*1
peace
breach of the
judge
alleged
had been committed.
urges
error he
This Court decided this exact same issue
appeal.
pre-
He has therefore failed to
adversely
appellant in
Satterwhite v.
52(a).
Tex.R.App.Proc.,
serve error.
Rule
State, 726
(Tex.Cr.App.1986),
S.W.2d 81
Appellant’s
point
final
of error is over-
249,
part,
rev’d in
486 U.S.
108 S.Ct.
ruled.
(1988).
S.W.2d 700 (Tex.Cr.App.1987). None of surrounding facts dispute search in changed since this Court ruled on the legality during search appeal. Therefore, appellant’s
first six- point teenth of error is overruled. Appellant’s alleges final of error GUNTER, Appellant, James Lee the trial court in instructing erred with an erroneous definition of the term “deliberately” as that term in Arti- is used Texas, Appellee. The STATE of 37.071, supra. cle The trial court instruct- ed jury: 69,812. No. employed Special “As in the first Is- Texas, Appeals Court of Criminal sue, the word ‘deliberately’ has a mean- En Banc. ing different and distinct from the word ‘intentionally’ previous- as that word was March 1993.
ly charge guilt. defined in the Rehearing May Denied 1993. ‘deliberately’ The term as used in the Special first Issue is defined as with deliberation;
careful consideration or intent; hastily with full or careless- ly deliberately purpose; formed —as consequences.” with awareness of the trial, objected At appellant to this definition comport because “it does not with what the majority of Appeals the Court Criminal
suggests definition.” The trial objection
court overruled this and refused appellant’s requested instruction. In his appellant argues brief now that the defini- tion as submitted confused the distinction
between “deliberate” and “intentional” be-
cause it used the words “with ... intent” to define argues “deliberate.” The State preserve any has failed to definition,
such error in the trial court’s agree. and we Appellant’s objection trial way in no specifically alerted the trial *3 committing in the course of
Ruth Deanda commit offenses of attempting “aggra- burglary, robbery, kidnapping and Prior vated sexual abuse.” to submission jury the State abandoned of the case to the theory of “aggravated sexual abuse” court The trial authorized offense. appel- jury to under theories that convict intentionally murdered in the lant Deanda committing attempting or to com- course of robbery kidnapping. burglary, mit either murder, Lesser included offenses bur- habitation, *4 invol- glary voluntary of untary manslaughter were also submitted. general appel- In a verdict found capital lant Article guilty of murder. See 37.07, 1(a), In accordance V.A.C.C.P. § issues, with answers to affirmative punishment the trial assessed court 37.071, (e), Ap- death. Article V.A.C.C.P. (h). Id., peal is to this automatic Court.
I. alleg- appellant
In his first of error support is insufficient to es con- jury’s Specifically, verdict. does tends not establish that the evidence beyond a doubt murder reasonable that the perpetrated in the commis- Deanda was attempted commission of sion underlying three felonies submitted to charge. jury in the court’s
A. following produced evi- State dence at trial: Scardino, Jr., Houston, Larry A.
Robert Urquhart, Brenham, appellant. P. Phone Calls Work Holmes, Jr., Atty., B. Dist. Har- John J. January Pam Knox testified Hudson, vey Totschall and Bert Gra- Glenn February she and Ruth Deanda ham, Houston, Attys., Asst. Dist. Robert clerks at together worked as a convenience Huttash, Austin, Atty., State’s for State. during the Sometime store Houston. February of a caller
second week spoke as “Lee” who identified himself Knox, According Deanda. Deanda OPINION speak seemed reluctant to with “Lee” WHITE, Judge. by telling him that ended her conversation appellant else and In a four count indictment she was “involved someone him at that she couldn’t be involved with accused of the offense murder Code, 19.03(a)(2). just Penal the time and she wished he would under V.T.C.A. § again alleged alternatively that leave her “Lee” called back The indictment alone.” briefly intentionally spoke caused the ten appellant death of minutes later Deanda later, “Leroy couple days Sey- with him. A Deanda driver’s license” with the name again Appellant told Knox mour” on it. Bond blood that Lee Gunter had called showed again on his shoes and told Bond that “the “pester- her at work and that he had been guy pretty Appellant bad.” had a ing was hurt girlfriend, Marylou her and her [Lo- pocket four-inch knife on sheathed his belt pez].” em- Deanda instructed fellow habitually. known to which he was wear ployees to tell future callers other than her mother that not there. Deanda was appellant her car and Bond asked about parked her that the car was told 21, 1986, Friday, February
On Knox ar- building. side of the other When Bond rived at the convenience store at about car, go appellant out to her started p.m. finishing as Deanda was her shift. asked her to wait and left. Bond waited Knox, According planned Deanda moment, then followed out to the apartment, meet someone at her and she parking lot getting where she observed him male, “implied and she was real out of a small Chevrolet. When Bond happy, real excited.” Deanda did not tell car, appellant asked about her own told her meeting. testi- Knox whom she was Other “my right get car was all or he didn’t me dating a mony indicated that Deanda was any trouble.” He said the Chevrolet be- Steve, man she left a club named and that longed Leroy Seymour. He told Bond Roper 11:00and 11:30 called Bill’s between Boy’s, her car that he was at Babba p.m. Friday night meet Steve at *5 would take her there once he was able another club called Struts. start Chevrolet.
Friday Night Appellant neigh- went to one of Bond’s gave help and him five dollars to old, bors Appellant, years who and his jump-start the Chevrolet. After unsuccess- 17-year-old Medina, companion, “Chachi” attempts ful start the car with the use of staying Cheryl had been Bond at her cables, suggested they 21, 1986, jumper neighbor apartment. Friday, February On complex Lee Bond, push the car out of the onto appellant drove with whom he was They hand-pushed the car onto a involved, Road. romantically in her to work Ford perpendicular appel- Lee Road street and up Appellant picked Fairmont. Bond after eventually into lant steered the Chevrolet p.m. Friday work at 9 and returned to driveway house close of an abandoned apartment. p.m., her At about 11 Medina neighbor to by. Appellant asked the tell go gave appellant wanted to home. Bond see her later. Bond that he would When keys to her car so that he could take return, appellant Bond called the failed home, asleep Medina and then fell police reported and that her car had been couch.
stolen. Saturday Morning Evening Sunday Saturday morning, 1:20 a.m. At about day, on Bond went to work later that appellant apartment returned to Bond’s Saturday, Sunday on she and walked ceiling fan in its and a radio. box looking her neighborhood for around Bond, According appellant said that car, Sunday, At on a Ford Fairmont. dusk buy ceiling fan and man wanted parked Bond saw Chevrolet permission asked Bond for to use her car house, Del- driveway of the abandoned again. appellant Bond consented and left again mack Bond went home and Street. apartment again her at about 1:40 a.m. police. called the Appellant apartment returned to Bond’s a.m., telling Bond he about 3:40 Monday Morning Bond, According appellant “in trouble.” County gotten fight Deputy of the Harris said that he had into a Shaver store, Boy’s” grocery Department met Bond at about “Babba had stabbed Sheriff’s someone, to the guy pret- Monday morning and went and “that the was hurt a.m. guy’s where the Chev- ty bad and he showed me ... a house on Delmack Street that he did happened, and what to know parked. discovered rolet was Shaver thought. anybody else Deanda, what not care to Ruth eventu- registered car was on Benmar. tracing her to an address ally “raped the him whether Bond asked Boy’s” run “Babba After a fruitless Appellant said “no.” appellant girl,” and car, Bond of Bond’s grocery store search to “know Bond he wanted again told Benmar proceeded to the and Shaver then that she replied Bond but happened,” what Bond’s Ford apartment, found where did know because what did not want to Fairmont. Appellant repeat. could not not know she found, and Deanda had been Fairmont, asked whether Shaver In the trunk of the Appellant then asked “yes.” containing packaged Bond said pillowcase found a dead, again said and Bond she was Bond whether pies ground beef. pot frozen pas- “yes.” ceiling fan in the the boxed observed car and an at- senger compartment of her Bond, then relat- appellant According to these in her trunk. None of items
las Friday previous her the events of ed to hers. gone to Dean- Bond he had night. He told glass, Enloe, and had broken apartment da’s Sergeant who Deputy Shaver into the and crawled scene, the window unlocked requested on the investi- had been home and discov- Deanda came They apartment. gated apartment. observed threat- apartment in her appellant ered door lock had bro- window near the been They him in.” talked glass ened to “turn Fingerprints on the broken ken. persuaded Deanda appellant’s. to match awhile were later found Deanda to take receiving Appellant then asked to. Knocking on Deanda’s door still messed doorknob, he was answer, they him home “because tried the but shoes, but agreed, looked for apart- up.” She apartment was locked. After the to wear door, find and decided the offi- could not them manager ment unlocked the night temperature that in her apartment. The fan booties. cers searched the *6 left in her degrees. They on, lights still had was about the bedroom was Boy’s. to Babba and went off, Chevrolet apartment turned and the entire been appeared undisturbed. police statement recalled As Bond 28, 1986, ap- February after given Friday, body morning that Deanda’s was
Later
to her:
pellant confessed
clearing in the
discovered face down in a
got
on
of the
“[Appellant]
woods close to the abandoned house
said that he
out
fastened,
[Appellant] said
strap
Boy’s.
