Gribble v. State

GRIBBLE, Timоthy Appellant, Lane Texas, Appellee. STATE

No. 70773. Texas, Appeals

Court of Criminal

En Banc.

Nov. 1990.

Rehearing Feb. Overruled 1991. Denied

Certiorari June

See 111 S.Ct. 2856. Galveston, McQuage, ap-

Thomas W. for pellant. Guarino, Rog- Atty.,

Michael J. Dist. Ezell, Galveston, Atty., er Asst. Dist. Rob- Huttash, Austin, Atty., ert State’s State.

OPINION TEAGUE, Judge. capital mur-

Appellant was convicted of der, being alleged that he committed the during the murder of Elizabeth Jones1 kidnapping her. See course 19.03(a)(2). After the Penal Code § special issues answered submitted affirmative, judge assessed the trial Art. 37.- appellant’s punishment at death. 071(e), Appeal to this Court Y.A.C.C.P. V.A.C.C.P.; 37.071(h), automatic. See Art. 40(b)(1),Tex.R.App.Pro. Rule address justice, In interest of we will whether the evidence and decide the issue allegation to establish is sufficient felony offense of underlying went to i.e., alleged in the indict- kidnapping, appellant committed in this cause that ment during the course murder of Jones her, the offense caused to the offense murder to be elevated V.T.C.A., Penal Code capital murder. See the evi- 19.03(a)(2). hold that We will Sec. allegation to sustain dence is sufficient indictment. fifth, interpret appellant’s Because we twelfth, points of error thirteenth had a victim, development She year at NASA. software was a 36 old 1. The Elizabeth depart- position Kap- managerial in the verification professional She was a Phi Beta woman. space at NASA. pa shuttle ment in mathematics who worked challenging sufficiency of the evidence I. conviction,

