Fuller v. State

majority here that the district competent jurisdic- court was not a court of V, 4.05,

tion 8 and under Article Article § given by I majority for the reasons that it Article agree

further under

V, 12(b).3 §

Accordingly, judgment I concur

the Court.

McCORMICK, P.J., joins. FULLER, Appellant, Lee

Aaron

v. Texas, Appellee. STATE

No. 71046. Appeals Texas,

Court of Criminal

En Banc. 25,

March 1992.

Rehearing May Denied 1992. matter, power subject again general, personal, every once that not broad Demonstrated Dial, always particular judgment. Garcia law is inclusive nor free of enter statement of (Tex.Cr.App.1980); charging "presentment at 527-528 ambiguity. That [a jurisdiction 171 Tex.Cr.R. the court with Hultin invests instrument] Corbin, (1961); cause," id., 12(b), Tex. at 255 Morrow a basic § overlooks (1933); Cleve- jurisprudence, at 644-645 proposition and other in our Ward, S.W. jurisdictions: jurisdiction 116 Tex. 285 of a trial land (1926). law common well, depends on other elements as court viv Holder,

Floyd (court appointed), D. Jr. Lubbock, appellant. Smith, Lamesa,

Ricky Atty., B. Dist. Walt, (of Atty. Robert S. Asst. Gen. coun- sel), Austin, Huttash, Atty., Robert State’s for the State.

OPINION BENAVIDES, Judge. appeal capital

This is a direct in a murder evening in March ease. Late one of 1989 way apart- forced his into the Stephens, elderly ment of Loretta Lame- woman, money sa stole from her bedroom fists, slept, while she beat her with his pillow, raped suffocated her with a her Stephens’ dying body. placed He then automobile, corpse in the trunk of her own town, discarded the cadaver drove out highway, among tall near the some weeds depot the car at a and later abandoned bus offense, For this he was con- Lubbock. capital murder and sentenced to victed is automatic. Appeal death. to this Court fairly 37.071, 2(h), V.A.C.C.P.; complaint, and our case law is Tex. of his Art. § expert testi 40(b)(1). specific it comes to the when R.App.Proc. mony Grigson. Dr. I. on, a concise Early this Court established error, Appellant first In his complaints psychiatric response to about given by Dr. testimony James complains of dangerousness.” testimony on “future punishment phase of his Grigson at the statutory that “ev Looking to the direction psychiatrist Grigson, a well-known trial. any as to matter presented idence expert for the testifies as an who often sen deems relevant the court capital prosecutions, murder State Y.A.C.C.P., 37.071, simply tence[,]” Art. we permitted objection express over appellate complaints about held that “absolutely question, there is no view admissibility were not of such evidence doubt, whatsoever, [Appellant] ... no “[o]bviously well-founded [tri will commit future acts of violence court deemed relevant[.]” al] future, very represents serious Moore society he finds himself threat to later, however, year A Cr.App.1976). Appellant contends that such testimo in.” prepared require were process on the basis ny due of law violates also that testimony be relevant but “recognized the field in that it is not within giving qualified it as an psychiatrist be [Grigson] practices” he or because expert. v. 551 S.W.2d Battle “Grigson simply quali has no demonstrable (Tex.Cr.App.1977). Eventually, follow of a predicting dangerousness fication for cases, in ing and other we concluded these hypothetical individual[.]” sufficiently general “psychiatry ... argument, although pur it Appellant’s future permit predictions of advanced to ports admissibility Grig- of to attack the Grigson in behaviorf,]” and that Dr. violent testimony particular, actually im son’s particular qualified is “well to state pugns testimony psychiatrists of all regarding probability opinion [an predictive aptitude unrecogniz claim a who continuing soci threat to accused will] Psychiatric by ed the American Association ety.” v. 568 S.W.2d Chambers unsupported by empirical and data. Inso Nethery (Tex.Cr.App.1978). also See of the far as this claim touches concerns (Tex.Cr. 708-709 Constitution, however, it was United States App.1985).1 contrary position resolved to his Bare jurisprudence in this area has been Our Estelle, 880, 103 U.S. S.Ct. foot posi- consistently contrary not, 77 L.Ed.2d 1090 This Court is here, tion, we decline to reexamine and course, liberty that hold of to reexamine the issue is neither well principally because ing. in this cause presented by the trial record hand, the other if taken as a On appellate in the briefs. We joined nor well evidence, challenge under state rules concerning the express of course no view reliability Grig- Appellant’s attack on the argued here evidentiary rules not effect of testimony implicate aspects seems son’s yet not discussed by parties and 705(c), 702 and Texas Rules of Rules subject. this case law on Evidence, principles Criminal as well as point is over- Appellant’s first of error opinion usually attributed to the celebrated ruled. States, App.D.C. Frye v. United (D.C.Cir.1923), long and since 293 F. 1013 II. integral part adopted by this Court as error, Appel second jurisprudence. yet, And Texas criminal implying his that evidence lant maintains is far from clear about basis held, dissent, Indeed, even without Holland we have Grigson’s testimony objection expert Crim.App.1988). Dr. to a act.” this issue "would amount futile membership Ar- with intent to further those membership in or connection with the Aryan aims. Id. at 939-940. Whether the re- yan Brotherhood should not have been organization, Brotherhood is such an there- objection penalty at the ceived over his fore, determines the extent to which mem- claims, phase of trial. He first based main- bership protected in it is the First Lemon, ly on 728 F.2d United States Amendment. (D.C.Cir.1983), pe- not rights nalized for the exercise of secured to Appellant here The evidence of which him of the the First Amendment United mainly through the complains was adduced Constitution, rights particularly the States investigator Special for the of an Fur- of free and free association. belief Huntsville, Prison Prosecution Unit ther, he maintains that the evidence did maintaining job apparently whose includes not, case, prove actually him to be a gang activity information on inmate Brotherhood, Aryan member of the him, According prison system. Texas prosecution. was therefore irrelevant to the Aryan is a white su- Brotherhood [t]he group, type organiza- course, holding premacy neo-nazi acknowledge, of We tion, all individuals who are basi- may not white in Lemon that a heavier sentence They cally racists. ... are law-abid- consistently process due be assessed main function ing ... is their “for of first amendment exercise [Violence] you and fear ... If ... Intimidation rights.” Id. at 937. also Roberts v. violent, business, 552, 556, you care of States, are take United (1980). Indeed, well, you people control 1358, 1362, then can 63 L.Ed.2d 622 people you. will fear willing accept purposes are as present discussion that Lemon is sound view, enough testimony is In our interpre- a matter of federal constitutional under the rule an- support a conclusion tation, though the decisions of this even membership in the nounced in Lemon that questions are not Court on federal reviewa- right free Aryan Brotherhood is not a believe, in the D.C. Circuit. We do not ble protected by the First Amend- association however, membership Aryan in the that ment.2 under the stan- protected Brotherhood is at trial objected also But jurisdiction. dard effective in that cause, again appeal, and does so this concerning Aryan the people other that Free association with gang activity beliefs, including Brotherhood and other holding beliefs similar re prisons the Texas should not have been to which are themselves distasteful did not show Constitution, among rights the because the State certainly ceived is any actually a member But was by the First Amendment. be assured organization or that he subscribed illegal aims are such organizations with cause interprets Constitution, any The State neither is of their beliefs. protected by the not gang prison that is associated preparation opinion, United white racist of this the 2. After escape attempts drugs Supreme and violent reversed the conviction of States Court prisons, the murder of under similar circumstances and that advocates a Delaware man membership in the Ar- ad- evidence of his If credible and otherwise because yan fellow inmates. Brotherhood, orga- proof of that without effect had been evidence to that missible practices, had been received or presented, nization’s would have a much different aims penalty phase objection of his first- over at the case. — -, -, regard following degree Delaware, trial. We the murder U.S. Dawson opinion in that case from the Court’s In- statements L.Ed.2d 309 S.Ct. present stead, pertinent context. petitioner's as was there re- conviction the because, proof of the per absent some versed not erect a se Constitution does [T]he activities, illegal group's his mem- violent and concern- admission of evidence barrier to the bership material in it was not relevant sentenc- ing associations at one’s beliefs and course, proof sentencing. Similarly, of issue at ing simply and associa- because those beliefs practices not ulti- organization’s is violent protected by Amend- of an mately the First tions are sentencing specific of a hearing, relevant to the penalty the ment.... Before proof individual’s of that expert individual without prosecution its witness claimed that organization. membership in the Aryan Brotherhood is a would show that the indeed, Q you anything about— and, Did he tell relevancy objection it this as a defendant, you himself, did he tell relevancy com- the look of a conditional has group? of that anything about the beliefs plaint. But it is now clear that evidence merely excluded because its should time, I I re- A He—At one think—if may depend upon production relevance might have correctly, he—we member point in the of additional evidence at a later talking along that line. There been strength is probative or its trial nothing really concrete. wasn’t prove significant alone insufficient Q what he told you Do remember This is because Texas Rule of Crimi- fact. you? 104(b) provides that: nal Evidence well, let’s A Just about where the— relevancy depends of evidence When exactly. Not see. upon the fulfillment of condition telling Q you recall him What do fact, upon, the court shall admit it you? to, subject the introduction of evidence Well, telling I him A from what recall finding support sufficient me, less, just, more or that whenever fulfillment of the condition. that, know, you people he—he had specifically The trial court followed group, he wasn’t worried. You when, appellant’s rule confronted with rele- know, people that he had to take care of vancy objection, making he stated in him there. The rest of it that I’ve hard ruling, expect prosecuting “I him at- [the particular organization, about that [sic] course, prove things up torney], of those somebody else. I’ve also heard it from it, pending I fact will overrule [and] Q somebody you, Not else told what prove up.” Clearly, he does you it? but what did he tell about parties develop must allowed to their said, I just A like I for him. Just step cases one at a time. know, exactly, you really can’t remember Still, cause, in the instant evi- just saying I’m that I had how it went. dence offered to show connec- And, group before. head about [sic] prison gangs report tion with talking, some of possibly, while we were Daniel, one James whose inarticulate and things I remembered from another rambling testimony impossible is almost it, guy had about it was the talked decipher. reproduce parts We here all thing, group. the same same testimony attempted in which the State Q you any of the Did tell about Appellant’s affiliation establish with group? or doctrines of that beliefs Aryan begins Brotherhood. It when Dan- might brought upit A I think he Appellant iels asked had was whether once, I—but anything being “ever ... about a sa[id] Q that? What was any prison gangs.” Daniels member ques- I Okay. A Before answer that replied: tion, say say I can’t going I’m recall, A As near as I can has —this say exactly what he did and what—and quite quite been a bit back. As near a— talking my was in recollection from what recall, as I can he—Let’s see. I don’t I other man that was in it. Like words, anything. the exact or remember say, a I don’t remem- it has been while. talking I remember one time he was exactly. ber of—it was one of—I about the—some Q gist of the conversa- What was the guess groups prison. in it was one of tion? Q the name of it? What was Now, get I wouldn’t THE COURT: going say I not Again, A I am am trying say that he can’t in on—He is sure, exactly. I don’t remember it Defen- whether was the remember something Aryan, like I think it was telling someone else him this. dant or

