Heiselbetz v. State

No application amount of insistence

рaragraph jury must find the ac- HEISELBETZ, Appellant, Earl Carl specifically cused intended to cause death problem. of the deceased will solve the

jury could still conclude it is authorized to Texas, Appellee. The STATE of find the accused intended to cause the result No. 71396. simply because he intended to engage conduct it. For that caused this reason I Texas, Appeals of Court of Criminal join majority’s Hughes cannot harmless- En Banc. analysis. error 28, 1995. June Ap- I concur in the Nevertheless result. Rehearing Sept. Overruled pellant object jury charge did not this or basis. question, related

therefore, egregious is whether he suffered clarify

harm in the trial the failure of court to 6.03(a). § ambiguity Almanza v. (Tex.Cr.App.1984) 686 S.W.2d 157 (Opinion rehearing). motion on State’s reasonably he Here it is clear did not. There was ample evidence which the could conclude that did in fact in- tend to cause the death deceased. See

majority opinion Final at 487. summation at guilVinnocence phase conclusion of the exclusively

trial almost debate over identity. strength of the State’s evidence intent, Only mentioned the the State issue of then, only passing. Under the cir- cumstances, assuming jurors no- even 6.03(a) § ambiguity ticed in the definition all, unlikely they it most have would rely justify on it to found occasion to their Viewing the entire in the verdict. record Almanza, prescribed I no manner see egregious harm. majority’s

For I concur in this reason disposition point of eleventh rationale,

error, not its and otherwise but majority’s judgment. concur in the MALONEY, J., joins. Walker, Center, appellant.

John S. Mitchell, Atty., Au- R. Dist. San Charles Huttash, ‍‌​​​​​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌‌​‌‌​‌​​​​​​‌​‌‌‍Atty., Aus- gustine, Robert State’s tin, for the State.