still
Delmack. Her bra
was
car at Babba
that
on the side
pulled up
her
had been
above her
that he walked
but
bra
a leak.
on and he took
knee-length stockings
dumpster was
breasts. Her
were
around
down,
guy
that a
came
[Appellant] said
partially pulled
and her shorts and
[Ap-
him
a knife.
building, at
her
panties
around one of
were wadded
guy
took the
at that time he
pellant] said
ankles.
said that
[Appellant]
his knife.
out with
Appellant’s Tuesday Night
he
guy fought and that
and the
him
[Ap-
to Bond
times.
guy about three
stabbed the
Confession
that
he knew for sure
pellant] said that
Tuesday
p.m.
10:00
on
Between 9:30 and
gut
in the
at least
him
he had stabbed
appellant
to find
night, Bond was startled
say
[Appellant] did not
where
once.
apartment.
in her
Accord-
waiting for her
[Appellant]
time.
said
girl
at this
her,
Bond,
“Cheryl,
ing
appellant told
got
into the car
and
back
that he went
you for
I would not hurt
don’t be scared.
Boy’s.”
Babba
they
and
left
up
anything in
He raised
his
the world.”
way
back
told Bond that
Appellant
if
like for
hands and asked her
she would
him “if
him,
Deanda asked
apartment,
give
him
her
knife. She told
Bond’s
her,
yes.
and he said
to with
everything
knife
he wanted
“just don’t touch the
and
they went to
that is when
alright.” Appellant
[Appellant]
her he
said
will be
told
house,
found ...
her,
the car was
he
her
where
wanted to talk to
that
wanted
he
parked
driveway.”
[Appellant]
in the
himself in.
told me
...
turn
[and]
intercourse,
having
While
sexual
after he
[appellant]
couldn’t. I told
that
off,”
suddenly
meaning
Deanda
“went
“she
police.
going
I
to call the
left was
screaming.” Appellant
put
started
then
[Appellant] said that he understood and
her,
quiet
his hand over her mouth to
but
just
asked if I
do him one favor
he
began hitting
scratching
Deanda
him.
least an hour
just
and that was
to wait at
Appellant
off
himself then “went
and he
police.
I
I told him
or two before call
back,”
started to hit her
but he did not
no, that I could not do that.”
many
he hit Deanda.
recall how
times
De-
left,
appellant
police.
Bond called the
When
and, appellant
anda then
out”
told
“went
night
by
Later
informed
De-
that
Bond,
him.
this scared
appellant
that
had
tective Gendrett
been
testimony,
According
appellant
to Bond’s
apprehended.
then leaned over her to see Deanda was
breathing
barely
pulse.
felt a
He then
Appellant’s Midnight Confession
grabbed
legs
pulled
her
her out
to Detective Hill
car,
but “when he did that her head
just
J.R. Hill testified that
be-
Detective
[Appellant]
hit the concrete.
said it sound-
night,
midnight
Tuesday
fore
on
he “re-
somebody had
ed like
threw a brick
[appellant] could
ceived information that
[Appellant]
concrete and it bursted [sic].
just
possibly
in a vacant house that was
grabbed
leg
said that then he
one
pulled
By
Cheryl
her into the woods.”
across the fence where
Bond’s
Saturday
time it
4:00 a.m.
morn-
deputies
was about
Hill
apartment was.”
and two
ing,
appellant
returned to Bond’s
appellant there and arrested him. In
found
apartment.
squad
cage
in the
of one of the
back
Hill
cars
made a statement
According
given
to Bond’s statement
largely comported
story
that
police Friday, February
1986:
evening. Ac-
had told Bond earlier that
“I
[appellant]
told
that I had been down
Hill, however,
cording
appellant told him
given
to the Police station and that I had
“slung”
killed when he
her to
Deanda was
[Appellant]
if I
statement.
asked me
ground;
“just
had
smashed her
that he
him,
every-
lied. I
told
told them
Appellant’s
against
face
the concrete.”
thing
happened
night.
[Appel-
Hill
not reduced to writ-
statement to
good
told me that was
and that he
lant]
ing,
recapitulate Hill’s trial testimo-
sorry
got
but we
he had
me into all this
[appellant]
ny
margin.1
mess.
I told
he needed to
in the
*7
rattling
killing
keys....
he
1. "He told me that
Ruth
had
outside and
He said
[Deanda]
accident,
kind of been an
and I don't recall if he
behind the
went and hid in the bathroom
said that he didn’t mean to kill her or he didn’t
he had
the TV
door....
He said that
seen
her,
kill
but
one
intend to
either
two....
sitting
figured
and
when Ruth seen
on the floor
gone
apartment
said he had
to Ruth’s
on
[H]e
being
see it and realize she was
it she would
Friday night
Saturday
early
morning
that
or
burglarized
probably go
and would
to another
and that he had intended to break into the
apartment....
apartment
police
he
to call the
and at that time
He said Chachi
had
[Medina]
out_
get
was—she
could
He said that as he
they
been
him earlier and that
had dis-
with
apartment,
of her
came into the
and instead
breaking
apartment
cussed
into the
but Chachi
leaving
thought
started
like he
she would she
it because he knew Ruth too
had backed out on
looking
apartment
in the
like she was
around
He said after he had taken Chachi
well....
seeing
missing
whatever.... He
what was
gone
apartment
home he had
over to Ruth’s
and
walking around in the
said that as she was
got
had
He said that he
into the
broken in....
up
apartment
of the
that she came
to the door
apartment
was
... and he had taken a TV that
apparently
in and
saw
bathroom and looked
sitting
a stand or a
and
either on
table ...
he
him behind the door....
So
that time
unplugged it and unhooked the cable from it
open
pushed
and
the door
and
went ahead
wrapped up the cord.... He said that after
and
stepped
and told her not to
He
out
scream....
ready
go
had
to
he went to the kitchen
he
that
apparently she
said she didn’t scream and that
taking
things
refrig-
and started
some
was,
recognized
asking
and she
who he
started
Cheryl
erator and cabinets
Bond’s
[to
car]....
why
trying
rip
to
her off.... He
him
he was
things
put
After he
in the car he went back
a
told him that she didn’t have
apartment
preparing
said that she
into the ...
and was
to
begin
footsteps
with but whatever she had
take the TV when he said he heard
whole lot to
fracture,
skull
Testimony
Medical Examiner’s
eye consistent
legs and
scratches on her
lip
bruised
and
Examiner,
The Assistant Medical
Dr. Jor-
had an alcohol content
don,
He
face. She also
performed
autopsy on Deanda.
being five
tall
described Deanda as
feet
.10.
approximately
weighing
pounds.
and
She had a black
pulled
willing
off of one
give
kle. ...
said he had
them
she would be
him if he had asked
He
leg,
just
they
on her
the other
he broke
and
and
were
ankle on
her for it.... At that
down
up
crying,
cry
leg_
pushed
there
he
blouse
started
and I let him sit
and
said ...
her
[H]e
crying
pushed
up
several seconds
and when he finished
above
breasts....
