estab the blood burden consented, voluntarily taking lishing” State, consented to the and that our decision in Sullivan v. 1978) (Tex.Crim.App. sample. a 698 showing by (oрinion rehearing), "put defendants on no has been no the State [T]here on ... any given tice that the State would be allowed to raise time that there was consent at this standing appeal.” by [appellant] taking sample issue of for the first time on for the of a of his (Tex.Crim. object any Wilson v. we testimo- blood in this case and App.1984) (opinion rehearing). concerning taking [appellant's on We further ny blood recognized part that any showing absent of consent on his and right give reviewing may properly that he was advised of his or court sustain the [t]he sample. giving ground withhold of a blood trial court's denial on the appellant needed if told not be by appellant. mother would given statement9 dence an oral However, about his involvement. making the truth coerced into Appellant claims he was any he did not mаke testified that Blackmon made promises as a result of the statement be appellant’s mother would promises that interrogation. during him confessed or that she appellant if released hearing on pre-trial conducted a The court not appellant if did not be released would suppress. See appellant’s motion Tex. appel- testified that confess. Blackmon also 38.22; art. Jackson Code Cmm.PROC.Ann. threatened, gave his and that he lant was not Denno, 1774, 12 378 U.S. voluntarily. No other witnesses statements (1964). According to the testi- hearing. suppression at the testified hearing, mony'at appellant entered appellant’s mo- overruled The trial court shortly before 8:00 a.m. on police station subsequently made suppress, and tion Keys ad- Lieutenant Charles June of his findings appellant was informed that rights аnd appellant vised of his Miranda he and rights, that understood Miranda those appellant stated that he understood not rights, and that he was waived his Keys Investigator Michael rights. and by promises, force or induced coerced or interrogated appellant approxi- Blackmon court con- improper other influence. The mately upon arrival at an hour and a half freely was cluded that the first statement the station. This initial interview was voluntarily made and admissible as evi- tape Appellant subsequently gave recorded. at the trial on the merits. dence tape approxi- his first recorded statement at trier of the facts mately p.m. Keys on 29th. testi- “The trial court is the sole 12:50 June suppress], appellant hearing [to at no time indicate at a motion fied that did liberty to right to a is not at disturb that he wanted invoke his law- Court yer. Keys finding supported the record.” Fierro testified that neither he nor (Tex.Crim.App. appellant promised one else threatened 1986). judge anything. Keys him that The trial court is also sole further testified credibility and the of the witnesses sometime between 8:00 a.m. and 11:00 a.m. 29th, testimony. Bur weight given if to be to their on June asked his mother10 station, 309, 318 police Keys at the informed dine v. Keys him she was. t. informed cer that, based on information he had obtained S.Ct. 94 L.Ed.2d Blackmon, being appellant’s mother was appellant’s

