*1 call this sand- people judge. Some trial any exclude mention sought he not base its should bagging. This Court convictions, by reading whether prior materials, nev- extra-record upon decisions stipulation offering or the indictment by the trial court. evidence, er seen during guilt-innocence into told the trial Specifically, appellant stage. dissent. respectfully judge: suppress got we have a motion Judge, coming convictions from prior DWI I know the law guilt
in at innocence. guilt the] come in priors [at Texas that jurisdic- to confer [stage] and innocence DWI, felony but tion on that Court for jury contention that it’s our GRANADOS, Appellant, Carlos all, priors, shouldn’t hear about the guilt not in the punishment until but 403, unduly preju- Under innocence[J of Texas. The STATE
dice.
court
surprising
It
the trial
is not
73,525.
No.
un-
appellant’s
suppress
denied
motion to
of Texas.
Appeals
Criminal
Tamez,
circumstances. Neither
der these
States,
519 U.S.
nor Old
United
Chief
8,May
(1997),
mez was even required jurisdic- are to hide judges trial from the tional elements of offense jury. They only are not. The relief which or Tamez entitle a defen- Old Chief require is to the substitution of
dant in lieu of stipulation bland but informative evidence unfairly prejudicial extrinsic solely prove jurisdic- relevant tional element of an offense. majority states that admission of convictions judgments prior in unfair would have resulted case they would have shown
prejudice actually prior four DWI good argument, That convictions. court. The never made to the trial record— judgments are not in the prior It brief. they are attached to reverse a that this court would is curious un- purportedly conviction based that was never of evidence prejudice fair discussed, shown, or mentioned even *3 Austin, Schulman, Appel-
David A. lant. Anderson, DA, Mat- Georgetown,
Ken *4 Paul, Austin, Atty., thew State’s State.
OPINION
KELLER, P.J., of opinion delivered WOMACK, in which HERVEY, HOLCOMB, KEASLER, and joined. COCHRAN County jury ap- A convicted Williamson pellant capital of murder.1 Pursuant jury’s special issues set answers 2(b) 37.071, in and forth Article Sections 2(e) Procedure, of the Code of Criminal appellant trial judge sentenced appeal death.2 Direct to this Court will affirm. automatic.3 We
I. particularly
The facts of this crime are error, fifth appellant’s point relevant to of evidence challenges the admission scene, crime and his fourth obtained error, challenges the admis- point of w'hich police sibility of certain statements hearing appel- at a officer introduced scene suppress motion to the crime lant’s evidence.
A. trial
Katherine testified at and Jiminez actions in detail. described appellant indicated that she first met She Id., 37.071, 2(h). 19.03(a). § § 3. Art. Penal Code Tex. 37.071, 2(g). § 2. TexCrim. Proc.Code Art. and said, me to leave?” friends, “You want spent lant The two became “Yeah, said, you to dated for a I want together socially, and Katherine
time there- They parted ways soon short time. leave.” after, friendly contact. but remained ensued, and period off cooling A brief Anthony Jiminez Katherine then married talking again. During began the two 13, 1995, 1994, and on she April June called, Elizabeth time, sister Katherine’s son, Anthony. Katherine gave birth to a busy and said Katherine was appellant and eventually separated, husband and her Katherine told telephone. hung up she re-established a relation- late and leave.” “get his stuff appellant then lived in New who
ship appellant, wanted that she repeated Katherine then January In Katherine York. room, and Appellant him left the to leave. her own in apartment moved into an March, again, “You visited he came back asked Georgetown. appellant when visit in her from New York. After another and she said she want me to leave?” July decided to return said, “Fuck it. Angered, appellant did. appellant agreed Texas. Katherine and it,” attacked Katherine with Fuck they together appel- until would live repeatedly her knife. He stabbed he got August, lant on his feet. In late Then, apparently, her throat. slashed *5 with Katherine and three- began living struggled and at- knife broke. Katherine Anthony apart- in Katherine’s year-old him by telling placate appellant to tempted ment. Eventually, appellant him. that she loved later, Sunday, Less than month on togo afraid that he would began crying, 13, 1998, Katherine, September appellant, would con- jail. Katherine said that she Anthony and returned to Katherine’s if injuries her story trive a false about having appellant’s after lunch at apartment simply would leave. appellant appellant brother’s house. Katherine and unsuccessfully tried to tele- Katherine supposed go both to work that were to escape, appel- and to phone police An- evening. planned drop Katherine to caught dragged lant her and her to house, thony off at her mother’s where he again repeatedly, kitchen. He stabbed her pick would remain until Katherine could Appellant him death. left up morning. Appellant feigned the next want- and she join nap kitchen, Anthony ed Katherine to him in a Katherine heard and afternoon, refused, she but she scream, kill “I want to die. Don’t don’t still needed finish chores around in the me. I don’t want to die.” Stabbed apartment and because she did not want to chest, moments. Anthony died within Anthony while was awake. nap take Later, and Katherine heard her sister Meanwhile, Anthony living was apartment. Afraid nephew her outside an- watching Appellant, room television. finally kill her she appellant would take a gry nap that Katherine would not however, remained help, for she screamed him, plate from her knocked food throughout Appellant stayed active silent. to the bed- hand. The two then retreated came to the kitchen where night. He At that they began arguing. room where lay and showed her that he Katherine told “I don’t point, appellant, Katherine “Look, wrists, go- I’m stating, his slashed I you anymore. even want to talk to don’t Later, telephoned he ing you.” to die with you. you I don’t want want to look later, believing hours his father. Several you me.... here. be around don’t want imminent, Katherine was Appel- that her death get your things Just and leave.” door, son, er, appel- and saw dragged body wanting approached her toward her lant, initially hidden. right to die side. whose hand orders, response Corporal Brunson’s Meanwhile, family Katherine’s became hand, in which he appellant right raised his her, they worried that had not heard from knife covered in blood. large held kitchen work, that she had not arrived for and that out ordering appellant apart- After Anthony she had not left with her mother ment, Corporal repeatedly Brunson asked regularly at the scheduled time. Elizabeth Appellant to release the knife. sisters, Ojeda, of Katherine’s testified one eventually Corporal did so and Brunson that, apart- after she called Katherine’s apartment, him. handcuffed Inside ment, answering her ma- messages left Anthony’s body, Corporal Brunson saw chine, apartment, visited the and received bloody protruding arms Katherine’s knock, Ojeda tele- response no her chair, covering beyond a and blood stains apartment manager phoned the near and walls the kitchen. carpet Early Monday morn- Georgetown Police. that no one Once the officers determined apartment two officers visited the on a ing, apartment, they was in the allowed else Gregory call. Corporal welfare concern personnel begin medical to enter and noticed both Brunson testified .he Katherine, treating Corporal who said vehicles in the Katherine’s Brunson, my baby, and I have “He killed parking apartment complex. lot of the He you come.” waiting been confirmed information who was also about paying Apartment utilities at Kath- apartment. Corporal