...
and
her bra
her
shoes,
person
wearing any
she
he said that’s the kind of
she was....
that
said she wasn't
[H]e
just wearing
He said when
asked her not to scream
he first
white
He said
was
booties....
they
talking they
apartment
went
and sat
and
started
over
that
shoes,
leave the
she didn’t
he
down on the
He said that
could tell
bed....
on
white
all she had
was ...
little
that
scared,
still
he wanted
to relax.
they
getting
she was
and
her
it on in
He said
booties....
belt,
he
in the sheath
So
had
knife
on his
get
car and he
the front seat of the
wanted
going
he wanted
he
and
her to know wasn't
trying
her into
the back seat and was
to talk
So
hurt her.
he told her if it
make her
getting
but
want to.
the back seat
she didn’t
into
gave
pulled
and
out the knife
feel better
he
and
She
seat was
He said
said the front
fine....
said she laid
on the
her
knife.... He
get
that
that he
about to
it off in her and
telling him
[S]he
bed....
had been
that if he
suddenly
just
freaked
and started
she ...
out
gave
wanted the
have
him
had
stuff she'd
it to
scratching
said
she
He
that whenever
him....
they
and all that and that
had talked for about
get
scratching
trying
him he
started
started
sitting
30 minutes is what he told me
on the
got
out of
after
out —or he
the car and that
he
talking
bed.... He said that Ruth had been
just
crazy,
got
and
out
said I went
that after he
drugs
him about
and that she had told
that
him
grabbed
of the
He said while
car he
her....
Mary-
was the reason she had moved out from
scratching
just
he
went
she
him
said he
apartment
Lopez’s
lou
was because she wanted
car,
crazy,
trying
get
he was
out of
kids_
things
He
better
for her
said
after
...
got
finally
the car he
and whenever he
out of
they had this conversation for a while
asked
she
just
grabbed
punched
reached in and
her and
put
up
him to
her TV back
He
stand....
He
that after he
her
the face....
said
put
up
said that he
TV back
the stand
just
punched
face she
laid face down
her in the
up
and hooked
to it but
the cable
said that he
right
he reached
his
in the seat and that
in with
plug
didn’t
it back in.... He said that because
got
grabbed her
and then
hand and
hair
night,
up
indicating
he
drunk,
messed
that
he was
her
with his other
and started
the arm
hand
trying
that Ruth had started
talk him
dragging
that
He said
her out
car....
letting
into
her drive him home.
[He indicated
laying
down in
and he was
she was
face
the seat
girl-
home
that]
wanted to take him
in his
car,
standing
in and
he reached
outside
car_
friend’s
he
men-
[Bond’s]
had
think
right
got
grabbed
hair with
hand
her
apparently
Cheryl's
tioned that
she had seen
start-
ahold
arm with his other hand and
of her
agreed
said
he
[Bond’s] car.... He
to let
dragging
he
ed
out of the
He said
her
car....
her take him home but then he remembered the
car,
dragging
out of the
and he said her
her
things he had
out of the
taken
kitchen and had
up
just
He
feet were still on the seat.
raised
Cheryl’s
put
didn’t
into
car and he
want her to
just
slung
he
her down....
He said
see
because he said he was ashamed....
against the
He
smashed her face
concrete....
taking
he
He said
talked her into
him
home
said she
said she never made
noise....
got
her car.... He
went
said
out and
she never
must
died real fast because
left,
into the car
had
and that
went down
body
drug
made a
He said he
sound....
Imperial Valley
going
turned
east on
He said he
blood on his
into
woods ...
had
[driving
towards
Ruth was
car]
59....
pants
Cheryl
shoes and that
asked him
and his
according to
said he
him....
He
had been
*8
got
into a
about
and he had told
he had
it
staying
Cheryl
taking
and she
him
fight
guy
Boy’s grocery
Babba
with a
...
they
driving
He
home....
said as
were
down
had
Lee Road and that he
stabbed him....
him, Lee,
you
Ruth
525 that
asked
do
want to be
just
think
he went ahead and
told
her,
he said that
yes,
with me? ... He said he told
but he
story
he
blood on
her that
because
had the
really
didn’t
think
wanted to
be
he
outside to
He said that went back
him....
you
He
him....
said that she said
never know
got
get rid
car and that
he
into
of Ruth’s
when
you
he
till
ask.... He said that
asked her if she
car
it wouldn’t start....
asked
[H]e
[one
wanted to.... He said that he directed her to
neighbors]
give
Bond's
if he
him
could
drive to the
Delmack....
house on
He said
jump....
I steered
car back to the
they got
He said
after
...
the house on Delmack
[t]o
they
house
where I killed Ruth.... He
getting
on Delmack
started
it on.... He said
caught
get
really
he
said
must
wanted to
in the
the car ...
told
were
front seat of
[H]e
pulled
Ruth he hitch-
had
because he said after
killed
that he
her shorts down and her
leg
panties
and turned
and hitch-
down and had taken them off
one
hiked to Kansas
around
just hanging
and that
an-
hiked
on her
back."
opinion
by
gravity
It was Jordan’s
that Deanda died have been caused
the force of
alone,
pulled
as a result of a fractured skull “with resul-
she was
feet first from the
hemorrhage
ground.
tant subarachnoid
her head struck the
But
due
blunt
car and
trauma,
By
probable
trauma to the head.”
blunt
“the more
cause” of Deanda’s in-
explained,
redirect,
jury,
Jordan
he meant “that either an
Jordan maintained on
object
gravity,
struck the head or the head struck
not the mere force of
“the use
but
surface,”
object
making
or a
but “the more of
force
the head
considerable
probable
pavement
cause was the use of considerable
strike the
or whatever surface.”
making
pavement
force
the head strike the
(an
phosphatase
Jordan found no acid
required
or whatever surface.” The force
enzyme present
high
concentration in
blow,
testified,
to inflict the
Jordan
could semen),
lacerations,
abrasions,
and no
“no
gravity
have been the force of
alone from a
hemorrhage,
no areas of
or indication of
height
ground.2
at least two feet from the
did,
vaginal]
He
trauma
area.”
[the
found
one-inch
Jordan
laceration on the
however,
sperm deposited
find
in Deanda’s
forehead,
left side of her
sur-
which was
vagina, but no tests were conducted to
rounded
an area of abrasion and bruis-
appellant’s.
determine whether it matched
ing. He
likely
testified that “the most
Jordan indicated that
could have been
laceration,
possibility” was that the
abra-
up
days
there
five to seven
before
bruising
sion and
were inflicted at
death.
time,
same
consistent with a “one-blowthe-
ory.” Jordan concluded that the lack of
B.
hemorrhaging in the brain indicated that
In
Virginia,
Jackson v.
U.S.