to sustain his murder we 8, 1987, September On Elizabeth Jones address, overrule, will also but will disappeared. these When missed work the day, began next her friends to search for points Furthermore, of error.2 we will ad- They private her. investigator, hired a no- appellant’s points dress and sustain of er- authorities, tified local law enforcement fourteen, fifteen, sixteen, ror numbered hospitals, and called area all to no avail. seventeen, eighteen.3 and We will not ad- later, appellant Several weeks confessed to appellant’s dress points other of error.4 killing her and police showed the where he body.5 had concealed her (Point Five): Wood, 2. Mary private Investigator, en to be- The admissible evidence adduced at the tri- cause Ms. Wood failed to advise the Defen- legally sup- al of the case was insufficient to rights dant of his Miranda in accordance with port capital conviction mur- Article 38.22 of the Texas Code of Criminal der, offense; any or of lesser included Procedure, and the statement was made in the (Point Twelve): response contest of or in to a custodial inter- denying ap- The district court erred in rogation; verdict, pellant’s motion for instructed and in (Pоint Two): The District Court erred in ad- entering murder, judgment capital of conviction of mitting the Defendant’s written statement to legally because the evidence was in- Wood, Mary Investigator, Private because the prove sufficient to the elements of the offense statement was made after the Defendant re- kidnapping by corroborating the state- quested proceed, that the interview not which ments of the defendant admitted into evi- honored; request was not dence; (Point Three): The District Court erred in (Point Thirteen): admitting tape-recorded the Defendant’s con- legally The evidence was insufficient to sus- given fession to law enforcement officers on murder, tain a conviction of because 3, 1987, together October with all evidence disprove beyond the State failed to a reason- therefrom, subsequently derivеd because the portions able statements, doubt those interrogators refused to honor the Defen- by offered into evidence request interrogation; dant’s to terminate the establish that the did not de- (Point Four): The District Court erred in ad- liberately cause the death of Elizabeth Jones. mitting into evidence the fact that the Defen- points 3. These of error assert that the trial court Ranger dant led Texas Joe Haralson and Gal- by: erred County Department Investiga- veston Sheriffs (Point 14): Failing jury to instruct Wayne tor Kessler to the remains and any mitigating be sufficient to Jones, evidence, of Elizabeth those items of jury cause the to have a reasonable doubt as therefrom, and all evidence derived because issue; any special an affirmative answer to those events occurred after the Defendant’s (Point 15): Failing jury to instruct thе that a unequivocal request to consult with an attor- negative any special answer to issues honored; ney, which should be mitigating made if the evidence Six, Seven, (Points Eight): and The District against penalty the death covers a reasonable overruling Court erred in the Defendant’s issue; any special doubt as to challenges venirepersons for cause to Thomas (Point 16): Failing jury to instruct (Point 6), (Point 7), Gray Katalina Ruiz and any special jury answer any issue "no" if the finds (Point 8), Jennings Donna Sunseri because character, aspect of the Defendant’s jurors expressed strong prejudice these record, or mental illness or circum- against punishment the minimum of life im- mitigate against imposi- stances of the offense murder; prisonment for the offense of penalty; tion of the death Nine, Ten, (Points Eleven): The District (Point 17): Failing jury to instruct the that if failing grant Court erred in the Defendant’s any mitigating evidence creates a reasonable overruling Motion for Mistrial or in Defen- penalty appropriate, doubt that the death objection, following dant's several references jury special should answer either of the prosecutor State’s witnesses and the to the “no”, independently issues of whether such rape unindicted offense of or sexual assault issues, special evidence is relevant to the upon following points Elizabeth at the regardless jury of what the found the answers a) Ranger in the when Texas Joe Haral- trial — be; special issues should son remarked that the Defendant confessed to (Point 18): Failing special to submit a third Jones, b) raping prosecu- Elizabeth when the inquiring issue whether the had a reason- deliberately tor made references to sexual as- doubt, any mitigаting able in view of evi- witness, cross-examining sault when c) a defense dence, penalty that the death should not be prosecutor pointed remarks when made imposed. during closing argument; They following: are the (Point One): following The District Court erred in ad- 5.The narrative account of this crime statement, mitting giv- appellant's the defendant’s written is an own abbreviated version of relent, appellant According composite to a of various her refusal ordered appellant gave police her into his truck. He made her lie down statements time, investigators lap her head in so that private period over a going. appellant admitted that he had been work- wouldn’t know where were hour, remodeling driving aimlessly for ing as a roofer on a crew the After home, finally stopped date of deceased’s аnd that on the a secluded disappearance county, approximately last work- ten miles from her he was the and, leaving, Appellant’s at the site residence. intention at man before Jones’ up resi- apparently to use bathroom in the that time was to tie Jones so permitted Later, family eating after dinner with his that he would have time to see his dence. step-children, appellant report left home leave town before she could him wife and videotapes, police, return several but but his intentions be- to rented when her, began to the store to he went closed. came clear she to scream found which her, appellant the house In effort way past help. back he drove to silence On deceased, stopped. looped He the sash from her around her and robe рulled surprise, for the it tight. see that had retired neck and To his could Jones any- night, knocked front door she was dead within a few minutes. He but on the door, dragged she her way. body Jones then beneath a tree and When answered only Appellant in it with re- was dressed a robe. told covered brush. When wallet, the de- had which he turned to his truck he discovered her that he lost his hadn’t, purse and, filling it might and if he have left ceased’s after wondered rocks, nearby to him threw it lake. in her bathroom. consented into a She Appel- entering pretext. her house this on above, investigators police Based on the they that drank lant claimed thereafter Jones’ discovered remains of Elizabeth wine, talked, Ap- and had consensual sex. body exactly and her the locations ex- pellant also claimed that the deceased body and her appellant described. Jones’ Paris, France, pressed a desire visit after purse were found almost a month she her to Interconti- that he took the Houston reported missing. had been morning in ex- Airport nental the next pay- change promise for the of substantial II. proved The latter ment. statements were error, appellant point In his fifth police Appellant also by the to be false. that confession offered maintains resi- that once inside of Jones’ admitted illegally him at trial obtained against grabbed after which dence he Jones’ wrist introduction, the evi absent will- resisted ‍‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌‌​​‌​‌​‌‍but claimed that she she him with to connect dence was insufficient ingly participated in relations with sexual alleged In mak in this case. the offenses Afterwards, him for several hours. argumént, appellant overlooks the ing this a while televison. talked fоr and watched sufficiency of the of law that the principle her Eventually, appellant asleep fell to sustain conviction is evidence bed. probative by evaluating the determined later, dawn, the trial appel- weight of all the evidence Sometime still before consider, in permitted made up. judge deceased had lant woke evidence. coffee, cluding erroneously so that admitted urged appellant to leave (Tex. her could dress for work. He asked Beltran she State, 662 S.W.2d being Cr.App.1987); anyone his there Porier not to tell about appel Because but, (Tex.Cr.App.1984). him spite pleas, of his told all the evidence police does not contend that going notify about lant she was insufficient sexually Panicked trial was he had abused her. admitted how Thus, although appellant’s seem investigatоrs. account police private statements to con- neverthe- implausible particulars, tends to it is No other evidence in the record in certain crime, any evi- with the nor is there by any nect him affirma- uncontroverted less remotely suggesting tran- that events dence spired suggesting scenario. tively an alternative way him. in a other than as described murder, sustain his conviction for offense of murder. appel- Because point his fifth of error is overruled. reports lant’s an accidental (Tex. Faulder v. negligent killing deceased, Cr.App.1987); Collins v. 602 S.W.2d alone insufficient for purpose. this But it does not follow that the State’s burden is greater by somehow made introduction of

