*1 standard, Because the by braced Section 545.151. proper the reiterated Having conclude, however, that alleged the the intoxication-assault we also conduct must for intoxication as- sufficiently indictment detailed appellant’s indictment was not of all of the elements not include reasonably sault does complete it can be deduced failing yield right to of of the lesser offense yield right failed to the that the of the Trans- way Section 545.152 under way circumstances that would of under say, is to the in- That portation Code.20 Section specifically make him liable under greater offense does dictment for Code, it can- Transportation 545.151 of of all the elements expressly allege of said, cognate pleadings not be under Hall’s offense, missing may nor ele- lesser is a less- approach, that traffic offense reasonably from the ments be deduced er-included offense of the intoxication as- Judge descriptive Presiding averment. As sault. opinion on concurring Keller noted her reason, judgment For this we affirm the submission, the aver- original descriptive appeals. of court appellant’s ment in intoxication-assault of the elements of lacked one indictment P.J., HOLCOMB, J., KELLER, prose- offense for which he was lesser in the result. concurred cuted, “ap- namely, that the vehicle opposite from the direction.”21 proaching
Moreover, it be deduced from the cannot appel-
descriptive averment whether the yield right way of to such
lant failed to vehicle to the exclusion a oncoming
an di-
vehicle from some other approaching
rection, circumstances, or under other GARDNER, Appellant, which constitute the commission John might Steven offense, statutorily different defined Judge also Un- Presiding Keller noted.22 The STATE of Texas. circumstances, agree der we these appeals descriptive court of that the aver- AP-75,582. No. ment the intoxication-assault indictment Appeals Court of Criminal of Texas. reasonably rise to a give does not deduc- that the committed all of the tion Oct. 2009. constituent elements of lesser offense Rehearing Denied Jan. 2010. Transpor- in Section 545.151 of the defined “It simply allegation an tation Code.
conduct[,]”23 only of which is em- some street; by failing yield unpaved from to to Transp. an § Tex. Code 545.152. approaching traffic an 'from the intersection Watson, parte Ex 2009 WL *5 right'; failing operator's by yield to traffic P.J., (Keller, original concurring opinion on through turning on a street while from a submission). intersection; 'T' street that terminates in a failing right-of-way yield while [to] out, Presiding Judge pointed Id. As Keller road, building, turning alley, private from statutorily species may one commit a distinct driveway approaching vehicle yield right way of failure to while (footnotes omitted). highway.” Id. sign, "by failing yield stop turning at a left yield sign, light; failing or a traffic Id. yield turning paved traffic on a street when *7 Miears, Bonham,
Steven R. appel- lant. Westerfeld, L. D.A.,
Andrea Asst. Crim. McKinney, Horn, Jeffrey L. Van State’s Austin, Attorney, for State.
OPINION COCHRAN, J., opinion delivered the PRICE, WOMACK, the Court in which JOHNSON, KEASLER, HERVEY, HOLCOMB, JJ„ joined.
Appellant was of capital convicted mur- wife, shooting Gardner, der for in the committing course of or attempting to commit burglary or retaliation. Based *8 upon jury’s special answers issues, punishment the trial court sen- tenced him to death. On direct appeal to Court, this appellant points raises eleven error, including the legal and factual sufficiency of the support evidence to his conviction. After reviewing appellant’s error, points of we find them to be without Therefore, merit. we affirm the trial judgment court’s and sentence of death. Background Factual Appellant Tammy and Gardner had a violent, marriage short, get out of her alive. marriage.1 would relatively but Akins, her appellant in boss at Action Tammy married Candace Before horse-equipment and After very outgoing happy. Company, wholesale she was weight, became marriage, company, Tammy constantly lost said that was she nervous, introverted, fearful, sparkle. Appel- lost her and in extreme financial and threatened, dominated, Tammy and “she physically difficulties. said that wanted lant was on relationship,” her. His name tattooed abused out of the but she afraid leave, times, thigh. many inner told her and she Candace leave, “I he will kill me.” can’t friend, West, Tammy’s best tes- Jacquie that the time she visited Tam- tified one Tammy eventually neurologist to a went marriage, and my’s loss, home after the she headaches, of vision complaining Jessie, daughter, sitting were Tammy’s sleeplessness, anxiety, depression. and in, appellant when came living room She told the doctor’s wife—who assist- bed, her, Tammy sat on pushed onto ing her husband and who had her own hand, and put her with his then choked counseling practice she was family —that that if gun to her head. said too to tell the that her embarrassed doctor leave, Jacquie Tammy. didn’t he would kill migraines injuries were physical caused Jacquie Shortly left never returned. and appellant from her husband. She said thereafter, Tammy sent Jessie to live with had hair pulled her and hit her both with safety. her her natural father for very his with a gun. fists and She frightened kept crying, of him “The and Jacquie injuries Both Jessie saw and only going I’m out of way get face Tammy’s on various occasions. Tam- She relationship being dead.” ex- time my appellant told Jessie that one plained appellant threatened to had bookcase, her hit her shoved into a then kill her if left her and children she him. gave eye. Jacquie and her a black said Tammy large once run- had bruise Finally, Tammy in December bor- diagonally her ning across face. When money from her to file company rowed for confronted, Tammy matter-of-factly admit- day appel- divorce. On told Christmas appellant hit her in the face ted had out, lant so came parents to move hammer. Both had seen took him and his back to belongings Mis- “stalking” Tammy at different times. sissippi. “perked up” She after she filed divorce, for more Tammy get- began told them that “she wasn’t and she to see alive,” Jacquie out of there that she her ting meaning daughter Jessie. At Tammy eight years prison had 1. Both mar- that crime. He been met wife, multiple ried times before. had three Margaret, his third while he was in John, marriages: from earlier and, children prison, shortly marriage, after their be- who adult son lived in a trailer close to Tam- gan kill to threaten to her and her both moth- home; Justin, my's rural another in his son Margaret trying thought get er. often *9 20's; Jessie, eight early who was and seven or relationship, out but she did not think it appellant, when she first met and who was thought appellant she was safe because could by the of the trial. sixteen time finally kill her and her children. After she Testimony punishment phase from appellant, kidnapped decided to leave he her had been five showed married high police speed led from work and on a wife, his Appellant times before. shot second he was and chase before arrested returned to Rltoda, when was weeks she one-lo-three him, prison. Margaret He told that if she left pregnant. miscarriage and She suffered “hunt her lives would down." She still in paraplegic. rendered was was fear him. aggravated convicted of assault and served work, Tammy (Ms. her marked calendar for band either slapped had or shot her 7, 2005, February day her divorce Whitfield wasn’t sure until she replayed final, would become and she would over go “shot”). tape that the word was The say, to the calendar and “You’re almost woman said that she couldn’t hear the You’re almost there.” there. dispatcher because her ears were still ringing gunshots from and that her head Jessie, Jacquie, But she also told and hurt and everywhere.” “there was blood that she think Candace didn’t she would When Ms. Whitfield asked if get day to that because would there, who shot her was still the woman kill her appel- first. Jessie testified that said, “No, he left in a white pickup truck kept calling lant and leaving, phone and with Mississippi plates.” She said his text messages: you going through “Are name was Steven dispatch- Gardner. The with the divorce or not?” Jacquie When er yell had to and repeat herself because Tammy and lunch together Apple- had at the woman sounded like she was 20th, choking January Tammy’s bee’s on cell phone and vomiting. Then the line disconnected. ringing they stai’ted as soon got there. rang constantly, making Tammy It upset dispatched Ms. Whitfield police par- and and Jacquie, going scared. She told “He’s amedics, police but it took the about 25 kill me” before the divorce becomes because, first, minutes to arrive they final. address, went wrong to the 3191 FM 2862 23rd, Sunday, January
On Tammy was instead of 9191 FM 2862. Deputy As driving there, Jessie home after church when Armstrong drove he saw a white appellant kept text messaging about the sitting truck a ditch a creek about upcoming divorce and asking “YES OR home, two or three Tammy’s miles from messages NO?” Jessie read the text to her only but it was later that he learned that mother, frantic, who Tammy became but they were looking for a white truck. He reply appellant’s question. did not Tammy’s first to arrive at home.
messages stopped p.m. about 5 Jessie doors, He knocked on the but there was no stayed at her night. father’s home that answer, and he could not get through the windows. He kick in had to the front
Tammy Young, called David her compa- bedroom, light door. He saw a on in the ny’s vice-president, early evening and, entered, when he Tammy he saw him if asked she could come talk to him. leading bed a trail of blood into
She p.m. stayed arrived around 7:00 the bathroom. trying She was to sit up, hours, about three seeking help in “dis- badly but she was bleeding from her head appearing” so that no one could track her. seemed to be shock.