very quickly
Deanda died
after the fracture
2781,
(1979),
Jordan estimated sis” as a “utilitarian” proximately pounds measuring sufficiency 145 or 150 and was of circumstantial ev ten, five “five nine.” When asked idence to ensure it meets minimum due prosecutor injury process requirements guarantee whether the to Deanda con person height proof was consistent with a and victions will not had on less than weight “smashing against beyond her face con- doubt. reasonable Carlsen v. crete,” ultimately responded 444 (Tex.Cr.App.1983) Jordan that it (Opinion rehearing).3 was. On cross-examination he admitted it on State’s motion for “possible” injury upon that Deanda’s could The State relies circumstantial evi- gave prosecutor photograph 2. The Jordan a 3. In Geesa this Court decided that appar- the car in which ently engaged and Deanda analytical “reasonable-hypothesis-of-innocence asked, you in sex and "Can tell light construct" was not valid "in of this Court’s upon just looking the members of the based abrogate earlier decision to the circumstantial *9 pictures given your at the of that car and basic State, charge.” Geesa v. 820 S.W.2d knowledge as an American consumer about cars (Tex.Crim.App.1991). at 155 This Court high appears ground about how it ... from the Geesa, however, also noted in that this decision replied, ap- the to proximately seat?” Jordan “Looks to be applied only to cases tried after Geesa. Geesa two, two and a half feet from the State, S.W.2d, at 163. ground." seat to the State, by the then presented of prove underlying dence the offenses tial evidence to Butler, supra, we both under robbery kidnapping, appellant and that Carlsen to hold the evidence “in of” be killed Deanda the course the admit- would constrained hand, If, the other excul- Appellant on burglary apartment. ted of her insufficient. of aspects appellant’s of version patory now that to Bond contends his statements necessarily contradict or conflict and Detective Hill raise alterna- events reasonable drawn from inculpatory inferences hypotheses negating tive inference with Deanda, presented kidnapped that or or other circumstantial evidence he robbed State, committing the all of the killed her “in the course of” the evidence viewed prosecution light favorable to the burglary. the most support rationally jury a verdict of would statements, According to appellant's beyond degree of confidence guilt to discovering her apartment, after him in doubt, we must hold the evi- reasonable appellant to home Deanda offered drive In ease sufficient. our view this dence him relations consented sexual with category. into latter falls the along way. Thus, being ab far from sufficient, ducted, To the evidence need accompanied appellant Deanda will ingly. Furthermore, may only support of the theories of it inferred one killing appellant’s jury. from murder submitted Pinkerton statements that the State, (Tex.Cr.App. perpetrated was not either the at 62 facilitate evidence, 1983). already Canvassing apart or burglary, complete, which car, aspects appellant’s taking exculpatory es of Deanda’s which was statements, afterthought. Although pre find it without dis sentially an we shows apart Deanda’s senting appellant’s pute appellant in their en that entered statements tirety chief, Appellant’s in its case in is no ment her consent. State without longer Deanda dis exculpatory portions bound to the statements establish that own State, had him there and that he a knife. therein. See Russeau v. 785 S.W.2d covered (Tex.Cr.App.1990). Having in Deanda’s car to no Thereafter drove burden Street, disprove Delmack exculpatory portions appel house on abandoned statements, however, appellant ne had sex Deanda and lant’s where with State body prove beyond must killed Deanda’s was found vertheless reasonable then her. woods, Al nearby doubt that he killed Deanda the course in the without shoes.4 acquainted attempted burglary, kidnap though apparently of actual or she beforehand, ping robbery. applying may In be inferred appellant the “reason phone calls at hypothesis” analysis, responses able alternative from her procedure accepting workplace that she had resolved correct involves her “[t]he him inculpatory circumstances and then have no further contact with ... apartment.5 asking him in her hypothesis if there a reasonable time she discovered friendly guilt story other that Deanda was Appellant’s than which also would account had him after she discovered he such circumstances.” Girard v. toward apartment, and she (Tex.Cr.App.1982). her that S.W.2d broken into home, Thus, him does not exculpatory aspects appellant’s volunteered to drive apparent in har aversion. Gir fully statements are consistent and “account for” supra. mony Because Deanda with all what would otherwise ard v. police, appellant him to appear purely inculpatory identify circumstan- could to be wear; shoes; pair explains appellant Dean- that she had other his statement that 4. willingly da been her In view had not able to find shoes. she leave in the middle just gotten had work the fact she home from night temperatures in the sixties wear- nightclub, jury and sonably presume one rea- at least could ing only pair and a of booties her feet. shorts wearing when she shoes apartment. discovered support a conclusion 5. There was evidence accepts story Even if one expected to that the "male” Deanda unidentified talked, sat on Deanda’s bed awhile and appellant, boyfriend, later but her meet reject could short contention in that misplace "Steve.” time amount of Deanda would *10 improp- Ralph Mrs. E. Frede was reperson silence her. have had a motive to would reasonably jury facts a could as a qualified From these she to serve er because willingly not accom infer that Deanda did in Adams juror under standards announced pany appellant, and that some force was Texas, 448 U.S. S.Ct. Accord likely used to overcome will. (1980) Wainwright v. L.Ed.2d 581 appellant “re ingly, it could found that Witt, 412, 105 S.Ct. 469 U.S. Deanda, contemplation strained” within the (1985). Specifically, appellant L.Ed.2d Code, 20.01(1)(A).6 Penal of Y.T.C.A. § though qualified even argues that she was Furthermore, to the that he took Deanda penalty the death since disagreed with support an infer house would abandoned conscientiously and she stated she could rise to ence that this restraint would soon obey the oath impartially apply the law “abduction,” purposes of the level of an juror.9 Appellant therefore asserts of a 20.01(2)(A).7 jury could reason Thus a § grant the trial court’s decision to at least at ably conclude against Mrs. challenge for cause State’s Deanda, tempting kidnap as that offense jury right impartial Frede violated Code, Penal 20.- by is defined Y.T.C.A. § by the and Fourteenth guaranteed as Sixth 03(a),8 killed her. at the time he the United States Constitu- Amendments to exculpatory portions ap- Because the tion. with pellant’s statements are not consistent other- all of the circumstances that would dire excerpt portions of Frede’s voir We appellant killed De- wise tend to establish appellant’s conten- examination to illustrate kidnap attempting anda the course questions propounded tion, beginning with her, present alter- they do not a reasonable attorney. by prosecuting hypothesis necessarily demonstrat- native Now, peo- lot of Q. knowing that a ... ing finding guilt beyond a reason- that a as a us that could not serve ple tell finding. View- able doubt is not a rational murder degree capital on a juror to that light most ing all of the evidence you you is: Do my question to case. So prosecution, while can- favorable to the we about your ybur reservations feel that — say appellant was the inference that penalty are such attempting kidnap Deanda when he serving on you from prevent one, particularly compelling killed is a answering murder and ever neither can we conclude that no rational questions punishment “yes” to those two accepted that to a jury could have inference presented degree beyond regardless a reasonable of what State of confidence Virginia, supra. We doubt. Jackson v. that make sense? as evidence? Does is sufficient to sustain hold the evidence part the first you stopped If A. jury’s verdict and overrule question. first of error. respect my from co- Q. Okay. get counsel.
II. the death your reservations about three, Would points of error two answering prevent you from ever penalty of veni- appellant asserts that the dismissal (A) (1)(A), secreting holding place where or him in a supra, reads: 6. 20.01 § likely “(1) [.]" he is not person's to restrict a 'Restrain' means found consent, so as to interfere movements without substantially 20.03(a), supra, 8. reads: § liberty, moving with his him confining place another or him. one "(a) person if he inten- A commits an offense consent’ if it is accom- Restraint is ‘without person.” tionally knowingly abducts another or by: plished intimidation, (A) force, deception[.]" point and hereaf- referred to at this 9. The oath (All emphasis supplied unless otherwise indicat- 35.22, “You and is that of Art. V.A.C.C.P.: ter ed.) solemnly you that in the case each do swear defendant, you 20.01(2)(A), against the supra, the State of Texas reads: 7. § according law render to the a true verdict "(2) person will to restrain a ‘Abduct’means evidence, help you God.” by: so prevent his liberation the intent *11 that no mat- Q. Okay. Does that mean in the punishment questions those two might kind of evidence the State ter what affirmative? case, case, capital murder present in a IA. don’t know ... ques- say “yes” to those you could never dire From her initial answers to the voir “yes” you you if said tions because know capital questions, position Frede’s Ms. penalty would result? the death Upon uncertain. fur- punishment appeared the same you asking I are me A. think however, questioning, she voiced ther already that I’ve answered. questions penalty. During opposition to the death I’m not Q. You answered it. haven't following questions, she indicates that duty to quarrel. I’m under a trying to “yes” special she could never answer to you asking