OPINION

KELLER, Judge. in November 1991 Appellant was convicted section capital murder Code, 19.03(a)(6)(A), for a double Tex.Penal May After murder committed findings to the returned affirmative pursuant to Ar- special submitted two issues 24,1991, Rogers 37.071(b),1 Friday, May fami- tide was sentenced On Bob, 37.071(e). daughter Jacy ly Rena, and their appeal Direct death under Article —left — Day spend long Memorial their home to by Article to this Court is mandated 37.071(h). They left their two weekend out of town. thirty-three Appellant raises watchdogs guard their home. On outside to points affirm.2 of error. We 28, 1991, Rogers Tuesday morning, May But, go wanted to returned home. since Bob Sufficiency I. of the Evidence work, dropped him off at his straight to Rena challenges sufficiency job going home. Bob ar- in Lufkin before points. address evidence various We will between 10:30 and rived at work sometime points separately a brief each of these after home from 11:00 a.m. Bob returned When account of the offense. two evening he discovered that the work that 2, 1991, Bob dogs missing. On June were that, Sufficiency require reviews carcass of Rogers’ brother-in-law found the viewing light while the evidence most vicinity missing dogs in the one of verdict, ask whether favorable to the we dog had Rogers’ houses. The rational trier of fact could have found the been shot. being challenged beyond a reason elements Rogers’ telephone records showed The Virginia, v. able doubt. Jackson May and at 10:02 that on 1991 at 10:01 307, 319, 2789, 61 L.Ed.2d 560 a.m., Rogers’ from the home calls were made (1979); State, 848 131 Nelson v. Multiquest Sweepstakes at a “900” — denied, (Tex.Crim.App.1992), cert. Rogers were not telephone number. The -, 126 L.Ed.2d home at the times the calls were made judge weight of The is the sole of the permission to be in their home. no one had all, may choose to believe the evidence and also that on The evidence established State, some, none of it. Chambers 28, 1991, day, Tuesday, May same (Tex.Crim.App.1991). Rec wife, Becky, that he had been bitten told his of conflicts in the evidence is with onciliation morning by dog. she him a When saw province jury. of the Losada the exclusive later, finger and scratch- he had a bite on his (Tex.Crim.App. arms, very upset. es and he was 1986). And, answering special the issues Evidence introduced that was 37.071(b), jury may Article raised under participate sweepstakes contests liked to guilt- consider evidence admitted at both that he had informed his wife of his punishment stages of trial. innocence and 900” participating the “dial interest (Tex.Crim. 58, 61 Keeton v. had dis- telephone sweepstakes, but his wife the Jackson App.1987). Reviewed cost. couraged him because of the standard, following record establishes the facts: juror could a rational From this evidence 28, 1991, Tuesday, May that on conclude victims’, Jacy Rena and was the home and appellant entered the victims’ Rogers, neighbor. His home was closest mysteriously placed the “900” calls which away from of a mile about two tenths records, telephone appeared on their home, not Rogers’ which was secluded and Rogers’ entering the in the course of intro- from the road. Evidence was visible watchdogs. home, their appellant killed two into Rogers had moved duced that before that on house, also established actually into The evidence appellant had broken 30, 1991, neighbor saw Thursday, May a acknowledged at house and had the locked grocery store Jacy Rogers at the into the house Rena and get time that he could had morning. in the Rena at about 9:30 whenever he wanted. opinion portions ad- of this 2. We note that articles are to the Texas Code 1. All references to guilt/inno- dressing pertaining to points error indicat- of Criminal Procedure unless otherwise changes, adopted, from an with few cence were opinion ed. by Judge Miller. authored taken after sister-in-law, that he had tors on the route planned meet her Natalie them Jacy and showed Whitton, killing Rena and together a.m. to travel at 11:30 purse pond. in a Rena’s Jacy. where he had thrown Nacogdoches; planned Rena to take identification, purse, containing Rena’s plans The morning Natalie had confirmed That appeared but, pond. It recovered from telephone with Rena without was over the burn the attempt had been made to up at the that an explanation, Rena failed to show in it. keys, purse and the items appointed place and time. Her car missing jar of purse, and a coins were in- incomplete skeletal remains The home, sign no Rogers’ but there was could turn no trauma which fant evidenced play home. Rena’s car was foul re- The skeletal suggest a cause of death. driveway. parked in her however, Rena, condi- evidenced a mains of 27, 1991, anthropologists as later, forensic tion known to Almost a month on June appears in the “pink fe- tooth.” This condition the human skeletal remains of an adult asphyxiation. teeth of those who have died male and child were found in and around anthropologist testified that stran- Tyler County. remains A forensic barn in were gulation possible cause of death through and medical records identified dental Rogers.4 Jacy Rogers. of Rena and Rena as those appointed psychiatrist testified questioned by the Sa- A court Appellant had been appellant and that County day on the of the offense that he had examined bine Sheriff nothing questionably in the examination responded and had when asked there was appellant’s actions. explain or excuse about his whereabouts. His dubious answers would so, opined head day psychiatrist also potential suspect; him a on the made discovered, injuries by appellant in a traffic ques- sustained the remains were he was interview, could not have caused the again. At this conducted accident tioned appellant claimed his con- presence of his wife and at a relative’s amnesia which the home, voluntarily appellant confessed to the fession.

murders.3 hе appellant confessed that Mindful that victims, reviewing the evidence