erine’s Brunson and B. Vasquez approached apartment Officer point fifth of error chal- Appellant’s knocked, no door and but received re- admissibility of lenges the evidence *6 heard no inside the sponse and noise firefighters after the the officers obtained did not apartment. Corporal Brunson see opened apartment According the door. lights and could not see inside the any an the officers conducted unrea- appellant, looking windows when from the apartment apartment of the sonable search building. north side of the Officer Vas- they probable had no cause to believe apartment the but re- quez telephoned committed and their a crime been request a Upon ceived no answer. justified any excep- under search was not officers, manager ar- apartment the the requirement of the tion to the warrant key rived with a but was unable to enter counters Fourth Amendment. State an apartment the because of interior dead- emergency doctrine by arguing the means point, seeing bolt. At this no other that, justified even the the search door, Corporal Brunson opening of the unreasonable, Katherine’s search itself was department the fire for assis- telephoned independent testimony provided own firefighters Three arrived with tance. evidence, apart from the source for the a described as Corporal what Brunson tainted search. open which is used to doorjamb spreader, approximately doors. After deadbolted First, must determine we minutes, firefighters opened the five standing contest appellant has whether door. apartment standing An has the search. accused under the Fourth contest a search one of Upon entering apartment, had a only legitimate if he had a Amendment appellant exclaimed firefighters place privacy of expectation Brunson drew his revolv- Corporal knife. kept night. He had began spending agents officials or invaded.4 government three for two or there defendant, belongings of his who bears the burden A in weeks, telephone service he established of demonstrating legitimate expectation there,9 and he had freedom name establishing that he his own can do so privacy, Although premises. in move about subjective expectation privacy had a he was a no claim that makes society prepared is place invaded (he merely apartment legal fac- resident recognize as reasonable.5 Several “staying there” that he had been whether states determining are relevant to tors return to weeks couple rea- for a privacy objectively is given claim York), perhaps is (1) he had a Texas from New the accused sonable: whether an in- characterized as appropriately in interest the most property possessory or (2) would invaded; overnight guest and thus legiti- definite whether he was place (3) in privacy invaded; legitimate expectation have a in whether mately place that he his host’s demand and the absence of complete dominion or control he had (4) others; whether, in of other circum- leave and the absence right to exclude intrusion, important question more pre- stances.10 The he took normal prior then, case, is whether customarily taken those seek- cautions (5) Fourth Amendment changed, for put place he status ing privacy; whether (6) use; him to re- once Katherine asked purposes, whether his private to some apart- belongings and leave with histori- trieve his privacy claim of is consistent of fac- ment. privacy.6 cal notions of This list exhaustive, however, and none
tors is not ques- Although presents this situation dispositive particular of a assertion Texas, impression several tion of first rather, circum- privacy; we examine the privacy ex- analyzed have authorities in their surrounding stances the search occupant of overnight of an pectations totality.7 subjected govern- are premises that intrusion, occupant’s pres- ment where Supreme The United States wrongful premises ence on those recognized that an Minnesota Olson unwelcome. overnight guest legitimate expecta has a First, recognized that its itself privacy tion of his host’s home.8 There Olson *7 that, certain ob- premised upon was question prior can be little conclusion custom, 13, including 1998, social appellant servations about September events of that, houseguest the among things, other expectation privacy had a of reasonable disturbed “will not be possessions after he and his apartment pursuant the Olson 1684, 91, 98, Illinois, 128, 143, 109 110 S.Ct. S.Ct. 8. 495 U.S. 4. Rakas v. 439 U.S. 99 (1990). 421, (1978). 85 L.Ed.2d 387 L.Ed.2d 58 735, 740, the Maryland, U.S. was also listed on 5. Smith v. 442 99 9. Katherine's name 2577, (1979); company telephone 220 v. record. S.Ct. 61 L.Ed.2d Katz 347, 361, 507, States, 389 U.S. 88 S.Ct. United J., (1967) (Harlan, (Ind. State, concur- L.Ed.2d 576 19 438 v. 691 N.E.2d 10. Brown Cf. ring). that, 1998) although defendant did (holding staying, he was he the home in which not own 134, State, 138 living v. for two and half 6. Villarreal been there had had a (Tex.Crim.App.1996). girlfriend and thus months with his privacy in the expectation of reasonable (the bedroom)). premises search 7. Id. at 138-39. 224 claim of against fact that militated
by anyone but his host and those his host
houseguest
Similarly,
v.
privacy.14
“[t]he
allows inside” and
United States
11 Isom,15
permission
rejected
with the
his host.”
the
is there
the Second Circuit
of
overnight guest
doctrine thus assumes
claim
Fourth Amendment
defendant’s
guest
present
defendant,
that the
the host’s
an
who was
intermit
where
government
when a
intrusion
permission
of a
overnight guest at the home
tent
occurs,
guest
accept
must
to a child
given
woman who had
birth
reality
permit
that the host will
others to
brother,
by the defendant’s
fathered
sug-
intrude.12 These statements Olson
to leave. The court
asked
his host
when,
example,
for
the host
gest
had some
stated that “even
others,
police,
to allow
such as
chooses
right
... as a ‘licensee’ to countermand
inside,
houseguest
longer
or when the
no
search, [the
consent to the
[the host’s]
permission
of his host to be on
has
the ‘license’
undoubtedly
revoked
host]
expectation
priva-
of
premises,
guest’s
apart
to leave her
asking appellant
16
cy diminishes.
Brown,
In
the Iowa
ment.”
State
that the defen
Appeals
Court of
concluded
Second,
jurisdictions
in other
courts
legitimate expectation
priva
dant had a
that an
similarly
overnight
indicated
have
cy
overnight guest,
as an
expectation
privacy
is controlled
guest’s
pri
consent of his host countermanded
degree by
the wishes of his
significant
the sole
interest because the host was
vacy
cases,
example,
In
for
host.
several
lease,
had free
on the
the host
tenant
validly
to the search
host has
consented
apartment,
to the entire
access
despite
guest’s
privacy.
claim of
the defendant
requested
host had
Oates,13
the United States
United States
which the defendant
apartment,
leave the
Appeals
Eighth
for the
Circuit
And,
recently, Wig
failed to do.17
most
that a defendant did not have
concluded
Ap
Arkansas Court of
ley v.
in a
expectation
privacy
reasonable
Fourth Amendment stand
peals found no
home, where the defendant had
friend’s
defendant,
overnight guest
ing for the
staying
two weeks and from
been
had executed
parolee
in the home of a
who
Im-
selling
he had
narcotics.
been
form as a condition
court,
a “consent-in-advance”
according to the
the de-
portantly,
overnight guest
of his
because “an
premises
parole,
leave the
fendant had refused to
so,
expectation
privacy
a has no reasonable
requested that he do
after his host
denied,
651,
(8th Cir.),
Olson,
99,
F.3d
cert.