from mother be- the fact that might influ Keys as material witness have held as a material witness. also held cooperate, there is no promised testified that enced was never gave was informed that his mother would be released he cooperation. to induce his during Blackmon fact in an effort statement. testified it was who untaped Keys initial testified interview June 29th his mother’s where being question told that his mother was held raised ap officers Given that the believed as a material witness and that she would be abouts. being as a was in fact held longer pellant’s when she no need- mother released witness, appellant response their to appellant Blackmon further told that his material ed. ment, properly preserved gave tape appellant statements. has not four recorded regard offered into complaint The first and fourth statements were the fourth statement. to by and third the State and the second appellant the fourth also note does not claim We by appellant. Tran- statements were offered alleged of the was tainted as result statement scripts admit- of each оf the statements were also illegality We will therefore of the first statement. unclear, appears it ted. somewhat admissibility only first statement. address of the complaining of the first is of admission Appellant’s and fourth statements. Motion to during testimony, couple points the 10. At statement(s) Suppress specify ap- did not which appellant’s mother and is made to both reference however, sought suppress; pellant the trial however, appears stepfather; that the referenc- it findings suppression mo- court’s of fact on the appellant’s primary appellant’s are mother es to only admissibility of the first tion addressed concern. Because did not obtain a statement. ruling state- from the trial court on his fourth biology, training Ph.D. in had extensive was a truthful one. Both officers testified and a threatened, prom disciplines was not no in all of the scientific relevant to made, gave ises were his statements technology, published papers DNA had con- voluntarily. supports The record the trial cerning profiling, DNA had conducted re- finding. area, court’s Point of error five is over performed in the and had DNA search ruled. profiling in thousands of cases. Adams testi- typing technique by fied that the DNA used point In of error six claims F.B.I. in is used thousands of laborato- by allowing the trial court erred the testimo country generally ries across the and is ac- witness, ny expert Dwight of the State’s cepted the medical and scientific communi- Adams, concerning DNA the results of test government. ties and United States showing testing without that such had Adams, According type testing this gained general acceptance, authenticity, and produced either the correсt result or no re- accuracy community. within the scientific testimony during sult. Based Adams expert The standard for admission of testi hearing the trial court concluded that mony upon by commonly relied is testing “scientifically DNA reliable” and Frye Frye referred as the test. v. United Viewing admissible as evidence. the evi- (D.C.Cir.1923). States, However, 293 F. 1013 light dence in to the trial most favorable Frye longer applicable is no standard finding, court’s we hold the trial court did not governing expert testimony; the admission of supports abuse its discretion. The record rather, gov Rule Criminal Evidence ‍​​​​​​‌​​‌​‌​‌‌​​‌​‌‌‌​‌​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌‌​​​​‍702 finding the trial court’s that the evidence was admissibility erns the of novel scientific evi reliable, relevant and and that no factor list- dence, including testing. evidence of DNA ined Tex.R.CRIM.Evid. 403 would have out- (Tex.Crim. Kelly v. 824 S.W.2d 568 weighed probative its value. Point of error App.1992); see also Hicks six is overruled. (Tex.Crim.App.1993). S.W.2d 419 As we re cently explained: point error seven claims proponent Pursuant to Rule of the failing grant appel- the trial court erred prove scientific evidence must clear and improper lant’s motion for mistrial due to convincing presence evidence outside the jury argument during guilt-innocence jury proffered evidence is phase appellant’s failing trial and in reliable and relevant. deter- [] Once jury disregard improper instruct the relevant, mined reliable and such evidence argument. appel- contends that State is admissible unless the trial court deter- preserved lant has not for review. probative mines that its value is out- agree We with the State. weighed by any of the factors identified in preserve alleged error im To Rule of Criminal Evidence 403. proper jury argumеnt, pur a defendant must (citations Hicks, 860 S.W.2d at 422-23 objection ruling until an adverse sue his omitted). footnotes received. Stevens v. hearing Adams testified in a on admissibili- Here, (Tex.Crim.App.1984). ty presence out of the that he was pursue objection until he ob failed to employed special agent as a for the Federal ruling. tained an adverse (FBI), Investigation assigned Bureau of unit, Following jury argument question,11 analysis the DNA held a Bachelor’s science, Degree Degree appellant objected and a Master’s as follows: right prosecutor following right 11. The made the of that and that is a but that does comments closing guilt: argument you in his at ignore tapes not mean to the that heard. Now, you Judge you, evidence and heard what he the has instructed and I Those are in go you, say tapes you get want to over this with that the law can't in had to