Mr. Young was concerned about Tammy’s safety, but he felt more comfortable when arrived, By the time the paramedics she called him after she returned home Tammy spitting up a lot of blood and about 11 p.m. According phone to the rec- mumbling incomprehensibly. She was ords, they p.m. talked until 11:13 wearing red robe. One of the paramed- ics, Whitfield, Stephanie p.m., Taylor, part
At Erin cut the bottom 11:58 the 911 of the robe off dispatcher County for the because she couldn’t prop- Collin Sheriff’s Office, erly Tammy’s received a 911 call assess condition while she from a woman who “Tammy,” gave identified herself as was dressed. flown by heli- address, her and said she copter Hospital, needed an ambu- to Parkland but went *10 coma, speech very lance. Her was into a family slurred and and her took her off hear, hard to but she said that her hus- life support days Tammy two later. died head. had “an She confronted gunshot to her The had accident.” single from a asked, and appellant happened?” “What right temple, her in front hit bullet had brain, say just he anything; He didn’t started through her and traveled downward Tammy crying. okay, She if was asked Apparently, her left ear. exited below said, Elaine him appellant and “Yes.” told pil- sitting up against had been Tammy police, he had to in to that turn himself bed, exiting bullet went and low in said, showered, He “Okay.” and he out the bedroom pillow and through the shaved, clothes, went changed and first to bullet never recovered. The window. to the parents’ his home and then sheriffs Tammy’s police found Investigating check office. Elaine then went to for her that keys keys Jessie said her house — kept .44 that he Magnum husband’s under always kept purse in her tool mother —in there, with his mattress. It was five live parked truck in in the back her chest Appellant’s rounds and one round. spent driveway. Nothing appeared else to that he never left brother-in-law testified taken from the house. have been There always in he spent gun; shells reloaded sign entry. of forced was no it. Meanwhile, appellant had borrowed his appellant When turned himself in to the white F-150 pickup Ford brother-in-law’s Mississippi, office in there sheriffs officers afternoon, Sunday saying truck that that Det. in County, called Cundiff Collin who nearby he to visit in going relatives that a warrant said he did not have out for However, appellant’s Hattiesburg. credit appellant’s But he asked speak arrest. to day twice was used that at a conven- card appellant phone, to on the and appellant Texas, Marshall, in which is on ience store agreed. explained Det. he Cundiff that County. way Mississippi from to Collin appellant knew that had been in and Texas bought gas for apparently He and $28.00 happened he wanted to find out what purchase another then made $3.86. said, Tammy. Appellant “I don’t have an backing price tag pair and store for a answer for one.” When Det. Cundiff gloves of Brahma work item that the —an explained Tammy had been shot Marshall convenience store sold for head, “Okay.” appellant replied, Then later in the found white F-150 $1.49—were Tammy Det. Cundiff said that was still Appellant’s pickup. fingerprint found alive, appellant said that she could tell pickup as were fibers that were wants, what had “if occurred that’ll be respects similar in all fibers taken red Appellant fine.” went home then but was Tammy’s robe. from later arrested brought back to Collin early Monday, In the hours of Collin County for trial.2 County appellant’s Det. Cundiff found fa- Sufficiency him telephone
ther’s number and called of the Evidence appel- Det. Mississippi. Cundiff obtained error, points his first two him phone lant’s cell number and called at that the legally claims evidence was him. Appellant hung up 5:15 a.m. factually prove insufficient to he com- capital returned his brother-in- mitted the offense of murder. First, driving argues home white pickup law’s F-150 the evidence was sister, a.m. about 8:30 Elaine Holi- that he His insufficient establish was the field, already wife, had been told that who shot and killed his Tam- missibility punishment not raise evidence at the Because does issues relating sufficiency phase, specifically or ad- we need summarize thaL evidence.
285 Second, my. argues he that the evidence that testify Mississippi he had left the on day Tammy that was shot. prove was insufficient to that murdered in the committing her while course of ei- no Although eyewitness testified burglary ther or retaliation. in court to seeing Tammy shoot
or even to him in seeing day Texas on the A. The Standard Review shot, that was the may prove State identity defendant’s and criminal culpabili sufficiency In assessing legal ty by either direct circumstantial evi support capital of the evidence to a murder dence, coupled with all reasonable infer conviction, we all of the consider evidence case, ences from that evidence.5 In this in light most favorable verdict the evidence supports the jury’s ver whether, and determine based that evi dict that appellant person was the who dence and reasonable inferences there murdered Tammy following: includes the from, juror a rational could have found the (cid:127) Tammy dispatcher told the 911 beyond essential elements of the crime a husband, appellant, her her.6 shot In addressing reasonable doubt.3 a claim (cid:127) dispatcher She told at- that her evidence, insufficiency of factual of the we driving tacker was a white Ford pick- all of a review the evidence in neutral up truck Mississippi with license light, required give we are great but plates. jury’s to the deference assessment of the (cid:127) Appellant borrowed his brother-in- credibility witnesses, of the the weight of law’s pickup white Ford truck with testimony, resolution of Mississippi plates about twelve hours in testimony.4 conflicts Tammy before He shot. returned to his brother-in-law’s in home Missis- Sufficiency B. the Evidence sippi day. about 8:30 a.m. the next Prove that Shoot- (cid:127) Appellant’s credit card was used twice er Marshall, in at convenience store Appellant argues evidence Texas, day Tammy on the was shot. legally factually
is both insufficient to backing price for tag Cardboard doubt, beyond prove, a reasonable that he gloves Brahma work that the conven- shot who Gardner ience store sold for was found $1.49 affirmatively no because witness could pickup the F-150 after re- “put specifically him the Monday. scene” even turned on State, 322, (Tex. ”) State, v. Roberts (quoting 326 conviction.' v. 204 Watson 404, Crim.App.2008); Virginia, (Tex.Crim.App.2006)). see Jackson v. 443 S.W.3d 307, 318-19, U.S. 99 S.Ct. 61 L.Ed.2d State, (Tex.Crim. 560(1979). 5. Earls v. S.W.2d App.1986). State, v. Lancon S.W.3d (in five, assessing (Tex.Crim.App.2008) Appellant argues, point factual suf of error evidence, Tammy's ficiency appellate courts call statements the 911 should complete "should afford almost deference to not have been Even if the trial admitted. statements, jury's admitting decision when decision is based court erred in we those evidence, credibility.’’); upon improperly an evaluation of Roberts must consider all even evidence, conducting (Tex.Crim.App. legal admitted when ("a 2007) insufficiency sufficiency Dewberry analysis. reversal factual or factual greater weight (Tex.Crim.App. occur ’the cannot when 1999). preponderance actually evidence favors *12 (cid:127) F- used to weapon were in the this fingerprints Appellant’s Tammy. shoot pickup. (cid:127) pickup found in F-150 whole, Fibers were evidence was Taken as this exactly the same characteris-
that had
to es-
legally
factually
both
and
sufficient
color,
size
unique
type
tablish,
doubt,
red
and
beyond
tics—a
a reasonable
fiber,
composi-
acrylic
polymer
and
Tammy
of
shot
person
was the
who
taken from the red
Appellant argues
tion—as fibers
that this evi-
Gardner.8
Tammy
wearing
nothing
appel-
was
when
than
robe that
dence
more
shows
paramedics
and
arrived af-
killer.” But the
police
lant “could have been the
Tammy’s dying
shooting.
jury
ter the
was entitled to believe
killer, especially
he
words that
was
(cid:127)
Tammy,
Appellant previously abused
when her identification was corroborated
mentally; he
physically
both
and
by so much
circumstantial evi-
inculpatory
her;
her;
he threatened
and
stalked
suffi-
guilt.9
dence of
As
his factual
increasing
he
ire
exhibited
claim,
ciency
point
to
appellant does
getting
a divorce. This evidence
piece
conflicting
or
specific
of evidence
intent
established his motive and
testimony
logical
that undermines
his
kill wife.
probative
inculpatory
force or
value of this
(cid:127)
appellant,
sister
asked
Appellant’s
evidence.10 When the evidence establish-
returned to
brother-in-
when he
is
ing
identity as the shooter
appellant’s
shooting,
law’s home after the
“What
neutrally, it is not weak that this
viewed
so
and
happened?”
appellant started to
manifestly
finding
clearly wrong
is
and
cry
agreed to turn himself
by
unjust,
finding
nor
contradicted
police. This
some evidence
of
weight
great
preponderance
of
guilt.
his consciousness of
evidence.11
(cid:127)
magnum,7 always kept fully
.44
The
appel-
loaded
live bullets under
also claims that
with
mattress,
factually
legally
lant’s brother-in-law’s
evidence is
insuffi
had
cient
he
spent
appellant’s
prove
one
shell when
sister
murdered
after
while in the
of
either
appellant’s
committing
retrieved it
return.
course
or
supports
burglary12
This
an inference
retaliation.13
evidence
evidence
Testimony
ing
from
medical examiner es-
them
context
circumstantial-evi-
7.
identity).