III. appellant’s confession into evidence. Re- Appellant claims in his thirteenth quiring disprove beyond the State to a rea- point of error that his confеssion contained sonable doubt killed the de- exculpatory material which State failed unintentionally ceased qualita- is neither disprove, rendering the evidence insuffi tively quantitatively nor different than re- support cient to his conviction. quiring prove beyond it to a reasonable intentionally. doubt that he killed her Ac- adoption Prior to of the Texas Rules of cordingly, the fact that the State offered Evidence, September Criminal effective appellant’s confession, which admitted to provided our case law that “[w]here victim, killing an unintentional puts the state does evidence the statements of party not in the least affect exculpates accused the ac the State’s burden of cused, directly indirectly proof regards appellant’s and does not culpable men- them, disprove thе accused is entitled to an tal state when the offense was committed.6 acquittal.” State, v. 608 S.W.2d Palafox Because does not claim that the (Tex.Cr.App.1980), quoting from Banks evidence, whole, taken aas was insufficient 262, 265, v. 56 Tex.Cr.R. 119 S.W. prove to that he killed the deceased inten- 847, (1909). Although application of tionally, point we overrule his thirteenth of subject this rule was to considerable dis error. agreement, we have since held “that for cases tried after the effective date of Tex. 607,

R.Crim.Evid. Rule IV. the State will not be by bound exculpatory statements which point twelve, In of error number previously fell under pur the voucher rule appellant asserts that “The District Court suant Palafox, 608 S.W.2d 177.” Rus denying erred in the Defendant’s Motion (Tex.Cr. seau v. 785 S.W.2d Verdict, for entering Instructed and in App.1990). judgment murder, of conviction of cause, In this legally the State had the because the evidence was burden to insuffi prove beyond prove a reasonable cient to the ap- doubt that elements of offense pellant killed his victim intentionally during kidnapping by corroborating the state of kidnapping the course of attempting her or ments admitted into Defendant kidnap her in (Our order to emphasis.)7 establish the evidence.” rule, Rather, Quite apart any judicially-created justification for its commission. it merely long provided the Penal Code has denied an essential element of the crime. that defenses source, course, Code, by any including raised evidence from Of under the Penal defendants defendant, by prove dispro- that offered have the burden to by “affirmative defenses” must be V.T.C.A., preponderance a of evidence. Pe- beyond by ven a reasonable doubt the Statе. 2.04(d). express opinion nal Code We no § requires The Penal Code even that the be Palafox, may whether still rule of to the extent it instructed to such effect. See Penal apply September to cases tried before 2.03(d). applied statutory Code As § defens- 1986, requires disprove any the State to “affirm- es, therefore, the rule articulated in cases such ative defenses” in the confessions it introduces. merely logical corollary as a of the Palafox general assume, respecting proof disposing point rule burdens of on 7. In of this of error we Code, deciding, appellant’s defensive issues under the Penal without confession and re- does, indeed, quired admit a of the de- greater proof no different or than that See, however, post. far as we are ceased. So already prescribed by statute law. But studying his motion for able to determine from negligence claim of accident or verdict at trial and his brief to this instructed confession was not defense within the mean- appeal, appellant contends Court on Code, ing of the Penal since did not admit the just ... it was as that Ms. Jones alleged up offense and then set an excuse or hypothesis murdered as the State’s elsewhere corpus term,10 usually record we have held pause point out present did not delicti reflects that brought to mean harm about after the State rested its case Bridges person. criminal conduct of some an instructed after motion for v. 172 Tex.Cr.R. 362 S.W.2d by the guilty was overruled verdict of not (1962). Thus, extrajudicial confes State, Kuykendall v. judge. trial Cf. sion of a criminal defendant must be cor tending by other evidence roborated long to a vari This has subscribed Cоurt show that a crime was committed. Brown extraju that an the common law rule ant of v. (Tex.Cr.App. 576 S.W.2d 42-43 of the accused is insuffi dicial confession Watson 1979) (opinion rehearing); support unless corrobor cient to conviction State, 154 Tex.Cr.R. Texas, in most other Ameri ated.8 In It need not corroborated as the rule has been con jurisdictions, can it,11 person who committed since independent evidence of require strued to identity perpetrator part is not a delicti, corpus merely support corpus delicti be established Although of credibility the confession.9 understanding extrajudicial alone.12 in our ten inconsistent home, (Tex.Cr.App. 432 S.W.2d 954 was abducted from her that Ms. Jones Perez 1968). spot, kidnapped and taken to that and then Also, contrary hy- to the State’s murdered. However, Self investigating po- pothesis kidnapping, 1974), (Tex.Cr.App. we noted the dis lice officer could observe at the Defendant’s opinions crepancy disapproved prior hold any- sign struggle residence no [sic] ing intimating corpus that the delicti of a thing broken. identity person who com crime includes Brief, argu- pp. Appellant’s We take this 51-52. also mitted it. See 371, Soffar appellant urges a lack of ment to mean that 1987); (Tex.Cr.App. Scott v. 732 375 showing corroborative evidence the deceased 354, (Tex.Cr.App.1987); Streetman S.W.2d 358 was, alive, from one while still ... ”mov[ed] State, 132, (Tex.Cr.App. v. 698 S.W.2d 134-135 moved, that, or if she was to another” 1985). application standard Yet our own V.T.C.A., Penal was "without See consent].]” of, understanding let sometimes belies real short, 20.01(1). In he claims there is no § Code Take, to, the rule. for ex alone committment hypothesis to corroborate the that evidence еven State, ample, opinion our in Jackson v. 652 appel- deceased We address the was restrained. 415, (Tex.Cr.App.1983), decided en S.W.2d 419 strictly perspec- point of error from this lant’s correctly written dissent. After banc without express opinion evi- no whether the tive identifying corpus of murder as the delicti fails to corroborate other elements of dence holding by criminal means” and “death caused kidnapping. extrajudicial be corrob ‍‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌‌​​‌​‌​‌‍ an confession must that delicti, corpus we then conclud orated as to the history pur- about the 8. Basic information corrob evidence is sufficient to ed that ”[t]he WIGMORE, poses be found at 7 of the rule she struck the confession that orate Note, (1963) and EVIDENCE 2070-2074 §§ elbows[,]” identity though even of child with her Corpus the Delicti Aliunde the clearly Defen- needs no corrobora Proof of the criminal actor (1955). Confession, 103 U.PA.L.REV. 638 dant’s twist, Still, reversed the in an ironic we tion. to show the for insufficient evidence conviction McCORMICK, death, 9. See undoubtedly generally was § EVIDENCE 158 cause of a matter which 1972). required (2d corpus part delicti and thus ed. evidentiary support independent of least some State, 691 See also Johnson v. the confession. 10. See, e.g., accompanying footnotes 48 and text 619, 1984). (Tex.Cr.App. S.W.2d 622-624 § Criminal Law 3437 54 in 25 TEXJUR.3d. (1983). that, case instructed in this