U.S. at
225 18 his to maintain precautions took normal to the search.” when the host consents the door to there, locking as such privacy cases, pres mere In the offender’s other Thus, rule that general the the room.21 the premises the host’s without ence on must the defendant has evolved is any objec has defeated permission host’s to be on permission had that he establish In United States privacy. tive claim of of the search the occasion premises the on Kitchens, example, the Fourth Circuit at issue.22 not have that the defendant did concluded privacy of expectation a reasonable cases, these synthesize As we period room once the rental
motel
then,
overnight
to us that an
it is clear
on
expired,
pattern
practice
absent a
is affected
privacy
of
guest’s expectation
(the
manage
the
of the hosts
motel
part
the use of
ability
host’s
to control
by ment)
stay guests
permitted
that a
period
of time
premises
and
check-out
time.19
past
their
rooms
And as
stay.
guest
permitted
will be
of
McCray,
State v.
Wisconsin
Amend
leading Fourth
Olson and other
that a defendant who had
Appeals held
dictate, we must consider
ment decisions
in another’s home had
stayed overnight
had some
simply
not
whether
expectation
privacy
neither a reasonable
premises
interest in the
subjective privacy
in,
of,
standing
nor
to contest
search
(he
will),
whether,
always
once
almost
the defendant had exceed
premises where
gather
his be
he had been instructed
stay
ed his authorized
the home.20 And
society
premises,
longings
leave
Turnbill,
in State v.
the Tennessee Court
reasona
privacy
his claim of
as
would view
Appeals
of Criminal
held that
defendant
indicate that our social
ble.23 The cases
had been evicted from a room at a
who
is,
and habits
traditions —that
the customs
standing
rescue mission lacked
contest
relationship
guest
he
that characterize
premises,
though
search of the
even
399,
751, (2001).
to establish
is on the defendant
Ark.App.
73
the "burden
18.
Lara,
996,
wrongful"
607
presence
But
State v.
258 Neb.
not
and that
that his
cf.
491,
487,
denied,
875,
N.W.2d
cert.
531 U.S.
showing
person
required is a
“what is
179,
(2000) (hold
121 S.Ct.
227 rules, respect privi- with to except These inadmissible Brunson’s statement following situ- leges, apply do not exclusively upon our hearsay. He relies State,25 in which ations: v. decision McVickers an auto- actually stopped
the officers who (A) questions the determination testify suppression not at the mobile did admissibility of evi- to preliminary fact Rather, tes- only officer who hearing. to be deter- the issue is dence when the officer hearing there was tified at the Rule 104. by the court under mined custody, the defendant into who later took 104(a) turn, provides: In Rule at the time of the present who was not concerning the questions Preliminary rely only upon the stop and thus could witness, a person a to be qualification of in dis- stopping of the officers statements or the ad- privilege, of a the existence stop.26 for the cussing the reasons deter- missibility evidence shall be court, McVickers, subject provi- by mined In we held (b). making a its hearing at a on sions of subdivision apply rules of evidence We based the court is not bound suppress motion to evidence.27 determination except those with language of Texas the rules of evidence holding this 1101(d)(4), respect privileges. Evidence Rule of Criminal provided: which hearings involve the suppression Because rules following In the these proceedings preliminary questions determination to the extent matters of evidence apply evidence, admissibility of concerning the for in the statutes that provided are not current rules indicates language therein or in another govern procedure (except privi- the rules of evidence prescribed pursuant court rule statu- hear- apply suppression leges) longer no tory authority: is consistent ings. This conclusion inter- Supreme Court’s
the United States
Rules of Evi-
(4)
confessions,
of the Federal
pretation
suppress
Motions
dence,
counterpart
to Rule
which has
suppress illegally
obtained evidence
104(a)
counterpart
never had a
but has
Proce-
under Texas Code of Criminal
1101(d)(4).29
Rule
former
dure article 38.23.28
1101(d)(4)
mistakenly,
says,
incorporat-
dissenting opinion
The
Former rule
was not
McVickers and then uses
current rules of evidence. Ab-
that we overrule
ed into the
misconception to accuse
controlling
rule is
provision,
sent
101(d)(1)(A),
doctrine of stare decisis.
ignoring
Texas Rule of Evidence
long-
that McVickers is no
While it is true
provides:
hearing;
suppression
determined at
(Tex.Crim.App.1993).
662
sues
25. 874 S.W.2d
proceeding);
hearsay
is admissible
such
679,
Raddatz,
667,
U.S.
United States
26.
Id. at 663.
(1980)("At
S.Ct.
65 L.Ed.2d
rely
hearing,
may
suppression
the court
27.
Id.
evidence,
though
hearsay
even
and other
trial”;
at
would not be admissible
evidence
Id.
665-666.
States,
Matlock,
citing
Brinegar United
L.Ed. 1879
69 S.Ct.
U.S.
Matlock,
173-174,
Our caselaw does
pointing
change
out the
in the rule would
changes in the rules as
upon
sions based
implication
leave the
that McVickers’s
For exam-
overruling
precedent.”
“the
holding somehow survived the deletion
past
we did not “overrule”
cases
ple,
Nor
upon
the rule
which it was based.34
after the harmless error
Fowler
State
of the case
“complexity”
do we see how the
rule for nonconstitutional
errors was
prosecu-
murder
capital
or its status as
Rules of
changed by a revision
require that we refrain from address-
tion
Procedure;
Rule
Appellate
former
rules of
ing
change
the effect
81(b)(2)’s
beyond
“harmless
a reasonable
evidence.
simply
longer ap-
no
doubt” standard was
parties
The dissent contends
errors.30
plicable
to nonconstitutional
and will now be
upon
relied
the old rule
34.6(f)(3) superceded the for-
Rule
When
Presumably,
holding.
our
surprised
50(e), regarding missing
mer Rule
records
however,
aware—or
parties
were
prior
we did not “overrule”
appeal,
50(e).31
Rule
aware—that
ought
Rule
to have been
interpreted
cases that had
other,
showing what
led
non-
(Tex.Crim.App.1999).
purposes of
30.