something like that. Daniels, you Q Mr. do recall what you about it? Aaron Fuller told

[Objections omitted] testimony legally [Prosecuting Attorney], A Mr. Because this was inade- Smith say exactly say. quate Appellant Aryan I can’t what he did Like to connect with the say, prior experience any meaningful way, proof I I’ve had Brotherhood prison, organization’s man that was in and he talked in the abstract of be- sure, I thing. about the same can’t be ultimately liefs and activities was irrele- just coming saying out and Aaron said punishment phase issue at the vant this. I can’t do that. of his trial. Without other evidence suffi- finding cient for a rational contention, citing is the State’s It actually organiza- of such was a member Montgomery v. canon of tion or that he subscribed its Cr.App.1990) (opinion original on submis violence, question did not sion), testimony “provides, at the that this probability that he would be increase the least, very nudge” proving toward “small Accordingly, in the future. all evi- violent consequence” a fact of and that illegal gang activity prison dence about was, therefore, “obligated to demonstrate vulnerable to a motion to strike at the was prejudicial impact below case, if of the State’s even it conclusion substantially outweighed pro its evidence relevancy grounds objectionable not p. Appellee, value.” Brief of bative when offered. Huddleston v. United teaching of Certainly, the essential Mont States, 485 U.S. rehearing, after is that all gomery, even (1988); Wright 21 C. & K. L.Ed.2d 771 evidence, including marginally relevant Graham, Federal Practice and Procedure probative, should admitted unless the Goode, (1977); 33 S. O. pp. 269-270 § potential for plainly record reveals that its Sharlot, M. Texas Practice: Wellborn & prejudice greater is than its unfair much Evidence: to the Texas Rules Guide Accordingly, probative value. evidence 104.2, p. 24. and Criminal Civil § policy grounds may properly excludable on relevancy objection if it be received over must, therefore, decide whether We all, any tendency potentially, to has even objections comprised, in Appellant’s trial consequence make a fact of more or less aggregate, a sufficient motion to strike likely the evi than it would be without Unquestionably, the evidence. basis 104(b), 401. dence. See Tex.R.Crim.Evid. ultimately proved meritori objection for his Yet, he artic every instance which ous. if, proof question after all on the has But clear that it came well before was ulated received, the evidence does not in the been produce no further evi the State would support finding that aggregate a rational membership in dence to show true, consequence matter of such Thus, spite Aryan Brotherhood. pass factfinder should not allowed to exclude the clearly expressed desire to facts, upon it. the case of ultimate evidence, by rules of are constrained summary judgment or an in- means that Appellant forfeited procedure to hold that against given should structed verdict be by his failure right appellate of review the proof. In the party with the burden of after the close that it stricken to move facts, evidentiary it means that case of of the State’s evidence. granted to with- motion to strike should be from consideration. See draw the evidence some, to The rule seem harsh 103(a)(1). Tex.R.Crim.Evid. adju feature of our but it is a fundamental Simply put, judge a trial dicatory system. present context that is clear in the It overruling in most cases if relevant cannot err testimony, even James Daniels’s long the chal objection so as relevancy Appellant’s of member- upon question up” Brotherhood, might “connected lenged evidence woeful- ship Aryan was case trial. In the instant sug- the end of prove At it before ly it. best insufficient ruling correct when court’s was Appellant the trial only weakly, that gests, and then challengeable when made and became organization conver- mentioned that once had close of the case a connection sation, might expected that he judge’s it is not the made. And prison. not been protection him while to furnish

199 Trial, 51, 90 Digest, Key Numbers is even cennial duty to notice whether the evidence Instead, (West).3 up” in tually “connected fact. relevancy party reurge his objecting must Appellant’s trial interpret Were we in, complaint proof after all the ask that sufficient motion to strike objection as a stricken, offending and re evidence be context, directly frus- present we would to dis quest jury be instructed viewing question this rule. Even trate Otherwise, regard objection it. will be posi- Appellant’s in a manner favorable Archer v. See appeal. forfeited on deemed tion, from the record that probable it seems 584, 170 733 145 Tex.Crim. S.W.2d relevancy each the trial overruled Boening v. (1943). 422 S.W.2d Cf. thought actually he objection, not because (Tex.Crim.App.1967); Hinton v. 469, 473 time, at that the evidence to be relevant 352, 670, 129 137 Tex.Crim. give he the State its but because wanted Accord (1939) rehearing). (opinion 675 opportunity prove full Dougherty, 895 F.2d 399, United States v. was, indeed, Aryan Broth- a member of the United v. 403, (7th Cir.1990); States 404 rules, our he cannot be erhood. Under Gilbreath, 445 F.2d 810, (10th Cir. doing so. faulted for 1971) curiam); Pugh v. State Farm (per Appellant’s point of error is over- second Co., Casualty 629, Fire & 474 631 So.2d ruled.4 Redslob, 433 N.E.2d (Ala.1985); Redslob v. Transp. (Ind.App.1982); Dept.

819, 822 III. Inc., 137 Enterprises, v. Great Southern error, 710, 80, point (Ga.App. 225 84 In his third Ga.App. S.E.2d v. Harvester 1976); White Ault International complains that veniremember Jonnie Co., 818, 113, 812, erroneously jury excluded from service Cal.Rptr. 13 117 Cal.3d 1148, (Cal.1974); State ex for cause on account objections of her 528 P.2d 1154 Heim, Witherspoon Highway rel. State Comm. v. See penalty. 483 the death Illinois, 510, 1770, (Mo.App.1972); Wilborg 410, 20 414 391 U.S. 88 S.Ct. Texas, Denzell, 855, (1968); Adams 448 359 Mass. 268 N.E.2d L.Ed.2d 776 Shirley (1971); State Gunther & 100 S.Ct. 65 L.Ed.2d U.S. Co., Witt, Wainwright v. (Ariz. (1980); Ariz.App. 423 P.2d Necessity Anno., generally App.1967). 83 L.Ed.2d 841 Sufficiency Objection Renewal particular, contends that she was im he to, of, or Evidence Admitted or Ex challenged unwilling to properly because Offer Conditionally, cluded capital punishment except for se 88 A.L.R.2d consider (1963); ed., McCormick Cleary, rial murderers. The State contends Edward W. on Evidence (3rd 1984); regard in this evinces a “bias position ed. 35 Tex. her § (1984); against phase of the law Jur.3d Evidence prejudice 24 Tex. a[] §§ rely for Law (1982); upon De is entitled to Criminal Jur.3d State § course, is, only logical exception much in the law of waiver 3. The to this rule is where There evidence, offered, yet irrelevant at the time will ad- that this Court has not and forfeiture necessarily regardless remain irrelevant way. systematic But we did not in a dressed subsequent during Plainly, trial. that is events say appellate court is mean to in Tallant that an not the case here. holding points prohibited of error from procedurally whenever defaulted at trial were Judge reverse convic- Baird would reply appellee in his fails to claim as much ques- tion on this believes Rather, appeal it has been the on direct brief. procedural default to have aban- tion of been practice Court and of the inter- of this common by Quoting State. from Tallant v. doned appellate courts in Texas to examine mediate 292, State, (Tex.Crim.App.1987), 742 S.W.2d 294 error, affecting preservation matters he observes that "the State must call to the argued by parties not. separately whether appeals orderly the court of attention of timely might appeals in Tallant have That the court of alleged not fashion that error was by failing simply a argues do so was not preserved." erred to He then that the State’s fail- procedural reply question properly a to before this Court on discre- ure to claim default in Appellant’s brief in this case disables this court tionary that case. review in deciding question. from 200 35.16(b) punishment.” prejudiced against Any prospec-