12.The was beyond a 11. A you from the evidence significant body ... if find of case law from this doubt, Court, made a years, that the defendant appearing sporadically is reasonable over the State, See, of the offense e.g., to the commission contrary. v. 60 Tex. confession Lott still, 162, 553, attempted kidnapping, (1910); kidnapping or Black v. of Cr.R. 131 S.W. 555 406, capital 173, of State, you the defendant cannot convict S.W.2d 409 137 Tex.Cr.R. 128 251, State, you the evidence (1939); find from murder unless 140 Tex.Cr.R. 144 Franklin v. State, is other (1940); beyond doubt that there a reasonable v. 149 Tex.Cr.R. S.W.2d 581 Bell which, 509, 923, (1946); you case in this evidence Threet v. 196 S.W.2d 924 of before (1952); with the itself, connect the tends to 200 Rios Tex.Cr.R. 157 defendant kidnapping, attempted kidnapping (Tex.Cr.App.1966); crime S.W.2d 282 v. 398 of Dunn v. purpose the Because essential of cor- the Harris (Tex.Cr.App.1986); requirement is to roboration assure that no Estes (Tex.Cr.App.1974); S.W.2d person indepen- be convicted without some 160 Tex.Cr.R. showing very dent that the crime evidence actually to which he confessed was commit- recently Although we confronted the corpus delicti ted, agree of we that context, problem in a not related we have capital merely murder includes more than yet expressly extrajudi- decided whether by agency.14 homicide a criminal In the cial of cor- confession a defendant must be in- evidence context, present hold that we multiple roborated as to elements of dependent was of underlying felony Appellant’s offense.13 required to show his been victim had clearly point presents twelfth of error kidnapped. question here. The offense of mur- law, der our in- charged under as in the not, however, Such evidence need cause, requires stant not the commis- by prove be sufficient itself offense sion of murder as in the defined elsewhere kidnapping. Honea v. Code, Penal but also murder Valore (Tex.Cr.App.1979); S.W.2d during kidnapping. committed course (Tex.Cr.App. Kidnapping separate is a crime under 1977). Because rule re peremptorily which, Penal Code one as all weight duces the of admissible evidence for corpus See crimes, delicti. has own policy originated reasons Court this 20.03(a). Penal Appellant Code § sanction, express legislative we without corpus delicti maintains while the quantum have independent held murder shown apart evidence from to corroborate the cor corpus de- confession, necessary extrajudicial licti pus kidnapping delicti not. disagree. prosecution rely in a criminal separate any, alleged apart Relying if Holladay 709 S.W.2d 194 38.14, defendant’s, confession, any, you (Tex.Cr.App.1986), if and if which construed Art. V.A.C.C.P., statute, accomplice we have witness a reasonable doubt that there such testimony recently held that the of an accom other evidence that the offense of prosecution plice in a murder need attempted kidnapping, alleged, in fact be corroborated as tо elements distin occurred, the you acquit then the will defendant guish capital murder from murder. v. Romero capital of murder and consider whether he is State, (Tex.Cr.App.1986) 716 S.W.2d 520 guilty added.) (Emphasis of murder. elements); ("aggravated sexual assault” apparent emphasized portions As is from the State, v. S.W.2d Anderson 717 630-631 charge, jury of might this the told was that it not elements); (“remuneration" (Tex.Cr.App.1986) convict murder without corroboration of State, (Tex.Cr.App. May v. 738 S.W.2d 266 connecting appellant both with commission of However, 1987) elements). ("robbery" is so this attempted kidnapping or and estab because, large extrajudicial in measure unlike lishing corpus the one delicti such of offense. confessions, testimony accomplice of an need requirement The of corroboration which "tends only "tending to facts be corroborated to cоnnect the defendant the is crime" the connect the defendant with ted[,]” offense commit applicable characteristic rule to corrobo corpus itself. and not as to the delicti accomplice testimony, ration of and not does apply to confessions of the accused. See Art. brief, opin appellant points 14. As out in his our 38.14, V.A.C.C.P.; v. Kincaid 131 Tex. Penry ion in v. S.W.2d 648-649 691 However, Cr.R. true, (Tex.Cr.App.1985), intimates that this is because the was here instructed not issue, by specifically discussing the sim without ply observing, convict without other evidence show in context offense actor, ing identity his as the criminal a convic alleged, corpus the con there that "... delicti tion was not authorized in instant cause a victim whose was caused sists of death