Appellant subsequently signed a killed the and written verdict, light the stating that he killed the victims the most favorable confession 30, following the Thursday, May supports the version of at around 11:00 a.m. on record The knew how to and Appellant putting 1991. confessed to the two offense:5 Rogers’ on the driving actually had entered the home bodies into Rena’s car and them some 28, 1991, morning Tuesday, May to make away they the of miles to barn where were telephone. sweepstakes “900” calls from their found. He also stated that he returned when watchdogs, barn, by the and hiding parked He had been attacked the bodies the he morning house, On the into he had killed the animals. Rena’s car back at her then went Thursday, May appellant re- Rogers’ got package home and a of fro- of he Rogers’ Apparently home. toma- entered the hamburger zen meat and some canned gone for the sauce, Rogers Rena had asked believed that which he took home. When again day, make “900” appellant an- and he decided he had killed the victims how Unfortunately, appellant know, telephone he had calls. that he did not that swered Rena, returning from the out, surprisеd remem- was but he noted that he blacked strangled Appellant Rena grocery The store. marks on the victims’ necks. bered year daugh- strangled her old strangled the and then two if he had interviewer asked then, ter, in the Jacy, in their home. He victims, he did appellant answered that and home, Rogers’ load- seclusion of the days following A his con- relative not think so. few and into Rena’s car fession, investiga- ed the victims’ bodies appellant guided police occur in infants. "Pink tooth" does not offered no 4. note that confession 3.We were murdered. as to how the victims details Indeed, theory is the of appellant "guessed” he murdered 5. This version of events presented by the State. offense the victims. victims, child, transported they to the barn mother were them where and a expected appoint were found month later. When he re- together seen and at an Rogers’ driveway, Rena’s turned car to the ment mur together morning on the of their re-entered home he the victims’ to remove They last seen and der. were at 9:30 a.m. play evidence of foul and took the tomato having killed them confessed hamburger and sauce frozen meat. He later together Appellant at around 11:00 a.m. keys.6 disposed purse of and Renа’s having transported disposed confessed to together of their their remains bodies point twenty-nine, appel of error supports together. were found evidence challenges sufficiency lant the evidence finding the two were killed victims to establish the murders of the two during the same criminal transaction. See victims occurred in the same criminal trans (Tex. State, Rios v. 314-315 19.03(a)(6)(A). § action. Tex.Penal Code Crim.App.1992). Appellant’s twenty-ninth correctly argues He establish “the point of error is overruled. transaction,” same criminal the evidence must establish was a there “continuous error, point appel In his thirtieth uninterrupted occurring chain of conduct sufficiency challenges lant evidence time, very period over a short and that identify Jacy Rogers. the child victim as killings rapid sequence both occurred in a Appellant confessed to murders of Rena Vuong unbroken events....” child, Rogers Jacy, depositing and her and to (Tex.Crim.App.1992), S.W.2d 929 cert. de — their their found. nied, bodies where remains were -, U.S. (1992). From However, this evidence alone could rea if L.Ed.2d 533 the evi sonably that the remains of conclude skeletal supports dence the rational inference that found of Rena child with remains both victims were killed the samе criminal But, transaction, Rogers Jacy Rogers. were those of jury’s will not disturb we medical verdict. See records were also introduced that Narvaiz v. Jacy Rogers indicated that (Tex.Crim.App.1992), de had suffered cert. - nied, -, clavicle; 122 broken the skeletal indicat remains L.Ed.2d 791 ed that had a clavi- the child healed broken in his confession Rena there that the caused offered was no evidence holes were And, Rogers gate morning by physician had on the come to his of the had exam- bullets. who 30, 1991, May Jacy, cussing carrying appellant’s leg opined with and ined the lesions on that the on, him, accusing apparently, shooting injury gunshot and of did not look like a wound and was dogs. away, pain He ap- her turned to walk felt a not characteristic of a recent wound but leg, his and realized he had been shot. He went peared year a to have been or two old. leg, Moreover, into the house take care of his and when Rogers to it was established that Rena later, significant woman, he came back out a time Rena standing was a five feet tall small him, something was still threw there. She at ninety weighing pounds— than and no more man, and when he he hit his head ducked on and fence compared large strong appellant, a to аnd to, post and blacked out. When he came both pounds weighing time of the about 250 at the dead; Jacy guessed Rena and he he were also that on the murders. It was established had killed them. offense, busy morning Rogers Rena of the preparing go trip to on an at 11:30 out-of-town But, may remembering that the believe grocery at a.m. She was seen at the store evidence, Chambers, disbelieve the of appellant killing