S.W.2d 258
probable
testifying,
to believe
cause
officers
State,
(Tex.Crim.
would rule of particular aof applicability The the federal coun- interpreting with caselaw exis- upon the depends often evidence 104(a), today. as we do terpart to our Rule ex- alleged Is the tence of a condition. McVickers, the we saying In that overrule Is a witness physician? pert qualified that the up gives a strawman dissent sets un- testimony is offered former whose at free rein to criticize the Court dissent present dur- stranger Was a available? overruling precedent. great length for and attorney between ing a conversation overruled; no simply not is McVickers is instance the admissibili- client? In each The dissent’s com- longer controlling. turn the answer upon of evidence will ty inapt. are ments about stare decisis the of the existence of question practice, incorpo- Accepted condition. that is opinion The dissent contends this rule, judge places rated But the law.” example “rewriting an of determinations. for these responsibility long before this the law was “rewritten” that To the extent omitted]. [Citation it was rewritten when the Rules opinion: factual, judge are inquiries these changed of Evidence were to delete Rule question of fact.... If the acts as a trier 1101(d)(4). The dissent claims that we nature, judge will of factual in ought power, aggressive- to wield our “not con pro evidence and necessity receive ly, gently, carefully eye and an provides The rule on the issue. role as the caretaker of Tex- Court’s general apply in do not rules of evidence agree. as’s criminal laws.” We That is process. to this conformity in why interpret we our rules testify, expert Supreme interpretation qualification with the Court’s The 104(a), hearsay exception, Rule Federal Rule which our the satisfaction of 104(a) attorney- claiming an predicate is based. The dissent also casti- for admissibility ques- all confusing privilege for we can are gates the Court what client subsidiary fact is- may But it is the involve do with what we should do. tions by judge, the trial depart that would from the Su- sues to be resolved dissent the rules of not bound interpretation, judge Court’s and also sim- preme 1101(d)(4), determinations. making Rule in those ply ignore the deletion of evidence “this is free to outline rules of evidence had if the Even in the manner we see parameters rules’ t,o hearing, to suppress the motion applied fit.” however, distinguishable this case is 104(a)’s testimony disputed The that Rule McVickers. The dissent contends truth, admitted, for its conclusion this case language does not lead to the subsequent the basis for explain and the but to drawn both this Court United and the other Corporal Brunson “pre- conduct Supreme Court because States McVickers, on the other In by the rule officer.35 liminary questions” addressed " hearing, 801(d): testifying at the trial 'Hearsay' is a ant while 35. See Tex.R. Evid. statement, by the declar- other than one made hand, required the statement was offered to show instruction would be —not Here, Appel- basis someone else’s conduct. the evidence was inadmissible. probable the officer who determined cause of error is overruled. point lant’s fourth In testified trial. McVickers he did not. dissenting opinion’s failure distin- II. guish the situation this case from that error, points three his first misconcep-
McVickers could be based on a
trial court
appellant contends
says, mistakenly,
tion. The dissent
challenges
granting
erred
State’s
Corporal Brunson testified as to the facts
regarding
cause
three members of the ve-
*13
Vasquez
constituted
Officer
believed
cause a
may challenge
nire. The State
for
probable cause. He did not. There is no
a
prejudice
veniremember who has bias or
testimony
Vasquez
that Officer
believed
“any
or
against
phase
the defendant36
cause.
Brun-
probable
Corporal
there
the law
which the State is entitled to
son testified as to the facts that he himself
rely
punishment.”37
for conviction or
Ju
probable
believed constituted
cause.
full
rors must be able to consider the
case,
in-
testifying
this
officer was
range
punishment provided by
law for
testimony
in
volved
the conduct and so his
charged.38
capital prosecu
In a
the crime
hearsay.
perceived the
was not
He
events
tion,
juror
subject
a
prospective
is not
that formed the basis for his determination
merely
he is
challenge for cause
fact that
probable
cause existed. The
opposed
scruples”
to or has “conscientious
may
the other officer
have come
A venire-
regarding
penalty.39
the death
same conclusion from his observation of
however,
member,
subject
challenge
to a
negate the useful-
those events does not
if
the death
regarding
for cause
his views
explain
ness of the evidence to
Brunson’s
substantially
penalty
“prevent
would
And, Brun-
probable cause determination.
of his duties
impair
performance
position
son was in a
to observe the other
instructions and his
accordance with his
officer; so,
related to
testimony
Brunson’s
Similarly,
generally,
oath.”40
and more
what he
and not to what another
observed
subject
challenge
veniremember is
for
may have told him after the fact.
officer
opinions
pre
if
would
However,
cause
his beliefs or
testimony
even
Brunson’s
substantially impair
ability
his
hearsay
vent or
were
as to another officer’s con-
juror.41 In
duct,
obligations as a
only
limiting
carry
that would mean
that a
out his
State,
140,
(Tex.
prove
38. Sadler v.
977 S.W.2d
142
offered in evidence to
the truth
"
added).
Crim.App.1998).
(emphasis
asserted
matter
510, 515,
35.16(a)(9);
Illinois,
Witherspoon
36. Tex.Crim. Proc.Code Art.
Smith
391 U.S.
v.
39.
State,
522,
1770,
(1968).
(Tex.Crim.App.
v.
907 S.W.2d
529
S.Ct.