Tammy's head wound
dence murder case to establish
tablished that
having
large
been shot
consistent
Watson,
10.
she would never
out
alive,
appellant
that he would
consent to enter her home after
riage
appellant
p.m.
January
Viewing
2005.17
kill her first.
deceased,
delay
the owner
prevent or
the service of another
effective consent
or to
witness).
thereof,
committing
felony
prospective
offense of
as a
murder[.]”
State,
171 S.W.3d
Russeau
("[T]he
(Tex.Crim.App.2005)
evidence in a
Matamoros,
down to bed, through shot her up in sitting Evidentiary Issues keys her took the house from temple, right *14 error, chal- points appellant In three of bedpost, on the locked hanging purse of evi- lenges judge’s the trial admission left, keys put Tammy’s front door as during guilt phase dence of the trial. truck, Tammy’s tool box into the three miles down at a two to stopped ditch to throw his extra set of (perhaps
the road Admissibility Tammy’s 911 A. ditch), and then drove back keys into Call meanwhile, Tammy, was Mississippi. to error, point In his fifth enough put to on her red still conscious permit- the trial erred in claims that robe, hanging bedpost, was on the which testify to to the con- ting Erin Whitfield appellant departing look outside see Tammy after tents of the 911 call made Mississippi truck the white Ford Appellant objected she was shot. to Ms. an plates, and then call 911 to summon trial,19 testimony arguing Whitfield’s ambulance. Because the evidence is both testimony hearsay it that this and that factually prove legally and sufficient violated the Confrontation of both Clause Tammy while in murdered the federal and Texas constitutions. The committing burglary, the course of we also, it argued need not decide whether is or alter- State that it was a nontestimonial (1) natively, prove appellant shot sufficient dying statement and admissible as Tammy committing (2) while the offense of declaration, utterance, an excited and retaliation.18 (3) a present impression. sense Because we that the 911 call find was admissible as
Accordingly,
appellant’s
we overrule
declaration,20
points
dying
of error one and two. We address
we need not address
illog-
Det. Cundiff and claims that
"[t]his
547 U.S.
126 S.Ct.
165 L.Ed.2d
(2006)
Although
argues
Ap
224
]
ical.”
State
Ellis
would bar its admission.”
support
theory
pellant's
Although
question
such a
of consent ob-
Brief at 44.
would
this
fraud,
beggars
explicitly
by
Supreme
it
tained
belief
was not
addressed
Court,
supports
appellant's
evidence
a conclusion that
concession seems well tak
appellant,
Crawford,
invite
a man whom she
en.
n.
would
See
U.S. at 56
("We
deeply feared and believed would kill her
S.Ct. 1354
need not decide in this case
divorce,
incorporates
before she could obtain her
into her
whether the Sixth Amendment
exception
dying
night
middle
for testimonial
declara
home in the
of the
after the
exception
accepted
increasingly
messages
tions.
If this
must
irate
be
bombardment
grounds,
generis.");
historical
it is sui
very day
appellant.
Giles
she had received that
from
-
- - -,
California,
U.S.
Matamoros,
Russeau, Ladd,
supra
2678, 2682-84,
(2008)
S.Ct.
L.Ed.2d 488
[14],
note
("We
acknowledged
previously
have
that two
forms of
were admit
testimonial statements
Appellant requested
and received a run-
though they
ted at common law even
were
ning objection to the entire 911 conversation.
were
unconfronted. The first
these
decla
Tammy's
by speaker
if
concedes that
rations made
who was both on
declaration,
dying
qualified
call
as a
“neither
that he
the brink of death
aware
¶
dying....
sug
the Confrontation Clause nor
In cases where the evidence
[v.
Crawford
Washington,
gested
541 U.S.
124 S.Ct.
that the defendant had caused a
absent,
(2004)
Washington,
prevent
L.Ed.2d 177
or Davis
but had not done so to
]
[v.
be
admissibility as a nontestimonial excit-
its
stitution.22 Texas
long
courts have
held
present-sense
impression.
utterance or
ed
dying
declaration exception does
infringe upon
a criminal defendant’s
804(b)(2)
Rule
Under
under,
right of confrontation
the Texas
Evidence,
dying
Texas Rules of
declara
law,
Constitution.23 Under Texas common
is a
tion
“statement made
a declarant
proponent
of a dying declaration was
believing
while
the declarant’s death
(1)
required to establish that it was made
imminent, concerning
the cause or
when the declarant was
of ap-
conscious
circumstances of what
the declarant be
proaching death “and
hope
had no
of re-
,This
lieved to be impending death.”21
ex
(2)
(3)
covery,”
voluntarily,
without
ception
hearsay
persua-
to the
rule has been ac
sion or influence
cepted
leading
under common-law tradition since
from
questions,
(4)
drafting
before the
of the American Con-
when the declarant was of sound
*15
testifying
the
typical
from
in the
Why
lose the use
all
of
I
should then
deceit?/
—as
involving
false,
murder case
accusatorial
state
be
since it is
I
That must die here
true/
by
testimony
ments
the victim—the
was ex
by
and live hence
truth?” William Shake-
cluded
it
unless was confronted or fell within
King
5,
2,
John act
sc.
lines 26-33.
speare,
(internal
dying
exception.”)
the
declaration
Although
may
Lord Melun
not have created
omitted);
Lewis,
citations
see
v.
also State
235
rule,
expressed
the
he
it well.
136,
(Tenn.2007) ("Since
148
Craw
ford,
jurisdiction
we found no
diat has exclud
State,
713,
(1857)
23. See Burrell v.
18 Tex.
731
dying
ed a testimonial
declaration. Several
("It
uniformly
has been
held that the admis-
specifically
states have
allowed the declara
sion of
dying
this evidence
a[of
declaration]
exception
tion
as
to the rule in Crawford.
infringe
right
does not
the constitutional
of
See,
State,
985,
e.g., Wallace v.
836 N.E.2d
by
the accused to be confronted
the witnesses
(Ind.Ct.App.2005);
Young,
992-96
State v.
him.").
State,
against
Taylor
In
v.
38 Tex.
272,
(Minn.2006).”);
N.W.2d
710
283-84
Peo
552,
(1898),
Crim.