around to 9:30 and confessed reviewing light S.W.2d at and the record the facts, a her 11:00 a.m. Under these verdict, Jackson, around most favorable the to reasonably juror reject appellant's rational could Rena, supports evidence a at 99 S.Ct. at the woman, petite a on a morn- assertion vastly version events different that relat- ing busy go preparing which she was to out by appellant. ed town, gun daughter a and her infant across toted example, appellant For claimed that the mur- provoke a confron- two-tenths of mile a violent property ders occurred after an alterca- on his missing dogs tation two with a man much over provoked by Rogers. Appellant tion even Rena herself, him, larger stronger after and then and that claimed that waited for him to she shot home, good shooting waited there a for him him time and threw come back out of his then But, something return. the assistant director of him. rejected jury apparently appellant's ver- County Regional Jefferson Crime testi- Lab offense; supports jeans their that she holes in the sion evidence fied examined the blue murders, appellant day wore the and that decision as reasonable. testi- seventy-two year old woman And, A clothing ture. cle. remains found on trial, years prior to by fied that about two skeletal remains were identified child’s violently angry when Jacy. appellant had became Sheila Whitton as those worn roof job on her doing poor a jury’s fired him for support she evidence was sufficient hammer, threaten- a Jacy Rog- chased her with and had finding that the child victim was testified ing kill her. His ex-wife thirty ers. Point of error is overruled. two their physically abused appellant had thirty-first point appellant of error In his children, the head. striking them on even prove insufficient to claims the evidence is required children have that the She testified beyond a reasonable doubt that he acted appel- help, and that professional psychiatric expectation “deliberately and with reasonable parental rights over longer has lant nо 37.071(b).7 result. Art. that death” would See their that after also testified children. She commit Appellant confessed that he into her appellant had broken separation, child, her ted the murders of both Rena and former raped Appellant’s her. house sug Jacy. introduced Forensic evidence was violence, as to his also testified sister-in-law asphyxiation, gesting that the victims died of his appellant beat stating that she once saw appellant himself confessed that bod end of a leather children with the buckle two evidence ies had marks on their necks. This belt. appellant killed supports the conclusion that Additionally, appellant’s acts evidence by strangulation. have held the victims We disturbing dangerous indifference killing being a human the act supports also taking of human life which reasonably strangulation supports a conclu continuing jury’s he is a dan conclusion that deliberately; it is a sion that a killer acted According ger society. to his own to human consuming time method of kill laborious and confession, killing the victims and dis after requiring ing, normally several minutes bodies, appellant returned to posing of their State, strong pressure. See v. Chambers of tomato their home and stole two cans 9, 16 Here the evidence indi hаmburger package of frozen sauce and a one, but two cates that killed not killing people, one of them meat. After two by strangulation. people This doubles old, helpless year appellant planned two required the of time and effort to commit ingredients taken from the vic menu with facts, a rational factfin- fense. Given these This and kitchen cabinets. tims’ own freezer reasonably der find that act could of remorse a callousness and lack evidences killing victims. ed with deliberation jury’s ap supports the conclusion which thirty-one error is overruled. Point of E.g., continuing danger. pellant is a thirty-second point appel- In his of error (Tex.Crim. Williams the evidence is insufficient lant claims App.1983); See also Wilkerson finding probability support a that there is a — denied, U.S. -, 321, 343 cert. that he would commit criminal acts vio- (1994) 671, (Judge L.Ed.2d 604 115 S.Ct. 130 continuing lence that would constitute a dissenting) (explaining importance of Baird society. threat danger of future lack of remorse as evidence argues ousness). the case the facts of State jury’s finding support the affirmative alone itself, the atrociousness of the crime continuing danger to appellant poses a child; helpless of a mother and her murder society. also introduсed evidence The State remorse; history of appellant’s the lack of being peace- reputation bad for appellant’s women, chil- committing against acts violent abiding. able and law dren, elderly; poor reputa- and the and his law-abiding, being peaceful all for and tes tion punishment, At various witnesses a jury’s finding is support na- appellant’s explosively violent as to tified appellant's apparently rejected version of the of- argument largely Appellant’s on the self- rests 7. supporting presented by evidence serving portions We have al- fense when incriminating of his confession. 6, note jury version of the offense. See ready was not bound to that the discussed Indeed, supra. the facts. version of 508 Indeed, society. igating.8 the record establishes