Over my childhood.” experienced challenge for granted the State’s al court Blan- properly excused The trial court Blanchette. The cause of veniremember under either of State’s chette for cause fair to that she could not be argued State *14 once that Although she stated theories. opposition of her parties because selected, if follow instructions she would racial bias. capital punishment and her could not said that she subsequently she examination, Blanchette During the State’s to be requiring is judge] do “what [the led her religious admitted that her beliefs Furthermore, indicated Blanchette done.” Blanchette oppose penalty. death Mexican Ameri- personal against her bias could determine appel stated that she not that her bias would can men and conceded “my deci guilt lant’s or innocence because juror.44 fair For ability to be a affect her into catapult thing sion would the whole reasons, not abuse the trial court did these (the sentencing phase).” phase the next chal- granting the State’s its discretion always that she would conclude She stated We overrule lenge for cause. mitigating circumstances existed point first of error. life, death, order to effect a rather than a her sentence and admitted that because of B. views she could not be fair to the State. granted the The trial court also counsel then examined Blan-
Appellant’s Andrea examination, challenge of veniremember State’s During chette. the defense’s by cause. When examined Crawford for that she would not want to be she stated State, not want said she did and, selected, Crawford dishonest if would follow opposed she law, jury on the why I to be a serve but “that’s don’t want know, Initially, she stated penalty. I you I the death participant because can’t— indicates, appellant His- defendant 44.As the record the state is biased in favor of the although panic, not Mexican American. cause). challengeable and is did not clear that Blanchette record is also See, e.g., VII at distinguish two RR terms. 102, State, (Tex. S.W.2d 116 42. Howard 941 ("My stepfather was a Mexican 76 husband's Crim.App.1996). man, Hispanic, and there was a American Therefore, home”). lot of abuse in his State, 577, (Tex. 43. Brown v. is not Mexican American fact that State, S.W.2d Crim.App.1996); Garcia v. question dispositive of the of Blanchette's denied, (Tex.Crim.App.1994), cert. bias; rather, that Blanchette be- is crucial it 115 S.Ct. 131 L.Ed.2d 514 U.S. against Mexican-American lieved her bias (1995). appellant. Hispanics, such as included men they have a moral point, that she would unable to render a ver- such guilt/innocence phase they simply dict because of conflict that cannot follow instructions, possibility that a conviction would lead no matter how those to a death sentence. She also stated to. they much want opposition capital punishment her would probably VENIREMEMBER: And that “probably answering her from prevent” would be the same situation with me. dangerousness question during the future I just I don’t have to—if was It’s —if Meanwhile, sentencing phase. upon I would picked jury to call on the have questioning by appel- both the State and it, just up eat me to do but would lant, Crawford also said she could take the inside, my and I want that on don’t oath and follow the court’s instructions. called, yet But if I was I conscience. Then, re-examination would have to do it. called, I explained, Crawford “If I was Well, I guess DISTRICT ATTORNEY: law; person- would have to follow the I’m think asking you what then is do it, I cannot do ally personally cannot do are who you people one those anything my it. I don’t want con- strongly though you feels that even so science that would bother me for the rest you have to would believe that would my possibly.” judge life When the trial called, you were that there would attempted clarify the law for Crawford pre- that it would exist such conflict nature precise and discern the of her feel- pro- you participating vent ings, Crawford said she would follow the cess, by refusing either to vote or called, doing “up- law if but that so would distorting somehow the evidence so *15 challenge. set” her. The court denied the you questions that answer the could began The State then another series of that a you such that would know life questions. following exchange The took imposed sentence would be instead of place: a penalty? death ATTORNEY: And I believe
DISTRICT VENIREMEMBER: Yes. you’re saying that I understand what So, you ATTORNEY: DISTRICT okay that though might is even to— tempted would be this, society you personally for to do probably I would VENIREMEMBER: I participate. do not wish to And refuse to vote. you you me that thought what told is granted The trial court then State’s could not? cause, over challenge appel- renewed for personally I could YENIREMEMBER: objection. lant’s not. vacillating juror. was a On
Crawford occasions, many she stated she would fol- you And so if DISTRICT ATTORNEY: it, if she were though you would low the court’s instructions can’t do even law, But also stated that those are two called for service. she want to follow to refuse feelings of her would lead her either things. Everybody different thinks citizen, process produce or to distort the abiding themselves as a law to vote a life sentence rather than death sen- everybody would want to follow vacillating venire- they if were to tence. the case of Judge’s instructions Crawford, defer to the member such as we jury, occasionally on a but there serve court, was in a jurors of the trial a time when feel so decision comes actually and hear position that it reaches see strongly about an issue that this is Judge telling me and of the voir in the context veniremember you only law that maybe the dire in its entire- Viewing voir dire.45 one— follow. here could not that the trial court we conclude ty, concluding Yes, I a rational basis for I think so. VENIREMEMBER: sub- feelings would personal Crawford’s with this never been confronted have fair to ability jury her to be stantially impair I have been called before. times, instruc- and to follow the court’s and I have many, many the State service appel- overrule and her oath. We first tions This is the twice. been seated this, of error. point lant’s second had to deal with time I have ever really I have the first time and this is C. I my wife discussed had to—I told Finally, granted the trial court I—I could not people, other this with Budew- challenge of veniremember State’s do it. opposi his
ig Budewig for cause. stated Budewig a series of then asked Appellant but stated capital punishment tion to At clarify position. questions to the trial court’s instruc he would follow could an- conceded that he point, Budewig answers, how if His tions asked serve. punishment the questions swer ever, ultimately uncertainty reflected an as “no,” what depending upon phase “yes” or provide he could answers to to whether The trial demonstrated. evidence that would lead to death special issues challenge the State’s initially court denied sentence. On examination cause, further clarification sought occurred: following exchanges exchange Budewig. following Well, what DISTRICT ATTORNEY: then occurred: laws
reality is there are some saying ... I’m TRIAL COURT: What though that even citizens are law abid questions if answers to those every ing people respect, other “yes” answered your mind should be with, they strongly disagree so “no, “no,” I’m you say then would placed position they simply believe, I’m I going to vote what law, particular not follow that could against vote what believe going to *16 trying you I’m to find out if are penal- I want the death don’t people. one of those are com- really where we ty”? That’s Yes, I am I think VENIREMEMBER: ing from. people.
one of those I think —I think VENIREMEMBER: I’m I think trying sugar
I’m
coat.
So,
I cannot
straight answers.
giving
ATTORNEY:
in a death
not
DISTRICT
case,
penalty.
vote for the death
penalty
essentially
you’re
what
2569,
580-81; Garcia,
1137,
Brown,
821
S.Ct.
132 L.Ed.2d
not abuse its discretion my jurors possible, or ences to fellow challenge for cause.46 overrule State’s We separation? would this violate church-state point third of error. you. Breckenridge.” Thank Juror Breck- enridge attached to the note a definition of III. relating murder and thirteen Bible verses error, In point appel penalty his sixth to murder and the of death.47 The request lant trial Breckenridge’s claims the court should have court denied murderer; (Tex. King surely put the murderer shall be Crim.App.2000). to death. any person, killeth Numbers 35:30. Whoso read The attachment as follows: put the murderer shall be to death killing MURDER—The malicious of a hu- witnesses; (31) ye mouth Moreover shall being. virtually man zations, all times and civili- take for the life of a murder- no satisfaction recognized has been as a murder er, death; guilty of but he shall which is Killings against society. cardinal offense surely put to death. accident are done in defense life Matthew 5: 21-22. Ye have heard that it regarded not to be as murders. In the sixth time, of old Thou shalt was said them Decalogue, of the commandment the verb kill; kill be in and whosoever shall shall translated “kill” is best translated “mur- danger judgment. say you of the But I unto der”, killing avenge and does not refer to angry that whosoever is with his brother murder, capital punishment, kill- or to danger without a cause shall be in ing in a war. The concern here is with the judgment. protection human life within the commu- proceed 15:19. Out of the heart Matthew nity. Jesus struck at the heart of murders thoughts, ... condemned the attitudes evil murders when he which, even him, fully developed, when lead to mur- Matthew 19:18. He saith unto Which? *17 said, ders. Jesus Thou shalt do no murder. Scripture: this, Knowing Timothy that the law I 1:9. said, Genesis 4:9-11. The Lord What hast man, righteous a but for the is not made for thy The voice of brother's thou done? disobedient, ungodly lawless and for the ground. unto me from the blood crieth sinners, unholy profane, and for for and for earth, And now art thou cursed from the and murderers of fathers murderers opened which hath her mouth to receive mothers, manslayers. for hand; thy brother’s blood from that said, com- James 2:11. For he that Do not blood, Genesis 9:6. Whoso sheddeth man's also, adultery, mit said Do not kill. Now if shed; by man his blood be for in the shall kill, adultery, yet if thou thou commit no image of God made he man. transgressor thou art become a of the law. kill. Exodus 20:13. Thou shalt not you I Let none of suffer as Peter 4:15. with Numbers 35:16. And if he smite him murderer. die, iron, he an instrument of so that he he consider all facts jury. read the verses The court determination could argu- then conducted an It heard inquiry. phases at both and admitted into evidence ment from counsel both for the State in 'all the court of the law that submitted for and called the court bailiff to charge. its
testify on the
record as
how the bailiff
juror
ultimately
A
who is
Upon questioning
had received the note.