on those and permits testify. a defendant not to He had that may question your be a mind there—there right testify, you and if he does not cannot you get about certain issues but can't back in against consider that as evidence him. jury say, I the room and. wonder what about everybody We went over that in voir dire and something you think he should have said that they give said could the the benefit Defendant by jury probative to be considered the simply emphasizing the be prosecutor] is [The argues the Appellant special issues. the making a point by own statements jury miti- the to consider instruction forced has instructed comment on what the Court evidence, and, thus, his trial defeated gating jury comment on. We him and the not to that no strategy. Appellant further contends object to and ask that he be instructed given except should be mitigating instruction the law tells him to and leave it alone like that existed such as those circumstances failing and in event such instruction 302, 109 S.Ct. Penny Lynaugh, 492 U.S. mistrial. move for a (mental (1989) retar- L.Ed.2d 256 judge responded The as follows: abuse), is, dation, which evidence child you I’ll gentlemen, Ladies and remind through the given effect cannot be attorneys say what the is not evidence special issues. In the of the consideration by you any evi- cannot be considered as charge properly error that was ob- case of guided by the instruc- dence. You’ll be trial, for unless jected reversal is called to at only. tions of the Court the error is harmless. Almanza in Although judge give a clear the did (Tex.Crim.App.1984). disregard to and did not rule on struction mitigating Appellant confuses evidence mistrial, appellant, appellant’s motion for a type mitigating general with the evidence satisfied, apparently being pursue did not adequately within that cannot be considered objection rul in order to obtain an adverse scope special issues. Even in the the of the ruling ing. Where an adverse is not ob instruction, mitigating absence of a evidence See, tained, nothing preserved is for review. any mitigat- jury considered the could have e.g., Cooks v. 727-28 that was introduced within evidence — (Tex.Crim.App.1992), cert. U.S. special issues. The instruction scope of the -, (1993); harmful, beneficial, than therefore rather (Tex. Graham v. jury appellant by explicitly permitting the Crim.App.1978). Point of error seven is give any mitigating evidence that effect overruled. by answering to one or introduced “no” eight appellant error special issues.13 a miti- both of the by submitting only required claims the trial court erred gating is evidenсe instruction mitigating instruction on evidence in the it mitigating evidence is such that when the charge punishment.12 Appellant given through special at contends cannot be effect issues, strategic during inclusion of that he made a decision trial cannot conclude that we required any mitigating it is not is not to introduce evidence at such an instruction when appellant was not punishment might fear that harmful. hold that such evidence We you give you you they them that effect talk that and deserve because cannot about you appropriate when answer the you believe to be cannot discuss it and have to— added). Special Issues. (emphasis Appellant objected to the you evidence that If believe from the highlighted portion commenting upon appel- as proven beyond doubt a reasоnable State has testify. lant’s failure to Special are the answers to the Issues you persuaded but are further "Yes" following instruction was included in the 12. mitigating that the defendant should charge: case, you then sentenced to death in this not be answering During your deliberations and in Special Issues shall answer one both of you Special presented you, Issues shall your give the effect to belief "No” in order mitigating supported consider circumstances imposed penalty be should not that the death evidence, any, presented by either in this case. your party, consideration that was admitted mitigating phases mitigating of the trial. A cir- evi- in both without the We note that even may any aspect permitted give charge, be of the Defen- effect cumstance dence character, background mitigating circum- cоnsidered or the evidence which can be dant’s by respond- you scope have found issues of the crime for which of the stances within ing guilty, you issues. believe makes to one or both of the the Defendant which "no” mitigating evi- appropriate. for life does not claim a sentence of confinement presented be considered within any mitigating could not you are circum- dence If find there stances, weight scope issues. you much must decide how Yes, mitigating harmed the inclusion of my opinion. A. that’s I would not eight to, know, evidence you say instruction.14 Point of error is somebody want this for overruled. I specifically didn’t know about but about, everyone that I know this is true. pro appeal. filed a se brief Well, Q. you Although appellant hybrid given is wherein were not entitled to a set of representation, justice hypotheticаl in the interest of we facts that true would have capital you reviewed his contentions and find amount to them murder do have an to be Stephens opinion without merit. individual would commit fu- (Tex.Crim.App.1984). ture violent acts? Well, information, A. enough that’s not judgment and sentence of the trial sir. court are affirmed. Q. you What other information would OVERSTREET, JJ., CAMPBELL and want other than the fact that the individual