continuing danger to human Point challenged veniremen stated thirty-two each of the of error is therefore overruled. give consider and he or she would be able to or she believed to effect to evidence that he Jury II. Selection argu his mitigating.9 Appellant bases be Appellant points of error avers 302, 109 Penry Lynaugh, ment through that the court erred in one twelve (1989) 256 and its S.Ct. 106 L.Ed.2d challenges his for cause to twelve progeny. jurors. potential Appellant argues that the Penry progeny do not mandate its veniremen should have been dis various jurors give mitigating weight to must missed for cause because each stated that he punish- any particular evidence offered at give any or she “would not consider or con Supreme Court ment. The United States are sideration to salient circumstances which only must announced that the factfinder has Appellant clearly mitigating circumstances.” ‍‌​​​​​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌‌​‌‌​‌​​​​​​‌​‌‌‍precluded prohibited from consid- not be presented a cata- each of the veniremen with any mitiga- ering relevant evidence offered circumstances, particular asking logue of provided punishment tion of the and must be they par each “whether would consider the give effect to their a vehicle which mitigation” evidence. ticular evidence to be determination, any, if that such evi- moral Appellant challenged of the asserts that each mitigating Rather than dence has a effect. that he or she could not veniremen answered mandating mitigating that certain evidence fol consider evidence of at least one of the law, as a matter of the United States Su- mitigating: lowing circumstances to be preme simply held that the sen- Court has causing damage; 1. Severe accident brain fully must allowed to consider and tencer be unemployed poor 2. Defendant is Penry, 492 give effect to such evidence. U.S. years; over two 109 S.Ct. at 2949.10 jail, disciplinary record in model 3. Good 330- Johnson v. prisoner; affirmed, (Tex.Crim.App.1989), Johnson v. crime; 4. Never convicted of violent — -, Texas, sexually a 5. Abused as child. (1993), that “it is not L.Ed.2d 290 we stated challenge overrule a Appellant argue potential that the error for trial court to does not juror that a will jurors any mitigating evi- for cause where it is shown would not consider variety dence; may give particular challenged not or not he asserts that each consideration, i.e., ‘mitigating give weight specific evidence’ veniremen would not [citing weight” to be mit- Cuevas v. evidence which considers Illinois, mitigating Q: Compare Morgan That the evidence shows 504 U.S. (1992) 8. jail, good disciplinary (juror record in who defendant had a 119 L.Ed.2d automatically penalty following the death was not a trouble will vote for the rules well and every good everything appeared will fail in faith to consider case maker and to do that he mitigating aggravating circum- during period custody evidence of while was told do do). require as instructions him jail? stances No, mitigating. A: I wouldn't consider of veniremаn testimony cites the examination Q: Give consideration to the of a example type of venireman Jones as an might testify neurologist in the case about who been struck for cause who should have that he is not—he does not exhibit a the fact court: dangerous the future? person who would be Yes. case, A: he, Q: defendant in a was—had a If para- Q: had a Evidence that the defendant family history evidence of and there’s troubled personality? paranoid trait or had some noid sexual abuse on the defendant? child A: Yes. A: Yes. Q: never before been That the defendant has hypothetical Q: this That the defendant felony of a or even a misdemeanor convicted unemployed poor for over is or has been case life? his entire years? two A: No. A: No. both, poor unemployed, Q: both of No Oklahoma, 104, Eddings 455 U.S. 10.See also v. them? 869, L.Ed.2d 1 102 S.Ct. 71 A: No to both.