without such evidence. v. Boozer act of another the course commit criminаl in of also, S.W.2d 608 See Benson Although ting rape." attempting to commit 1983), (Tex.Cr.App. and prece- Penry is of the most attenuated Ortega (Tex.Cr.App. cause, dential value in the instant we note however, 1983). Appellant, complain does holding not our our here is not inconsistent with appeal presented that there insufficient disposition there. of the similar claim apart actually connecting from White v. See also (Tex.Cr.App. 1979). him with commission of the offense. examiner nor other Neither the medical extrajudicial confession of ing upon the could determine investigating officials great.15 need not be accused Self Jones was murdered. where Elizabeth long as there 513 S.W.2d at 835-837. So However, body was found some four her corpus which renders some evidence reported missing in a after she was weeks probable than it would be more delicti County approxi- in remote field Galveston evidence, that the we believe without is, her residence. It mately ten miles from of the rule have been purposes essential course, strangled possible that she was State, 653 S.W.2d Woolridge v. served. then, by appellant to at home and moved (Tex.Cr.App.1983); White However, three cir- country. at least S.W.2d at 864. hypothesis render this cumstances seem to place, is no likely. In the first there less little, apart ap from there is While moving body under apparent motive for confession, suggest that Eliza pellant’s presented as are here. circumstances such deceased, was moved beth home, really killed at If the deceased were without her consent her residence fact that a rational trier of we believe body place where her still аlive to the while left her might expect appellant have well discovered, per not ultimately we are Certainly, apparent it is not body there. utterly record is devoid suaded that the have cast doing so would somehow effect. The distinctions evidence to this him, very greater suspicion on whereas kidnap attempted the offenses of between pickup in transporting body a dead act of unimportant here ping kidnapping are hours, truck, early -morning in the even problem relating to the suffi because increased the risk doubtlessly have would one is the evidence as to the ciency of being seen others. of his other, i.e., from applicable to the equally Moreover, were mur- if Elizabeth Jones facts, as to if the evidence is sufficient home, that a rational dered at we believe one, surely as to the sufficient investigating expect the trier of fact would Certainly the circumstances militate other. strug- of a to find some evidence officers the deceased of a conclusion that favor Instead, nothing to they discovered gle. travelled, either willingly have would at her residence— indicate disturbance another, to an company in the alone or noth- any person, sign injury no county, carrying a area of the uninhabited broken, damaged or overturned. ing nothing wearing but a bathrobe. purse hearing reported no screams Neighbors body her under such con discovery night question. on the other loud noises does, view, render it more our ditions the deceased’s to the scene with the fact Finally, that she was taken believe, would, we taken she was alive at was also consent. Whether out of fact that course, imply to a rational trier is, separate question.16 time analysis purposes that a Indeed, accept of independent for 16. when evidence corpus kidnapped. prove Under V.T. body alone sufficient to confession is delicti, dead C.A., cannot that 20.03(a), kidnapping need not even be instructed is de- Code § Penal extrajudicial be corrobo confession must an rated. For a knowing intentional abduction fined as the partial genealogy of this interest association "person." "person,” if not an A of a ing anomaly, rule is transformed in which the An "individual.” ‍‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌‌​​‌​‌​‌‍corporation, be an or "individual,” must holding based isolated of harmlessness from an turn, being has who is "a human general overwhelming doc evidence into a Code Penal and is alive." been born sufficiency of error based on the trine of no evidence, added) (27). 1.07(a)(17), (Emphasis It fol- § 386, Tex.App. 27 see Willard v. only corporations, associations lows that (1889), Mayfield Tex. 92 S.W. 453 11 kidnapped of in violation living can be humans 532, (1922), Johnson v. 244 S.W. 819 Cr.R. 20.03(a). body these is none of a dead Since § 103, (1931), S.W.2d 748 Smith 117 Tex.Cr.R. 36 moving corporation, things, contrary thus to a 21, S.W.2d 187 Tex.Cr.R. 246 any circum- place does not under to (Tex. (1952), Engledow S.W.2d 789 kidnapping. of the offense constitute stances Cr.App.1966), S.W.2d Honea v. Sons, Vaughan Inc. v. compare See State, (Tex.Cr.App.1979), and Baldree v. (Tex.Cr.App.1987). 686-687 was alive in truck when kidnapping she left of Jones.17 We find that minimum, her residence. At a we believe it evidence sufficient. improbable any

