*1 abused its discretion in allowing Alley to
testify. Hightower v. also, 920 (Tex.Cr.App.1982). Haynes v. See State, 627 710 (Tex.Cr.App.1982). Appellant’s ground' final of error is over-
ruled.
The judgment is affirmed. Christopher HAWKINS,
Samuel
Appellant, Texas, Appellee. The STATE of No. 65000. Court Texas, of Criminal Appeals of
En Banc. July 20, 1983. On Rehearing Oct. *4 Storrs, Busby, Amarillo, Gene
Russell C. for appellant. Cross, Atty. Gregg P.
Stephen Dist. Jensen, D. Norris Dale Asst. Dist. Walden, Atty. L. Atty., Borger, Linda Asst. Huttash, Gen., Atty. Robert State’s Walker, Austin, Atty., Alfred Asst. State’s for the State.
OPINION DAVIS, Judge.
TOM G. is taken from a conviction for Appeal capital murder. Trial was held Lubbock County venue from following change of County. finding Hutchinson After appel- *5 murder, lant of the an- guilty capital “yes” special swered to the first two issues 37.071(b). as- under Art. Punishment was at sessed death. error,
In his ground appellant fourth challenges the validity of his warrantless arrest. He maintains the arrest was not upon the probable based cause and confes- gave following sion arrest he should have been At conclusion suppressed. pretrial hearing, a the court suppression found that arrest had been appellant’s upon probable based cause.
Betty that on June Thompson testified 30, 1977, she drive appellant observed car, appellant park her home. She saw her a approach open house and storm door at the front of the house. Fearful n home, appellant was about to enter her son, was armed Thompson had her who rifle, appellant with a escort back his car. then called the authorities and Thompson gave description appellant them a and car plate the license number of the he was driving. working while
Earl Bowden testified that
30, 1977,
appel-
he saw
yard
on June
a
through
neighbor’s
lant enter a
home
thereafter, Bowden saw
Shortly
window.
appellant
through
home
door.
leave the
burglary
owner of
Bowden notified the
gave
and
car
who had been
given by
him the license number of the
car
witnesses
driving.
stabbing. Finally,
intruder had been
at the scene of
present
V.A.C.C.P.,
provides
follows
Art.
Garner,
Detective Darrell
of the Amarillo
to a
arrest:
regard
warrantless
Police Department,
testified that he investi-
gated
the incident which occurred
by satisfactory proof
“Where it is shown
Thompson’s
appel-
officer,
home. Garner obtained
upon
representa-
peace
running
lant’s name and address after
a felony
person,
tion of a credible
given
Thompson
plate
license
number
committed,
has been
and that
offend-
Ac-
through
registration
vehicle
records.
so
is no
escape,
er is about to
there
officers,
companied by fellow
Garner went
warrant,
procure
peace
time to
such
appellant’s
Appel-
home in Amarillo.
warrant,
pursue
may,
officer
without
lant’s wife
the officers her
told
husband
arrest the accused.”
was not home at the time. Later in
arrest
conclude that Kirkwood’s
We
home
day,
appellant’s
Garner returned
cause.
upon probable
was based
observed
to leave
appellant trying
above,
upon
was based
As
the arrest
stated
through
house
a window.
ordered
Garner
appearance
the similarities
appellant back into the house.
given by
description
and his car
Kirkwood, of
Potter
Deputy Eddie
Thompson and
Bowden.
observations
Office,
County
was with Garner
Sheriff’s
dis
Moreover,
attempted escape
appellant’s
the second time officers went to
officers obtain
necessity
pensed with
conversation, ap-
Following
home.
a short
Appellant’s
his arrest.
ing warrant
pellant agreed
follow
officers to
merit.
of error is without
fourth
Department
Amarillo Police
answer
questions concerning
Thomp-
incidents
In his third
Kirk-
son and Bowden had observed. When
admitting
erred in
the trial court
contends
car, he
returning
ap-
wood was
to his
saw
He
into evidence.
his written statement
through
pellant fleeing from
house
give
was induced
maintains
*6
neighbor’s
ap-
a
Kirkwood then
backyard.
promis-
a
of authorities
statement as
result
transported
and
him to
prehended appellant
him. He
help
ing
psychiatric
seek
Kirkwood
Department.
Amarillo Police
voluntarily
he did not
further contends that
appellant
due
stated that
was arrested
right
waive
counsel.
his
his
his
and
appearance
similarities in
suppress his
motion to
Appellant filed a
had
plate
license
number
those which
hearing
a
and
court held*
confession
and
by Thompson
been observed
Bowden.
v. Den
with Jackson
compliance
thereon in
that probable
It is well established
1774, 12
368,
L.Ed.2d
no, 378
84 S.Ct.
U.S.
knowledge
cause
arrest exists when the
At
V.A.C.C.P.
(1964)
and Art.
has
arresting
of which he
officer and
the court
hearing,
the conclusion
would
reasonably trustworthy information
be admissi
would
found that
confession
inman
prudent
warrant a reasonable and
recite that
findings which
and entered
ble
com
person
has
believing
particular
a
making any
coerced into
appellant “was not
committing
Hooper
a crime.
mitted or
threats,
force,
persuasion
by any
statement
941.
In Jones v.
516 S.W.2d
influ
improper
other
promises
any
or
or
934,
offi
it was concluded that
right
his
“waived
that appellant
ence” and
after
cause for an arrest
probable
cers had
by
be
counsel.”
represented
a
they recognized
upon
the defendant based
Kirkwood, appel-
Upon being arrested
given
robbery
victim
description
He
warnings.
Miranda1
given
lant was
his
Likewise,
Loving
a co-defendant.
Amarillo Police
to the
363,
transported
was then
an arrest was based
at
arriving
approximately
Department
was
upon
cause when the arrest
probable
his
30,
Upon
p.m.