509 Smith. denied, cause to venireman challenge for 485 his (Tex.Crim.App.1987), cert. 331 ground on the challenged Smith 1015, 1488, Appellant L.Ed.2d 716 108 99 as State, service disqualified (1988), 175 that he was and Cordova v. 733 S.W.2d 35.16(a)(1).12 denied, law, under Article a matter of (Tex.Crim.App.1987), cert. not was argued that because Smith L.Ed.2d 946 (1988) County, he was not juror able to consid a resident of Sabine Each must be ]. evidence, county and therefore weight that of the mitigating qualified but the voter er have of law. We “mitigating” as a matter juror gives particular disqualified each dire examination voir to the individual’s discret reviewed Smith’s evidence is left sup- court’s decision precedent for re that the trial there is no found ion.11 Since he testified that record. Smith jurors ported consider certain evidence quiring that law, residence Sabine permanent the trial court maintained a mitigating as a matter of mail, that he County his overruling appellant’s chal he received not err where did intended County and that he Appellant’s points one voted in Sabine lenges for cause. resi- county permanent are overruled. to be his through twelve Sabine State, 106 Tex.Crim. Hutson v. dence. through points In of error thirteen (juror living out of (App.1927) 291 S.W. 903 challenges the trial court’s appellant nineteen qualified as resi- county for four months was challenges grounds of his for cause on denial of abandon- he had no intention dent because distinguish certain veniremen could not residence); Bart- see also Mills v. ing former and “deliberate.” Ve between “intentional” (Tex.1964). lett, Point of distinguish cannot between the niremen who twenty error is overruled. con “intentional” and “deliberate” as terms templated in Article 37.071 must be removed twenty-one, appellant dis- point In of error upon prejudiced against for cause as the laws challenge putes trial court’s denial of appellant rely. Feld which the is entitled Bertrand. against for cause venireman (Tex. State, v. 769-70 er asked appellant’s counsel record reveals Crim.App.1988). she had “formed a conclu- Bertrand whether guilt or innocence opinion sion or as Reviewing the voir dire examination “yes,” she answered the defendant.” When appellant veniremen of whom seven asked, it take evidence “[w]ould ex complains, find that these veniremen we that conclusion remove —to overcome pressed at differ various levels confusion again you your mind?” Bertrand have However, points ent of their examination. Appellant’s counsel then “Yes.” answered ultimately that he or she could each stated statutory your Honor.” stated “That’s distinguish “intentional” and “delib between require proof of delibera erate” and would judge responded to The trial beyond finding tion acted if stating agreed that objection by that he intentionally. supports the Since the record a mat- prejudiced, she must as Bertrand was decision, cannot conclude that the court’s we dismissed, neеded but that he ter of law be its discretion. Martinez trial court abused determining questions before to ask a few (Tex.Crim.App. judge then prejudiced. The whether she was 1993). through nine Appellant’s thirteenth preconcep- if Bertrand’s specifically asked points of error are overruled. teenth juror. as a She prejudice her tions would not, stating they would twenty appellant answered point of error innocence, she presumption of because of the trial court erred asserts that the Indeed, challenge may made argu jury. for cause be recently rejected A 11. we have mitigating as evidence of child abuse is one of ment that state or the defense either the a matter of law. Clark (Tex.Crim.App. following reasons: 1994). qualified in the state he not a voter 1. That county and laws under the Constitution 35.16(a)(1) reads: Article however, state; regis- provided, the failure to (a) objection challenge made for cause is an A disqualification. be a ter to vote shall not juror, alleging which particular some fact to a incapable on the or unfit to serve renders him any prejudice would influence Bertrand’s ver- would have to set aside and elusion held dict, beyond justified clarifying require evidence a reasonable trial court was in would questions finding appellant guilty. doubt before She the matter. Since the court’s es- unequivocally stated that she would be fair tablished that Bertrand’s conclusion would verdict, impartial. not influence the there was no error challenge denying appellant’s in for cause. Appellant argues improper it that was for Appellant’s twenty-first point of error is question the court to Bertrand once her an- overruled. disqualified swers had her as a matter of law. 35.16(a)(10), Appellant points to Article which twenty-two points In of error challenge may states that a for cause be twenty-three, appellant argues that venire made if: Bryant, respectively, men were Butler and otherwise, hearsay, or [F]rom 10. there is incapable considering range the full of of juror established the mind of the such a thus, punishment, court the trial erred guilt conclusion as to the or innocence of challenges these his for cause to him in the defendant as would influence his Appellant’s veniremen. contentions are fac finding action in a verdict. To ascertain unfounded; tually were re both veniremen exists, challenge whether this cause of habilitated. juror whether, shall be asked first opinion, spite his the conclusion so establishеd of efforts co-counsel Bryant’s complete If to cut off answer to his will influence his verdict. he answers affirmative, pro- discharged question she could consider he shall be whether case, interrogation by further either in a murder it is clear from her without bation party After responses or the court ... that she was rehabilitated. her, Bryant un- explained the law was added). (emphasis equivocally could consider the stated that she Appellant’s assertion that the tri including proba- range punishment, full in questioning al court erred Bertrand would answered, [pro- thought,” tion: “If I she “it questioning indisputably be correct if his had evidence, I given should from the bation] be established that Bertrand’s conclusion as to And, upon question, could.” the State’s guilt his or innocence would influence her Bryant responded could envision a that she However, establishing verdict. after could, only not but would situation where she guilt Bertrand held a conclusion as probation for in a murder offense. vote innocence, appellant statutory abandoned the completely clearly Butler likewise was language and failed to establish Venireman rehabilitated, stating unequivocally that he that conclusion would influence her whether circumstances, pro- situation wherе these it was could envision a murder verdict.13 Under question appropriate punishment. an improper for the court to bation would be not appellant’s attempts present clarify spite her conclusion In venireman to whether hypotheticals en- action in find Butler with which would [her] [her] “would influence 35.16(a)(10). statement, ap courage him to retract his ing a verdict.” Art. Since clearly persisted that the con- venireman his answer that pellant did not establish jurors heavy responsibility Admittedly, question cause is a which asked the de fense, opinion judge; or conclu upon based on that the trial court must be rests the trial —"And remove, to over sion would it take evidence clarify questions venireman’s allowed to ask your you have in come that conclusion intelligent make and informed deci answers and implies that the conclusion would influ mind?” — also Cantu v. sions. See However, verdict. faced ence the venireman’s - denied, (Tex.Crim.App.1992), cert. only implication, with and not clear state -, 125 L.Ed.2d 731 preconception would influence her ment that her add, however, 35.16(a)(10) very that article We verdict, was within its discretion to the court ques specific proscription in its further clarify When the venireman's an the matter. tioning answers in cases whеre the venireman unclear, judge’s we will defer to the trial swer is discretion, affirmatively proposition that he holds a finding only upon and reverse guilt conclusion as to the or innocence Chambers, E.g., abuse of discretion. defendant which will influence his verdict. potential to dismiss at 22. The ultimate decision