guided by
personal
his
beliefs rather than
court,
by the trial
the bailiff
testified
jury.48
on a
qualified
the law is not
sit
Breckenridge handed the note to the bailiff
follow, however,
juror
It
that a
does
jury
outside the
room and outside of the
necessarily
strong personal
with
beliefs is
hearing
jurors,
of other
and asked the
biased,
is, incapable
following
judge.
bailiff
take
to the trial
juror’s
court’s instructions and the
oath.
placed
note was
a manila folder. Nei-
many
Our cases demonstrate that
citizens
party
questions
ther
asked
of the bailiff.
who,
dire,
Appellant
requested
during
then
openly
court
voir
confess
inquiry
make
Breckenridge
to deter-
strong
against
beliefs either
favor of or
already
mine whether he had
concluded capital punishment qualify
capi
to sit on
that appellant should receive the death
Thus,
juries.49
juror
tal
need not shed
penalty, prior to hearing evidence at the
personal
regarding
his
convictions
punishment phase. Appellant
argued
also
jury
at
penalty
death
the door to the
that Breckenridge
improperly
had
consult-
law,
must, rather,
juror
room. A
use the
ed an outside source. The court denied
evidence,
and the trial court’s man
request, saying
that it
im-
would-be
guides
arriving
dates as his ultimate
proper
ju-
and unconstitutional to instruct
guilt
decisions as to
or innocence and as
they
rors that
cannot consult books of faith
If
incli
punishment.
possesses
he
spiritual
times of
need. The court also nation
against imposing capital
toward or
explained that there was no
evidence
substantially
punishment
prevents
or
Breckenridge
already
decided appel-
impairs
ability
to make decisions
lant’s fate and that not all of the verses
based
law and
on the
the evidence of the
Breckenridge
preference
listed indicated a
him,
juror
case before
then the
bia
capital punishment.
The court then
sed.50
denied
motion for mistrial
misconduct,
juror
based
We have said that where a sit
gave
writ-
ting juror
ten
makes statements outside of
Breckenridge
instructions to
that he
could not refer
or
that indicate
or
“any
partiali
discuss
matter
deliberations
bias
evidence,”
ty,
jury
not in
such
can
issue
that he could
bias
constitute
miscon
only
receive
that prohibits
evidence
from the witness
duct
the accused from re
stand,
Thus,
in making
and that
a fair and
punishment
ceiving
impartial trial.51
See,
Clark,
7; Garcia,
e.g.,
John 3:15. Whosoever hateth his
S.W.2d at
brother
ye
is a murderer: and
know that no mur
although
appellant’s
“it
sense
hu-
and
applicable
defies common
and
the evidence
to
juror
require
man nature to
that a
have no case,
court
an
prudently
the
conducted
impressions
opinions until
the judge
or
inquiry.
Breckenridge’s
After it denied
deliberations,”52
the jury
send
where a
bailiff,
request,
the
the court called
who
juror’s statements or
raise
ques-
conduct
a
Breckenridge’s
testified as to
comments
biased,
inquiry
tion as whether he
“an
is
folder,
handing
the
and
when
the bailiff
appropriate
juror’s
the
in-
determine
argument from both
and
heard
the State
making
tent when
the statement.”53 On
appellant.
denying
re-
inquiry,
the trial court
such
retains
quests, the court concluded there was no
in determining
juror
discretion
whether a
indication,
based on either the note or
is biased and we will review the court’s
attachment,
juror
already
de-
had
light
decision in the
most favorable to its
on a death sentence or that he had
cided
findings.54
recorded
The trial court also
improperly referred to an outside source.
determining
has
whether
discretion
Rather,
juror
had
his
simply
“go[ne] to
a
grant motion for a mistrial
on
based
faith in
source of
times
trial” and
allegations
juror
misconduct.55
from,
not
him
or
prohibit
court would
Breckenridge’s
The attachment
note
about,
question
doing
him
The court
so.
nothing
indicated
than the religious
more
not
Breekenridge
clear that
could
made
Breckenridge’s support
foundations for
his attached note
the other
discuss
(which
punishment
he
capital
freely con-
jurors
solely
and
he make
decision
dire);56 nothing in
during
fessed
voir
upon the law
and
evidence.
suggests
note
attachment
that Brecken-
inquiry
court’s
was sufficient to determine
ridge
already
the fate
decided
of this
Breekenridge
against
was not biased
Nevertheless,
particular
defendant.
juror
appellant.
Importantly,
our
that the
recognizing
note
attachment
precedents
permitted
have
but
misconduct
might
question
raise a reasonable
about
examination
hearing
at
required
a
ability
make
Breckenridge’s
the sen-
jurors
misconduct,57
tencing
solely on
law
accused of
determination
who,
heavily,
juror
54.
relies
Id.
involved
guilt/innocence
after the State's case
but
State,
511,
(Tex.
defendant's,
55.
v.
S.W.2d
520
Colburn
966
spoke
before the
with co-work-
State,
Crim.App.1998);
851
Robinson v.
hearing
At
er about the case.
on the defen-
216,
trial,
(Tex.Crim.App.1991), cert.
S.W.2d
230
juror
new
dant's motion for
testified
2765,
denied,
1246,
129
512
114 S.Ct.
U.S.
that he had not decided the case and could be
(1994).
879
L.Ed.2d
impartial.
The trial court denied
motion
Quinn,
ground,
on this
and we affirmed.
958
dire,
During
Breekenridge
56.
voir
indicated
State,
S.W.2d at 403.
Bartell v.
464
Cf.
supported
punishment
did
capital
he
863,
(hold-
(Tex.Crim.App.1971)
S.W.2d
imposed
every
not feel that
should
ing
juror did
that a
not commit misconduct
capital case.
he
not auto-
He also said would
arising
bias
she arrived at her
special
matically
issues in such
answer the
Mays
through
guidance);
verdict
divine
penalty. Appel-
produce
death
way as to
925,
State,
(Tex.Crim.App.