12:15
on June
upon
description
made
a
of the defendant’s
1602,
Arizona,
(1966).
436,
S.Ct.
arrival appellant at the I said was “A. I did mention that to him. it given warnings your his a second time. At Judge 3:00 would or law- up be p.m., appellant’s wife to the police came yer.
station visited with him for approxi-
mately thirty visit, minutes. Following this “Q. tell way Did him that the best appellant not questioned again until get that mental be to help would lineup after a p.m. conducted at 7:30 confess?
Numerous officers questioned appel- then “A. I didn’t tell him. He asked me. I lant p.m. from 7:30 morning until the next told—he asked me. at 4:20 During a.m. this period, appellant “Q. ask specifically you? What did he gave authorities three written statements. prob- “A. He me about his asked mental The instant statement given was the second lem. He he like—could he said would appellant early morning hours of see get psychia- a doctor or to see a a—
July 1977.2 it something. trist or I told him would Judge lawyer. through or a James LaFavers,
Detective of the Amar- illo Department, Police began questioning “Q. get him Did tell that he couldn’t 11:20 p.m. LaFavers testified or Judge lawyer, especially gave he his warnings before the Judge, get couldn’t to a until he Judge questioning began. At no in the in- point confessed and was arraigned terrogation did indicate everything?
wanted speak with a or lawyer stop No, sir, “A. did not. I interrogation. With to a regard promise “Q. up You told him it would be say you care, for psychiatric LaFavers testified as right? lawyer, the Court follows:
“Q. you promise Did any him benefit or Yes, “A. sir.” any psychiatric any- treatment or Appellant he never testified received thing at all to induce him perhaps to warnings from of the officers. He make statement of this nature? repeatedly stated that he asked “A. No. given an questioning cease and that he be “Q. anyone Did else in your presence Appellant opportunity lawyer. to call make such a promise that can that he related that LaFavers told him recall? given would be treatment if he psychiatric “A. No.” sign the statement.
Captain Smith, E.N. part of the Amarillo A of tape recording during Po- made lice Department, assisted LaFavers in the the into evi- interrogation was introduced of interrogation appellant. suppression hearing by Smith testified dence during the that never stated that he record- appellant. transcription wanted A of that a lawyer present during ing the follow- questioning. reflects that LaFavers made the Sergeant Garrett, Isaiah ing appellant: of Potter statements to Office, County participated Sheriff’s “LA It some- a. Its FAVERS: and interrogation testified follows with thing yourself your- can’t hold you that regard promise type to a any mental self It is some- at fault for. a.It treatment in return for a confession: thing occasionally happens that some
“Q. us, helped. talk you possi- nothing Did to him about the but that can’t be its treatment,
bility you of mental something help mental Its that we can help, obtaining help through mental and we’ll We will do that. We try. is, the Court? situation We do. you understand what State, v. guilt Hawkins 2. In he to an- 613 this thorities in which admitted his S.W.2d admitting no error capital Court found in the court other murder. appellant gave first written statement to au- 72 not sixth any way punish appel
We’re here in his sufficiency it is challenges criticise because understanda- lant evi capital his ble what is. dence to conviction for your support situation waived counsel. Thomas cluding lieve or disbelieve all or does not upon the cumstances Whether a confession. Moreno v. ing hearing witness’ credibility made, er of S.W.2d 817. remain silent and have counsel present dur S.W.2d Williams v. help already psychological psychiatric recommend help. you I would.I help very lenient. the courts in they “LA FA specifically say questioning counsel does not have Thus, [*] but, will and 857; testimony. Hughes prevent VERS: of the witnesses. He can be determined from the cir totality observe the fact that surrounding defendant a . [*] he Myre judge a psychiatrist. Okay.” sole knowingly you’re fact your is to I the trial court from con judge [*] really Sam, at the Jackson v. Denno that he waives counsel State, situation wouldn’t be be determined based trying to I think waives to be honest with [*] do. would think that defendant does circumstances. taking 919. waiv v. — I part intelligently they S.W.2d [*] weight think State, seek expressly may right A would [*] need that 820. any and be nent did: murder. The HAMILTON course with use because under intentionally and ance ABBE course then and there with ABBE RODGERS and knife; commit the offense of fense of PHER HAWKINS HAWKINS death of an HAMILTON, “intentionally RODGERS tionally attempt TON, a UEL CHRISTOPHER did course with HAWKINS part compel of a threat then and RODGERS Aggravated of a reasonable fear that said SAMUEL said SAMUEL and female attempting same woman of the said HAMILTON submit the said ABBE individual, ABBE did attempted the said indictment ABBE RODGERS HAMIL- cause the death of to submit there by and then and there or similar circumstances May not his HAMILTON’S stabbing knowingly knowingly SAMUEL HAMILTON did then and there Rape, to-wit: SAM- have sexual ordinary SAMUEL to commit Aggravated Rape, 3, 1977, specific CHRISTOPHER CHRISTOPHER alleges to sexual inter- HAWKINS did prevent compel wife, without her with RODGERS RODGERS CHRISTO- and inten- resolution cause the intent to in consent, attempt CHRIS- in ABBE resist- harm; inter- perti said of- of seri- by threat HAWKINS TOPHER The evidence in the instant case imminently inflict- to be bodily injury ous raised issues of fact as to waiver of counsel HAMILTON,” on ABBE RODGERS ed alleged acts improper LaFavers testified psychiatric appel care for William Hamilton promising to seek 2,May Abbe, wife, Borger. On lived sup there was evidence lant. We find late left his home 1977, Hamilton finding court’s port the trial *8 11:30 to work report in evening was not order waived counsel and that work, he left for Before Hamilton making p.m. the coerced into statement At the sexual intercourse. his wife had authorities. conclude and promise from We bed, wife was left, Hamilton’s time he of the circumstances totality that under the panties. pair of gown in a and finding clothed supports the evidence the court’s following home the When he returned freely and appellant’s confession was found his a.m., Hamilton at 9:00 morning voluntarily given fully after he had been then left He in the bed. asleep wife still appraised rights affirmatively of his and minutes. approximately the third house for rights. Appellant’s waives those his wife found Upon Hamilton returning, ground of error is overruled. who pregnant origin.” was six months have A com- lying “negroid the been of blood-soaked bed her and with hands feet parison samples hair received from of the bound red pieces of and white cloth. napkin Reimer those found on the immediately attempted Hamilton to call an same showed all of the hairs to have the ambulance but phone discovered that the Neill’s range microscopic of characteristics. line had been cut. He