conviction or Art. law. 3., V.A.C.C.P. juror to consider the maximum tive unable penalty legally eligi- for allowed law all Although veniremember White just way ble candidates is biased in such a might was never asked whether her views and, therefore, subject challenge to for ability her hon substantially interfere with cause. estly special punishment to answer law, questions prescribed by this Court no person does mean that a This not longer requires specific inquiry on that merely unqualified jury for service be subject prerequisite as a to the exclusion of imposition of sanc cause he resists severe prejudice prospective juror for bias or except special under circumstances. tions against penalty. the death See Farris v. example, repetition of For violent crime State, (Tex.Cr.App.1991). 811 S.W.2d 577 tending prove and other factors incorri contrary, particularly to the Cases Hernan gibility, although expressly prescribed not State, (Tex.Cr.App. 744 dez v. 757 S.W.2d law, punishment 1988) are, therefore, as criteria are common expressly overruled. ly urged legitimate assessing as bases for quali precedents Our teach that punishment re more severe and are even prospective jurors willing fied must be upon by capital lied cases as Court range punishment appli consider the full grounds holding the sufficient for evidence for their cable offense submitted prove continuing society. threat State, E.g., Pyles consideration. 755 338, State, E.g., 786 355- Crane v. S.W.2d 98, (Tex.Crim.App.1988); S.W.2d 103 Neth State, (Tex.Crim.App.1990); 356 Baldree v. State, ery v. 692 S.W.2d 691-692 (Tex.Crim.App. S.W.2d State, Crim.App.1985); Barrow 1989); State, 162, 167 776 S.W.2d Valdez (Tex.Crim.App.1985). S.W.2d (Tex.Crim.App.1989); Felder v. able, sense, They must in a be conceive (Tex.Crim.App.1988). That of a situation in the minimum both values, shares such or oth veniremember penalty appropriate and of a situ would be kind, cannot, therefore, ers of similar law penalty ation in which maximum would appropriate. fully be made a basis for his exclusion be these cases is prospective jurors may not that chal jury be from service.

lenged they for cause whenever other than those But factors

strong personal feelings the criteria about prescribed by not made abso law must assessing punishment. to be used in any imposition of prerequisites lute personal may But standards including penalty. punishment, the death statutory pun supplant not be allowed to 207, 211 See Drew v. Landry ishment classifications. (Tex.Cr.App.1987). our law does Because (Tex.Crim.App.1985). categorically capital punish not reserve eligible penal Those who are for the death ment for those who have murdered must, therefore, ty eligi also under law before, jurors in a neither individual penalty under standards ble for the death course, capital They may, of murder case. assessing actually applied by jurors prior criminal his hold that the absence punishment. Cumbo v. tory strongly against the death militates (Tex.Crim.App.1988). At least for penalty. They may even find it difficult trial, purposes jurors this means that punishment imagine answering the second willing principles must be to set their own convincing affirmatively issue without aside to the extent of conflict with violence, proof past regardless of other requirements of the Lockhart v. law. they may But circumstances the case. 162, 176, McCree, 476 U.S. 106 S.Ct. refuse, hearing wholly any evi before (1986); Dowd, 90 L.Ed.2d 137 Irvin v. whatsoever, dence to consider an accused 717, 723, 1639, 1642, 6 Otherwise, penalty unless he has been (1961). for the death they L.Ed.2d 751 are precedents to biased or convicted of murder before. deemed our

201 cause, 38.23(a), just article because “ob- In the instant Ms. White did Procedure in of during three different occasions tained ... violation of the ... laws that. On reply, In parties, her examination she the State of the State brief Texas[.]” seizure, impose legality defend but averred that she could not vote to does not Appellant standing has no the ultimate sanction on a first-time offend- contends that Although possible agree. er. it is that she meant contest it. We reluctance, only express and not abso- standing general, In is a constitu matter, rejection, party lute in this neither requirement justiciability, of the basic ent explore took the time to her views with a controversy ap posture in which a must precision sufficient to resolve the ambi- pear cognizable by the courts. Other guity. ample The record thus contains evi- justiciability include the rule features of might judge dence from which the trial against litigation questions. of moot rationally have inferred that Ms. White also Tex.Jur.3d Actions See § against way the law in a biased (Tex. Chacon v. substantially impair perform- would her judicial action is im Crim.App.1988). That juror. ance as a Under such circum- proper to the resolution of unless essential stances, judge we hold that the trial did not controversy currently an actual case or excusing err Ms. White for cause on the thought, system, in the federal at least State’s motion. magnitude, be a matter of constitutional point third of error is over- separation powers in arising from the of ruled. Scalia, government. The Doctrine Standing Element as an Essential IV. Powers, Separation 17 Suffolk U.L.Rev. Fletcher, four, (1983). In of error But see The Struc contends Standing, that the trial erred to re ture 98 Yale L.J. sexually explicit reckoning, ceive in By evidence audio courts lack the tape recording. Although recording questions authority to answer abstract appellate litigation by persons itself has not been included the law or to entertain record, gather injury, from the that who have not suffered actionable by Appellant it was made while a detainee since resolution of such matters is more Jail, County appropriate political Dawson where male and to the branches of apparently kept government. female inmates are in close enough proximity speak with one anoth Texas, standing the law of has been prisoner er. Enamored of fellow Brenda juris developed mainly in the courts of civil Hall, Appellant evidently made a voice re There, diction. is a fundamental rule “[i]t cording for her in which he described only person primary of law that whose bed, “what he could to to her in do and legal right has been breached seek bed, him in what she could do to and all Marcus, injury.” redress for an Nobles v. played tape that.” He then back loud (Tex.1976). Conse ly, in to the intense irritation of some “[sjtanding inter quently, consists of some mates, eventually delivered it to Ms. individually peculiar person est detainee, female no Hall. But another general public.” not as a member of variety, tape of the irritated stole the doubt Bass, 664 Hunt v. jail it from Brenda and turned over 1984). person to maintain a court “For a thence, migrated authorities. From to action, [therefore,] that he he must show trial, penalty phase of this where it was subject mat justiciable has a interest ostensibly by the to show offered State litigation, right either in his own ter Appellant’s lack of “remorse.” representative capacity.” Housing Au challenge appeal Velasquez, ex thority does not v. State rel. evidence, relevancy although (Tex.Civ.App. Corpus of this — n.r.e.). Instead, at trial. he claims that Christi writ ref’d See also did so Galveston, objectional Develo-cepts, City it was under Code of Criminal Inc. v. 202 (Tex.App. explicit S.W.2d 790 without a rather more indication of [14th — Houston 1984). legislative “One has not suffered intent. who

Dist.] legal right an invasion of a does not have injury suffered justiciable The as a direct Sherry Lane Nat. standing bring to suit.” illegality and immediate result of the Evergreen, Bank v. Bank 715 S.W.2d Appellant complains here was not his 148, 1986, (Tex.App. 152 writ ref d — Dallas illegality, any, The if own. was theft or n.r.e.). victim, any, if Brenda conversion. The was appeared Kindred rules have also may cognizable Hall. Brenda Hall context, usually criminal as a result of against cause of action for conversion Thus, litigation. search-and-seizure when may someone. The State of Texas have a 38.23(a) predecessor the of article first was prosecute someone for the criminal basis to 1925, enacted in contentions identical to against offense committed Brenda Hall. presented urged those here were soon af sue, may But no one nor the State of And, early opinions, ter. in a series of this prosecute, anyone injury for an Texas all, rejected holding Court them arising illegality “[t]he from the right complain illegal because of an complains, which he now since he about privilege personal search and seizure is a injury suffered no actionable under our law wronged injured party, and is not wrong as a result of it. No actionable State, anyone available to else.” upon Appellant as a result of the visited Craft 130, (1927), 107 Tex.Crim.R. 295 S.W. 617 he is seizure. For this reason we hold that Seizure, quoting Cornelius on Search and challenge standing also such without State, 12, 62; Allman v. p. 107 Tex. prose- § of a criminal illegality the context (1927); Jenkins Crim.R. 296 580 S.W. cution, early reaffirm our cases to we State, 108 299 642 Tex.Crim.R. S.W. effect. such position in respect Our has point fourth of error over- generally unchanged remained over the ruled. State, e.g., Phariss v. years. 137 Tex. (1939) (opinion Crim.R. 131 965 S.W.2d State, Paige v. rehearing);