you questions unless keep issues10: to of- say “yes” “no.” I don’t want or Graham) my I Q. (By ... think Mr. times, many by asking too but you fend imagine yourself question you is: Can explain. I am my me to counsel wants any in kind of a murder case ever your hear answers earli- not deaf. I did punishment voting “yes” to those two did; er, I we do have but—and but guilty of questions you somebody if find “Yes, answers, either, I have definite capital murder? if the questions ‘yes’ could answer those feeling way I think I do that A. knowing the the case to me proved State not to probably it would be better for me result,” or, “No, I penalty death would I jury be on a where would have I feel like I do about couldn’t because questions. consider those I have and the reservation penalty Q. See, feelings your I understand ‘Yes’to those it I could never vote about feeling very that’s a natural to have. we’re questions.” I mean that’s where Unfortunately in the law we have realize, get I but we have stuck have definite answers— “yes” or “no.” A. Oh. case, no Okay. A. In that ... Q. way stage —one or the other questions by the After several other may you which seem unfair because ha- State, venireperson then examined anything ven’t heard evidence or else Next, the court by Appellant. counsel you’re having project into the concerning her the witness addressed do; you future about what would but the penalty. Finally, she on the death views requires you law us to ask to be definite again by the State. Ms. questioned you about whether or not could do that ap- penalty to the death opposition Frede’s stage you because we can’t at this reinforced when she peared to be further not,” say “maybe” “maybe then by the State whether she could was asked put you jury month and then a juror. responded of a the oath She follow realize, you finally “Hey, I now special issues answering “yes” to the that press you to can’t do it.” So we have to violating her conscience and mean would you say “yes” get or “no” whether Spe- the oath. therefore could not take she say you “yes” or not could ever to those cifically, responded prosecutor’s to the questions. following in manner: questions Well, I think since there is a me earlier Q. you A. doubt From what told ... say Mr. my you mind it for me to told Scardino would be better and from what feeling you saying that got the no. (2) probability guilty, 10. When whether there is was found acts of vio- defendant would commit criminal following required special to answer the continuing that would constitute lence during sentencing phase: issues society; threat “(1) the defendant whether the conduct of evidence, (3) the con- whether if raised that caused the death of the deceased was killing the deceased duct of the defendant deliberately committed the reason- response provoca- to the was unreasonable expectation able the death of the de- tion, any, the deceased.” result; ceased or another would 37.071(b). Art. your feelings penalty about the death She stated that she could the oath follow prevent taking you from ever “yes”; and answer the issues how- *12 well, say, oath that would I affirm or ever, response prior questions, to capital swear that in this murder case I not answer the spe- that she could stated according will a true verdict render to “yes” if cial issues it meant that the death help the law and the so me God. evidence penalty Specifically, would result. the fol- Basically you saying you are that would lowing interchange occurred: juror; swear to follow the law as a that Q. Okay. you If ... were forced to you you’d if took that oath then be put jury take an oath to be on the on placed jury you on a would have to jury you like a murder case laws; follow these that I understood but you heard that be- convinced you say your feelings to that were such yond a reasonable doubt that the defen- you conscientiously that could never take guilty dant was and that the answers to you you that oath because if know did punishment questions those two should you’ll placed then the situation of “yes,” you would nonetheless have to having disagree to that follow laws questions answer one of those “no” to your feelings; with conscience and get make sure the defendant didn’t that correct? penalty? (sic) thought A. I I that was choices A. No. being given, yes. Q. you Okay. assuring Then are me Q. I think that’s the choice the law— if you put jury that were on a like that my understanding A. That what proved you and the State that you said. “yes” punish- answers should be to those Q. is; way That’s the I understand it questions you say ment that would you conscientiously you that if feel that “yes”? actually “yes” if say You would not, placed could should not be in the you put jury on and if it were this were position having your to violate con- proven beyond a reasonable doubt? you science then don’t have to take the A. Yes. you disagree oath to the laws that follow Q. you saying You realize what are my with to that extent. is it under- So now? standing you that if were asked to serve on a A. require you that would an- Yes ... “yes” punishment ques- swer those dire, Towards the end of her voir Ms. tions, you got if that far that the law again Frede once contradicted her initial required you say “yes” if the State following questions answers. case; proved you its that could never asked and answered: just you take that oath? I read to be Graham) Q. guess I I’m (By Mr. ... particular type juror of a because obligated you concerned that feel some- answering “yes” questions to those how, know, you the law and it follow your
would violate conscience to the may particular moment be at this over- you conscientiously would not know, riding, you you might really what juror; take oath to be a is that you get tonight you feel when home correct? up I sat there and realize bombard- A. That’s correct. questions. ed me a bunch of Then Q. Okay. thought straight, I when it was all challenge MR. GRAHAM: We on that me, Judge questioned then me talked to basis, Your Honor ... some more I was confused because about point, judge get laying get- At I trial did not it. When home down grant challenge ting ready go sleep the State’s for cause. In- the bottom line stead, prosecutor probe going was allowed to is I’m to have to vote for the death case, proves if penalty further into Ms. Frede’s beliefs. This re- the State their them, contradictory why why didn’t I tell didn’t I do vealed somewhat answers. challenge for ruling I on a them when Why just didn’t tell that? cause, judge It’s late. trial must determine had a chance. too you. prospective juror’s views I told A. I think whether or sub penalty prevent Q. Okay. the death their stantially impair performance penal- not in favor of the death A. I’m juror asked I had to be accordance ty. When duties as those “yes” I could jury, if answer given by the court instructions yes. questions answer is juror. taken Farris oath say Q. you really you could Then feel De (Tex.Cr.App.1990); *13 questions? the “yes” to 701, State, at 717 799 v. S.W.2d Blanc Objection, ROBERT SCARDINO: Witt, MR. v. (Tex.Cr.App.1990); Wainwright thing. requires inquiry the same the 850, U.S., 420, S.Ct., 83 L.Ed. 105 at at 469 THE COURT: Overruled. U.S., Texas, at 849; 448 2d, Adams v. at really Graham) you If Q. (By Mr. S.Ct., L.Ed.2d, 45, 2526, at 589. at 65 100 questions then say “yes” these could juror prospective presented with a When proved you if the State the conflicting feelings regarding who has yes. answered should be oath, punish law, juror’s the Yes. A. ment, judge unique position in the trial a Q. really You would do that? feelings same whether those to determine Yes ... A. substantially impair or prevent would juror. a venireperson’s performance as held point, a discussion was At State, S.W.2d, It is 819 at 501. Farris v. court, prosecutor, appel- among ju prospective requirement that a attorney not a lant’s wherein each communicated opinion regard- proven unmistakable respective on the law ror’s their bias Id.; State, ing granting challenge a for cause based 799 S.W.2d clarity. DeBlanc v. juror’s penalty. views on the death judge’s on a trial This court accords the at 717. recess, Frede asked After a lunch Ms. regard given in this ruling great deference questions during a few more the court a judge’s trial determination that the incorrectly commu- which it was somewhat prevented or juror prospective would be to her that had a choice wheth- nicated she his impaired obeying substantially from juror’s When she er to take oath. following instructions is based his oath her take the communicated desire to not of the venire- largely upon determinations oath, challenge for the State renewed its credibility and demeanor. Farris person’s granted. trial cause which the court then 501; v. State, Fearance 819 S.W.2d at v. (Tex.Cr. State, 486, 771 S.W.2d at 501-02 challenge properly The state may trial determining App.1988). In whether refuses to follow a venireman granting the discretion judge abused truthfully answer statutory scheme and prospec challenge for cause to questions put judge. the trial State’s 422, Witt, U.S., testimony as a whole juror, juror’s 105 Wainwright v. 469 at tive L.Ed.2d, State, S.Ct., 83 If the 819 at at 850. v. must examined. Farris law, obey 501; State, is to his oath and follow the 771 juror S.W.2d, at Fearance v. willing accept that only to he must be S.W.2d, 500. at accept is an in certain circumstances death almost identical The facts Farris were also the statuto penalty but to answer able Farris, in the instant to those case. ry questions without distortion conscious during juror questioned prospective State, (Tex.Cr. v. 726 39 bias. Ellis S.W.2d concerning on the death dire her views voir U.S., Texas, at App.1986); Adams at Farris v. penalty. S.Ct., L.Ed.2d, at 590. could Initially, she that she 499. stated take the demon Refusing juror’s oath not, circumstances, ver- render a under person’s prevent that a them strates views penalty. Id. assessed the death juror. dict which carrying out the duties of a - however, S.W.2d, questioning, 44. Upon further See