then went twenty similarities be- analysis revealed Mahon, home of neighbor, Hollis who in found tween hair and the hair appellant’s turn notified authorities of discovery the of of napkin at the scene the offense. wife. Hamilton’s Grace Mahon testified did The between the hairs comparison that after Hamilton used her she phone, Neill show dissimilar characteristics. went house Hamilton’s and saw his opinion' testified it was his wife’s body. She related that efforts to her on the had come from napkins hairs found locate a pulse were unsuccessful. person some other with an or Lemery, Borger Officer Bruce Po- range of hair identical characteristics. Department, lice testified he was the first Hamilton, husband, William The victim’s officer to arrive at scene of the offense. was to the stand and testified that recalled The victim had been stabbed numerous home. He no blacks lived near his further times with several severe wounds about person had a stated that he had never black Although neck. the victim was still clothed enter his home. in a gown, she was longer wearing pant- no near ies. A Christine Cantrell she lived pair panties of testified was a short found distance from the At 9:30 a.m. on the bed. Hamilton home. offense, morning of Cantrell noticed Blackmon, Lon Sheriff of Hutchinson light driveway. car in the victim’s two-tone County, testified he took custody of various type The car she saw was the same items of evidence found at the scene which at appellant’s was later discovered Among offense. pant- these items were the saw home. Cantrell further stated that she ies, napkins two found underneath vic- standing a tall black man next slender tim’s and the body pillowcases off bed. driveway. the car in the victim’s Blackmon sent these items to the Federal Bureau Investigation (FBI) laboratory in an au- Diaz-Esquivel performed Dr. Jose D.C., Washington, for analysis. topsy upon the deceased. His examination
Special Agent Robert revealed four wounds to neck Spalding, FBI, testified he worked in field have with a knife- appeared been made forensic serology which the of blood study like instrument. One of the wounds was fluids body in stain Spalding form. approximately three-quarters one related that tests upon run panties the victim’s deep inches and had severed received from proved Blackmon for positive jugular stated that Diaz-Esquivel vein. the presence of seminal materials stains. as a result her victim had bled death the vic- neck wounds. Tests revealed that Reimer, Officer J.D. Po- Lubbock twenty-four tim had within intercourse Department, lice testified that on March death. hours of her 1978, he collected hair several from samples appellant’s head. Reimer turned these sam- testified he was Larry Clark ples over FBI Robert Special Agent supervisor Beef plant. at Iowa Neill. approximately fifty to be plant shown Borger. Appellant reported miles from
Neill related that he was a specialist p.m. day work at 2:40 on the the offense. the field of forensic is the microscopy which fibers, employed study Clark stated using hairs and textiles fleshing as a trimmer on a crew microscopic methods. An examination of called him to napkins Appellant’s upon found work body plant. under the victim’s *9 revealed in the use of an instrument numerous human Neill be semi-skilled hairs. found some of the a knife. napkin hairs on called skinner’s the LaFavers, design squares. was in red and white
Detective James of the Amar- attempt illo Police to calm her down and Department, appel- testified that an I made lant was an the napkins arrested for unrelated offense I had cut with up. her tie arrest, on Following June his I and these tie knife that had used the a signed written statement con- give up wouldn’t with. The woman her cerning the of portion instant offense. A again. I this is when I cut her couldn’t so as that statement is follows: such the up the woman so knots tie
“My Christopher name is Samuel Haw- I not that the stayed loose. did think ago, kins ... can’t A short while I re- I I dead when left but didn’t woman was when, I exactly Borger, member drove to I this wom- rape know for sure. did Texas with a We went in my friend.... I to when I went in the an but intended friends car. The man I was with met one the got house. I scared when I stabbed of his old girl stayed friends and her rape is I her why woman and this didn’t ” looking so I took his I started car. house.... and I ran out of the rape. around I Borger somebody the his evi- support In of contention Borger. drove to the of I part south insufficient, to the appellant points dence is checking started doors and came to a not contain the confession does fact house had one This house was open. the name date of the offense or west, way it facing and had drive the fact Appellant has overlooked victim. went north and The house was a south. item of only was not the that his confession they red color were building and room attempt offered an evidence the State on the end of it. There was a red Monte prove guilt. Carlo, model, I think it about a 1976 was that when viewed We conclude was parked driveway. There also verdict, jury’s light most favorable to driveway another small car in the and I every is sufficient exclude the evidence Vega. parked think it or a I was Pinto except for that hypothesis reasonable right car in area my driveway, sixth guilt. Appellant’s appellant’s I behind the Monte Carlo and Pinto. is error overruled. it I open. checked the door and was into a bedroom that straight walked error, appel eighth ground In his seems like it was kind of behind the is funda that his indictment lant contends I hunting kitchen to the left. had a and that the He maintains mentally defective. had T.G. Y. bought knife that I & manner or allege fails indictment and st. in my store 24th. North Grand the death of about bringing means used in lying I on bed hand. noticed woman the deceased. I knife put on her side. wom- 9, it was Nelson v. In jumped. ans throat and she When the of- charging indictment held that an into her jumped, woman the knife went means used allege must fense of murder and got hysterical neck. The woman are if such means the offense commit her neck up reached and felt the blood on The indictment grand jury. known towel, screaming ‘give me a and started alleges case the instant got me the woman give a towel.’ When “by deceased stab- the death caused stabbing I I did to. started hysterical, Clearly, her with a knife.” bing know the woman in the neck but I don’t the record not supported contention times I stabbed her. When many how is without merit. hysterical, she woman became error, appellant his second going grabbed telephone effective denied the that he was contends on it. when I cut her guess call I this is points He some counsel. assistance of holding again. The woman which he counsel acts seven or omissions cut the phone, and I took knife and farce and into a turned his trial dining argues I area wire. then went into napkins. mockery justice. white got some red and
75
First, he claims that
attorneys
his
com-
to the effect
perjured testimony was
mitted aggravated perjury at the suppres-
promised psychiatric
had not been
appellant
hearing. However,
sion
the record reflects
in return for his confession.