on 161 Tex. Y. (1955); Ru Crim.R. 279 S.W.2d 344 five, In of error State, bens v. 166 Tex.Crim.R. giv inculpatory statements maintains that (1958); Holcomb v. by police custody him were en while (1962); Tex.Crim.R. 356 S.W.2d 932 illegality of his arrest tainted Schepps v. should, therefore, suppressed by have been Crim.App.1968) (opinion original submis all, judge. it seems he made the trial State, sion); police, cul separate five declarations to Willeford (Tex.Crim.App.1970); Kay v. version, videotaped minating finally Janecka (Tex.Crim.App.1973); S.W.2d 861 actually offered in evidence at one (Tex.Crim. leading to the trial. Relevant events App.1987). making recording developed were of this suppression hearing held outside past, interpret do not As we jury’s presence. 38.23(a) sweeping language of article disappearance standing investigation into the party upon confer automatic third crimes, signifi- Stephens produced no persons such that of Loretta all accused police a “crime receipt leads until the received they may complain about cant found tip line” that her car could be evidence which was obtained violation of others, Lubbock, on the road body remote her somewhere rights of no matter how Lubbock, Appel- Although and that ar from Lamesa in interest from themselves. something disappear- her way, about might read in such a lant “knew ticle 38.23 information, investi- interpre Acting on this simply unwilling, by statutory ance.” are and then went tation, change gators first located the car a fundamental to work such standing looking Appellant. elemental law of in this State’s County in the Dawson Jail await days him several later at the tained They found capital murder. indictment and trial for But, placing house of a friend. instead of custody, simply him in the officers in- Meanwhile, produced more he had two they conducting formed him that were handwriting. in his own statements investigation criminal and would like to burglarizing, he admitted to both versions Appellant, speak with him at the station. killing robbing, raping, and the deceased. although nervous at first because one of later, Then, parole a week officer about right informed him of his the officers brought from paid him a As he was visit. lawyer present and to remain silent have room, Appellant an interview his cell to agreed to during questioning, nevertheless yet to make announced that he wanted accompany them to the Sheriff’s Office be- concerning his murder another statement they cause he told that did not intend So, was parole Stephens. of Loretta after him that to arrest time. left, brought Appellant officer was down and, past, as in the interrogation an room station, however, Upon Ap- arrival at the out his own narrative. left alone to write pellant was notified that the officers sus- deputies one of It then occurred to him pected disappear- of involvement might more effective if the statement Stephens. ance of Loretta He denied the Appellant videotape. by read aloud on offered to for his accusation and account made, suggestion was When the during times whereabouts relevant agreed, record- readily and an audio-video investigation. being rights After read his ing taken of his final confession. was then again, separate he was then left in a room statement, admissibility of this last It is the a statement his own hand. write videotape, on which he now chal- recorded time, investigators managed In the mean lenges appeal. person to locate a who claimed to have Appellant’s judge The trial found video ridden with car deceased’s “freely taped to have been made confession days several earlier and to witnessed voluntarily[,]” findings no and but made jettison body him a human the road beside concerning legality of his arrest or the way Consequently, on their to Lubbock. inculpatory of his extent to which Appellant emerged when from the room might statements have been obtained entirely exculpatory with an statement conduct, exploitation illegal police even during question, his activities the times in voluntariness though the law is clear that lying one of the him officers accused does not alone render ad of a confession implicated and revealed that his friend had inculpatory statement obtained missible an apparent him in an murder. viola by means of a Fourth Amendment Alabama, Taylor tion. point, Appellant At this moved to was (1982); 2664, 73 L.Ed.2d 314 Dun 102 S.Ct. opportunity tears and asked for the York, 99 S.Ct. away v. New U.S. another, write revised statement. He was (1979); Illi 60 L.Ed.2d 824 Brown v. private returned to the he room from which nois, U.S. come, just again had warned of his consti- Appellant’s Because L.Ed.2d 416 rights, compose tutional and left to another objection apprise sufficient to trial was night on the account of his activities complaint, judge of his Fourth Amendment question. occupied, so While was specific find in the absence of we assume Stephens’ body search for Loretta contin- ings complaint was also resolved that such ued, eventually and succeeded with the judge ultimately adversely him when the travelling com- help Appellant’s former challenged evidence concluded that panion, A was turned accuser. warrant should be admitted. arrest, and he then issued for Appellant’s tainted- magistrate premise The initial promptly was taken before a 15.17, under arrest claim is that he was arraignment. Art. evidence accompanied law the time he first permit- After that he was not fact at V.A.C.C.P. station, officers to the custody, de- enforcement ted to leave official cause, Having that his done so in the instant arrest was unlawful because implied officers lacked both an arrest warrant and conclusion can find no fault with probable evidence, cause at that time to believe he of the trial that the mea Surprisingly, had committed an offense. criteria, sured these militates favor opted join the State has not to issue on this Indeed, it so admissibility. we think does See, State, question. e.g., Melton v. 790 strongly. undisputed, It is for ex rather 322, (Tex.Crim.App.1990); S.W.2d 323-325 ample, that received both verbal State, 772, Dancy v. 728 S.W.2d 778 warning right and written of his to remain State, Crim.App.1987); v. 732 Shiflet every inculpatory silent at least once (Tex.Crim.App.1985). S.W.2d 622 Accord Moreover, by made him. statement so, obliged ingly, although plainly to do against statement admitted him at tri willing purposes are to assume for we suggestion nearly al was taken at his own something analysis that there was constitu allegedly illegal his arrest. a week after deputies tionally way illicit about the lured And, although apparent there it is not Appellant to the Sheriffs Office. The is intervening any spe were circumstances appeal into sue on thus devolves whether interval, during there importance cial Appellant’s videotaped confession was nothing suggest police that the is also by exploitation illegality “come at of that engaged any specifically practic coercive sufficiently distin or instead means Thus, Appellant’s es to elicit statements. guishable purged primary to be all, if their conduct was unlawful at its States, 371 Wong taint.” Sun v. United purpose to follow a evident at least was 471, 488, 407, 417, 83 S.Ct. 9 L.Ed.2d U.S. lead, significant investigative not to circum (1963), Maguire, 441 quoting Evidence of law, appears vent constitutional and (1959). also, Nardone v. Guilt professional they reasonably did so in a States, 338, 341, United manner, flagrantly abusing their without 266, 267, 84 L.Ed. 307 kind, of this authority. official On a record law, implement Our own decisional both judge simply say cannot that the trial we construing ing the federal constitution and erred as a matter of law to receive cognate requirements of Texas constitu State, 758 Little v. S.W.2d evidence. See law, statutory and counsels a search tional 551, (Tex.Crim.App.1988); v. 565-567 Self ing re review of the record for evidence 662, (Tex.Crim. State, 709 664-665 S.W.2d vealing illegality was whether the taint of App.1986). dissipated challenged before the evidence analysis, Appellant’s only In the final State, was obtained. Comer v. 776 S.W.2d argument of the video- real for exclusion 191, (Tex.Crim.App.1989); 196-197 Bell v. realistically tape that he could not (Tex.Crim. State, 780, 724 S.W.2d 787-788 police expected to resist efforts been State, App.1986); 667 S.W.2d Sweeten him confessions from after to obtain more 779, (Tex.Crim.App.1984). 781-782 But see illegal his arrest they already exploited had State, 358-359 Beasley v. 728 S.W.2d This “cat-out-of- procure the first one. (McCormick, J., (Tex.Crim.App.1987) dis spite superfi- of its the-bag” argument, senting). Conforming Supreme Court recently rejected by plausibility, cial suggestion, customarily examine such of some- under circumstances the Court to four factors: evidence for its relevance Appellant can greater merit than what “(1) received whether or not accused State, 765 S.W.2d here. boast (2) warnings; temporal prox Miranda Griffin any (Tex.Crim.App.1989). In 430-431 confession; (3) the imity of the arrest and event, dif- there is a considerable we think circumstances; intervening presence of succumbing to later de- ference between (4) flagrancy the official purpose and vol- information and mands for additional State, 753 Maixner v. misconduct.” in- unteering that information without (Tex.Crim.App.1988). See mat- As a factual whatsoever. State, ducement 677 S.W.2d also Foster in this least, Appellant’s posture ter, at (Tex.Crim.App.1984); Gregg v. his argument to the is ill-suited (Tex.Crim.App.1984). case precip Barnhill v. 657 S.W.2d confession was somehow ultimate (Tex.Crim.App.1983). by the fact of his earlier statements. itated Gentry v. 788- Cf. in this clear from the record Because it is Wicker (Tex.Crim.App.1988); placed under Appellant was both case that (Tex.Crim.App. an offense before charged arrest 1984). We therefore remain convinced confession, he is making videotaped necessarily a rational trial would not right insist that an effective probably taint, earlier any, to find the if of such err Amend- of counsel under Sixth waiver dissipated under these con statements well admissibility of ment was essential ditions. But, given the ensuing statements. statements conditions under which those point of error is over- fifth made, in fact it is evident he knew were ruled. request remain silent or that he could attorney any time. And of an assistance VI. suggesting that his there is no evidence six, point In of error con another statement decision to volunteer videotaped tends that his confession was Burbine, v. Moran 475 was coerced. Cf. he had not made also inadmissible because 1135, 412, 422-423, 106 S.Ct. 1141- U.S. Amend waiver of his Sixth effective (1986). 1142, Accordingly, 410 89 L.Ed.2d giving it. right ment to counsel before We apparent his desire to we do not doubt that disagree. was, indeed, forego counsel tantamount relinquishment intentional or abandon- “an right Amendment Sixth John- right privilege.” ment of a known automatically counsel becomes effective at Zerbst, 304 U.S. 458, 464, son v. 58 S.Ct. adversary judicial inception criminal (1938). 1019, 1023, L.Ed. 1461 82 proceedings implemented by must Moreover, he, undisputed that not every stage the State at critical of those it is police, the conversation which proceedings, specific request, even absent a initiated videotaped intelligently eventually to his confession unless the accused and volun led subsequently ask to tarily yields prerogative to the and that he did not assist Michigan v. Brewer v. attorney. lawyer. a See ance of an consult with Cf. 1404, Williams, Jackson, 625, 636, 387, 1232, 430 U.S. 51 475 U.S. 106 S.Ct. 97 S.Ct. Cochran, Holloway v. 1411, (1986); Carnley (1977); 631 L.Ed.2d 424 89 L.Ed.2d State, (Tex.Crim. 506, 884, 787, 795-796 369 U.S. 82 S.Ct. 8 L.Ed.2d 70 780 S.W.2d circumstances, (1962). be adversary proceedings App.1989). Under these Whether for a conclusion begun purposes for of this rule is not cause the evidence suffices have man repeatedly entirely question, a constitutional but that he was warned Arizona, 384 v. ner decreed Miranda v. local law. See Moore largely by a matter 1602, Illinois, 220, 228, 458, 436, L.Ed.2d 694 86 S.Ct. 16 434 U.S. 98 S.Ct. U.S. Texas, (1966), a (1977). expressly he affirmed L.Ed.2d 424 In a and that 54 protections described variously to waive the prosecution criminal considered desire including right to have warnings, progress after the accused has those to be during any questioning, present formally arrested and taken before counsel been adequate basis in the record indicted or there is an magistrate, or when he has been was constitu a conclusion that waiver charged by complaint and information with State, only under DeBlanc v. tionally acceptable, not a criminal offense. Amendment, but for Sixth Amend (Tex.Crim.App.1990); Fifth v. Illi as well. Patterson (Tex. purposes ment Lucas v. 44-45 S.W.2d nois, McCambridge Crim.App.1989); perceive We therefore L.Ed.2d 261 (Tex.Crim.App.1989); him alleged by kind transgression no of the