mind.24 the focus abrogated, and recovery” was or circumstantial either direct lished injuries severity turned more to evidence, that the was not essential and it words indicat- explicit than the declarant’s that he was con- actually say declarant All of imminent death.27 ing knowledge hope without death or impending scious evi- requires rule is sufficient upon its recovery.25 depends Each case circumstantial, dence, that dem- circumstances, direct but sometimes particular have the declarant must onstrates the nature of conduct and the declarant’s door at the that he was at death’s realized would suffice.26 Under his wounds (1) the spoke. It is both 804(b)(2), time that the common- modern-day Rule 1995, ("The ref’d) 618, State, See, (Tex.App.-Fort pet. Worth e.g., Silva requirement the declarant believed (Tex.Crim.App.1977); Ledbetter v. 620 n. 1 State, may be inferred from Tex.App. 5 S.W. death was imminent (1887). the nature of the case such as circumstances opinions injury, medical stated to of die 542, 113 Morgan Tex.Crim. declarant, conduct at the and the declarant’s (1908) (predicate sufficient S.W. time.”); Franks v. mode, satisfactorily appears, in if "it ("Al- pet.) (Tex.App.-Fort Worth no sanction, whether they under that were made testimony that though was no direct there language directly express proved it be *16 thought dying, element he was deceased declarant, his evi- or be inferred from of the testimony sufficiently was established the danger, opinions the medical or dent or the of severity which ulti- the of the wound as to attendants, him, to or from his other stated fatal.”). mately proved case, conduct, or other circumstances to, modern, may liberalizing order to ascer- be at- all which are resorted in This trend of mind."). Wigmore's against the declarant’s tain the state of tirade tributable to Dean triumphing legal over common technicalities See Roy Ray, Texas Law 1A R. Texas Practice: stated, He sense. § 976 at 232 Criminal of Evidence Civil and said, however, that in ascertain- It must be cases). 1980) (3rd (collecting ed. illustrative knowledge ing generally the a existence of position in accord with estab- The Texas was death, are now and approaching of Courts Wigmore law. As Dean not- lished common making rulings which then found at com- ed, may of “we avail of means ourselves by a revolts. Moved either dis- mon sense knowledge inferring [of the existence of such flexibility slightest to allow the inclination and, death]; given case the imminent if in a applying principles a rule in to circum- of that the declarant nature of the wound is such stances, by general repugnance ex- a to situation, object our is must have realized his rule, Hearsay they ceptions the have re- to Wigmore’s sufficiently 2 attained.” Evidence only which can be derided corded decisions (collecting English § 1809 and Ameri- 1442 at profes- by laymen repudiated the and cases). each case can "The circumstances of It the narrow and over-cautious sion. is requisite whether the consciousness will show spirit which tends to stunt of such decisions existed, the poor policy and it to disturb is liv- development application and of the free meaning ruling judge upon of of the trial the ing hamper the administra- principles, to Id. these circumstances." justice, public tion and to undermine of op- legal procedure; and no confidence (Tex. 901 Burles censuring ought portunity to be omitted of (”[W]e the fact Crim.App.1994) take note of spirit. the of this manifestations 804(b)(2) require, does not as did its that Rule Wigmore's § at antecedent, that the declarant believe he had Evidence omitted). (footnote generally, Ferdinand recovery. hope The drafters omitted no for Tinio, Sufficiency Showing Conscious- S. 804(b)(2).’’) language (quoting from of Death, by Impending Circumstances ness Guy Goode, & Sharl Steven Wellborn Michael Declarant, Justify Than Statements Other Civil ot, to the Texas Rules of Evidence- Guide Declaration, 804.4, (Texas Dying 53 A.L.R.3d Admission § Practice and Criminal 2009). (1965, 1988)); updated Bisby solemnity speaker as “Tammy,” gave of the occasion—the fied herself her address (which abyss over the into the eternal— peering Tammy was the address of Gard- oath,28 ner), which substitutes for witness and said that she needed an ambu- (2) necessity principle husband, and lance. said that She her Steven —since died, was a necessity witness had there Gardner, her, had shot and that he had left taking only trustworthy available state- in a pickup white truck Mississippi provide underpinning ments29—that plates (exactly type license of truck doctrine. with the for the As admission driving that appellant was that night). evidence, judge all has dis- great When police paramedics finally ar- deciding cretion whether statement rived at location that the caller had qualifies dying declaration.30 them, given they Tammy found Gardner in bed, bleeding profusely her from a gunshot (1) argues wound her head. This sufficient evi- testimony “nothing Whitfield’s [Ms.] dence support that the finding person in any way demonstrated the caller be who made 911 call Tammy was indeed (2) her death imminent” lieved Gardner, the deceased.31 identify Whitfield not Ms. could caller spoken Tammy determining because she had never that sufficient evidence recognize and did supported finding Tammy Gardner voice believed imminent, evi phone. believe there is that her death We the trial dence sufficient to show both that it was upon could have relied the following Tammy made the Gardner who 911 call facts:
Ms. Whitfield and that knew that (1) single bullet entered her right dying. brain, her temple, through went Erin below her ear. Whitfield testified exited left This was *17 wound; made the p.m. who 911 call.at 11:58 identi- a mortal States, 140, 804(b)(1) question v. See Mattox United 146 U.S. is a the trial court to 152, 50, (1892) resolve, (stating only 13 S.Ct. L.Ed. 917 appeal 36 reviewable on under an standard.”); expectation "the Magee that certain of almost imme- abuse of discretion v. State, 878, temptation (Tex.App.-Waco diate death will all fal- remove of 994 S.W.2d 887 1999, ref'd) (trial sehood and enforce strict adherence to the pet. court did not abuse its obligation admitting as the of an oath im- dying truth could in discretion statement as declaration); State, pose”). 863, 983 Wilks S.W.2d v. 1998, (Tex.App.-Corpus pet.) 866 Christi no 1799; (trial Wigmore's did its § court not abuse discretion in 29. 2 1431 at see Evidence States, 697, declaration); State, 694, dying admitting Scott v. v. 164 U.S. 17 Carver United 228, 810, (1897) (dying (Tex.App.-Tyler 894 S.W.2d 811-12 S.Ct. L.Ed. 602 declara- 1994, ref'd) (same). by necessity prevent are pet tions admitted “to an justice, hap- frequently entire failure of as it pens that no the other witnesses to homicide 901(b)(4); see Tex.R. Evid. Earnhart v. present"). State, are (Tex.Crim.App. S.W.2d 448-49 1979) ("In admitting the contents of a tele conversation, Montgomery phone identity speak the of the (trial (Tex.Crim.App.1990) judge sufficiently message if the has er is established great speaker knowledge discretion in the admission of evidence reveals that the has of trial); only speaker likely the would be facts that Coffin R.J.W., ("The know."); (Tex.Crim.App.1994) trial In re court is writ) hearsay whether ad (Tex.App.-Houston Dist.] institutional arbiter of no [1st (the exceptions general under rule missible combination of self-identification and cir Thus, sufficiently testimony.... of exclusion of such cumstantial evidence established caller). identity in whether evidence comes under Rule excep- satisfy the
(2) Tammy’s dying To declaration Whitfield testified Ms. tion, death Tammy’s impending sense hard and very was slurred voice satisfactory may any established in be understand; words, mode, her including express her (3) that her Tammy kept repeating head wounds, conduct, severity of her not hear could hurt and that she her, of others stated to opinions ears very well her were “because The totali- circumstances.32 other relevant from ringing gunshots”; set out ty of the circumstances (4) had shot said that her husband She conclusion judge’s the trial support record
her, everywhere, there blood her death Tammy was believed that was ambulance; the 911 imminent at the time she made and she needed call, though expressly even did not she disconnected, (5) phone Before the Ms. explicitly told state that belief and no one what sounded like Whitfield heard judge was The trial dying.33 her she vomiting; Tammy choking and admitting not abuse his did discretion arrived, (6) deputy When first Tam- testimony concerning Ms. Whitfield’s Tammy found on the blood-soaked dying Appellant’s declaration.34 fifth my’s bed, trying up; appeared to sit error is point of overruled. bleeding to be in shock and was bad- Tammy’s Red right B. The Admission top from ly both the back head; Robe of her error, ap point sixth
(7)
leading
There was
of blood
a trail
claims that
erred in
pellant
bathroom,
toilet,
into the
around
36, the
admitting State’s Exhibit
red robe
can;
the trash
Tammy
wearing
paramed
when
(8)
arrived,
paramedics finally
When
Appellant argues
Stepha
arrived.
ics
Tammy
up a lot
“spitting
Taylor,
responding paramedic,
nie
incomprehensi-
mumbling
blood” and
only
testify
“appeared
that the robe
could
bly;
to be” the same robe that
chain-of-custody
(9)
and,
was in
state
vegetative
She
no
wearing,
because there was
days
at the
failed to
hospital
ony,35
died
two
later.
State
testim
*18
Wigmore’s
1808-09;
spoke
great
pain
§
2
1442 at
with
diffi-
breathed
32.
Evidence
Mattox,
see,
(error
culty.”).
e.g.,
versation Det. Cundiff (4) Distinctive and the Characteristics error, point In his seventh of contents, Appearance, Like. sub- appellant claims that court erred stance, patterns, internal or other a admitting of recording the telephone characteristics, distinctive taken in conversation between appellant and Det.
conjunction with circumstances.37 Cundiff after went the Jones
Stephanie Taylor
County
testified that
Sheriffs Office Mississippi to
red
wearing
robe when the
in”
“turn himself
suggestion.
his sister’s
paramedics arrived.
it
that,
She had to cut
off
argues
though
even
he was
to complete her original
literally
assessment of not
under arrest at the
of
time
Tammy.
recognized
conversation,
She
State’s Ex. 36 as
he was the “focus” of the
being the “exact” same red robe
police
because
investigation and was therefore enti
(1)
jagged
the distinctive
marks she
warnings
tled to Miranda40
under Escobe-
made
zipper
around
front
her
being
do
Illinois.41 But
the “focus” of
(2)
trauma
shears and
blood stains
investigation
does not
ren
necessarily
near
the neck area. Based on this
“in
testi
der
custody”
purposes of
mony,
trial judge
did not abuse his
receiving
warnings
Miranda
re
those
admitting
discretion in
State’s Ex. 36
quired
under article
38.22
the Code
having
Tammy’s
been authenticated as
red
appropriate
Criminal Procedure.42 The
in
prove
always
custody;
juror
“If
chain
that a reasonable
could find that the
characteristics,
unique
item has distinct or
evidence has been authenticated or identi-
fied”).
may
by testifying
witness
it
authenticate
previously
he or
has
seen
the item at the
place
relevant time and
and that the witness
Leday
39. See
*19
recognizes
by
it
its distinctive characteris-
1998) (the
(Tex.Crim.App.
erroneous admis
tics.”).
sion of evidence is
when
same
harmless
that
objection).
evidence is later admitted without
901(a) (the
36. Tex.R. Evid.
authentication re-
quirement
"is satisfied
evidence sufficient
Arizona,
436,
40. Miranda v.
384 U.S.
86 S.Ct.
support
finding
ques-
a
that
matter in
1602,
(1966).