treatment
appellant’s
attorneys
testify
did not
Although
contends that “sever-
appellant
the hearing. Appellant next claims that his
al police
aggravated
officers committed
attorneys conspired
prepare
psy-
“false
perjury,”
only
specifically
witness he
chiatric report.” There is no support for
points to is Garrett. At the suppression
this contention in the record.
hearing,
having
Garrett denied
told appel-
Appellant next complains of certain
lant
only get psychiatric
that he could
care
statements made in counsel’s
regard-
trial,
brief
During
return for a confession.
ing the hair comparisons.
ap-
Pursuant to
questioned concerning
Garrett was
pellant’s request, he is
represented pro
now
LaFavers
appellant
statements
made to
se on appeal. He is in no position to com-
contained in the
transcription
tape
plain of statements made in a brief which recording
during
interrogation.
made
has now been filed
statements,
as amicus curiae.
In those
told appel-
LaFavers
lant that the
probably
courts would
recom-
Appellant complains that his attorneys
psychiatric help
problem.
mend
suppressed the testimony of Deputy Sheriff
Isaiah Garrett. The record reflects that
The State is not allowed to ob
Garrett testified both at
pretrial sup-
through
knowing
tain a conviction
use
pression hearing and at trial on the merits.
Illinois,
of perjured testimony. Napue v.
The remaining complaints raised by appel-
1173,
360 U.S.
79 S.Ct.
76
Finally,
guilt
to be reasonable.
Pritchard stated
punishment.
or
United States v.
97,
Agars,
2392,
427
96
49
U.S.
S.Ct.
as follows:
(1976);
L.Ed.2d
Brady Maryland,
342
v.
373
know,
“Q. Now, this is
we need
what
83,
1194,
U.S.
10
215
S.Ct.
L.Ed.2d
Again, which of the tests—I
basically.
(1963);
State,
Frank v.
“Q. Esquivel Ap- See ... pellant’s error is eleventh over- “Now, I would like to whether ask ruled. could case or think of *12 any fact you situation where could sit In a For Re- styled document “7 Factors jury on a with the people rest of the in view,” appellant presents seven contentions the jury, and if a capital felony prov- is which he warrant a reversal of his argues en, to any convict of a capi- Defendant conviction. Five of those contentions chal- tal could felony, you be in personally lenge sufficiency the of the evidence from that jury box and in participate voting the of the guilt phase or innocence trial. a verdict which would in essence sen- We the sufficien- previously have addressed tence a to person his death? cy of the evidence in sixth No, “A. I don’t think so. ground of error. “Q. Can Okay. you any think of fact the Appellant contends court’s any situation or case might at all which failing in charge was erroneous instruct possible make do, you for or are the in jury on the affirmative defense of
your just beliefs so strong you Code, Penal 8.01. sanity. Y.T.C.A. Sec. can’t do that? Appellant charge not at request did such No, “A. I think only hope their is trial, object nor failure of the did the live, to —if they then are— maybe they such charge to include an instruction. No they have might change of heart. error is shown. “Q. So, Okay. would or you you would not, if were you placed that position in Appellant further maintains the had hear concerning facts court’s because it charge erroneous case which could carry possible death failed the law of jury to “instruct penalty, would or would not reflects the confession.” record more or less vote automatically against court charged jury that con before the death penalty your because of con- evidence, fession be considered as it could scientious and religious scruples? appellant voluntarily gave must find that Yes, “A. I think I would have to vote waiving after knowingly confession against it.” right to and self-incrimination. counsel See As this Court noted in White Therefore, 38.23, appel Art. Y.A.C.C.P. S.W.2d 104: lant’s supported by contention “... it was made clear abundantly in record and is without merit. Witherspoon that the decision reached next contends that Appellant therein had no bearing right on the of the the testimony trial court in admitting erred prosecution to challenge for cause any Hugh during guilt Dr. Pennal prospective juror who that he stated Appellant innocence ar phase trial. would automatically vote im- against the gues testimony that Pennal’s violated position capital punishment without 46.02, 3(g), rule of Sec. exclusionary Art. regard to the evidence might which be V.A.C.C.P., provides: developed at trial or that his attitude “No made the defendant statement prevent toward the death penalty would hearing on his during the examination or him from making impartial an decision as may be admit- to stand trial competency guilt.” the defendant’s ted defendant on against in evidence reflects testimony Williams’ thus she proceed- the issue criminal guilt would have as to voted such a manner ing.” avoid with- penalty the death record, we In our regard might out evidence which be examination appoint- have an order such circum- been unable find developed at trial. Under compe- combined ing during appellant. Although Pennal examine atrist tence/sanity pursuant Pennal’s written filed with the court examination report states appellant pursuant 46.03, he examined 3(g), supra. Psychiatric Art. Sec. request, court’s there is no indication testimony regard to the defendant’s request that such limited the issue of sanity at the time the offense would Indeed, the competency. report prepared possible be if statements hardly Pennal addresses issues of both com- were during defendant examination In the petency sanity. absence evi- inadmissible, de- showing dence appointed that Pennal was evidence relative to prived valuable solely under competency to determine Art. Moreover, insanity to allow defense. 46.02, supra, the record does not show a during defendant the statements 46.02, Art. 3(g), supra. violation of Sec. See 3(g), to be an Art. examination Sec. Finally, Riles we 595 S.W.2d858. no his trial causes admitted evidence *13 objection note that there was no to Pennal’s defendant; is to the unique prejudice alleged on the of an Art. testimony basis oth- position any the same precisely 46.02, the 3(g), supra, violation at time Sec. re- er defendant who examined the evidence was presented. Id. at gard insanity to the defense.” next the Appellant contends 230. admitting testimony trial court erred in the him to Wall’s directed appointment Since Wall, of Richard a clinical dur psychologist, ex- competence/sanity conduct combined ing guilt phase. the or innocence As in the 46.02, supra, amination, 3(g), did Art. Sec. Pennal, appellant case of contends that the testimony. Appel- prohibit to act of testimony use Wall’s was in violation of merit. is without lant’s contention 46.02, supra. Initially,