393 S.W.2d
926-27
Breekenridge
challenged
cause and
lant
1965) (rejecting
juror
a claim of
misconduct
challenge.
trial court denied the
arising
during
juror,
from bias where
deliber-
prosecution,
driving
drunk
stated
ations in a
Quinn,
("an inquiry
at
57.
958 S.W.2d
See
you
don't
and if
his belief that "if
drink
drive
juror’s
appropriate
in
to determine the
drink”).
you drive don't
tent”); Moody
899-
denied,
(Tex.Crim.App.),
506 U.S.
cert.
Quinn,
S.W.2d
(1992)
S.Ct.
not err in appellant’s request held in McVickers that the rules of evi- Breckenridge questioned, nor did apply hearing dence at a on motion denying appellant’s abuse its discretion in at As the suppress. motion for a mistrial. appel- We overrule notes, majority opinion our McVickers lant’s sixth and seventh points of error. relied on former Texas Rule of Criminal Appellant’s conviction and death sen- 1101(d)(4).1 majority Evidence The also tence are affirmed. 1101(d)(4) correctly notes that Rule was JOHNSON, JJ., PRICE and concurred not incorporated into the Texas Rules of in the result. jointly promulgated Evidence It 104(a), then text looks of Rule MEYERS, J., a dissenting opinion. filed provides: MEYERS, J., a dissenting opinion. filed Preliminary questions concerning the error, point his fourth witness, qualification person of a to be a challenges the admission of certain testi- privilege, the existence of a or the ad- mony pretrial at a suppression hearing. missibility of evidence shall be deter- Specifically, appellant complains that Offi- court, by subject mined to the provi- cer Brunson permit- should not have been (b). In making sions of subdivision its testify ted to about statements that were determination the court is not bound made to another officer one of the the rules of evidence those except family victim’s Appellant alleg- members. respect privileges. testimony es is inadmissible hear- say that should have been pursu- excluded this, majority From concludes that the State, ant to McVickers v. S.W.2d language Rules of Evidence “indi- (Tex.Crim.App.1993). The argues State that the do not apply sup- cate” rules application McVickers has no pression hearings. Majority Op. at 227. instant appeal because McVickers is distin- Any subsequent contrary dicta to the guishable. In response argu- to these ments, majority notwithstanding, majority’s conclusion holds that McVickers longer regard no in this overrules good law and overrules the McVickers. point majority my “misconception” of error. Granados v. corrects ing juror juror misconduct 606(b). where 58. See TexR. Evid. bailiff conversed about the case outside the jury complete room before deliberations were 1. All future references to "rules” are to the testimony hearing and where bailiff's of Evidence. Texas Rules any presumption sufficient to rebut of harm defendant).
238
that,
judicial
perceived integrity of the
by stating
it overrules McVickers
tual or
precedent
it is true
is
if this
process
“[w]hile
that McVickers
no
Court overrules
law,
longer
simply
the
that is
because the
request
in
absence of a
for it to do so?
rule
which it
is based—Rule
party
of
can a
What measure
reliance
1101(d)(4)
Majority
exists.”
longer
on our decisions
the decisions are
place
—no
It
Op. at 228.
stand uncorrected.
was
through
appeal
trial and
are
valid
McVickers,
in
and not
holding
our
then,
surprise
parties,
both
sum
Rules of Evidence
virtue of
force
removed from the annals of
marily
Texas
of our
that made the rules
holding,
outside
notice
why
And
shouldn’t we take
law?
hearings.
If
applicable
suppression
dispute
fact that both
of this
sides
law,
is no longer
McVickers
McVickers
law of Texas?
relied on McVickers as the
has been overruled.
has,
occasion, been taken
reliance
on
Such
Busby
into account
this Court.
a forum in
Using
appeal
instant
as
State,
(Tex.Crim.App.
writ of habeas take 1101(d)(4) incorporated. Majority was not comfort in the process streamlined that Op. at 227-28. From this majority got him justification there. I can find no concludes that law upon for such a disparity. Nor can I under- McVickers was based no Id. longer exists. why stand parties the interests of the be- 1101(d)(4) at 228. Yet Rule has been ab- Court, fore this who both relied on By my sent from the rules since 1997. McVickers at trial appeal, and on simply watch, it In is now 2002. those five or so do not majority’s factor into the decision. years, party, including parties no be- majority responds complaint today, to this fore the argued Court has that the by writing, “We are a first-level appellate apply Rules of Evidence do not to suppres- court in penalty death cases. can hearings. considering We af- sion Rather than basis, firm any on by whether meaningful raised role that the Rules of Evi- parties or not.” I register my must here play suppression hearing dence in the con- strong text, 104(a) disagreement with the majority notion that looks to Rule and what we can do as an appellate court is holds that “the language of the current what we should do. The authority that rules indicates rules of evidence given this Court has been by (except our statutes privileges) longer apply sup- no the Texas pression Constitution is one that hearings.” Majority Op. at 227. ought to be wielded not aggressively, agree do not that this is import gently, carefully eye and with an language.5 to this rules’ (in case, State) 4. See responsible also Proctor for con- is, ("[i]t (Tex.Crim.App.1998) vincing prece- 845 n. 5 the Court to overrule unsound course, dent”). power within the Court's to limit the decision, rarely retroactive effect of a but we so, this, especially briefing, do in the absence of Supreme I am mindful of party precedent because there is a need to reward the to the effect that “the same rules of 104(a) pression hearings, Rule that the trial future tri provides perhaps, court Evidence, is not bound the Rules of dangers als. Because the inherent except respect those with privileges, unantic majority’s opinion seem to be “[preliminary questions concerning itself, ipated by majority I detail them witness, qualification of a to be person here. the existence privilege, of a or the admissi First, scaffolding evidentiary without the *22 bility of These questions evidence.” Rules, ad provided by the all is evidence issues, legal of the reliability smack where missible, evidence is and the all relevant the not of evidence itself is what deter by discretion wielded trial court mines the outcome. contrast to Although of incapable discretion abuse. 104(a) majority, apply not to would Rule currently the Code of Criminal Procedure in suppression hearings, which the deter permits to be held suppression hearing a are reliability minations fact-bound and affidavits, affidavits state are sworn paramount of As importance. this Court ments, subject hearsay objections, to sub recognized explicitly implicitly when perju mitted to the court under penalty to an right appeal broadened the State’s 1(6) § ry. 28.01 Tex.Code Crim. Proc. art. pretrial ruling sup adverse on a motion to (Vernon 1989); § Tex. Penal Code 37.02 evidence, or