quiry is “whether voluntarily Appellant him. of movement’ to talk to on freedom or restraint Cundiff, ar appel- with a formal Det. who spoke associated told degree 43 Det. rest.” he under arrest. lant that was not appel- just wanted to know what Cundiff required by Mi warnings The injuries. Tammy’s knew about When lant randa and article 38.22 are intended still appellant he that told against privilege self- safeguard person’s alive, him that “can tell appellant told she during interrogat custodial incrimination wants, happened] if that’ll you [what tidal, the bears the “At defendant ion.44 shortly be The conversation ended fine.” that a statement proving initial burden thereafter, The and went home. appellant interroga of ‘custodial product was the ”45 recording of that conversa- State offered gener has found four tion.’ This Court tion as State’s Exhibit 61. custody may constitute al situations of Miranda and article 38.22: for purposes that Det. “had Appellant states Cundiff (1) deprived physically suspect The prime suspect identified signifi- freedom action his acting in his on that identification and way; cant garner evidence” attempts incriminating (2) enforcement officer tells A law phone Appel- during the conversation.47 leave; he is not free suspect custody under implies lant that he was (3) officers create Law enforcement Det. the fourth Dowthitt factor because lead a that would reason- situation him probable had cause to arrest Cundiff free- believe able they phone. on the spoke the time signifi- movement has been dom of had of whether Det. Regardless Cundiff restricted; cantly probable cause and could have obtained (4) cause to probable There is arrest warrant, at the he did not have one arrest
suspect, law enforcement offi- conversation, their and he told both time of suspect not tell the he is free cers do Mississippi deputies appellant to leave.46 appel- he not have a warrant and that did Furthermore, arrest. lant was under appellant shows that vol- evidence said to Det. appellant nothing Cundiff to the sheriffs office and untarily went cause, officers, probable and Det. furnished Cundiff then called Det. talked to who prime told that he was “a County. Det. never Cundiff in Collin Cundiff Indeed, po- suspect.”48 he not have an arrest left told them that did Herrera, custody” investigation, IRS was not "in 44. 525-26. warnings purposes of Miranda when he was at 526. Id. home); private v. interviewed in Wicker State, (Tex.Crim.App. 740 S.W.2d Dowthitt v. 1987). .1996) . (Tex.Crim.App Beheler, 1121, 1125, 463 U.S. 43. California Appellant's Brief at 52. (1983); see 103 S.Ct. L.Ed.2d Dowthitt, (fourth also Herrera S.W.2d at 255 48. See *20 ("custodial interroga (Tex.Crim.App.2007) applies only when knowl- category officer's by police questioning tion” initiated officers to edge probable is is communicated cause officer; custody suspect after has been taken into even then suspect any sig custody only "if deprived of freedom in the manifesta- otherwise his is established cause, probable combined with other way). tion of nificant talking Perry. home after member Charles lice station and went We first set out appropriate standards of review. with Det. Cundiff. establish Appellant has failed to Appellant’s appeal A. on burden the tele custody during that he was in A veniremember challengea- is Therefore, conversation. the trial phone for if prejudice ble cause he has a bias or discretion in ad
judge did not abuse his against the defendant or against the law recording of that noncustodial mitting the which either the upon State or the defense Furthermore, error in conversation.49 rely.51 is entitled to The test is whether recording of that was harm admission prejudice substantially the bias or would appellant made no incrimina less because impair prospective juror’s ability Det. At ting statements Cundiff.50 carry out his oath and instructions ac most, appel the conversation showed that pro cordance "with the law.52 Before any explanation being lant not offer for did spective juror may be excused cause on display any in Texas and that he did not basis, the law must be explained to when he was informed that his emotion him, and must be asked whether he can had been shot. has not wife law, regardless personal follow that of his anything in that conversa suggested Finally, the proponent views.53 of a chal inculpatory Appel tion was or harmful. lenge for cause has burden of estab is point lant’s of error number seven over lishing challenge proper.54 is ruled. proponent does not meet this burden until he has shown that the veniremember un Challenges to the Veniremembers requirements derstood the law and three, point of error claims prejudice could not overcome his well judge improperly that the trial denied his enough to follow the law.55 When challenges for cause to five venire- record reflects that a veniremember vacil Williams, members: Donna Donna Crab- equivocated ability lated or to follow tree, Chambers, Sanford, William David law, reviewing court must defer to He and Susan McMillan. asserts trial judge.56 questions their answers to various demon- ruling they strated that could not be fair and We review a trial court’s jurors challenge in this In his fourth on a for cause with considerable impartial case. error, in the claims that deference because the trial
point
position
best
to evaluate a veniremember’s
improperly disqualified
trial court
Venire-
35.16(a)(9)
circumstances,
per-
art.
&
would lead a reasonable
Tex.Code Crim. Proc
State,
(c)(2);
that he is under restraint to the
743-
son
believe
Feldman v.
arrest.”).
degree
associated
(Tex.Crim.App.2002).
Herrera,
50. See Jones v. 53. Id. (Tex.Crim.App.2003) (erroneously-admitted, statement was harmless be non-Mirandized 54. Id. doubt); Harryman yond a v. Es reasonable telle, (5th Cir.1980) F.2d 55. Id. (constitutional applies rule harmless-error statements; admission of ad non-Mirandized (Tex. 56. Moore v. was harm mission of defendant’s statement light physical guilt). Crim.App.1999). less in evidence of *21 retaliation], glary A trial is that an auto- responses.57 judge’s demeanor and challenge may penalty you? for be matic death for ruling on a cause for a clear abuse of discret only reversed > Of intentional murder? a veniremember’s answers ion.58 When exactly Following Yes. what this <© unclear, or con ambiguous, vacillating, are question says. particular deference to tradictory, give we Yes. decision.59
the trial court’s death? It’s automatic case, appellant exhausted In this capital prov- If it’s murder and it’s challenges, and the peremptory all of his en. him an additional judge granted you Could consider a life sentence <© Thus, must show that strike. rephrase in that Let me that. case? judge improperly the trial denied least listening you, would it cor- be challenges two of his for cause.60 you rect to say couldn’t consid- er a life sentence? Donna B. Veniremember Williams No, I could. <1 challenged Ms. Appellant Then I’m a little I confused because Williams, claiming that she would automat O’ thought you said that it was an penalty. ically impose the death Ms. automatic death. that she believed in the Williams stated “if all <1 In the penalty death the evidence is there.” State Texas. being “tough” described herself as in She hypothetical, you’re This is a o
holding people thought accountable. She sitting jury panel, and this is penalty option that the death should be an you have found it was an what— in for murder committed the course of a murder in intentional committed retaliation, burglary or but that it would committing burglary course of “automatically required.” not be She stat committing capital retaliation of give ed she would not an automatic penalty murder which the death dangerousness answer on future issue may imposed. agree be You give and that she would both defense and law, correct? mitigation State a “fair shot” on the issue. i> Yes. agreed She with defense counsel that the you agree Do that that would be an penalty only way <© death to hold penalty? automatic death capital someone accountable in a murder Yes. case. When counsel asked her about her
application penalty, of the death Ms. exchange asserts this replied, automatically Williams “I wouldn’t demonstrates that Ms. Williams would au- questioning vote death.” His contin tomatically impose the death penalty ued: type capital this murder case even situation,
Q: Question In the though repeatedly No. 9 she had said juror questionnaire asking [of could consider a life sentence. Reading about exchange way, murder the course of bur- one it seems that Ms. 57. Colburn v. Id. (Tex.Crim.App.1998). Newbury (Tex. Id. App.2004). Crim. *22 changes ques her mind with each
Williams automatic for murder during committed a exchange this another Reading way, tion. burglary. But once the law had been ex- that, mistakenly thought it seems she un her, plained to she said that she would law, penalty der Texas the death was an “have to view it with glasses,” different option type capital “automatic” in this hope and would that she “would open be case,61but murder that she herself would for mitigating circumstances.” She told automatically not a vote for death sen prosecutor several times that tence; sentence, she could consider life mind, keep would an open be fair to both depending on the facts. am resolving sides, evidence, wait to hear the and not biguities jury and ques contradictions automatically say either a death sentence tioning, we give great must deference to or a life sentence. She told defense coun- judge’s the trial assessment of the venire- that, penalty sel while the death be should demeanor, meaning member’s based on an option for during burglary, murder tone, totality questioning. and she did not mean that it should be “auto- supports This record a conclusion that Ms. matic” in such a case. She then said that automatically impose Williams would not when Question she answered 9 on the type capital death sentence this mur questionnaire, she did know the law der, though even she considered that sen about special punishment issues and tence to be an option.62 automatic At thought she had that death was automatic worst, responses Ms. Williams’s were if the defendant committed murder during contradictory sometimes vacillating. a burglary. guess “I what that’s it kind of The trial judge did not abuse his discretion does, if they commit a during murder bur- denying appellant’s challenge for glary, they should be killed because noth- cause.63
ing bring can the victim back.” Defense C. Veniremember Donna Crabtree repeated counsel then question, “So you’re what saying is that’s an automatic
Appellant
has forfeited
death
agreed.