Art. we 3(g), Sec. by note that Wall was called as a witness and somewhat In an unnumbered appellant. error, appellant of unintelligible ground The was ap- record reflects Wall in accepting court erred “the trial alleges examine pointed the to by court insanity.” Appellant the of appellant plea questions to the of and competency relative Y.A.C.C.P., argues that 26.13, and cites Art. State, sanity. In DeRusse v. into the duty inquire the court trial had 224, this Court stated: plea. of his voluntariness re- “Any psychiatric examination with the recites that judgment in this case The gard to the at the time sanity defendant’s guilty appel- of not plea court entered a offense, of any testimony the the 26.12, By very Art. V.A.C.C.P. its lant. examination, psychiatrist based on that the terms, 26.13, only applies in supra, Art. necessarily must deal with the defend- contendere. or nolo plea guilty case of of thereof, conduct, perception ant’s no Therefore, 26.13,supra, applica- has Art. The state- the time of the offense. no case and there was tion to the instant psychia- ments of defendant to the as to voluntari- requirement inquire are, there- concerning trist that conduct be- appellant’s plea entered ness of fore, probative on the issue of the highly is with- This contention half court. As a Art. insanity consequence, defense. out merit. 3, Y.A.C.C.P., 46.03, no pro- Sec. contains error, appellant against use of the defend- of hibition In his tenth failing grant at his trial similar to erred in ant’s statements contends court 46.02, 3(g), prohibition improper jury argument in Art. Sec. found a mistrial due to of the trial. supra. punishment phase during in- two directs our attention Appellant no perceive apply “We can reason pros- that the stances in he maintains so as to forbid 3(g), Art. Sec. to testi- failure defense, upon his ecutor commented use, sanity to the trial relative fy- psychi- statements defendant’s permissible. to be arguments appellant of was found See McMahon complains are as follows: v. S.W.2d 786. “MS. WALDEN: ... At a motion hearing on his for new “I way might think another trial, appellant stated that he “tried to able to he is determine whether or not escape many times mentally [from trial] likely to criminally do a violent act falling complained ar asleep.” The future would be look to the Defendant jury gument specifically referred
himself. You have been able to observe during their observations him during this trial. Have seen the trial. conclude that course of We showing of remorse? Have seen arguments were not such him—a showing any type reform take them naturally necessarily I’m sorry I did gentle- this? Ladies and failure to tes upon appellant’s as comments men, you’ll just have— arguendo that tify Assuming at trial.
comments did in fact refer “MS. WALDEN: Ladies and gentlemen, we the court’s testify, failure to find let me up clear that I little bit. What were sufficient disregard instructions am speaking of I when am of no speaking errors, Thompson if any. cure the remorse is the fact that 732; the Defendant Alvarez S.W.2d has been sitting here like the rest tenth Appellant’s Counsel for six weeks and had you have error is without merit. *14 ample to opportunity observe his physical 1, 1980, following a hearing On October actions in the courtroom and my remarks court, granted appel- in the trial this Court are only your limited to physical observa- lant’s se motion that he be pro requesting
tion of him.” proceed appeal to se in this pro allowed Following instances, each of these appel- court-appointed appeal that counsel on objection lant’s was sustained and the dismissed. It was ordered that the brief was instructed disregard the complained court-appointed previously filed counsel argument. of Motions for a mistrial based as an amicus be retained the record upon argument were denied. curiae brief. presents The amicus curiae brief twelve V.A.C.C.P. provides Art. improper prosecutor grounds grounds
it for error. Five of to comment error are identical of error upon grounds defendant’s failure In testify. his se brief. error, presented by appellant pro order for in such a comment it to be must be direct and not an indirect allusion error, ground In fourth the amicus might refer to the accused’s failure admitting the court erred in curiae contends State, to testify. Wright v. 845. 582 S.W.2d color into thirty-five photographs evidence. State, 525, The the scene of the photographs depict
In Tarpley v. 565 S.W.2d the deceased’s offense and condition of prosecutor (referring stated to the defend- the photo- It is maintained ant): body. solely to inflame the graphs were admitted me, “He’s don’t shown no reason and I jury. you why think he’s any shown reason shouldn’t be put away—” Testimony concerning scene of murder, description error in in argument including No was found reasonably light that it could on the body have been taken as is admissible to throw general a reference not to the and reveal nature. defendant’s failure transaction its State, but to 4. If a ver testify his failure to v. 525 present Campbell witness- S.W.2d body es or evidence and scene is any description kind in his behalf. bal Likewise, State, admissible, depicting in v. photograph Turner 504 then a S.W.2d State, an 588 argument which to the Luck referred same is admissible. State, 371; 475 defendant’s emotion trial S.W.2d during lack of S.W.2d Martin v. 601; 265. has It been stated photograph Sheppard S.W.2d r. is merely a oral graphic portrayal testi S.W.2d 816. In Legg mony. Welch v. 638. 