Janecka secured manner which the State Crim.App.1987); Nehman videotaped confession. (Tex.Crim.App.1986); his point cause, sixth of error is over- In the instant it seems clear enough disputed photographs ruled. that the do “tendency to make the existence consequence fact that is of to the deter- a[ ] VII. probable mination of the action more ... seven, than it would without the of error evidence.” Certainly, Tex.R.Crim.Evid. 401. the State complains that the trial erred to re required prove not that a death ceive in objection evidence over his three occurred, accomplished also that it was but which, photographs color of the deceased alleged, by beating in the manner claims, impassioned jury without photo- victim’s face and head. Because the furnishing anything significant proba graphs question clearly helped supply photographs tive value. Each of these de proof, they undoubtedly such were relevant picts discovery the murder victim after her prosecution. morgue. and transfer From our hand, copies examination of the equally monochromatic On the other it is sure that record, case appellate included in this it seems State’s would have been ren- significantly persuasive by dered less ex- pictures question primarily to us that the pictures. Ample testimony clusion of the face, injuries show head and victim’s was adduced to establish the cause of alleged which of her death. were the cause produced the death and to describe effect however, photo, One also includes an unfo upon body by the deceased’s the terrible torso, Ap cussed view of her naked which Indeed, beating she suffered. these mat- pellant especially asserts was inflammato all, disputed ters not and it seems were ry- unlikely jurors than a little more rules, judges Under our trial are autho would have harbored doubts about the rized to exclude evidence even relevant pictures ques- cause of death the in absent when, reasons, among probative other “its whole, In of the trial as a tion. context substantially outweighed by value is the therefore, probative value this evi- danger prejudice[.]” of unfair Tex.R.Crim. State, great. Morgan dence was not v. Evid. 403. Recent case law makes this (Tex.Crim.App.1985). 692 S.W.2d 877 requirement. authorization a Montgomery receipt persuaded But are not we (Tex.Crim. pictures likely jurors in influenced the App.1990) (opinion rehearing). Accord on an this cause to decide essential issues ingly, opponent when the of evidence satis impermissible photographs The basis. factorily probative demonstrates that its not, complains which here are danger value is far less than the of unfair estimation, horrifying appalling so our prejudice poses, objects it and he to its juror sensitivity that a of normal would basis, receipt judge on this the trial must rationally necessarily difficulty encounter In making not admit it. Id. the determi deciding critical issues of this case af judge nation the trial should consider the viewing them. ter See James tendency inherent that some evidence (Tex.Cr.App.1989), 98-99 vacat S.W.2d encourage have to resolution of material 493 U.S. grounds ed on other inappropriate issues on an basis and should (1989); 225, 107 L.Ed.2d 178 Purtell S.Ct. carefully against it the host of balance State, 761 370-371 S.W.2d probativeness, including affecting factors Crim.App.1988); Jackson weight of the evidence and the relative (Tex.Crim.App.1988). We be might degree proponent respect its to which this to be so not lieve disadvantaged it. Id. at 389-390. physical injuries represented, without but also depicted rules recently regards nudity held that these incidental We have as purposes Although for the lat supplant photographs. former case law one of the photo impression that the de admitting allegedly inflammatory does leave an ter waist, her it does ceased is naked above graphs. Long v. grossly indecent or vul otherwise seem so (Tex.Crim.App.1991). (1991); ¶¶1803(8)[03]-803(8)[05] Gregory gar injuries attention from the as divert Stephen Saltzburg, clearly principal Joseph Ac P. & A. Evi- are its focus. which in America: The Federal Rules in cordingly, questioned pho hold that the dence 58.3, (1987). pp. 52-56 tographs present potential do not States § clearly outweighs as prejudice unfair which gist Appellant’s Evidently, the real probative a matter of law their value. eighth is that United States Con- trial did not err to receive them requires deputy’s admission of the stitution evidence. report for the truth matters asserted therein, though even the Rules make point of error seventh objectionable, because it was essential to overruled. theory. plausibility of his defensive Certainly, charged one with a crime has the VIII. right to defend himself. The constitutional jail awaiting tri While confined compulsory process assurance obtain al, Appellant had a number of conversa witnesses, favorable contained the Sixth tions with a cohort were overheard which applicable Amendment and to the states case, and, by other inmates in at least one Fourteenth, through key is a source conversations, by jailer. Appel these guarantor right. and firm of that Wash- occasionally spoke in as lant such a manner Texas, ington v. he murder imply did not commit the Four- 18 L.Ed.2d 1019 So is the Stephens of Loretta himself but that itself, prohibits teenth Amendment agreed accept responsibili had the entire depriving from an accused of his State ty anyway. report for it A written to this process liberty life or without due of law. prepared by deputy effect was sheriff tenets, parts Extrapolated who had overheard of one such con from these basic honest, intellectually theoretically versation herself and to additional whom albeit unstable, parts by argument had been related other detainees. can be made for Appellant sought proposition When to elicit that the States Constitu- United deputy concerning trumps from the contents of tion local rules of evidence whenev- report, interposed hearsay “fundamentally the State er it unfair” to would be objection, example, apply which was sustained. them. For we know rights directly affect- “where constitutional eighth point error, In of guilt implicat- are ing the ascertainment of report seems to maintain that the ad- ed, applied hearsay rule not be exception hearsay missible as an under jus- mechanistically defeat the ends of Evidence, Texas Rules of Criminal Mississippi, 410 U.S. tice.” Chambers 803(8)(B) 803(8)(C). But he offers no and 1038, 1049, 284, 302, 93 35 L.Ed.2d S.Ct. explanation why the written statement of a (1973). 442 Georgia, See also Green sheriff, deputy undoubtedly is a law who 99 S.Ct. 60 L.Ed.2d U.S. officer, ought enforcement to be received (1979). Appellant claims that the rules expressly excludes under rule which case, to ex- in this when construed work by police “matters officers and observed evidence, precisely do that. clude his personnel[.]” Rule other law enforcement 803(8)(B). Similarly, problem with a contention suggests no tena- worst it is difficult to evaluate. interpretation of the rules which could this kind is that ble hardship Every re- rule of evidence works easily accommodate the unembellished time, part of the and it is eavesdropper litigants status of a some port of an the frustration of finding[ resulting easy sympathize with “factual from an inves- ] strategy promising party most tigation pursuant authority grant- any whose made law. 803(8)(C). objectionable under the general- turns out to be ed Rule law[.]” every liberty to relieve Margaret A. But are not at ly Jack B. Weinstein & we sus an ad hoc disappointment such Berger, Evidence: Commen- Weinstein’s Illi Taylor v. pension of the Rules. tary on Evidence United Rules Cf. for nois, 108 S.Ct. Courts States Courts State (1988). of unreasonable obstacles to impression of the is the removal L.Ed.2d 798 Our Because the rul- truth-finding process. area of constitution sparse case law this ing the trial court about which that rules for the admis interpretation al is actually deny him the complains did not evidence should be sion and exclusion of wanted, and he is not proof he because to notions of fundamental found offensive opportunity deny the entitled to State fairness embodied in the United States rebuttal, rights when, (1) are satisfied that without a ra Constitution basis, process due they disadvantage compulsory process the defen tional abridged in manner he severely they than do the State dant more law were (2) arbitrarily exclude reliable defensive contends. superior achieving a so evidence without eighth point of error is over- Arkansas, 483 cial benefit. See Rock v. ruled. 2704, 2710-2711, 44, 53-56, U.S. L.Ed.2d IX. nine, Appellant error such inhibition to en- We find neither penalty Texas death Ap- urges us to declare the hearsay against rule forcement of the gives unconstitutional because present context. In the first statute pellant in the discretion to deter 803(8)(B) judges face a trial unbridled place, requires Rule on its phase penalty at the mine what is relevant thoroughly application, while even-handed 37.071, 2(a), Art. V.A.C.C.P. 803(8)(C) only the of trial. See specifically benefits § Rule Accordingly, poten- is no there defendant. long ago re contentions were Similar disadvantage specific to an tial in the rule position Appellant contrary to the solved reasonably person because it is accused O’Bryan v. takes here. objec- would as clear that the evidence Brown (Tex.Crim.App.1979); if tionable offered State. (Tex.Crim. present reurges it in the App.1977). distin- He Secondly, it lacks this Court’s ex he blames reliability, report Ap- context because guishing mark of “relevancy” in understanding of pansive sought introduce in this case is pellant admission of penalty cases for the thing the hear- death precisely the sort of inmates, Appel jail rule, exceptions, testimony from four spite many its say ex-wife, girlfriends, and one of her It is lant’s designed to exclude. specifically still which, Appellant’s opinion, was in reading the entire all of from a of manifest nothing “to do it had actually elicited irrelevant because vir- record that any propensi of by prior acts violence direct examina- with tually the same evidence See, Allridge v. e.g., deputy ty violence.” the for tion of the inmate from whom (Tex.Crim. 146, State, 161-162 in the first her information sheriff obtained 762, State, 609 S.W.2d twist, v. App.1988); never- Sanne place. an ironic v. (Tex.Crim.App.1980); McManus report 773 was argues that the written theless (Tex.Crim. 505, 526-527 testimony to him than such more desirable State, 548 S.W.2d gave App.1979); fur- Robinson then the inmate witness generally 63, (Tex.Crim.App.1977). See cross to him on detrimental ther evidence 382, S.W.2d Evidently, that Beltran he believes examination. (Tex.Crim.App.1987). somehow Constitution the United States to the live testimo- report prefers written record discloses review of the Our might enable whenever it ny of a witness was six witnesses testimony of these the opportuni- the State’s to curtail an accused Appellant habit- mostly to the effect cross examination. ty for effective ex-wife, choked, his beat, and burned ually other kill her and threatened to is, course, that he untenable. proposition of This jail, from if released persons unidentified United States that the It is inconceivable life take his own rather he would suppres- and that sanction the would Constitution also prison. witnesses spend it in than inculpatory evidence under sion of relevant jailbreak, planned Appellant’s testified to very purpose whose aegis of a doctrine the jail, constitutional error attempts smuggle drugs his to into the alone fundamental a trial generally licentious conduct. must notice even absent and his which we objection. precedents support do tend to Our this, espe-