would seem rational tri- repeatedly This Court has held that a er of fact that would have both- capital murder allege indictment need not purse ered to take the had he murdered her the constituent aggravat elements of the at home. We also believe if inclined ing feature which elevates the offense of money valuables, to steal her or other capital murder to murder. Beathard v. any more that rational trier of fact State, 431 (Tex.Cr.App. would have concluded that would 1989). However, say this is not to that in emptied purse have beforehand. What order to establish the offense of seems to us to explanation be a far better murder the prove State need not that the deceased, here is that Elizabeth murder during occurred the course of some brought herself, along hoping for offense, underlying such as the offense of opportunity some get free of her abduc- kidnapping alleged which was in this cause tor. as the underlying offense. We observe that the San Antonio Court Although these ambig- circumstances are Apрeals, in Guerra v. respects uous some and far from ade- Dist.1985), (Tex.App.-4th pet., no quate support conclusions im- Guerra, henceforth was confronted with ply, required the evidence corrobora- resolving the issue whether the evidence extrajudicial tion an need of render the was sufficient to establish that the murder corpus prob- delicti more that occurred in that cause was committed able than it would be without the evi- during the committing course of the of- Therefore, dence. we any ra- find fense of attempted kidnap- tional trier could have of fact found ping. appeals The court of concluded that there was some corpus evidence that the under the presented facts that were delicti kidnapping was sufficiently cor- circumstantial evidence was sufficient roborated as to the elements about which allegations sustain the that went to the appellant complains. Also see the above underlying agree offense. We with the

instruction to the jury that the trial court appeals’ court of conclusion. gave in this cause. His point twelfth is, therefore, error appeals pointed overruled. The court of out that its

case was a circumstantial evidence case and that reviewing standard for V. sufficiency of the evidence is the same for Although we believe that we have suffi- either direct or circumstantial evidence answered, ciently overruled, and correctly cases; namely, appellate court must ex point error, twelfth namely, amine the light most favor District Court in denying erred “[t]he able to the verdict to determine whether the Defendant’s Motion for Instructed Ver- rаtional trier of fact could find the dict, and in entering judgment of convic- beyond essential elements of the offense murder, tion because the evi- Virgi reasonable doubt. See Jackson dence legally nia, prove 443 U.S. 99 S.Ct. 2791- insufficient elements kidnapping by 61 L.Ed.2d Also see offense of corroborating the State, (Tex.Cr. stratements the De- Purtell v. 761 360 S.W.2d evidence,” (our admitted State, into App.1988); em- Marras v. 741 S.W.2d fendant phasis), must, we 395, also find that we in the (Tex.Cr.App.1987); 400 v. Carlsen justice, interest of State, 444, decide whether the (Tex.Cr.App. State 654 S.W.2d 447 proved beyond 1983); a ap- State, reasonable doubt that Freeman v. 654 S.W.2d pellant murdered during Jones (Tex.Cr.App.1983); the course 454 and Vanderbilt v. Sufficiency support of the evidence to a con- due course of law clause of the Texas Constitu- I, implicates viction the E.g., Fourteenth Amendment tion. See Art. Sec. 19. Aсevedo v. to the Constitution (Tex.Cr.App.1982). of the United States and 633 S.W.2d 856