429, Court this stated: of an ex- “Appellant urges evidence We conclude the photographs traneous offense improperly was admit- question depicting physical condition of During prosecutor ted. the trial body scene of the offense were Gilmore, jail Carolyn asked administrator properly admitted into evidence. This Jail, Taylor County to identify for ground of error is without merit. The then prosecutor court. his sixth the amicus asked Gilmore: curiae contends the failing court erred in “ ‘Q. long jail And had he been in how grant a mistrial. He maintains that a mis- time, particular this when —This trial granted should have been which the in July?’ had him in there presented State evidence of an extraneous question as “Appellant objected offense. ‘tending’ to an extraneous offense. show Eaton, Detective Bill of the Amarillo Po- It is not clear how the court ruled on the lice Department, present testified he was at grant appellant’s it re- objection, but did the police being station while was instruction quest disregard. an interrogated. prosecutor The asked Eaton motion for mistrial over- Appellant’s the following question which forms the ba- extra- any specific ruled. No mention sis for this of error: The court’s in- neous offense was made. Now, “Q. you stated that he related to any to cure error struction was sufficient details of offense. Are ” question in the .... Id. speaking the Borger about offense? complained question I am sorry, “A. I didn’t understand imply case instant tended question.” How than one offense. confessed more Appellant’s objection question specific ever, no mention of Legg, sustained, but the court denied motion *15 We con was made. extraneous offense for request a mistrial. There was no for such char that the was of question clude the the jury disregard court instruct disregard that an acter instruction the complained question. Ap error. the have been sufficient cure Generally, asking an error in an such an instruc pellant’s request failure to improper question proceeding in a criminal presented. the now tion waives error may cured be or rendered harmless its error, the ground of eighth or In his disregard; withdrawal an instruction to court erred in curiae the except in extreme cases where it amicus contend appears during delib jury the question communicating the is calculated to with clearly necessary He it was inflame the minds of the and is of such erations. maintains jury the waive personally so for suggest impossibili character as to the the in open ty impression instructions withdrawing produced reading the further on the juror’s jury.3 the minds. Cavender v. court to counsel, upon Appellant’s his and shall first submit the 36.- and contention based Art. 27, V.A.C.C.P., provides: question answer the and also submit his or counsel or ob- jury same to defendant his with “When wishes communicate court, sheriff, notify jections exceptions, it who same manner shall so and in the Any commu- shall inform the court thereof. are sub- instructions other written be counsel, gives must writ- nication relative to cause such before the court mitted to ten, prepared by the foreman and shall jury, he is but if unable such answer to through the bailiff. submitted to the court presence defendant and secure any such communica- The court shall answer counsel, proceed to answer the then he shall giving writing, an- and before such tion in in- The written proper. as he same deems jury dili- shall use reasonable swer to to the communication struction or answer presence gence of the defendant to secure the term in special definition for the jury provide reflects that while the The record inno- of error deliberating during guilt or to the This charge jury. its following transpired: cence phase, is without merit. Counsel, right, “THE COURT: All amicus In his tenth following I the record have received the in re- that the court erred curiae contends jury: appears note from the It to the on requested charge fusing to submit jury Paragraph phrase that in 1 the in- requested intent to kill. The specific tentionally knowingly is in conflict is as follows: charge phrase Paragraph reading with the in con- “Before would be warranted intentionally knowingly. or What is the murder, capital the Defendant of victing wording supposed to be? Is this correct evidence, beyond find from the you must typographical Signed error? Thomas doubt, not that on the only a reasonable Loper, foreman. the Defendant question occasion provide “What I intend to do is the—is commission of attempted engaged charge that the is correct as submitted. rape as aggravated offense of felony Is it with I agreeable everyone that can also that dur- charge, defined in this but simply type up sign it and let attempted ag- ing the commission Mr. Wilbanks hand it to the at the— jury if the Defendant gravated rape, any, Yes, sir, “MR. STORRS: Your Honor. stabbed ABBE RODGERS HAMILTON We would waive the option of the De- killing her. thereby with the intention fendant and we would also waive the beyond the evidence Unless find from requirement jury being brought that the Defendant on a reasonable doubt back into the box. to kill occasion intended specifically said agreeable “THE COURT: Is that with HAMILTON the said ABBE RODGERS the State? knife, her with a if he when he stabbed “MR. It’s agreeable CROSS: with the knife, can not did stab her with State, Your Honor. mur- capital convict him of the offense “THE right.” COURT: All der.” do not it necessary We find to reach the reflects that court’s The record merits of the presented contention in this following: charge contained ground of error. This Court has held that a guilty that to be provides “Our law concerning contention noncompliance murder, must have a Defendant capital 36.27, supra, Art. cannot be reviewed knowingly in intentionally acted appeal objection in the absence of a timely Un- of the Deceased. causing death 83; at trial. Pless v. intentionally and less Defendant so acted *16 State, Edwards v. 558 452. In the S.W.2d death, he can not be to cause knowingly case, objection instant there to the was no Therefore, murder. capital convicted of procedure answering utilized the court in by doubt, believe, beyond if a reasonable is jury’s question. Nothing presented the death of did cause that Defendant for review. her stabbing by Hamilton Rodgers Abbe error, In ninth ground aforesaid, have a but with a knife as amicus curiae contends the court erred he inten- doubt as to whether reasonable refusing requested to submit his specially death, caused the tionally knowingly
jury charge which contained a definition of Defendant of acquit will then State, King the term In v. deliberately. capital murder.” 553 was S.W.2d similar contention is sub charge When a refused deliberately raised with to the term respect or is covered stantially adequately the same and this held the court need not Court felony expressly proceedings open cases shall “All such shall be read court unless part record be a and recorded waived the defendant. added). reporter.” (Emphasis court 82 charge given, there is assessing punishment, no harm in