admissibility testimony like point ninth of error is over- cially since we have not considered evi- ruled. past only accept- dence of violence to proba- that future is able evidence violence X. E.g., Smith v. ble. Cass v. (Tex.Crim.App.1984); error, Appel In his tenth (Tex.Crim.App.1984). constitutionality of the challenges lant Rather, thought, we have and continue to applied capital sentencing scheme as Texas conduct, think, that evidence of other even because, contends, jury he his case itself, may if not some tend- violent empowered express a reasoned was not ency prone character to reveal a vio- response mitigating evidence. moral does, it is lence. To the extent Appellant points testimony of his mother special undoubtedly relevant to the second grandfather physically he was issue, punishment a more re- even under young by stepfather while still a abused understanding “relevancy” than strictive was, therefore, child, and maintains that he typically employed by judges at the trial kind jury entitled to a instruction of the penalty phase capital murder cases. Penry Lynaugh, requested 492 U.S. We, therefore, eminently think it reason- (1989). 106 L.Ed.2d 256 S.Ct. suppose appellant’s able to that all of be- need not decide whether the evidence We havior described mitigation proffered by Appellant was does, indeed, complains he “pro- indicate a actually personal relevant to his moral cul- pensity for violence.” pability way fully contemplated by in a Furthermore, probability of future statutory punishment questions, nor conduct, although violent not a matter af- mitigating evidence had value whether his fecting personal culpability, moral has been jurors kind. The here were some other Supreme permis- held Court to abe charge expressly authorized the court’s sible consideration in the decision whether questions or more such answer one impose punishment past death as a negative they thought if the evidence Phelps, conduct. 484 U.S. Lowenfield mitigating sufficient value of had (1988); 108 S.Ct. 98 L.Ed.2d 568 charge kind.5 hold that such was ade- We Texas,

Jurek v. quate infirmity to avoid the constitutional analysis, 49 L.Ed.2d 929 In the last by Penry do not condemned because we therefore, Appellant’s complaint is unavail- perceive “a reasonable likelihood that ing because the evidence about which applied challenged instruction jury ... complains actually relevant under this way prevented] in a the consideration precedents upon Court’s an issue which constitutionally of relevant evidence.” Legislature both the Texas and the United 370, 110 California, Boyd v. S.Ct. Supreme States Court have held material 108 L.Ed.2d impose capital to the decision whether to Appellant’s point tenth of error is over- punishment. Accordingly, receipt its in evi- all, present dence does not error at let ruled. any mitigat- you find there are

5. The entire instruction to this effect read as in this case. If circumstances, you ing must decide how follows: give weight they them ef- deserve and much you questions about the When deliberate Special Issues, you Issues. If fect when answer the posed Special you are consid- to determine, you of this evi- in consideration any mitigating supported by er circumstances sentence, dence, a death a life rather than presented phases evidence in both of the sentence, response appropriate mitigating any is an trial. A circumstance defendant, culpability personal aspect moral of the defendant’s character and record of you you to answer at least one be- are instructed or circumstances of the crime which “No.” Special under consideration inappropriate Issues lieve makes a sentence of death XI. offense was less instant committed Although Appellant than a en- year later. Finally, urges find us to her tered deceased’s home to steal from support the evidence to af insufficient an objec- slept, accomplished he while she statutory firmative to the second answer arousing He any suspicion. tive without punishment requires This issue a issue. might simply premises then left finding likely not only that the accused will fear, with no one the wiser. No sense commit in the violent crimes future but anger discovery, or occasioned his decision his pose also that violent conduct will a Instead, simply to he was overcome kill. continuing society. threat to Art. 37.071 sudden, impulse a inscrutable to take a 2(b)(1), V.A.C.C.P. § human life. evidentiary The Texas common law of person It is to difficult not think such a sufficiency is perhaps more exhaustive dangerous, equally difficult not to fear and other, liberty area this than in our him for the foreseeable future unless unconvincing find appeal a case on is dysfunction cause discovered of his can be powerfully by the constrained force of Yet, psychiatric the only and corrected. precedent, both a as a matter law and as testimony offered this case holds that practice. matter of Keeton Appellant’s dangerously criminal miscon- (Tex.Crim.App.1987). 724 S.W.2d 58 To likely repeated indefinitely, duct a is date, many we have so confronted claims hypothesis substantially corrobo- insufficient evidence on the discrete issue past rated and antisocial his criminal dangerousness” of “future that it is diffi- behavior, including physical brutal assaults envisage cult now for us to a case with ex-wife, drugs and on his excessive use of enough justify historical facts novel alcohol, against oth- and threats violence approach. fresh The instant offense is no by any reckoning, he has Clearly, ers. exception. incorrigible. proven thus far Following history impressive of unad- facts, jurors thought On these judicated juvenile, Appellant larcenies as a probable would continue finally felony was convicted of theft society put if not threaten to death. Given placed probation. 1985 and on adult But case, particular circumstances of long again, he before was at it and the trial precedents, cannot light and in of our give prison decided him a taste of say conclusion without suffi that their was revoking probation, life. After his evidentiary support. E.g., cient Havard court him to confinement in the sentenced (Tex.Crim. 212-213 800 S.W.2d penitentiary period years, for of five but submission); App.1989) (opinion original on ordered him for further court su- returned Bower later, pervision hoping few months State, 772 Crim.App.1989); James success the second time around. better (Tex.Crim.App.1989); 88-91 town, however, Appellant re- Once back Burdine v. entry sumed habit of unlawful (Tex.Crim.App.1986). theft, culminating eventually in another error is over- final probation and a second revocation ruled. burglary. felony conviction for In 1986 points Finding reversible error no penitentiary sent to serve sen- we affirm assigned appeal, for review years of two and fifteen re- years tences of judgment of conviction and sentence the there, spectively. acquired he an While death. fighting, record for disciplinary extensive work, refusing possessing and contra- note: CLINTON, Judge, dissents with in Eventually paroled Appel-

