*1 authority of Under this line a a one verdict into definite certain as distin- punish- repre- is indefinite and uncertain as to guished from the one in Villarreal support ment is void and will fuzzy reasoning not a convic- type sents the of tion, collaterally and may be attacked suc- pervaded of recent decisions the citations cessfully. There need if objection be no request. can upon be furnished the verdict is void. Appeals correctly The Court of followed years” While “not more than two long this line of unbroken decisions of Villarreal, held indefinite and uncertain in judgment court its should be affirmed. today’s majority holds that “not more than Today’s open will Box decision Pandora’s years” ten is definite and certain and prosecutorial argument urging jurors as to years.” means “ten Of it course does not. punishment to assess in the verdict “at not years Two are “not than years”. more than_years” more with the as- 3, 4, 5, 6, 7, 8, So are years.1 9 or even 9½ upheld by surance that verdict majority really saying What is is Appeals. the Court of Criminal years” ten “not more than means “at least vigorously the action this dissent to of years.” ten day’s majority. majority upon relies the fact no objection verdict, was made to the CLINTON, J., joins opinion. “everyone involved the case” understood years” “not more than ten to mean “ten
years.” void, objec- Where verdict is no essential,2 is
tion and there is no support “every- the broad based statement that one involved” meant the verdict to read years.”
“ten The majority tries desperately to distin- guish Villarreal and does not succeed. It GREEN, Anthony George Appellant, points judgment out the entered Villar- real followed the verdict “not more than Texas, Appellee. STATE years,” two while the instant case the judgment verdict, sets out the but the trial No. 663-83. judge judgment ordered in the confinement Texas, Criminal Department of Corrections “for En Banc. (10) years.” noted, term ten As a trial alter, judge may change vary 1984. jury punishment verdict as to with- consent, jury’s try out the make upon
certain when the verdict which it necessarily indefinite, must be based is un- vague. say certain and To that because of by judge made without au- thority transforms the judgment instant punishment
1. In Ainsworth v. intended reflect of 30 App.1975), jury punishment verdict years....” assessed 30_" 3, 4, 5, 6, 7, 8, "for There years, the court instant case wrote: years years” are "not more than ten which were “Thus, by possible punish- authorized the statute as the ‘30’written on written form by possibly charge. could not days, ment as well as construed to mean court's Ains- distinguishable weeks 30 months as none of these worth instant case. terms are authorized statute or covered duty judge reject improp- charge. It is the only the court’s reasonable State, supra. possible er verdict. See Eads v. constructions is that the verdict *2 Dallas, Redington, appellant.
Ted Wade, Henry Atty., Dist. W.T. West- moreland, Jr., West, Royce Donald M. Land Nelson, Attys., Dist. Dal- and James Asst. las, Huttash, Atty. and Robert State’s Riedel, Atty., Cathleen Asst. State’s Aus- tin, for the State.
OPINION ON APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW ONION, Presiding Judge. appeal
This is an from a conviction Punishment, as- the offense of murder. jury, years’ fixed at 15 sessed imprisonment. appeal
On Dallas Court alia, holding, affirmed the conviction inter refusing that the trial court did not err in permit to cross-examine possibly impeach a wit and State’s rebuttal ness, Randall, mis Esther as to charge against her. demeanor check State,1 (Tex. Greene v. App. Dallas—1983). — granted appellant’s petition for dis-
We cretionary review to determine the correct- of the decision. ness place facts' A brief recitation of the perspective. in proper contention The record reveals that Williams, deceased, Mary Ann had been intermittently over romantically involved relationship years. Their several August, stormy one and ap- placed action deceased took peace pellant under bond. Taylor that on the after-
William testified 7, 1981, the de- he went to noon June to take out to dine. ceased’s house Taylor had dated the deceased before estranged marriage, from his and was now dating again the deceased He was wife. He staying on occasion. at house shortly on his arrival related that after 7, 1981, appellant screen came Ap- according spelling peals. apparently is Green name record. error and the indictment They dating again, door of asked the deceased’s house and downtown. started speak her. Taylor called to the de- helped apartment, find ceased, who came out of a room. back stayed him on occasion. He described Appellant opened the screen door and relationship their between October rushed at deceased as if to hit her and March, as much better than before Ap- she raised her arm to block his blow. peace had an They bond. *3 pellant, Taylor, according pulled pistol April, began together May. in jogging but from it pocket, his but fell floor. to the argued May, they About middle of the Taylor appellant, rushed the who knocked again told him if he around and she came elbow, him back his left with and recovered again Taylor she have William blow would pistol. the A shot then was fired the Appellant his brains out. stated the rela- appellant. Taylor did not see the whether tionship “good” again was latter hit, deceased was as he ran from the house. May early and June. Taylor shots, heard two more as he and ran 7, 1981, On June he went the de- along street, appellant pursued the and prior going ceased’s house to visit her shot at him twice. his employment as a He saw bus driver. The record shows the deceased suffered Taylor entering Recalling the what house. grazed arm, three One her bullet wounds. him, the he deceased told took his revolver one her in struck the left side of the chest glove out of his compartment the car one back. The latter two put pants pocket. it in his He asked to according wounds caused her death to the speak and Taylor to the deceased called medical examiner. living her. When she came into the room The State offered of two wom- room, appellant a back entered the en who seen Taylor being had at as he shot pro- house and asked how she was. She ran down the street well as the testimo- leaving him past ceeded as if she was with ny of investigating several officers. A