failure give charge. jury may the refused LeDuc consider all of the evidence ad State, 678; at trial on State, guilt v. 593 duced innocence. Burns S.W.2d Parr v. 575 State, v. 556 270. The S.W.2d calculated S.W.2d 522. We charge conclude the actu- nature of a criminal act and the defendant’s ally given substantially was the same and forethought coldly planned with which he adequately charge covered the refused. probative and executed the crime is of his charges Both required the to find that future acts of vio propensity to commit appellant intentionally caused the death of State, 464. O’Bryan lence. 591 S.W.2d the deceased before he could be convicted of offense capital The circumstances of the capital murder. No error is shown in the itself, if can be sufficient enough, severe court’s refusal requested submit finding to second sustain an affirmative charge. State, 573 special Muniz v. S.W.2d issue. error, In his ground eleventh the ami- Reputation testimony probative 792. cus curiae contends that the court erred in Ex Parte Alex to future acts of violence. sustaining the challenge State’s for cause as ander, Finally, prior 928. crimi 608 S.W.2d to seven prospective jurors. He maintains nal are defend probative convictions that their exclusion for cause was inconsist- commit future acts of propensity ant’s Illinois, ent with Witherspoon v. supra. State, 564 Felder v. criminal violence. 776. S.W.2d objection during There was no voir dire when the court sustained the seven case The in the instant evidence challenges the amicus curiae complains now looking around appellant reveals that of. This Court has that the repeatedly held Armed Borger somebody rape.” “for object failure to improper to the exclusion victim’s knife, into the with a he walked of veniremen waives that and such right bound Appellant her. home and stabbed exclusion appeal. cannot be considered on her again stabbed the victim with cloth and State, 504; White v. Brandon v. S.W.2d victim, when she continued to resist. 567; State, Russell v. S.W.2d bled to ultimately six months pregnant, 238; Esquivel S.W.2d to the knife wounds death as a result of 516; Ap Burks v. three-quarters neck which were one pellant’s object alleged failure to no evidence There was depth. inches in exclusion of the seven veniremen improper influence or under the the error waives the amicus curiae seeks to he commit else when anyone domination of present. ted the offense.
In his seventh the ami- to sup- We find the evidence sufficient challenges sufficiency cus curiae answer to the affirmative port jury’s support evidence to verdict from jury’s possibility is a of whether there question the punishment phase. He contends the criminal acts commit evidence to prove was insufficient con- which would of violence in the future there is a probability This society. threat continuing stitute would commit criminal acts of violence in merit. is without ground of error future which would constitute contin- error, appellant In his seventh *17 uing threat to society. refusing to court erred contends the trial
During of his punishment phase, State on the issue impanel jury pass a to filed presented appellant’s previous Appellant evidence of trial. competency to stand burgla- that he was burglary, attempted alleged convictions for pretrial a motion trial. The court ry, rape and assault with intent to commit not to stand competent at jury ap- competency a rape. impanel Two officers testified that refused to police held on hearing of a pretrial and law- the conclusion pellant’s reputation peaceful as a February abiding citizen was bad. the court competency hearing, pretrial hearing, During
At that Honorable two reports prepared by psycholo- examined Busby Russell testified that he had been reports All of the gists psychiatrist. and a appointed to defend in the instant competent that concluded Busby cause. stated that stand trial. uncooperative often and evidenced distrust attorneys. response ques- toward his In hearing the court At conclusion tioning from co-counselthe Honorable Gene as follows: stated Storrs, testified Busby as follows: Counsel, I right, All “THE COURT: course, have, very carefully listened feel,
“Q. Do you upon experi- based the re- testimony today and studied that you ences have had with Mr. into Taking ports psychiatrists. Hawkins, that he in fact satisfies the factors involved consideration all Do statutory requirement? re- here, these including psychiatrists’ you feel like he is competent, based the evidence ports, psychologists’ reports, do, what upon you have seen him to testi- previous I have heard and the today assist or assist me at mony I have heard in this case from present time in his defense in the himself, this Defendant I do not find in trial on the merits of this cause? convening a grounds case reasonable probably “A. I think that not would hearing. I feel that at this competency competent, be in my opinion, to as- least, there is no evidence before point, sist on a full-time basis and that is question this sufficient to raise the Court the problem running we are into. way in such a it competency There are times coopera- when he is separate me to conduct a require appears tive and to be rational and question competency. trial on assists in the manner in which he Therefore, I am to overrule the going But, then, can. there are other in the Competency Motion for Trial times when he does not.” case....” Storrs testified that he too had ap- been V.A.C.C.P., 46.02, provides 2(a), Art. Sec. pointed appellant. He stated defend the issue regard raising follows coop- decisions on when to incompetency prior to trial: erate with his was not attorneys upon based incompeten- “The issue of the defendant’s reasoning.” “rational sound In response trial shall be determined in cy to stand questioning from Busby, Storrs testified: the trial on the merits if advance of sup- there is court determines evidence my
“A. Yes sir. Haw- opinion, Mr. finding incompetency to stand port a kins is not competent to assist ei- motion or on written trial on its own me preparation ther or or or his counsel motion the defendant defense, presentation espe- of his set for trial on the prior filed to the date cially presentation of the de- the defendant is asserting merits during fense due to the fact that to stand trial.” incompetent this, the course of a trial such as arise great many critical decisions competency jury being regard With that have to made the defend- 4(a), supra, pro- Art. impaneled, Sec. ant, upon based advice of hopefully vides: pre-
counsel. Due to my inability there is “If the court determines when he going dict become finding incompe- support evidence to events, distrustful of me and what trial, im- shall be tency jury to stand non-sig- or significant whether it’s the defendant’s paneled to determine that, nificant, trigger that will trial. This determi- to stand competency that has there is no to tell way nation shall be made the guilt aid him in that I can in fact to determine Court been selected *18 If the defendant. trial.” or innocence of entirety of this 84 incompetent