band. years generally particularly and lant returned home three after Dissents only disposition four the reason felony years point Still of for first conviction. language an accused “plain rule” old, just had a total of six under the served ob- complain that evidence is entitled to prison. months testimony (not) disregard in tion to the at the end illegally tained “shall be admitted (him).” 38.23(a), against presentation. appel- Article Since evidence of the State’s lodged timely objection initially, V.A.C.C.P. lant had sufficiently error my opinion the MILLER, Judge, concurring. preserved. II and the treat- As to Roman numeral has the Court finds error been When error, preservation ment of of Tex.R.Crim. trial, analy- error committed in a harmless 103(a)(1) timely demands a “ob- Evid.Rule pursuant to Rule sis should be conducted 104(b) jection” or “motion to strike”. Rule case, 81(b)(2). that a my In this it is belief “subject admission of evidence to” allows analysis lead to a harmless error would proving up relevancy later in the trial. The the finding beyond a reasonable doubt that 103(a)(1) question of such a Rule when did contribute to complained of error objection “timely” or motion to strike is appellant’s punishment. depends directly ques- on the answer to the just obligation point tion of who has the BAIRD, Judge, concurring and “proving up” Rule part out that the dissenting. 104(b) opin- plurality never occurred. The put party on the ion would burden disagree reasoning employed I evidence; opponent to the admission of the by plurality appellant’s resolve first disagree. I point disposi- of error and I dissent to the point appellant’s tion of second of error. policy put For various reasons I would burden, pointing “prov- out that the met, ing up” requirement has not been I. upon judge who availed himself of the majority’s disagree I with the treatment 104(b). procedures majori- in Rule Since a appellant’s point regarding first of error ty agree of this Court cannot whether the psychiatric testimony the admission of the party opponent or the has that bur- punishment phase appellant’s at the tri- den, today policy further of the elaboration point majority appellant’s al.1 The deems reasons seem to an exercise in would psychi- of error as an attack on the use of futility, day and is better left to another testimony general summarily atric perhaps might emerge. when consensus My point. Maj. op. at 195. dismisses I only With these remarks concur support- reading of error and plurality result reached in section II of the ing arguments leads me to the conclusion opinion, join opin- the remainder of but appellant’s argument is that the thrust ion. against Grigson, psychiatrist Dr. James reading this who testified for the State. MALONEY, J., joins concurring this places judicial stamp point, plurality its opinion. testimony by Dr. approval on all future OVERSTREET, Judge, concurring. Indeed, relying Grigson. plurality I I concur the result Court, holds that decisions several majority opinionincorrectly con- believe “fu- objecting Grigson’s Dr. appellant’s point of er- cludes that second 195, n. 1. Maj. op. tile.” ror, complained of admission of testi- membership Aryan in an mony implying his A. preserved appel- prison gang, was not psychiatrist Grigson is a now famous majority concludes that Dr. late review. testify frequently employed the State this error he failed to he waived when capital mur- phase of a objection request punishment instruc- renew QUESTION pro- ON FUTURE DANGEROUS- Appellant’s point CAL of error number one LAW. vides: DUE PROCESS OF NESS VIOLATES BY DR. AN EXPERT OPINION OFFERED IN RESPONSE TO A HYPOTHETI- GRIGSON sociopath opinions shaped the admissibili- der trial that the defendant is a These complete disregard testimony presented for ty psychiatric who shows a au thority people. and the lives of other Dr. my capital murder trials. Based on Texas Grigson’s opinion usual is most cer generated has experience, “[t]hat no other witness tainly you an individual such as described controversy.2 such hypothetical question a defen based on [in history criminal dant’s and the evidence B. presented going in that is to be a case] controversy continues in this case The society people threat in our no matter argues time has appellant where that “the are, they in confinement or where whether Grigson jurisprudence to re-examine come State, in the free world.” Amos v. [appellant’s] analysis. This light 156, (Tex.Cr.App.1991). Fur enough has seen cases to show Court now ther, Grigson routinely Dr. testifies that he insuring methods of fairness that the usual percent “absolutely is one hundred certain” through use of cross-examination and the Cook v. predictions. of his experts simply other does not work 600, (Tex.Cr.App.1991). argues case of Dr. Death.”3 also 84, James Grigson appears Dr. as the disinterest- (vacated (Tex.Cr.App.1989) on other expert being all the while an advo- ed while grounds (Tex.Cr.App. at 805 S.W.2d 415 “Donning sheep’s for the cate State.4 1990)). Grigson’s notoriety Dr. comes not Grigson ‘expert,’ cloth of an testi- unbiased par from his but from his Smith, ticipation in the trials of Estelle v. uninformed advocate for fies as an 454, 101 1866, disturbingly effective results 451 U.S. S.Ct. 68 L.Ed.2d 359 Estelle, remarkably carbon-copy performances (1981) and Barefoot attacks on the stand.”5 further 77 L.Ed.2d 1090 defendant], prosecutor ‘Is [about 2. ask me Belachheb 1985) rape would and kill (Tex.App. ar this the kind of man that fourteen-year-old girls?”’ Worth the defendant — Ft. Grigson, poor Dr. James gued Grigson’s reputation Dr. is so Fair; Death, May Vanity Travels With Dr. trial who and his bias so obvious 144. appointed guilty him would be of an abuse of "Midway hasty journey between death- discretion. pumped up penalty the Doctor is trials Brief, Grigson’s page In Dr. 3. 4. Lamesa, primed victory instant for ‘By case] [the own words: Lubbock. battle this afternoon in fresh developed way testify that I end "I have war,’ me, God, ‘I don’t know if it isn’t he tells ” up having Ron; a tremendous amount of influence Rosenbaum, Travels with what war is.’ although, again, they've jury] I think al- Fair, [the Death, Vanity May 166. Dr. ready up prior made their mind to the time prosecutors hire as a bonus for the who "And get him, on the witness stand. But it does his lethal best the Doctor also I’m— easier whenever makes them feel a whole lot they’re destroy attorneys and defense witnesses defense doing Rosenbaum, they’re Ron; is challenge reassured that what Travels who him.” News, Grigson; Death, Fair; C.B.S. Vanity May correct.” Dr. James P. 144. With Dr. 57th, court, Deadly Diagnosis: Trying every Testimo- Grigson appears West ny, "When Dr. carefully. aspect planned October 1988. of a ‘weird’ Instead country psychiatrist, as a doc- he comes across presented in a somewhat unusual 4. This case is Grigson Everything on the Dr. does tor. ... light Grigson, at the time he testi- because Dr. geared making jury believe him— stand is case, accompanied by fied in the instant do, judging by they usually the verdicts." which Jennings, E-l, Rosenbaum, contributing reporter author Ron Diane; News, Morning Section Dallas Vanity Appellant included Rosen- for Fair. E-2, February Grigson, 1992. James argument. in much of his baum’s observations personal type that makes of satisfaction "It's a capital watching juror her in a "I was [a Boy you good. did like the me feel It’s Scouts— tell she didn't believe murder and I could trial] Diane, Jennings, good day." your for the deed psychiatrist [prosecution] told first what News, February Morning Grigson, Dallas James her, gonna had to hear what we and she wasn’t 16, 1992, Grigson. quoting Dr. James say. first a coffee break after the So we took brief, following pg. also 5. Appellant's ‘you got prosecutor, psychiatrist, I told the Grigson’s "per of Dr. illustrate the effectiveness gonna hang got who’s trouble. You one woman formances”: buying jury, up she’s not it.’ ... times, he’s testified fourteen-year-old fourteen "A hundred We discovered she had daughter. penalty. five times got A hundred stand and had the death And I back on the Estelle, 880, 103 Grigson’s that 463 U.S. S.Ct. integrity requests Dr. and foot (1983). The re 77 L.Ed.2d 1090 Court Grigson’s testimony regard- we exclude Dr. following questions: the Whether viewed future ing dangerousness future from all group, individually and as a psychiatrists, and the instant case.6 trials reverse accept incompetent predict with to are reliability that a degree particular able C. commit other crimes criminal will testimony The use of the psychiatric danger a represent and so future phase capital of a murder trial punishment and, psychiatrists community; whether first the United States was addressed dangerousness in testify future about Smith, 451 Supreme Court in Estelle v. question response hypothetical to a without 68 L.Ed.2d 359 U.S. S.Ct. indi of an examination of the the benefit Smith, Grigson appoint- Dr. Estelle, at vidual. Barefoot competency to determine the of Smith to ed 896, 103 at The held that S.Ct. 3396. Court Grigson stand trial. Dr. examined Smith through a psychiatric testimony, the use of compe- and concluded the defendant was question, permissible. The hypothetical is During punishment phase the tent. reliability reasoned the of such Court that trial, Grigson testify the Dr. State called to testimony through is tested cross-examina respect dangerousness” with the “future using hypothetical question tion and that a Supreme that of Smith.7 The Court held expert to examine an witness is common. Grigson’s testimony, upon Dr. the based [expert they psychiatric If are witnesses] competency examination, pretrial violated obviously wrong dis- so and should be Fifth and the the Sixth Amendments to credited, insuperable no there should be However, States United Constitution. doing by calling problem so members Supreme expressly psychiatric Court held Psychiatric] Association of the [American testimony to be admissible. Estelle v. confidently are of view and who who that Smith, 451 U.S. at at 1878. S.Ct. opinion in Nei- assert that amicus brief. Grigson’s testimony, Dr. context petitioner sug- ther nor Association hypothetical always question, gests psychiatrists of a was reviewed are dangerous- Supreme wrong respect the United States in Bare to future Court News, Now, good jury agreed might question C.B.S. been a with him.” West 57th have Street; Deadly Diagnosis: Trying Testimony, Oc- it was the Doctor couldn’t recall clear Rodriguez Doc- the hell was. But the tober who 1988. poker player player— as a as well chess "Grigson’s predictions repeated tor—a confident and attorney] shrewdly [appellant’s calculated 'sociopath' helped use of the send term have Row_” know either. And so he felt didn't the details prisoners more than 100 to Death spring trap of his own. News, Death; free to a 20/20, A.B.C. Dr. November searching replied Doctor as if his mem- 1988. grim coming upon ory then a recollec- and Rodriguez four ‘Is the one that killed tion. Following description Grigson’s 6. Dr. thirty-eight?’ raped women case: in the instant course, Rodriguez no idea Of he had what Lamesa, For a there brief moment jury heard was: had done. But what [appellant’s attorney] might looked as if four, thirty-eight. raped killed going some momentum into his assault on attorney] [appellant’s Doctor. But then made Grigson, practicing psychia "Dr. James P. into death a fatal mistake. He fell a Doctor appel appointed by the court examine trist lant, devastating trap, patented counter- one led him testified that his examination had reputa- punches earned the that have Doctor medically though appellant, conclude killing sane, as a on cross examina- tion machine legally remorse sense of felt no thing Many lawyers told me best participation tion. guilt in this as the result of his all, expressed the Doctor to mini- robbery-murder. Grigson do is not cross also damage appellant’s he can do. future opinion mize conduct in the attorney] [appellant's change. But had done a lot that his ... He further stated would not go want to waste. had no cure homework he didn’t of medical science found branch smugly, suffering type began persons bit 'In the case who were from the He ... a Texas, 1978, by appel you say Rodriguez personality of Rod- disorder demonstrated [did riguez?], kill No where he is he will lant.” Smith Cr.App.1976). matter you again'? ... Do remember that? 214 However, ap-