press exclude motion (Vernon 1994); Eversole, State v. 889 can suppress make or break case. See 418, (Tex.App.-Houston [14th S.W.2d 425 (Tex. Medrano, State 896 ref'd). majori pet. Dist.] Under (“the Crim.App.2002) purpose of [Article law, ty’s reading of the is now noth there permit is to pretrial appeal 44.01] ing deciding a trial prevent court from legal rulings erroneous which eviscerate suppression by of a motion merits case”). ability prove the State’s its If relying exclusively police on an unsworn the State’s in an appealing interests such must an report report. longer or lab No pretrial ruling sufficiently adverse were expert suppression hearing at a be witness weighty controlling prece override the must qualified. Tex.R. Evid. 702. Nor Roberts, dent of State v. S.W.2d mar the State continue to burden itself (Tex.Crim.App.1996), as leg as well three shaling personal who have witnesses controlling islative of the reenactments they which knowledge of events about statute, surely then those considerations Taking testifying. are Tex.R. 602. Evid. allowing militate favor of the accused holding logical ex majority’s to its reliability determining measure some treme, judge the trial to save wished which offered him may against evidence time, simply he could call himself as a stage. majority, at such crucial however, testify of the exis away support witness chooses to do the safe a news probable by reading tence of cause Rules of Evidence guards provide paper into the record. suppression hearing, thereby at a drasti account arrest altering cally landscape sup of future Tex.R. Evid. 605.6 jury parameters governing are outline the rules’ in the manner evidence criminal trials we see fit. generally govern hearings thought to be- judge evidentiary ques- fore a to determine allege through examples I do not these Matlock, ...." U.S. tions United States judge through the a trial could not see thin 164, 173, 94 S.Ct. 39 L.Ed.2d arguing unreliable evidence. I am veneer of (1974). Barring interpretation evi- of our simply any evidentiary shortcut dentiary rules that offends United States appropriate is State the trial court finds or Constitution, however, this Court is free to and, reproach importantly, now above more grant- Article 44.02 Certainly Yeary common sense would counsel at 412. Former against relying unqualified expert on an a plea ed a who had entered defendant witnesses, or a witness without personal right contendré a limited guilty or nolo knowledge, against judge the trial tak- appeal. right right Part of this was the at a ing suppression hearing; the stand which have been appeal “those matters but such common sense ideas are rules prior motion filed raised written Therefore, only the Rules of Evidence. trial.” Id. they longer will no exist as such in the amendment was eventu- legislative This suppression hearings. Majority context of ally Appel- into Rule of incorporated Texas atOp. Additionally, because remov- 25.2, provides late Procedure ing the from suppression hearings rules plea bargaining defendant who has been unfetters the trial court’s discretion alto- prosecutor’s sentenced within recom- gether, the exercise of that discretion will may appeal only mendation if the notice of *23 Now, appellate evade long review. so as alia, appeal specifies, appeal inter that the there is some evidence favor of the defect, jurisdictional trial is for a that the ruling suppress, regard- on the motion to given permission court has to appeal, of might less how unreliable that evidence appeal the is taken from a matter be, the trial judge cannot abuse his discre- in a upon raised written motion and ruled tion. reading This broad of the Rules of 25.2(b)(3). P. prior Tex.R.App. to trial. may Evidence in large part read the Con- of majority’s opin- Because the effect the stitution out of a criminal trial by permit- thoroughly hamstring appellate ion is to ting the State to offer against evidence the ruling sup- review of a trial court’s on a gathered defendant that was based on non- motion, pression longer any there is no existent or probable consent cause. defendant, pri- real incentive for a whose Finally, majority the opinion change will mary dispute legality is with the negotiated the world of pleas as we know him, against evidence a agree offered it. The formerly effect of our law was plea bargain. attorney A defense will appeal could not be plea taken from a essentially henceforth no choice have guilty juris- or nolo contendré except as to State, to hail the trial judge, the the defen- State, dictional defects. Helms v. a jury dant and into the courtroom for a S.W.2d 925 (Tex.Crim.App.1972). The full hopes litigating trial the issues “Helms rule” corollary had the effect of suppress related to the motion to under barring appeal the any pretrial ruling protective net of the Rules of Evi- plea defendant later entered a of guilty will, all, nothing dence. He after have or nolo contendré. Yeary, Ap- See Kevin Indeed, only gain lose. he stands from
peals Guilty Pleas and Nolo Con- else, a full if nothing permit trial: it will History tendré: and Procedural Consider- him to trial build better record. Without Maey’s ations, (2002) 38 St. L.J. it, then, much mentioning majori- so as (hereinafter 1977, however, “Yeary”). In ty readjusted has incentives to enter Legislature effectively abrogated the negotiated plea bargain they so that are respect Helms rule with non-negotiated strangely similar to the incentives under pleas by passing former Article 44.02 of the Helms rule. As this Court noted the Texas Code of Criminal Procedure. 10, 1977, R.S., passage Act of June of former Article 44.02 of the Leg., 65th ch. 351, 44.02, 940; 1977 Tex. Gen. Laws Code of Criminal Procedure:
beyond meaningful appellate the reach of re- view. jury’s verdict. determining effect procedure right limited [a
Such State, be appeal negotiated plea] may King on a 953 S.W.2d See (defendant’s judicial conserve resources expected to “sub- (Tex.Crim.App.1997) in cases by encouraging guilty pleas purposes are affected for rights” stantial only where the contested issue between analysis under Texas of harmless error as the parties 44.2(b) is some matter such “when Appellate Rule of Procedure search, voluntariness of a lawfulness of injurious a substantial and ha[s] the error confession, trial, competency stand determining effect or influence indictment, or other sufficiency of the verdict”). the trial jury’s I would vacate may written matter raised cause for judgment court’s and remand the to trial. prior motion filed a new trial. I dissent.
Ferguson v. And so it was until (Tex.Crim.App.1978). majority. today’s decision conclusion, majority extent the MeVickers, incorrectly. it does so applies Immediately following its statement disputed testimony here was admitted explain subsequent con- “to basis GUZMAN, Appellant, Benito *24 and the other Corporal duct of Brunson officers,” majority goes on to “differen- by declaring that “[i]n tiate” MeVickers of Texas. STATE
MeVickers, hand, on the other the state- No. 1101-00. the basis of ment was offered show Majority Op. else’s conduct.” someone Texas, Appeals Criminal explaining If Corporal Brunson was En Banc. officers, subsequent conduct of other simultaneously explaining if he was even May conduct, testimony as the basis for his the basis for the other officers’ conduct hearsay. This case is no differ-
constitutes MeVickers, ent from MeVickers. ultimately who arrested defen- officer basis dant testified as to another officer’s initially stopping the defendant. Here, MeVickers, at 663. Cor- testified as to the facts poral Brunson prob- constituted Vasquez Officer believed enter the victim’s residence. able cause to to ex- operated have MeVickers should testimony. The admission clude Brunson’s therefore, was, error. testimony Moreover, harmed. The er- appellant was testimony Brunson’s admission of roneous search. ensuing warrantless legitimized search, the fruits of the The admission of turn, injurious a substantial and