Ellis venireperson “vacillated.” at 500. regarding Id. She evidences that her beliefs stated that she would follow the oath of a penalty beyond merely went influenc- juror and “yes” vote issues ing her in her guilt deliberations at the proper “in the proper ease and the evi- punishment phases of the trial. The trial although dence” to do so would have “vio- judge position the best to determine Throughout lated conscience.” Id. prevent whether would or substantial- dire, remainder of repeated the voir ly impair performance duties. opposed that she penalty to the death ruling. We will therefore defer to his Ac- but understood the oath and would not cordingly, points of error two and three are violate it. Id. Confronted with these overruled. facts, we held that presented with “[w]hen prospective juror conflicting who has III. feelings regarding law, juror’s oath, capital punishment, Appellant argues the trial in his fourth judge unique position is in a to determine of error that the trial court erred in whether feelings prevent those same striking venireperson Ralph Mrs. Frede be *14 substantially impair venireperson’s appellant’s cause counsel was not allowed performance Id., juror.” as a at 501. to cross-examine her before the State’s Since judge we believed that the trial was challenge for cause was sustained. As position in the best to determine her support proposition, appellant for this cites feelings opposition capital pun- towards holding this court’s in Perillo v. 656 performance ishment would effect the (Tex.Cr.App.1983). S.W.2d 78 juror, duties as a we to deferred his Perillo, In the defendant was never al- ruling. Id., 501, at fn. 3. question prospective juror. lowed to Per- We find in this case that the trial court illo, supra juror at 79. After this had been granted did not err when it the State’s dire, examined during the State voir it challenge against for cause Mrs. Frede. could not be determined whether he held strong feelings She had about the death prevented views that him making from an penalty which were reflected in her voir impartial decision on the imposition of the initially dire answers. She stated that she Id., penalty. death at 81. The Court then special could not answer the “yes” issues if granted challenge the State’s for cause imposition meant penalty. against venireperson. Id. Defense She then stated that she could follow the counsel, however, given was never op- an oath and “yes”, answer the issues portunity question person. to this Id. Be- although it would “violate her conscience.” 2, cause Article 35.17 V.A.C.C.P.11ex- § wholly This was not inconsistent with her pressly allows the defendant to examine previous opposition answers since her to cases, prospective jurors capital in felony capital punishment was still evident. Addi- found that it error we was to refuse de- tionally, her comment that following the opportunity question fense counsel the might oath violate her conscience seemed venireperson granting before forgotten to be progressed. as the voir dire challenge State’s for cause. Id. Her may prevented views therefore have Perillo, Unlike defendant performing her from juror. duties as a Additionally, feelings given opportuni- the instant case was may pre- these have answering ty venireperson vented her from to examine statutory Frede. She questions initially questioned without conscious distortion or was State juror’s bias. The entire voir dire testimony passed Next, then counsel. 35.17, 11. Article provided Then, opinion. 2§ at the time: on demand of the State or defendant, case, capital felony In a either is the court entitled to examine each shall propound panel prospective juror the entire individually apart on voir dire jurors questions concerning principles, as panel, may question the entire further trial, applicable to the case on of reasonable juror principles propounded by doubt, proof, burden of return of indictment court. by grand jury, innocence, presumption of ap questioned by (Tex.Cr.App.1991), The 365 we will consider she was the Court. propound penal then addi- pellant’s State was allowed claims that the Texas death questions venireperson Fi- tional Frede. ty applied unconstitutional as scheme was nally, challenge the State’s for cause was case, appellant In the instant to him. be granted appellant noting objection. family background and lieved his turbulent Although appellant may preferred mitigating ef youth would have a relative prospective juror re-examine the immedi- punishment deliberations. jury’s fect on the ately ruling before the court’s on the chal- whether, in the ab We must determine cause, lenge say appel- we cannot informing them sence of instructions given opportunity ques- lant give appel could effect to consider hold, therefore, tion Ms. Frede. We mitigating evidence, lant’s complied the trial court with Article 35.17 provided expressing a with a vehicle for result, 2. As a is overruled. § response” “reasoned moral to that evidence reaching its verdict. Gosch v. IV. (Tex.Cr.App.1991); S.W.2d at 785 Pen points ap of error five and six U.S., S.Ct., ry Lynaugh, pellant complains of the exclusion of veni- L.Ed.2d, at 284. reperson Spradling. Specifically, ap Janet Expert testimony during punishment pellant venireperson’s asserts that this be phase Penry established the defen- disqualify serving liefs did not her from as mildly moderately dant retarded. juror granting in a case and that Penry Lynaugh, supra. Although he challenge the State’s for cause violated his twenty-one years old when he commit- right impartial jury guaranteed by to an as *15 crime, charged the ted the the defendant had Sixth Fourteenth Amendments to However, learning ability year the United States Constitution. of a six-and-a-half the object did not maturity when the court old and the social of a nine or ten granted challenge the State’s for A cause. year old. It was further established that timely objection required preserve a Penry organic from “an brain dis- suffered complaint appellate for review. Tex. order at the time of the offense which 52(a). R.App.Proc. Points of error five and impossible appreciate made it for him to six consequently are overruled. wrongfulness of his conduct or con- Penry conduct to the form his law.” was V. routinely severely punished and beaten as seven, In of error number Additionally, Penry a child. was and out 37.071, appellant asserts that Article throughout hospitals of state and schools V.A.C.C.P.12is unconstitutional as was experts his childhood. The state’s testified applied to him. Specifically, appellant ar “Penry person extremely that was a of gues given that the jury instruction to the ability, limited mental and that he seemed penalty phase pursuant of the trial from his mistakes.” This unable to learn to this deprived jury Article “two-edged a evidence was found procedure considering giving for only could reduced sword”: it not weight mitigating concerning evidence crime, pointed culpability for the but also background his childhood and in order that finding dangerousness. toward a of future they might return a sentence less than Supreme Penry’s Court found that death. The record does not reflect that retardation, damage, mental brain appellant requested an he instruction which background unique was evidence which adequately jury believed more directed the culpability. was relevant to his moral Fur- mitigating consider his evidence. thermore, that, Supreme Court held unique Penry Lynaugh, Pursuant to v. 492 because of the nature of this evi- U.S. (1989) dence, special punishment 109 S.Ct. issues sub- L.Ed.2d 256 State, jury Penry’s and Black v. 816 S.W.2d at 364- at trial did not mitted 12. See Footnote 9. State, Nobles v. S.W.2d 503 express- for death.
provide
with a vehicle
State, v.
Goss
response
(Tex.Cr.App.1992);
to that
ing its “reasoned moral
State, 165;
Lackey
v.
rendering
its decision.”
evidence
S.W.2d
135, fn. 10.
Appellant pointed
Court to evidence
he
at trial
showed that
presented
which
defendant,
ap-
like
Goss
Appellant
as a child.
estab-
was abused
case, presented evi-
in the’ instant
pellant
his natural mother abandoned
lished that
childhood. Goss
a
dence of
troubled
adoptive
age three-and-a-half. His
him at
S.W.2d,
included
at 166. This
disciplinarians
also
parents were
strict
shoe, a
youngster
as a
with a
being beaten
a
him to school
and unfed as
sent
unbathed
However,
Id.
belt, and a wooden slat.
punishment. A
record that
form of
school
any mental
testimony
there was
as
into
admitted
evidence documented
actually
damage
physiological
disorder
sexually
suspicion
teacher’s
explained
by the"
defendant
suffered
authority testi-
abusing him. One school
“culpable than
why
morally
he
less
“deep
appellant manifested
emotional
fied
excuse.” Id.
had
who
no such
defendants
Appellant developed behavior-
problems.”
relevant,
held that
evidence was
We
problems and there is some evidence
al
issues, to
scope
special
beyond the
impairment and a
hearing
from a
suffered
jury’s individualized assessment
time in and
learning
spent
disorder. He
the crime.
culpability
moral
defendant’s
juvenile and
facilities and
out of
foster
by the
presented
Id.
None of the
evidence
age
expelled
adoptive
from his
home at the
sought
explain
the connection
defendant
twenty years
He
old
of seventeen.
problems
of his childhood
between
crime.
he committed the instant
when
held
the crime. Id.
We
commission
childhood was
troubled
defendant’s
Evidence
about
jury’s
encompassed
adequately
within
background and
is relevant be
character
two —whether
consideration
issue
criminal acts
defendants who commit
cause
indica-
or an
the murder was
aberration
disadvantaged
that are attributable
propensity to com-
of the defendant’s
tion
background, or to
and mental
emotional
Id.,
at 167.
acts
violence.
defen mit future
problems, may
culpable
be less
than
have no
dants who
such excuse. Califor
*16
Goss,
no evi
appellant presented
inAs
Brown,
837,
538,
nia v.
479
107 S.Ct.
U.S.
sought
explain the connec
dence which
State,
934;
Goss v.
L.Ed.2d
826 S.W.2d
93
appellant’s troubled childhood
tion between
162,
However,
instruc
jury
at 165-166.