sentence?” Ms. Crabtree
complaint
appeal
about
this venire-
added,
But then she
“I’m really kind of
member because he did not challenge her
confused at what you’re asking
I
me—do
for cause in the trial court.64 But even if
get
need to
to that in terms of burglary?
cause,
he had challenged Ms. Crabtree for
time,
If this is his first
kills some-
judge
the trial
would not have abused his
one, do I think he
discretion had he
it.
needs to be killed? I
denied Ms. Crabtree
initially
had
think that
juror question-
brought up
stated on her
needs to be
to see if
name that
penalty
the death
should
continuing
be
he would be a
threat.” She
fore,
penalty
61. The
op-
death
is not an automatic
challenged
that she would be
because of
jury.
penalty
only
tion
The death
failure to be able to take into consideration
decides,
trial,
option
prosecutor
if the
before
mitigation, specifically regarding
re-
the—as
to seek it. See Tex Code Crim. Proc. art.
offenses,
lates to extraneous
we will use a
1.13(a);
37.071, 2(a)(1);
§
id. art.
peremptory
Your Honor.”
strike.
they
had wanted to ask veniremembers if
Moore,
400; Colburn,
62. See
999 S.W.2d at
give
could
a life sentence to someone that
S.W.2d
they
guilty
capital
had found
murder
Moore,
previously
63. See
who had also
shot
be honest if somewhere D. William Chambers Veniremember that proceeding you this find you, law given law is—-the as challenged Mr. Cham you, law that’s as described strength on the religious bers based his charge says of the that Court beliefs. Mr. Chambers stated that he was do, you you what shall if find that in a man of faith “follow[s] who law you’re the Scripture, violation of not Bible,” he he but could set also said law; going you’re go- to follow that personal aside his beliefs and follow the follow ing you what defined as law to him At given court. one Scripture, your correct? Mr. point, Chambers and defense counsel to, A: yes. I would have engaged colloquy Scrip in a concerning tures and law: thereafter, Shortly Mr. said Chambers mitigation would he consider issues trial, Q: or if during during So doing and would have no problem so. Court, you charge of the some- find his Mr. Throughout questioning, Cham- thing Scriptures, that violates the bers that he the spe- stated could answer law, you you couldn’t follow the but yes cial or no on the depending issues facts you Scrip- said would follow the nothing and circumstances tures; is that correct? he law following had heard about con- Yes, hedge my
A:
but I
on that
bets
with his
flicted
conscience.
for
simple
one
reason that what
I
will
Scripture may
Although
juror
conclude to be
dif-
who
ulti
people
mately
guided by
personal
fer
what other
conclude
be
beliefs
his
my
be
So
law
Scripture.
got
qualified jur
I’ve
rather than the
is not a
or,67
of it that
are
understanding
suggested
there
Mr. Chambers never
Colburn,
Landry v.
E. Veniremember David Sanford any specific type of or specific evidence Appellant challenged Mr. San circumstances as either or mitigating ag cause, for arguing ford that the venire- gravating, but he must be able to consider member was law69 unable follow the all evidence that he mitigating does or find said, juror and that he on his question aggravating in answering special iss naire, that he not mitigation case, could consider ues.70 In this Mr. Sanford stated during evidence. But the questioning birth, that he could consider of evidence attorneys, Mr. Sanford said repeatedly and in upbringing, assessing environment that he had an mind and follow open punishment, would though per even did not he law; he “be fair” all sonally could and consider find them More impor relevant. of the concerning tantly, require evidence both future law him does not (trial head, Compare your guess your in id. court did not err what in I in is is head.” granting challenges capital appeared referring for cause in mur- Mr. Sanford to be to the jurors expressed der personal acknowledging case when two mind unconscious that religious against or scruples penalty, people always death not do have conscious control they jurors both penalty staled believed death over When a unconscious influences. venire- instances, inappropriate ambiguous be in most member's answers are or vacillat- jurors personal ing, judge’s duty both indicated that their be- the trial it is to resolve the liefs, law, guide meaning rather than the would them of those determine if statements and issues). answering special juror in prospective properly could follow Colburn, law. discussion, During one Mr. said Sanford although that he would the law” "follow 70. See S.W.2d Heiselbetz sometimes, 1995) (trial believed people (Tex.Crim.App. even when court did 508-09 consider, cause; you you may may denying challenges tell what or not not err for part being though jurors they "that’s the potential unfortunate of human. could stated head, give specific types Sometimes it's in our we're not certain of evidence while to, value, tiying go they mitigating not we back here and we make a each stated that could may give they decision that have been influenced to evidence did find miti effect that; where, gating); I then I think that’s what—this is Johnson 1989) ("[I]l guess, trying say. (Tex.Crim.App. what what I'm That's is not error jury purpose challenge court for. So that for a trial to overrule a people community juror that are in the think it is shown will not cause where that a alike, alike, may give particular variety somewhat live can make that de- of ‘miti not there, consideration,” i.e., may gating cision. But influences I those be evidence' that; but, definitely try guess, weight). will to follow I writing conviction for “bad Class theft enumerated C specifically these
consider failed to He claims that the State mitigating evidence as either checks.” types Perry did Mr. same prove aggravating.71 overruling appel convicted in Perry his discretion who had abuse Charles been challenge for cause Mr. Sanford. bad checks in Dallas. The passing lant’s 1981 of page print-out a four DPS State offered McMillan F. Veniremember Susan record. Perry’s purported Mr. criminal questioning of very After short Perry’s That contained Mr. date record McMillan, appellant veniremember Susan Mr. security birth number. and social challenge,” “We without simply announced Perry that he in Dallas stated lived *25 or any challenge for that reason giving written checks to a and that he had some intended a chal stating whether it was when he not have suffi- Dallas bank did peremptory challenge. lenge for cause or a account, that cient in his but he funds appellant failed to describe what Because “resolved” thought that the matter was exercising he was or the type challenge of Appel- he had made restitution. because (if challenge a for cause specific basis for lant that the DPS criminal record argues cause), for he challenge he intended a sufficiently to establish was not reliable appellate issue for preserve failed to actually Perry that Mr. had a final convic- veniremember.72 concerning review tion for theft. sum, has appellant
In not shown because has been con person A who improperly trial at judge that the denied for, of, cause, charge who has a pending for victed challenges of his least two his is merit, felony either theft abso and it misdemeanor point of error is without third lutely juror.74 a But disqualified as Article overruled.73 is require judge 35.19 the trial does not Perry Charles G. Veniremember disqual be about a veniremember’s certain ification; error, a appel may disqualify prospective In his he point fourth Perry juror “appears” if it the is argues lant that veniremember subject disqualification under the statu jury from service improperly disqualified trial he te.75 The issue of whether a venireman is judge prior because had 508-09; State, 22, Heiselbetz, Newbury v. at 73. 135 S.W.3d 31 906 S.W.2d John 330-31; son, State, 773 see v. (Tex.Crim.App.2004); S.W.2d at also Joubert v. 763 Martinez State, 729, 1988). (Tex.Crim.App. 235 ("A 734 (Tex.Crim.App. S.W.3d S.W.2d 415 2007) challengeable venireperson is not ground cause on that she does not for 35.16(a)(2) (3); & art. Proc Tex Code Crim particular type of evidence to be consider State, (Tex. v. see Nelson S.W.3d mitigating.”). (a is Crim.App.2004) veniremember who ab may solutely disqualified under Art. 35.19 not State, (Tex. v. 72. Mathis jury, parties' even con serve on a with both (“To alleg Crim.App.2002) preserve error on sent). cause, challenges edly erroneously denied for alia [inter ] must demonstrate (Tex. Chambers specific challenge that he asserted a clear and (“[A]rticle not cause”); Crim.App.1995) does re 35.19 for Green 1996) (“To quire certainty part undisputable on the preserve (Tex.Crim.App. error making determination on challenge trial court its for a trial court's denial of valid Rather, cause, disqualifications. article it absolute for must be demonstrated on ‘appears’ if provides that it 35.19 record that asserted a clear cause,” disqualified, venireperson absolutely then specific challenge among is other ”). empaneledf.]’ he requirements). 'shall not be disqualified qualified under statute one of were to serve.80 We overrule fact; thus, conflicting, if the evidence is appellant’s point fourth of error. does abuse discre either finding tion the venire- Jury Charge Claims disqualified.76
member is or is not Al error, points two appellant claims though Perry Mr. not affirmatively did charges that the jury guilt at both the (he state that he had theft conviction punishment stages contained error. that he said had “resolved” the matter and restitution), acknowledge made he did
underlying factual information in the DPS Jury Charge A. The Stage at the Guilt Appellant argues record.77 that DPS com In point eight, of error appellant claims error, prone but puter records are there the jury charge guilt stage is no evidence that this DPS record is required should have jury to unani Perry dispute any erroneous. Mr. did not mously decide whether he was liable for record; rather, DPS facts capital by shooting Tammy murder while appeared have not been aware of the committing burglary the offense of or of *26 legal consequences of the “resolved” trial, retaliation. At he objected and ar charge, and he said that he “can write that gued given the jury should be two judge The trial down.” did not abuse his forms, different verdict one for murder in in concluding discretion from this informa the course burglary of and the other for Perry appeared tion Mr. to be abso murder in committing the course of retali lutely a disqualified juror.78 to serve as that, ation. argued The State Perry But even if Mr. had under improperly been State,81 Kitchens v. disqualified by judge, appellant the trial burglary and retalia any failed to show that error affected his tion were different manner simply rights. showing substantial Absent a of means to the single commit offense of capi murder; error, constitutional a rights defendant’s is, tal murder committed only by jurors are affected harm caused during the of of course one the enu case, who served on the not by those ex merated felony offenses.