concur in the result. capital had been convicted of murder? CLINTON, Judge, dissenting. A. I would want a lot more information. taking something You’re out of context obviously The Court is reluctant to hold and— jury’s evidence sufficient to Q. affirmative answer to What? Such as the second issue what? 37.071(b), V.A.C.C.P., under former Article Well, you’re pulling A. out of the air— nothing based on more than the facts of the Q. Okay. understandable, offense itself. That is A. —someone who’s been convicted of nothing therе is in the facts themselves so capital nothing murder. We know about shocking heinous or particular- as to evince a it, was, where it or what the circumstances ly “dangerous pro- aberration of character” were. dangerousness, bative of future such as we n n n n n n in, e.g., King found 631 S.W.2d 486 (Tex.Cr.App.1982) and Cass v. Q. never, sir, you, You have have testified (Tex.Cr.App.1984). S.W.2d 589 The Court any capital murder case in Texas that an opinion therefore resorts to psychi- individual would not commit future acts of atrist, Griffith, justify Dr. find- violence? ing of dangerousness future in this cause. Yes, A. I sir. have. Because I do not believe Griffith’s Then, Q. you opinion do have anything adds of substance to whatever in- people all capital convicted of murder ference dangerousness may of future be penalty? should receive the death gleaned themselves, respеct- from the facts I A. penalty? Should receive the death fully dissent. Q. Yes. testified, It is true that Griffith based on a hypothetical question A. No. formulated from the offense, ‍​​​​​​‌​​‌​‌​‌‌​​‌​‌‌‌​‌​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌‌​​​​‍facts of the instant Q. Okay. you Have ever in a testified would commit acts of violence that would case wherein individual has been con- society. constitute a threat to It conjunction rape victed of murder with a developed cross-examination, howev- that he would not be future threat er, that anyone Griffith believed that who society commit future acts of violence? committed murder in the course of sexual IA. don’t believe so. danger. assault would constitute future So, Q. you one area that are firm Griffith testified: in? “Q. Anyone capital convicted of Yes, A. sir. would, your opinion, commit future acts n n n n of violence. £ ¾: 14. We note that does not contend that that he would not have introduced but charge. mitigating he was forced to introduce particular rape, for that of a pat- in the course fits the Q. And an individual that process. due imprimatur violates psychiatric given, you have been would —I terns that have or would he not guess, would he not neces- does Eighth Amendment The engaged prior in crime? oper- Article 37.071 sarily that former dictate Might have. A. eligible class of death narrow the ate to Q. make difference That doesn’t defendants, extent since to some capital you way or another? one Code, 19.03, may already § Penal V.T.C.A. this, accomplish this. See it doesn’t. suffice A. a crime like Not with Lowenfield 108 S.Ct. Phelps, 484 U.S. then, basically your Q. Okay. bottom So (1988). Nevertheless, Leg- L.Ed.2d it analysis the crime itself is all line is that that former Arti- obviously intended islature your prediction? you to make takes 37.071, (b)(2), nar- § should serve some cle is, say- yes, what I started out A. This Legislature did Surely rowing function. ing.” prosecu- in a contemplate that the not attempt Dr. not to voir dire did aggravated in course of for murder tion 705(b). Griffith, Tex.R.CR.Evid., Rule under 19.03(a)(2), supra, § assault under sexual Thus, attempt not to determine what he did special invariably answer second should exactly murder in the course of it is about 37.- “yes.” render Article issue That would psychi- rape that lead a member of the would (b)(2) redundant, essentially which is § community automatically to conclude atric thing.” Heckert v. say, “a useless perpetrator will continue to commit that the Even if (Tex.Cr.App.1981). The trial court violent acts the future. to conclude psychiatric basis there were foundation to therefore had no immediate future will commit rapist-murderers that all testimony under Rule exclude Griffith’s beyond doubt— a reasonable acts of violence event, 705(c), supra. did not identify one—we would did not Griffith request it. meant Legislature presume want thing jury to do a useless capital suppose, willing I am because law answering through the motions may perceive going supposes, psychiatrist that a me the law accused, It seems to second issue. something in the conduct of an dis- danger- form, finding of future not sanction a hypothetical that from does closed to him murder in the every case of ousness perspective training experience it simply because assault likely course of sexual revealing as to whether the actor is of sexual assault. in the course was murder to constitute a threat of violence. thing only Estelle, was the real Yet that observation generally See Barefoot 3383, testimony added to Griffith’s of substance majority is And the facts of the case itself. challenge the ad- Because did not support for the to derive testimony rightly loathe missibility under Rule of Griffith’s special issue to the second 705(c), answer willing suppose it affirmative I would even be itself. facts of the case from the probative beyond value the ken of has some of fact to laymen, that it will “assist the trier reformed to re- judgment should be facts of the case are understand” how the penitentiary. life in the flect a sentence future of a likelihood of themselves indicative not, respectfully I majority does Because beyond a reasonable doubt. dangerousness dissent. Therefore, ordi- Rule 702. Tex.R.Cr.Evid., the ma- narily accept, grudgingly, I would

jority’s conclusion that Griffith’s evidentiary difference between

made all the jury’s affir- non-support of the

support and I the second issue.

mative answer to however, suggestion, accept Griffith’s

cannot appellant a future jury should find simply he committed

danger because

Case Details

Case Name: Flores v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 8, 1993

Citation: 871 S.W.2d 714

Docket Number: 71147

Court Abbreviation: Tex. Crim. App.