Appel
the crime.
the commission of
type
mitigating evidence
tion on this
of
tend
does not
background evidence
lant’s
required
mitigating
the
may not be
unless
act, such
explain
or
his criminal
excuse
special
the
verdict
evidence
relevant
damage
organic
brain
as the evidence
has
to the defen
questions, or
relevance
presented
mental retardation that
scope
beyond the
culpability
dant’s moral
“Sympa
Penry,
supra.
defendant
the
State,
questions. Lackey v.
of the verdict
during
plight
may be to his
thetic as we
111,
(Tex.Cr.App.1989).
at
819 S.W.2d
135
adolescence,
think
do not
we
childhood
less
might rationally
found
Lackey,
appellant
be
suggested
“In
we
culpable for
morally
his adult behavior
the
mitigating
may
evidence
be relevant
basis,
mor
according
contemporary
pro
of the
this
jury’s individualized assessment
seg
significant
as shared
if
nexus between
al values
priety of death
there is a
State,
v.
society.”
Draughon
circum
our
the
ment of
mitigating evidence and
(Tex.Cr.App.1992). What
might,
331
crime that
831 S.W.2d
surrounding' stances
may
relevance
evidence
society, reduce
ever
viewpoint
from
”
issues,
adequately
it
encom
Goss
special
the defendant’s ‘deathworthiness.’
spe
jury’s
consideration
State,
passed
In other
at 165.
v.
826 S.W.2d
State, 827
Fuller
v.
S.W.2d
words,
excuse or
cial issue two.
tend to
must
Goss
(Tex.Cr.App.1992);
act,
make that
at
criminal
so as to
explain the
State,
(Tex.Cr.App.
deserving
826 S.W.2d
defendant
particular
V.A.C.C.P.,
1992);
38.22,
3(c),
State,
and al-
Earhart v.
at Article
§
regarding
(Tex.Cr.App.1991);
testimony
the statement.
Lackey
lowed
Appellant asserts that for an oral state-
VI. (oral) 38.22) apply shall state- not error, eighth point appel In his of ment assertions of facts which contains argues lant that the trial court in that are found to be erred circumstances overruling suppress appel his motion to true and which conduce to establish the accused, guilt finding lant’s oral statement Hill such as the to Detective J.R. of the in- permitting testify property and also Hill to of secreted or stolen or the Detective the about the statement. The trial court ruled strument with which he states of- that the statement under committed.” was admissible fense was 448 38.22, 3(c), made, given they subsequently in example
The Article when were were § corroborated, only a limitation on the is illustrative and not and conduced to establish which to establish guilt, the statements conduce the defendant’s deemed that we guilt and true. Briddle v. shown be Id. properly statement was admitted. S.W.2d, State, 742 at “While some 388. “Implicit holding in this the notion that case indicates that the oral confession law ‘found to true’ meant that facts about be recovery or statement must lead to the of police are time of which the unaware at the information confes items or before the oral confession, later, confession are after the admissible, sion or statement is the statute State, true.” found Romero v. plainly requires only the statement (Tex.Cr.App.1990). at S.W.2d 544-545 are assert facts or circumstances that At least two of the assertions of fact found to be true and conduce which made the in his oral statement of Port v. guilt establish the the accused.” police information revealed which the (Tex.Crim. State, 791 S.W.2d at prior A limit- unaware the statement. by an App.1990). Oral made statements investigation apartment ed the victim’s in the accused need not lead or result was made between 3:00 and 4:00 a.m. on long discovery incriminating evidence so February 24, Monday, During the 1986. requirements as the of the statutes are morning early Wednesday, hours of Febru- Additionally, places statute met. Id. the 26, 1986, ary appellant gave an state- oral upon the the no limitation manner which police in which he that he ment revealed Id.; facts are found be true. Briddle v. stealing decedent’s televi- intended the State, instance, at For the S.W.2d 388. killed; however, night she sion on the may facts “found a third to be true” caught he stated that when he was State, party. Briddle v. at 388. S.W.2d taking television, act of he returned Subsequent of facts corroboration location, in the plugging to its initial cable previously in an oral statement which were connection not the electrical cord. but make unknown will an oral statement ad police then search of conducted second missible. Port v. apartment morning of the victim’s Port, 107. defendant arrested February 27, During Thursday, 1986. 8,1984, suspicion on June under of murder search, photo was revealed taken which ing postal carrier. Port v. This unplugged. the television was S.W.2d, arrest, at 105. At the time of his previously unknown “found to be fact was body deceased could not be locat guilt. true” established During transportation po ed. to the Id. Additionally, beyond evidence went station, orally lice admitted defendant it result- requirements statute since shooting the in the head. deceased twice discovery incriminating evi- ed in the exiting police Id. While car at the Although dence. there is no indication station, gun defendant noticed a police were aware that the television arresting possession officer’s and identified unplugged during first search Id., it as the one “used to kill her.” apartment, not the victim’s body of 106. The the deceased was significance of this fact have known following January. until the Id. A found even had noticed it. autopsy subsequent revealed that the de in the Additionally, appellant police told A ceased was shot twice in the head. Id. *18 early morn- during oral statement that the gun test then that the ballistics established February ing Saturday, hours of weapon the defendant identified was the Anthony attempt Harris him helped the from which bullets were fired. Id. ultimately He start Ruth Deanda’s car. Thus, autopsy and the ballistics results ver driveway left the car in the of a vacant to be ified or “found true” the facts just he had house where killed the victim defendant’s oral statement. The state the statement, Prior the oral properly therefore ad hours before. ments were deemed Anthony Id., police 108. in did not Har- mitted. Since the assertions the know ap- by police helped appellant the car until push the statement were ris the unknown granting erred in autopsy Like the that the trial court pellant told them. Port, challenge against for cause venire- report subsequent po- in State’s ballistics majority The holds that Anthony Harris “found to man Frede. lice interview justified finding in trial court was appellant’s true” the facts in oral state- “feelings” penalty about Frede’s ment. This was therefore an assertion answering her from “may prevented his oral statement which was subse- within statutory questions without conscious to es- quently corroborated and conduced At 444. The trial distortion or bias.” guilt. appellant’s tablish court, however, finding. never made such a If but one of the assertions within fact, apparent to me that the trial In it is and con a confession is found to be true made Frede court assertions believed accused, guilt duces to show special issues hon- that she could answer in its en then the confession admissible evidence, estly and in accordance with S.W.2d, 107; State, tirety. Port v. imposition if her resulted in even answers State, (Tex.Crim. Marini v. 593 S.W.2d penalty. of the death The trial court never- case, App.1980). In the instant at least two granted challenge theless State’s appellant’s oral assertions of fact state authority of Ellis v. cause on ment found to true and conduced (Tex.Cr.App.1986),for no other S.W.2d 39 guilt. to establish Cf. Almanza v. his opined given that if reason than that Frede (Tex.Cr.App. at 821 opportunity opt out of the distasteful 1992). therefore need not address the We issues, special duty honestly answer the remaining assertions which the trial court my In this cause demon- she would. view Accordingly, the statement. used admit has created strates distortion Ellis point this of error is overruled. the law. VII. A. error, point ninth ar- had acknowledged Frede Venireman
gues that the trial court erred in submit- penalty. the death “reservations” about ting charge to the that directed them Asked whether her reservations would to convict him of murder if special one of the cause her to answer found he murdered the deceased while irrespective prov- issues “no” of evidence kidnapping robbery. Ap- the course of ing beyond to her a reasonable doubt pellant asserts that there nowas first “yes,” Frede at should be answered support charge. analysis this under I mean she an- equivocated, which point supports of error number one our swered, “I don’t know.” Pressed for holding that there was sufficient evidence answer, she indicated she more definite support charge. Accordingly, appel- way questions in a could not answer the lant’s ninth of error is overruled. imposition result in of the death that would Having considered each of However, trial court penalty. when the error, points nine do not we believe her, apparently changed questioned Frede judgment of them merit reversal tune, point on main- and from that Appellant’s of the trial court. conviction steadfastly tained that she could answer and his sentence of death are affirmed. honestly and in accor- issues the evidence. She later ex- dance with CAMPBELL, J., concurs in the result. inconsistency to the plained apparent MALONEY, J., dissents. thusly: prosecutor, CLINTON, Judge, dissenting. “Okay. you I under- Let me tell what plenty all this because it’s stand about