cused from service.79 There
no sugges
is
that Kitchens of
Appellant argues
judge’s
tion that the trial
disqualification of
Perry deprived appellant
simplistic
Mr.
a
fers too
an
lawfully
analysis
of
and is out
all
jury,
decisions,
constituted
of whose members moded under our more recent
Id.;
76.
see also Hammond v.
Jones v.
391-94
(Tex.Crim.App.1990)
(an
(Tex.Crim.App.1998)
improperly granted
(stating
finding
juror
that the
of
whether
challenge for cause is not constitutional error
absolutely disqualified
question
is "a
of fact to
long
juror
as the
was not
for
struck
dis-
be resolved
in
trial court
the first
criminatory
general
of
[or
reasons
because
"
instance,” and,
'might
if the evidence
be
thus,
opposition
penally];
death
to the
conflicting,’
called
a trial court has discretion
improperly granted challenge for cause does
find,
find,
or for that matter refuse to
facts
rights
not affect the defendant’s substantial
cause.”).
justify challenge
such as would
for
deprived
lawfully
unless the error
him of a
jury).
constituted
Perry
77. The DPS record showed that Mr.
27, 1981,
August
was
“passing
arrested on
Id.
worthless checks—theft.” On December
day
he
jail.
was sentenced to one
in
(Tex.Crim.App.1991).
81.
Huffman concerning which State,83 need to be unanimous upon gravamen focused which felony in course of com- determining whether the in the offense of eighth mitting. appellant’s about alternative We overrule must unanimous jury be cases, point of the offense. These of error. elements Kitchens,
however, consistent with are gravamen that the of that implied which Charge B. The Punishment intentionally causing murder capital nine, raises of error point in of while the course of the death punishment complaints about the several committing as aggravated either sexual First, he jury charge. claims that not robbery.84 jury did need sault a nonunani- punishment charge allowed for two un be unanimous which (1) mous verdict because derlying felonies defendant jury jurors hung did not instruct the committing.85 We have consis course (2) sentence; would result a life tently followed Kitchens analysis instruction statutorily mandated “12-10” charges: jury of capital context murder juror that could did not inform each capital murder is inten gravamen (or by refusing a life death, mandate sentence tionally knowingly) causing a special reach a on the issues. decision types different plus any one of various repeatedly rejected This has these Court elements, and we most recent aggravating claims,87 appellant’s arguments do in Kitchens ly holding “that our concluded *27 precedent. us overrule our persuade to equally to all alternate theories of applies contained within capital [Penal murder Second, 19.03, they § that the whether are found in asserts
Code]
subsections,
the
long
refusing
or
so
trial court erred
define
the same
different
“probability,”
terms
“criminal acts of vio
alleged
predi
for the
as the same victim
lence,” “militates,”
“continuing
cate murder.”86 Kitchens remains
good
and
threat
charge
society.”
out
terms are not statutori
jury
properly
law. The
set
These
defined; therefore,
ly
give
of
underlying
burglary
jury
felonies
and retalia-
should
574, 583-84,
(in
State,
(Tex.Crim.App.2008)
v.
296
82.
Having sufficiency punish- you heard a little bit about ground, concerning instructions, his we overrule that he worked with people it from these jury ment of error. point background. ninth And that’s stuff about his can consider for the second you Jury Argument The State’s Issue. Special error, ap point tenth of this acknowledges Court Appellant prosecutor that the misstat claims pellant that, if the circum- repeatedly said has jury that it could law and told ed the sufficiently cold- of the case are stances solely on a sentence based impose death calculated, those facts then blooded capital murder. In con the facts of the may support finding a of future dan- alone text, however, argument ap the State’s argument gerousness.99 prosecutor’s closing proper. During pears to have been being the facts of the crime concerning explained the prosecutor argument, future support finding sufficient deciding special the two issues: process of one, proper and he dangerousness was you go making about And so how do urge jury ignore second did maiding'— you go How do this decision? issue, question. In- special mitigation making determining about go stead, he told them to look first Special to these Issues answers (the first issue of future dan- special crime is a future whether or not this defendant (the and then to the criminal gerousness) or not this defen- danger and whether concerning mitiga- special second issue or a a life sentence death dant deserves tion). Although possible it is to construe sentence? argument being improper when things here. First look at a few We context, prosecu- taken out of its full And, all, you at the if you look crime. argument naturally interpret- tor’s is more remember, that, we talked about Even if it could permissible ed as a one.100 you can have situation where defen- improper, be viewed as it was not so mani- capital commits such a heinous dant festly constitute reversible er- improper to murder he can be sentenced to death ror.101 you based on those facts alone. So look appellant’s point overrule tenth We at the you at the crime and then look error. you’ve got plenty criminal. And of evi- you.... dence before Hearing for New Trial Motion objected that a mis- this was *29 law, judge eleventh, the the trial final, statement of point In his Later, objection. pros- overruled that the error, the trial claims argued: ecutor by failing hearing court erred to conduct a crime, his motion for new trial. you you look at that and then on So facts you timely look at this criminal. And heard a filed his motion and asserted See, State, e.g., prosecutor’s argument not a misstate- Guevara v. 97 S.W.3d 99. State, (Tex.Crim.App.2003); Hayes law). v. ment of the (Tex.Crim.App.2002); S.W.3d State, (Tex. Barnes v. (inferences by prosecutor 101.Id. drawn Crim.App.1994). improper were extreme or as to rise to not so error). the level of reversible See, e.g., Cantu (viewed context, (Tex.Crim.App.1997) in Appellant’s ally in to the trial judge, presented were not the record.102 much less a counsel also attached “Certificate of in timely it a manner. His certificate in stating copy Presentment” a of his which he indicated that he intended to motion to the trial would be hand-delivered it present does not suffice to show that he court. there no Unfortunately, indica- actually did do so when he or did so.
tion in the record that motion for new At oral argument, appellant’s was, fact, trial in hand-delivered to the counsel noted the of appearing difficulties trial judge. There is no indication in the the various courts across the record that the trial ever judge saw the state a motion for hand-deliver new trial motion, by it operation and was overruled judge trial documentary and obtain Furthermore, appellant of law.103 never of that proof event. The Rules of Appel asked for a on his motion for hearing new late require Procedure do not a personal trial. visit, they but require do some documenta A for new trial motion must be ry evidence or notation that the trial judge “presented” to the trial court within ten personally copy received a of the motion days being filed.104 defendant must and could therefore decide whether to set put the trial on notice that judge actual hearing a or rule upon otherwise it.107 action, judge desires the to take some such Thus, any showing without that the trial making holding a a ruling hearing, on judge actually saw appellant’s motion for his motion for new trial.105 “Presentment” trial, new cannot be faulted for record, apparent must be from the and it failing to hearing conduct a on that mot may proof be shown as the judge’s such ion.108 signature on or notation the motion or Further, order, proposed entry request on did not or an the docket hearing sheet on showing presentment setting his motion for new trial.