74 (Tex.Cr.App. correctly points 629 S.W.2d The State out follow- 1981). in ing ‍‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌‌​​‌​‌​‌‍(page its brief references to the omitted): record appeals find that court of

We correctly part case, present Appellant in observed that a In Guerra confessed that a our law of circumstantial evidence is panicking the victim told when him based on circumstantial evidence conviction going police she was to the tell [to them] circum cannot be sustained unless the had about sexual assault commit- [he every hypothe exclude stances reasonable upon get ted He then had her into her]. guilt except sis of the defendant. Proof wearing nothing his truck. She was but suspi amounting strong to no more a than He a robe. her lie down made guilt is not probability cion or merе truck so she know where wouldn’t E.g., convict. v. sufficient Schershel He for a long was. then drove around (Tex.Cr.App. 550 Appellant eventually stopped time. 1979); Bryant S.W.2d in a ten truck remote location some miles necessary, (Tex.Cr.App.1978). It is not from the victim’s house. There he stran- however, every point directly and that fact purse gled her. He then threw her independently guilt; to the defendant’s water at remote some another location. enough if the conclusion is warranted confessed, Appellant he led After offi- and cumulative force of all the combined to the cers remote locations where the incriminating circumstances. Sullivan 30.) body purse (Page and were found. (Tex.Cr.App. 1977); Jones, Flores v. The facts also that reflect (Tex.Cr.App.1977); Herndon deceased, missing on Sep- was discovered How S.W.2d 9, 1987, body her tember аnd that ever, is not to exclude to required the State almost one later as a result of found month certainty a that the every hypothesis moral police appellant’s oral that statement by an may offense have been committed appellant led them to said had where every person; it must exclude other body It was purse. left her and estab- hypothesis might exist reasonable that person last lished that was the facts, be hypothesis from the must residence, her have seen Jones alive at proved with the facts consistent as a roofer on where had worked circumstances, premise that later, appellant Over her house. a month by an offense have been committed for this offense. was arrested Tennessee harmony person must out of other not be Although appellant not admit whеre he did Sullivan, e.g., su with the evidence. See Jones, that he killed murdered he admitted Flores, pra; supra; Jones location, Jones, body hid her in a secluded (Tex.Cr.App.1969); a disposed different her Vanderbilt, supra, at 716. location. are that The elements of out previously pointed have some We (2) (1) knowingly person: intentionally a might that hypotheses possible reasonable (3) person. Pe another abducts We applicable to this cause. believe 20.03(a). is defined nal Code Sec. “Abduct” sufficiently demonstrated that we have intent to person to mean “to restrain could any rational trier of fact have how (A) prevent secreting or by: his liberation disproved them. concluded the State holding him in a where he is trier fact also find rational found; (B) using or threaten to be the evidence was have determined could V.T.C.A., Penal deadly use force.” ing to murder Jones to show the sufficient 20.01(2). instance, Code, it was In this Sec. appellant’s com- in the course of occurred prove beyond upon the State to incumbent kidnapping of mitting the offense of appellant mur doubt reasonable any outstand- disproved that the State kidnap during Jones the course dered ing hypotheses. reasonable ping her. ship as a