I. confusing. thought I I At first that was majority’s being given I dissent first of all to the asked that the choice would *19 disposition third er- not be on this because of death cause, in complains penalty, ror in which he I said I not. Then would doubt that answers if I’m a reasonable question I was asked was the other though questions I should be jury, even one of these forced to be each jury, ‘yes.’ on this kind a you don’t want be them “yes” would answer ques- truthfully to those could answer is THE That correct. PANELIST: n yes.” to that is tions and the answer previously also THE You’ve COURT: answered, deviation, And so she without want to take you would not stated her voir dire. for the remainder of juror. the oath as denying prosecutor’s chal- initially In right. That’s THE PANELIST: cause, opined: lenge the trial court for right. All Understand- THE COURT: every juror in case I think when “... way, penalties any ing there is no against expresses personal prejudice refusing for to take an shape or form can law, question then becomes you if to ask juror, as a I were oath trial. There are they set it aside for this you can you in up stand and swear with; agree but jurors lots laws don’t no take the oath and say I will refuse to law, they take an oath to follow when can walk out problem, you refused. You says it they the law where can follow courtroom, know, penalty, no you of the qualified. This ‘yes,’ then are wom- nothing. only The no consequences, if a number of times now an has stated juror. as a you is not serve result would juror an oath as a to follow she takes us, if I you have told Based on what Texas, beyond a if she believes law up right now you to ask to stand ques- to both of those doubt the answer following oath you to the and to swear answer ‘yes,’ tions should she will render you a true verdict would if takes an yes. has stated she them She evidence, according the law and the will follow what the juror oath as a your response? Would would be what is. law juror or would to the oath as a you swear said she wouldn’t She [Prosecutor]: not take say Judge, I’d like to—I will you the oath— take oath. jurors my THE mind do COURT: given the If I’m THE PANELIST: whether or not have a choice as to not say I not take I would would choice to take an oath.” want oath. being agreement I am on record as Okay. THE COURT: State, 757 this last remark. Hernandez v. re- The would State [PROSECUTOR]: (Plu- (Tex.Cr.App.1988) at 753 S.W.2d challenge for cause. new its rate, any junc- at this rality Opinion). At granted.” THE That will be COURT: chal- ture the trial court denied State’s cause, agreed supply to look at the trial lenge for but did indeed prosecutor hour, prosecutor could muster over authority authority during the lunch court with here, There, hour. the lunch as supra. viz: Ellis v. he would answer who said a venireman reconvening Immediately upon after honestly and in accordance special issues lunch, again questioned the trial court veni- challenged for cause the evidence Frede: reman acknowledged that he “would because he couple A more min- “THE COURT: “a true verdict an oath to not want to” take utes, question. one You Dr. Frede. Just V.A.C.C.P., 35.22, knowing render,” Article you if an oath previously stated that took him, force should the might proved if juror; serve as a the State in such a dictate, special issues to answer that the you beyond a reasonable doubt imposition way as to cause him guilty, you’d find defendant was penalty.1 proved you beyond guilty; the State jury, nevertheless robbery would prosecution lected to serve on the in a 1. Would we hold subject challenge he also who maintains he would for cause because that a venireman robbery legislature choice, simply as the given define the offense of maintained that if 29.02, Code, but § chose to do in V.T.C.A.Penal oath? There not take the Article 35.22 legislative definition if se- would abide
451
preference not
take
cause he felt Frede’s
to
B.
indication she could not
the oath was an
granting
does not authorize
Ellis
honestly
discharge
duty
and without
her
challenge for cause in this
The
cause.
Clearly
conscious
or distortion.
he
held
bias
reason the Court Ellis
that a venire-
Rather,
man’s
prefer
statement that he would
not
he did so be-
believed she could.
support
granting
to take the oath will
cause he
that Ellis authorized the
believed
challenge
of a
for cause
it is
State’s
is that
challenge
granting of
for cause
the State’s
that, despite
some
assertions to
against
she
solely
Frede
because
acknowl-
contrary,
really
the venireman
like-
will
edged
duty
find that
dis-
she would
ly
by
scruples against
affected
his
so
tasteful,
possible.
if
avoid it
and would
penalty
consciously
as
distort
given no basis
Such a venireman has
for
his
issues.
726
answers
See
“substantially
conclusion
or she is
that he
Obviously
rejected
S.W.2d at 43-44.
Texas,
impaired” under Adams v.
448 U.S.
Id.,
J.,
reasoning.
(Clinton,
this
51-53
38,
2521,
(1980).2
100
A venireman who maintains he can fol-
not to take the oath as an indication she
subject
low the
should not be
law
deemed
The trial
challenge
ground
judge
for cause on no
could not follow the law.
other
than
prefer
put
that he would
not
preferred
to be
excused her
she
not to
because
position,
given
and would refuse if
oath,
Presumably
period.
take
even
option.
only
juror
“The
reason for a
not
majority
in Ellis would
have en-
if
refuse to take the oath is
he cannot
dorsed such a rule.
State, supra
(Clin-
follow it.” Ellis v.
at 53
I would
that the trial court excused
hold
ton, J., dissenting). See also
Hernandez
upon
impermissibly
Frede
broad
basis
State,
State,
supra; Farris v.
819 S.W.2d
Fourteenth
under the
Amend-
Sixth
(Tex.Cr.App.1990)(Teague, J.,
dissent-
ments to the
States Constitution.
United
ing). Clearly the trial court believed veni-
subject
analy-
Such error
to a harm
is not
reman
Frede could follow
if she
oath
122,
429 U.S.
Georgia,
sis. Davis v.
take it.
he
Otherwise would have
399,
(1976); Gray
S.Ct.
2. The did State appellant after did the lunch break ever object error in that he failed to the trial say anything do that would ”create[] grant challenge for court’s cause. I dis- impression abandoning distinct that he was agree. Shortly adjourned before the court for opposition to dismiss for to the motion cause.” appellant the lunch break announced: Compare at 366 Purtell v. we have the record "Could reflect we will (Tex.Cr.App. 1988). contrary, objected On the object challenge challenge to the in that it is a challenge that the trial court sustained Supreme based on the rationalization of the allowing opportuni cause without him another challenging Court case of Adams and are ty question judge the venireman. trial an oath and not on whether or not she appellant opposed was well aware that the chal juror impartial a fair and can be based on lenge, ruling and that he was on a "contested” penalty.” feelings about the death Purtell, point. supra. my appellant view object- In context it is clear was thus ing prosecutor’s position preserved error. See Crane v. to the that because S.W.2d 1990). (Tex.Cr.App. did not to take the Frede want oath she was at 345 *21 452 tendency as it relates to the current Texas
II.
Yet,
capital sentencing scheme.
to allow
disposition
majority’s
I also dissent to
of
mitigating
to this evidence runs
effect
appellant’s
Appel-
of error.
seventh
belief, long
by this
counter to “the
held
37.071, Y.A.C.C.P.,
lant claims that Article
commit crimi
society, that defendants who
him,
applied
was unconstitutional as
in
to a disadvan
nal acts that are attributable
special
that the
issues did not account for
taged background, or to emotional and
significance
mitigating
full
of his
evi-
problems, may
culpable
less
than
mental
punishment phase
dence
of
at
trial.
such excuse.”
defendants who have no
agree.
319,
Lynaugh, supra, 492 U.S. at
Penry v.
Appellant’s
mitigation
evidence in
is of
2947,
278, quot
at
retarded accused. But opinion Supreme Court then insisted mitigating sig- retardation has
that mental special beyond nificance its relevance to the MORENO, Appellant, Angel 37.071, Jose supra. By under Article issues token, Eighth same Amendment categorically prohibit does not execution of Texas, Appellee. STATE youths young adults does not reduce No. 69807. significance youth as a circumstance might justify Texas, that in the individual case Appeals of Court of Criminal sentence less than death. Youth remains En Banc. aspect
as an of the individual character and 7, April 1993. circumstances of the offender which is a 12, May 1993. Rehearing Denied “constitutionally indispensable part of the inflicting penalty death.” process of Carolina, v. North 428 U.S.
Woodson
2991,
304,