re- Taylor. arm, Appellant grabbed her volver was found at grandmoth- Taylor, noticed she seemed to nod to whom house, er’s but ballistics tests not were appellant reaching pock- the observed in his it weapon conclusive was the revolver, Appellant pulled et. out his but Testimony inflicted the fatal wounds. it, dropped struggle Taylor and a with en- appellant also offered that repeatedly had Ap- sued the weapon. over the control of called the deceased work days at on two pellant they claimed that while were wres- shooting, though before the she told did discharged tling, gun several times. not any want to receive calls there. Taylor broke and ran from the house. Al- Testifying appellant, his own behalf though he had been observed deceased separated who living from his wife and hit, appellant left house. He admitted incident, with his ex-wife at time outside, he fired the revolver twice but stated he repeatedly had asked shooting stated not Taylor, he was at marry deceased to him or to “shack” with grand- he fired He into air. went to his him. He related he met the deceased he weapon mother’s home where hid the December, they 1978 and that started to estranged and then house in wife’s September, date in and this continued killing Oak He heard Cliff. about the on agreed they He into 1980. had their trou- television, family lawyer, went who arguments; bles and theirs was a police. surrendered to the “make-up-break-up” relationship; that he specifi- On cross-examination store, slapped grocery her in a had cally February, denied on occasions her, to kill he threatened and that 1981, when the deceased was Esther with by calling her her 15 20 times harassed or purse straps Randall he cut on daily place employment. In one at her Au- gust, through placed under a occasion and sliced her coat on had him October, 1980, peace In bond. he saw her another. States, Ran- or any other State shall be rebuttal the State called Esther February, evidence on trial of
dall. She testified that admissible in impeach- to a she went Seven-Eleven store criminal case for deceased; appellant approached, ing any person as a unless on deceased, indictment, got into with the trial under such information straps cut the off of the deceased’s complaint final or conviction result- February purse. ed, On another occasion suspended has been sentence the Town aside, she was with the deceased at given and has not been set such appellant approached, East Mall when the person placed probation on has been told him she didn't and when deceased expired. probation has not bothered, cut want Article In trials of defendants under 36.- coat. 09, may shown that the witness is presently charged with the same offense stage guilt After closed at the both sides he ap- as the defendant at whose trial *4 trial, perfect a bill of the asked to pears as a witness.” prosecution had exception, stating the of case, pending had a informed Randall recently The has discussed said court go permitted court him to and the had not Article 38.29: into the matter. Legislature “Our has declared Texas policy proof of formal accusa be purpose for of
Randall then testified
against a
brought
tions
witness
pending
passing
the bill she had a
case for
he,
general,
is
constitute evidence
check;
20 dollar
a worthless
15 or
following
unworthy
cir
of belief
doctor;
given
check
been
has not
mail,
cumstance: the accusation
been
“thing”
she received a
when
or, if
fully adjudicated
adjudicated, has
check,
gone
paid
but
she had
down and
suspended
sentence
resulted in either
court;
go
that she
was told
had to
probation
has
set aside or a
which
been
Judge
Mil-
supposed
to have been
State,
expired.”
v.
645
Davis
before,
which
assumed
day
ler’s court
and she
1983).
(Tex.Cr.App.
288
S.W.2d
prosecutor
pending.
the case was still
not of-
elicited from Randall that he had
is, however, a well estab
There
testimony,
anything
fered her
for
38.29,
(an exception ARticle
lished rule
in ex-
not offered to dismiss her case
V.A.C.C.P.)
great
should be
latitude
testimony.
for her
The court refus-
fact,
showing any
the accused
allowed
allow
to elicit the above
ed to
charges,
including pending
which would
jury’s presence
to estab-
bias, motive,
feeling,
ill
tend
establish
testifying
for
as a
and motive
lish bias
animus on the
witness
prosecution.
State,
testifying against
Spriggs
him.
v.
Y.A.C.C.P.,
38.29,
provides:
Article
405,
1983);
(Tex.Cr.App.
407
S.W.2d
652
(Tex.Cr.
State,
Hodge v.
towards the deceased after a Further, prosecutor’s was issued. about closing comments PETITION ON APPELLANT’S OPINION its dam- testimony emphasized Randall’s REVIEW FOR DISCRETIONARY aging nature. McCORMICK,Judge. majority fails us that witness to tell rebuttal Randall was called as the sole for dis- granted appellant’s petition We Ran- witness. State saved witness holding of cretionary review to review the purpose of iden- dall for rebuttal for the Appeals, the Thirteenth Court simply I can- tifying appellant a liar. as allegation to the appellant’s S.W.2d not been agree accused has resulting from discus- jury misconduct right to show harmed when denied the parole laws. The sion of Court part of a sole and motive on the bias the test set out applied that was purpose by witness used for this rebuttal State, 637 opinion in v. plurality Munroe would hold State. and found (Tex.Cr.App.1982), S.W.2d right pursue line of cross- had the May error. On no reversible question and that was examination case opinion in the handed down an Court error the trial court reversible (1984), State, 670 S.W.2d of Sneed cross- preclude appellant from this line of test of readopted prong we “the five examination. pre-Heredia cases.” See Heredia MILLER, J., joins. (Tex.Cr.App.1975). 528 S.W.2d under the this case
We have reviewed and have adopted in five-prong test Sneed decision determined peti- Appeals is correct. improvi- discretionary review was tion for therefore, is, It ordered granted. dently dismissed. *6 FLORES, Appellant,
Norberto Martinez Texas, Appellee. The STATE No. 172-83. Texas, of Criminal Court En Banc. SESSION, Appellant, James June 1984. Texas, Appellee. The STATE
No. 69083. Texas, Appeals of of Criminal En Banc. Brownsville, appel- Yznaga, Hector
lant. 3, 1984. Rehearing Denied Oct. Jr., Atty. and Cantu, Dist. Reynaldo S. Colvin, Atty., Browns- Dist. Marjory Asst. Huttash, Atty. and
ville, Robert State’s Atty., Walker, Asst. State’s Alfred First Austin, State.