ness, capital the future murder cases. only most of the time. Yet category pellant provide of testi- fails to the Court with a submission is that this entirely excluding testimony. all mony legal should excised from basis for the be unconvinced, testimony “expert” at of an witness is trials. We are however The now, adversary opinion, per least as of the not inadmissible because his se process questioned by out the his integrity, cannot be trusted to sort or theories are colleagues Though and or of the bar. reliable from the unreliable evidence members opinion dangerousness, par- personally Grig- I for Dr. about future would not vouch testimony, only legal felon has ticularly when the convicted son’s basis opportunity present testimony may per his own side be excluded which such se, decision of the would to reverse the case. be in Supreme Court United States 900-901, Estelle, Barefoot. 463 at v. U.S. Barefoot powers of this Such action not within found no 103 S.Ct. at 3396. The Court Court. general governing reason for rule questions change psy- hypothetical when Although Grigson’s testimony is not Dr. v. chiatric evidence is offered. se, incompetent his should per Barefoot 903-904, Estelle, 103 463 U.S. at S.Ct. stamp approval. judicial not receive our Supreme Court’s decisions 3400. Since witness, including every the famous With Grigson Dr. has Barefoot, and Smith infamous, has the and the State burden phase many punishment testified in the requirements forth in the satisfying the set capital murder trials.8 If the Texas Rules of Criminal Evidence. particular any are not satisfied in rules may testify “expert” An an individual as case, familiarity of Court with a requirements in Texas if the set forth not matter. Dr. particular witness does the Texas Rules of Criminal Evidence are Rules; his Grigson is not immune from our expert have some scien- met. The must scrutiny same opinions subject are tific, technical, knowledge specialized Therefore, expert. the trial any as other the trier of fact to deter- which will assist required independently deter- judge is mine an issue. Tex.R.Crim.Evid. 702. admissibility Grigson’s tes- of Dr. mine the expert bases upon facts or data which the Grigson Dr. does timony in each case. If commonly if relied opinion, such are opinion, basis for his field, not have a sufficient not upon by experts in his need Tex.R.Crim. opinion is inadmissible. restricted to those which are admissible 705(c). Evid. Upon re- Tex.R.Crim.Evid. 703. evidence. required expert witness quest, the required in this However, not review is pres- to examination out of

to submit to Dr. object did not appellant case finder. If the trial ence of fact Dr. the basis of Grigson’s qualifications or does not have determines that the witness objec Appellant’s only Grigson’s opinion. opinion, the wit- a sufficient basis such being testimony, as not “to tion was until opinion shall be inadmissable ness’ in which he recognized the field within [Dr. for such time as a sufficient basis such a has been practices.” This issue Grigson] 705(a), opinion Tex.R.Crim.Evid. is shown. appellant. against resolved Barefoot (b), (c).& 3396-3397; Estelle, 103 S.Ct. at v. 686, (Tex. State, 709 692 S.W.2d Nethery v. D. Therefore, I concur Cr.App.1985). point of er appellant’s first resolution of should “out- Appellant argues that we Grigson in all ror. testimony of Dr. law” the State, State, Holland v. (Tex.Cr. (Tex.Cr.App.1989); 262 247, See Cook v. S.W.2d 602 821 v. Amos v. Cook rehearing); (Tex.Cr.App.1988); App.1991) (opinion 319 761 S.W.2d State, State, (Tex.Cr.App.1991); (Tex.Cr.App.1987); 162 S.W.2d 819 S.W.2d 945 State, (Tex.Cr. Hartley State, (Tex.Cr.App. Hogue 9, 29 711 S.W.2d App.1990); Stoker v. and, Nethery 1986); 692 S.W.2d James v. Cr.App.1989); 1985). (Tex.Cr.App. Rogers (Tex.Cr.App.1989); must call to the atten-

II. the State appeals orderly tion the court appellant’s disposition I dissent to the timely alleged er- fashion plain of error. I second believe preserved.10 ror was 104(b) places wording of Tex.R.Crim.Evid. also, 773 S.W.2d Leal v. See of upon judge the trial the ultimate burden However, (Tex.Cr.App.1989). plurality the determining relevancy the of evidence requires procedural the which invents bar subject to the fulfillment which is offered re-urge his objecting party “the must words, a condition of fact. In other of proof is relevancy complaint after all the assertion, plurality’s the contrary to the stricken, in, offending the evidence be ask judge duty to notice whether trial has jury instructed to request that the eventually up” the evidence is “connected Maj. op. proce- at 198. This disregard it.” defendant, judge, not wording contrary plain dural bar procedures himself of the in Rule availed 103(a)(1): of Tex.R.Crim.Evid. 104(b). Judge agree To that extent I (Miller, J., page Miller. See concur- Objection. ruling In case the is one ad- evidence, ring). mitting timely objection or record, appears of stat- motion to strike Additionally, it should be noted that the ing specific ground objection, of if plurality premised disposition has ground apparent specific was not appellant’s point second of error on an ar- context; from the ... gument argued by neither nor raised However, plurality requires appel The State. State does not contend that only object, re-urge his lant not but to appellant preserve failed to the error for objection and make a motion to strike. Rather, appellate ad- review.9 State plurality The then utilizes its invention to appellant’s point dresses the merits of appellant’s right appellate review forfeit error. doing, places yet unnec and in so another procedural argument The bar advanced essary upon the defendant. burden plurality properly is not before this (Tex.Cr. Goss Court. Tallant v. (Baird, J., dissenting). plu The App.1992) (Tex.Cr.App.1987) we held: becoming advocate and rality by both any appearance impartiality. has lost Transgressions appellate pro- of rules of cedure which this Court has insisted to plurality agrees that the evidence The summarily be followed cannot dis- Aryan is irrele- concerning the Brotherhood appellant must missed. ... Just as an in- Accordingly, the evidence was vant.11 points properly present of error to the under Tex.Code Crim.Proc.Ann. admissible appeals for its decision in order court of and it should not have been art. 37.07112 complain Believing appellant’s of an determination adverse admitted.13 review, preserved ground timely objections by way of we hold Maj. op. punishment represented phase of his trial.” case is at the The State in this 9. Attorney Dawson 198. the elected District Attorney County, but also the General’s Office of provides art. 37.071 12. Tex.Code Crim.Proc.Ann. of Texas. the State part: may be proceeding, In the evidence ... indicated, emphasis otherwise all 10. Unless presented the court as to matter supplied by the author. herein is sentence, ... deems relevant inadmissible, legally inade- 11. "Because this was Having the evidence found Aryan quate appellant's to connect with the conten- there is no need to address any meaningful way, proof in was viola- Brotherhood in admission of the evidence tion that organization’s to the United States beliefs and of the First Amendment the abstract of that tive ultimately any issue Constitution. was irrelevant to activities appellate finding that review and further irrelevant, pro-

the evidence I would analysis pursuant

ceed to conduct harma 81(b)(2). Tex.R.App.P. doubt, say, beyond

I cannot a reasonable

that this evidence did not contribute to the imposed.

sentence The evidence estab Aryan

lished the Brotherhood as a neo-

nazi, supremist, gang racist white high propensity

had a for violence.

gang worked to control the other members prison population through intimi gaining

dation and fear. this control the remuneration,

gang committed murder for aggravated The evi

murder and assaults. jury persuade

dence was offered to special

affirmatively the second is answer by convincing jury appellant

sue

would commit criminal acts of violence that continuing

would constitute a threat to so See,

ciety, prison society. which includes

Boyd v. 188 n. 12

(Tex.Crim.App.1991). jury The made such finding. Accordingly,

an affirmative I can

not conclude the admission of the evidence beyond

was harmless a reasonable doubt

and, therefore, I dissent. Jr., West, Reaves, appel- M.

Walter lant. WILLIAMS, Sidney Appellant, Joe Segrest, Atty., E. Alan W. Dist. John Waco, Bennett, Atty., Dist. Robert Asst. Texas, Appellee. The STATE Austin, Huttash, Atty., for State. State’s No. 1057-91. Texas, Appeals of

Court of Criminal En Banc. PETITION APPELLANT’S OPINION ON April 1992. REVIEW FOR DISCRETIONARY Rehearing May Denied WHITE, Judge. the of- charged appellant

The State jury found capital murder.1 fense of indict- guilty charged appellant as two court then submitted ment. The trial jury’s consideration special issues for the 19.03(a)(2). § CODE ANN. 1. TEX.PENAL

Case Details

Case Name: Fuller v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 25, 1992

Citation: 829 S.W.2d 191

Docket Number: 71046

Court Abbreviation: Tex. Crim. App.