defendant is found to stand argues The State the evidence trial, presented during pretrial hearing a further was hearing may be held to require impanel insufficient to the court to determine whether or not the defendant jury pass competency. a to on The State ill and mentally requires observation 707; State, 564 relies on Johnson v. S.W.2d and/or treatment or in a hospitalization 668; State, 544 Ballard v. Paul v. S.W.2d hospital mental for his own welfare and State, on 514 267. Reliance those S.W.2d protection or the protection of others that each of them misplaced cases is in whether he is a mentally person retarded halting a trial question dealt with the of in Mentally defined Retarded Per- conduct a in order to progress was (Article 3871b, sons Act Vernon’s Texas Sisco, As held competency hearing. Statutes), Civil and requires commitment applicable fide standard is not “bona doubt” to facility.” a mental retardation under Art. pretrial procedure to a State, In 607, v. 599 Sisco S.W.2d this 2(a), supra. Sec. Court considered a contention similar 1, 1980, hearing a following On October that which now In that raises. court, concluded that in the trial this Court case, the argued defendant the trial court appel- evidence that there was sufficient impaneled should have a competency jury pro se in this proceed lant’s decision to at the pretrial hearing. conclusion of a At intelligently appeal knowingly was hearing, the court evidence considered such a conclusion made. To the extent that consisting report of a doctor’s the de- time, at that finding competency was a competent fendant was trial. Ad- stand was held some appellant’s we note that trial ditionally, the court heard evidence that grant- to our order thirty-one prior months defendant a mildly retarded with low pro se on ing proceed appellant’s motion IQ and was unable to consult with his law- found appeal. previously This Court has yer unresponsive relating and was about is not fixed competency that mental the facts of the case his counsel. At State, v. time. Almand unalterable over hearing, conclusion of the the court refused 377; v. Bledsoe S.W.2d a its impanel competency jury basing S.W.2d 646. upon decision report indicating doctor’s erred in court We conclude that the trial competency. finding that the trial court at the jury failing impanel competency applied had an in deter- erroneous standard The tes- hearing. pretrial conclusion of the mining competency whether impanel constituted a timony Busby from Storrs jury, this Court stated: none or a than quantity evidence more are, therefore, constrained to hold “We have led to a scintilla, may rationally that, determining hearing after held in incompetency. jury conclusion advance on whether of a trial the merits v. holdings our in Brandon Under support finding ‘there is evidence to State, 587 567, Caballero S.W.2d trial, the trial incompetency stand Winfrey, 741, and Ex Parte S.W.2d just court is to that evidence tend- assay for fur- remanded this cause is ing to show aside incompetency, putting should proceedings ther Those proceedings. all competing competency, indications of a ret- to conduct determine if it is possible evidence, to find whether there is some is, and, if it hearing rospective competency scintilla, quantity more than none or a on the issue pass impanel a that rationally may lead to a conclusion time he stood at the appellant’s competency trial court incompetency. Because the trial in the instant cause. holding did not of our apply the standard retro- but, instead, such a based its determination If to make possible it is not com- determination report compe- competing spective medical trial, or if the in order he stood tency, appeal petency we must abate the at the time so.” competency jury the trial court to do Sisco determines trial, he stood the time incompetent at supra at 613.
85 granted (1976), duty then must be a new trial. 49 342 holds that the L.Ed.2d If the court determines it is limited to situations where a possible to hold disclose is not accused; such a and the an the con- hearing jury ap- request by finds that is made trial, is errone- pellant competent majority the sentence statement trary shall 306 ous, remain in effect and this Court will and if Iness v. so held it should be over- appeal only (Tex.Cr.App.1980) consider on those matters which retrospective relate to the competency hear- ruled. See Whitchurch Opin- ing. (Dissenting Except concerning for the issue (Tex.Cr.App.1983) competency jury, ion). all of the contentions
presented both appellant and the amicus
curiae are without merit. ON MOTION OPINION STATE’S FOR REHEARING
The appellant shall be remanded to the custody of the County. Sheriff Lubbock ODOM, Judge. The trial hearing court shall conduct the remand- original On submission Court within 90 days from the issuance of our competency hearing. By cause for a ed this mandate, and may make further orders in rehearing challenges motion for State accordance with this opinion. however, has now holding. Appellant, It is so ordered. waived that issue and withdrawn expressly Accordingly, grant we appeal. it from the ONION, P.J., McCORMICK, J., con- rehearing and affirm motion for State’s cur in results. the trial court. judgment TEAGUE, J., dissents. CAMPBELL, JJ., par- MILLER and
ticipating.
CLINTON, Judge, dissenting. For the expressed reasons dissent- my ing opinion in Crawford v. (Tex.Cr.App.1980) S.W.2d 925 (Opinion STEPHENS, Appellant, Burke Kenneth
Appellant's Rehearing), Motion for I dissent to the majority’s overruling the eleventh ground of error advanced the amicus Texas, Appellee. The STATE curiae here for the objection reason that no No. 63722. was voiced to the trial court’s exclusion of prospective jurors seven for cause where Texas, Appeals Court of Criminal the State had failed to meet its burden of En Banc. establishing their disqualification. 14, Sept. For the reasons discussed dissent my State, - S.W.2d ing opinion in Russell v. - (Tex.Cr.App., 66,410, No. delivered 6, 1983), I
July majority’s dissent to the overruling the amicus curiae’s ninth error, alleges the trial court erred within refusing “deliberately” to define 37.071(b)(1), Y.A.C. meaning of Article
C.P. in at the its instructions to the punishment phase.
With fifth respect United I would out point 2392, Agurs, States v. 96 S.Ct. U.S.