VI. result of these traumatic events siblings. than did his older During the penalty The reflects that record life, years first several of his he and the phase trial appellant requested among other children were shuffled rela- judge give various instructions tives, living very never one for collectively which would have authorized long. jury, irrespective of its answers to the statutory punishment questions, to decide parents After his were released from put he confinements, should not be to death.18 He respective their appellant Eighth claims that the Amendment of the lived for a time with his mother. She had remarried, United Constitution him States entitled since divorced his father and proferred living such an instruction because he with her new husband and the chil- which, mitigating evidence at trial for dren in a shack running rea- without water pertinent statutory sons not somewhere the mountains of Tennessee. months, appellant’s a questions, might step-fa- have moved some or all of Within few disappeared, leaving ther jurors preg- to conclude that he should not his mother nant and penalty. young- without food for the two Accordingly, assessed the death est children. argues Unable to care for her judge he that failure of the trial fami- ly, appellant’s spent mother much of her jurors requested instruct the effeсtively bars, bringing strange time often men precluded giving mitigating their effect to night. During early home at his formative agree. this evidence. We years, responsible there was no fig- adult sentencing Texas ure in life. invariably scheme does not operate in such Largely as a result of these circum- way Eighth a as to violate the Amendment. stances, appellant’s own mental and emo- Lynaugh, See Franklin v. 487 U.S. was, tional condition and remained at the (1988); 108 S.Ct. 101 L.Ed.2d 155 Ju trial, time of abnormal. Doctor William Texas, rek v. 428 U.S. 96 S.Ct. Winslade, psychoanalyst, a testified that (1976). But, L.Ed.2d 929 at least whenever part persuaded after much effort on his he produces defendant evidence of appellant him to disclose to that on two character, background, his own or the cir sexually occasions mother had which, surrounding cumstances his offense child, appellant requiring abused as a small according contemporary social stan perform him to oral sex on Finally, her. dards, tendency has a to reduce his moral opined experi- Dr. Winslade those culpability in way exclusively related ences, fantasies, even if untrue were to the deliberateness of his criminal con provided explanation a substantial for the duct, provocative victim, behavior of his appellant’s subsequent violence, history of probability dangerous or the of his future and how the contrast of his violent behav- ness, the United States Constitution forbids personality positive ior with his traits were imposition penalty upon of the death him illness, depres- indicative of severe mental given a sentencer prescribe, no means to sion, psychotic illusions of the kind evidence, mitigating based on such a less exрerienced by his mother. Dr. Winslade punishment. severe Penry Lynaugh, appellant developed concluded that a delu- 492 U.S. 109 S.Ct. 106 L.Ed.2d domination, sive fear of sexual and that throughout his adult life this fear intermit- cause, violence, In the testimony tently erupted instant of into acts of by appellant fered revealed upon a troubled and forced women in his fantasies, insecure childhood in they might upon which his mother was he feared force Invariably institutionalized for a severe mental illness him. women victims were imprisoned burglary. acquainted and his father with whom he was on a casual time, Only and, following infant at the suf basis his sexual assaults greater them, upon customarily fered mental and in- emotional hard- acted with 18. See footnote number ante. CAMPBELL, JJ., bizarre, familiarity, more MILLER with re-

congruous, even requested “mitigation charges” gard encounter of an intimate characteristic in that are contained footnote 3 of the attack. than a brutal majority opinion, believe that the one la- these sexual keep he was able to That 17)” “(Point options is the best of the beled family and secret from his aberrations given judge that were the trial under the period of time over an extended friends appel- “punishment” facts that went personal recognition of his abnor- evinces a “personal culpability.” lant’s Further- persons whom he malcy. Virtually all more, appellant’s point in the treatment of teachers, the ‍‌​​‌‌‌​‌‌‌​‌‌‌‌​‌​‌​‌​​​​‌‌‌​‌​​​​‌​‌‌‌‌‌​​‌​‌​‌‍acquainted, including his of error # concur the result father’s service at his natural customers remarks, only. they join these With worked, station, his wife where majority opinion. ex-wife, siblings, regarded him as and his stable, sensible, hardworking, polite, WHITE, J., concurs the result. fantа- generous. But at times sexual resist, especially great too sies became McCORMICK, P.J., and influence of alcohol he was under the when STURNS, JJ., BERCHELMANN times, he suffered drugs. other At such dissent. episodes psychosis from a true fol- typically were violent criminal behavior feelings intense remorse.

lowed true, these circumstances are

If all of according to some con-

widely regarded, standards, redeeming

temporary social tend to

personality traits or factors which Penry Lynaugh, ameliorate fault. See STAVINOHA, Leroy Appellant, Donald such, sentencer in a supra. As mitigate proceeding must be authorized if it finds that a defendant’s punishment Texas, Appellee. STATE culpability thereby re- personal moral No. 567-89. jury say is not to duced. This penalty less than death must assess Texas, Appeals of Court of Criminal mitigating evi- all defendants who offer En Banc. jurors may pre- at trial. But not be dence from the Feb. doing so omission cluded express their charge of a means to court’s supra. Penry Lynaugh,

will. functionally hold that absent some device, jury

equivalent instructive miti- give consider and effect to the

could circumstances, af- was not

gating express judg- opportunity

forded the appellant, even if to be

ment whether society, re- continuing threat should

ceive the death sentence. law we have no

Because under current cause for a new

authority to remand this only, court’s hearing the trial

punishment and sentence

judgment of conviction the cause remanded are reversed and

death proceedings court for further

to the trial opinion. with this

not inconsistent

Case Details

Case Name: Gribble v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 20, 1991

Citation: 808 S.W.2d 65

Docket Number: 70773

Court Abbreviation: Tex. Crim. App.