hearing nothing Although date.106 There is motion contains a document present record that ap Setting,” demonstrates that titled “Order for a that document pellant ever his presented person- motion not suffice request does as a hold 22; investiga- 102. He attached an affidavit 106. Id. at see also Carranza stated, 1998) ("[T]he tor in which she (Tex.Crim.App. record must show the for a new trial movant During punishment phase of trial with actually delivering sustained the burden of jury present in the still courtroom and motion for new trial the trial court or just prior being jury sent to deliber- bringing otherwise to tire the motion attention ate, I heard [make] the court comment in may or actual notice of the court. This trial jury’s reference to the deliberations ut- as, accomplished ways be in several such phrase, expect ter the “I do this will example, obtaining ruling court's trial long.” take trial.”). a motion for new Tex.R.App. P. 21.8. ("The P. 21.6 Tex.R.App defendant must Tex.R.App. present motion for to the trial new P. 21.6. it, *30 days filing court within 10 unless the State, 20, See Stokes v. 277 permits S.W.3d 21 trial court in its it to be discretion (“The (Tex.Crim.App.2009) purpose presented days and heard 75 from the within presentment put rule the imposes is 'to trial court on suspends date when the court court.”); Stokes, actual notice that a defendant desires the open sentence in see 277 court to take on the some action motion for S.W.3d at 21. ruling new hearing trial such as a or a on ”). See Carranza, it' 108. 960 S.W.2d 79-80. Tammy’s primarily The relies on recently- As Court motion.109 we on the
hearing knew she was establish that she injury to not the held, court does reach reviewing “a us the evidence. Let review about to die. court its a trial abused of whether question hearing hold a if no failing in to discretion 1. The Evidence to presented was hearing a request (1) right single her bullet entered it.”110 brain, through ex- temple, her went not show that he did appellant Because a ited her left ear. This was below for new trial his motion timely presented though, The question, mortal wound. is a requested or that judge to the trial it was a Tammy knew that mortal whether motion, the trial did on that hearing in The fact that had been shot wound. she failing to con- abuse his discretion not up killing injury the and her ended head hearing Appel- that motion.111 a on duct her that she knew does demonstrate is of error overruled. point lant’s eleventh the time she at death’s door at error, we no reversible Having found question. she the statement made trial court. judgment affirm the can, in nature of some While the wounds cases, that a declar- support conclusion KELLER, P.J., a concurring filed dying, ant is the facts knows she MEYERS, J., joined. in which opinion compara- by the Court are not cases cited ble to the facts this case. those KELLER, P.J., concurring filed there was evidence that: doctor cases J., MEYERS, joined. in which opinion die;2 told the victim she going if it dying A declaration is statement is victim was set fire and died next while believing a declarant “made morning;3 or victim refused identi- imminent, concerning his death him, fy attacker until an officer asked of what cause or circumstances he believed you “If you do want the who did die I death.”1 find abso- impending to be his First, you go free?”4 these are this case lutely no evidence in opinions than appeals opin- court of rather that her death was immi- Gardner believed Moreover, the objec- ions from our Court. as her nent when identified victim tion in was not that the Wilks attacker. but impending unaware of her death acknowledges, rule As the Court the statement did not concern circum- my evidence to requires opinion sufficient show of her death. And in stances ques- that he in that case is holding no-petition the declarant must have realized spoke. anyway. at the time he was at death’s door tionable 21; State, 228, Stokes, Rozell, 277 S.W.3d at See 109. 111. Rozell ("The at 231. (Tex.Crim.App.2005) order S.W.3d attached trial], the motion new labeled "Order- [for Tex,R. Present,” options 804(b)(2). hav- Time to included 1. Evid. hearing ruling ing a on the motion without which, State, 878, hearing, specific (Tex. without a more Magee v. S.W.2d 2. ref'd). request, pet. left to the trial court's discretion App.-Waco hearing whether a be held. We hold should that, case, (Tex. in this did not ade- Wilks quately advise the trial court of his desire to pet.) App.-Corpus Christi no hearing.”). have a (Tex. Scott v. ref’d). pet. App.-Tyler Id. at 230.
(2) Ms. Whitfield testified that Tam- she was aware at that time of the extent of my’s very voice was slurred and hard to injuries, her that would not be particularly understand. This is not particularly relevant to what thought she when she strong of the extent injury, evidence identified appellant earlier on. Tammy and it is no evidence that was (7) There was a trail leading of blood aware of her death. impending More to bathroom, into the toilet, around the point, Tammy substance of what and in the trash can. This shows that said to Ms. Whitfield reveals no awareness she go was able to back and forth to the of impending death. bed. And it appears Tammy put the (3) Tammy kept repeating that her bloody trash, tissues into the as anyone head hurt and that she could not hear normally would if do she were simply
very ringing well “because her ears were cleaning up injury an rather than contem- gunshots.” from the Contrary to the plating her death. Court, conclusion of the I believe this (8) paramedics finally When the ar- shows—if anything she was unaware —that rived, Tammy “spitting up was a lot of of the severity injuries. of her I think that blood” mumbling incomprehensibly. these matters insignificant would seem But the paramedic Tammy didn’t see until really her if she were aware of the fact almost forty-five call, minutes after the 911 event, going she was to die. Tammy well after made the statement ac- they are no evidence of the latter. Also, cusing appellant. even forty-five (4) She said that her husband had minutes after she called she “seemed her, shot everywhere, there was blood very to be stable.” and she needed an ambulance. Asking (9) vegetative She was in a state and for medical assistance is evidence that she hospital days died at the two later. The dying. didn’t know she was fact that injury enough is bad to even- (5) phone disconnected, Before the tually cause death cannot be sufficient to Ms. Whitfield heard what sounded like satisfy the dying-declaration requirements, Tammy choking vomiting. Tammy else the fact of death would swallow the injured, knew she was but this offers no requirement. consciousness-of-death And support for the contention that she knew the fact that Tammy did not immediately Moreover, she dying. was the identifica- weighs against die a conclusion that she tion already had been made knew she was dying. Finally, for all I can then. tell, had the ambulance not delayed been (6) deputy arrived, When the first house, going to the wrong Tammy bed, found on the blood-soaked might have injuries. survived her To trying up; appeared to sit she inbe case, whatever extent that is the it under- badly shock and bleeding was from both cuts the upon severity Court’s reliance top right the back and of her head. This injuries of her to find that her statement was twenty thirty minutes after she a dying was declaration. called 911. responding The officer testi- fied that Tammy trying to sit up and 2. The Standard Review get wanted to out of He bed. had to tell her repeatedly that she bleeding badly says Court that the trial judge has lay that she needed to “great back down. in deciding discretion whether a This is evidence that she did qualifies not know how statement a dying declaration.” severely Also, injured. even if The cases cited not support do this conten
308 proposi interrogation ... and at the initial first case cited for the least The tion. State,5 call, but the en in with a 911 Montgomery v. conducted connection is tion is is about to Montgomery ordinarily primarily not ‘estab- designed tire discussion Moreover, given fact, the reason 403. but prove’ past Rule lish or some to de- deferring to the trial Montgomery requiring po- scribe current circumstances 10 403 is that “The on Rule decisions court hold lice assistance.” I would witnesses, the defen judge sees 911 call constituted an “excited utterance” counsel; dant, jurors and he alone is nontestimonial, that was admissi- manner participants’ witness the able hearsay exception ble as a and under the But intonation ism and reactions.”6 and Confrontation Clause. it comes
credibility are not issues when judgment. I concur the Court’s a dying a statement deciding whether declaration, how The dying declaration. evidence, does placed
ever it is into not anything more to the trial court
reveal subjective belief of the declarant
about appellate court.
than it does to State,7 cited, second case The Coffin 804(b)(1), to Rule which concerns
refers Angel RESENDEZ, Appellant, declarations, dying but the use of for- testimony. remaining The cases mer are I appeals opinions court of dis- The Texas. STATE of above, they appear do not cussed support the Court’s claim.8 No. PD-0917-08. of Criminal Appeals Court Texas.
3. Excited Utterance I would resolve claim on a appellant’s Oct. 2009. call qualified different basis: Rehearing Denied Jan. 2010. nontestimonial utterance. An ex- excited relating cited utterance is “statement
a startling event or condition made while of ex- declarant under stress citement caused the event or condi-
tion.” There can be no doubt that Tam-
my’s the 911 call during statements were just
excited utterances. She had been head, relating in the
shot she was operator that led to events In Davis v.
injury. Washington, Su-
preme pointed out that 911 call “[a] Court 803(2). (Tex.Crim.App. Tex R. Evid. 1990). 813, 827, 10. 547 U.S. 126 S.Ct. Id. at 379. (2006). L.Ed.2d (Tex.Crim.App.1994). opinion,
8. See this
ante.
notes
penalty.”91
previously
We have
“Eighth
held that
heightened
Amendment’s
requires
jury
this instruction
to look at
reliability
‘need for
in the determination
just
all of the evidence and not
evidence
that death is the appropriate punishment
”97
juror might
mitigating.92 Ap
that a
find
in specific
case.’
That heightened reli
pellant argues that
the charge
ability
failed to
is achieved
statutory
the Texas
preclude
jury
from “giving weight
special
to scheme with its
issues and its man
beyond Appellant’s
factors
datory
control”93 that
jury.98
instructions to the
The trial
might militate in favor of the death penal
judge did not err in declining to instruct
ty. But appellant
explain
jury
non-existent,
fails to
what
on a
non-statutory
factors
both beyond
were
his control and presumption.
Druery,
88. See
Appellant's