5H on its potential witnesses eighty-seven over probation would be an certain circumstances list, including names added fourteen punishment. witness appropriate begin; set to before trial was only two weeks responsi The trial court has potential one hundred listed over the State testimony as a bility discerning of from the actually exhibits, ninety-five of which were venireman, whole, including demeanor of the introduced; adequately could not and counsel qualified to serve on the individual is whether po- contained records which medical review Chambers, If jury. 866 at S.W.2d In the affidavit evidence. mitigating tential supports the trial court’s determi the record for continu- original motion attached to the nation, not that decision. We we will disturb ance, working defense investigator with appellant’s twenty-second and twen overrule yet not had that he had counsel indicated ty-third points of error. adequately to counsel on report back time to with the State’s witnesses. his interviews Appellant complains point of twenty-four that the trial court erred error denial of a continuance Where objection overruling use of his to State’s representation counsel has resulted hypotheticals factual the examination prepared, we have not hesitated was not who Bryant. Appellant relies on Cue venireman Rosales v. to an abuse of discretion. declare State, (Tex.Crim.App.1987), v. 742 S.W.2d 381 vas 368, State, (Tex.Crim.App.1992), 372 S.W.2d 841 1015, denied, rt. 485 U.S. 108 S.Ct. ce — denied, U.S. -, 114 S.Ct. rt. ce (1988). 1488, 716 holds 99 L.Ed.2d Cuevas (1993). Nevertheless, 393, 341 126 L.Ed.2d proper hypothetical fact that while it is to use of a motion for contin granting or denial law, explain application it situations to discretion of uance is within the sound inquire improper to how venireman State, 697, v. 844 S.W.2d trial court. Cooks respond particular circumstances would — denied, (Tex.Crim.App.1992), cert. 725 presented hypothetical question. in a 742 -, 3048, 732 125 L.Ed.2d 113 S.Ct. 336, hypo- n. 6.14 The State used S.W.2d (criminal (1993); may be 29.03 action Art. explain Bryant types various theticals in mo upon cause shown continued sufficient corresponding punish homicide and their 29.06(6) tion); motion (sufficiency of a Art. Bryant necessary because ments. This was to “sound for continuance shall be addressed all murder ends in had indicatеd since granted and “shall not be discretion” of court death, propri she could not understand the right”). To find an abuse of as matter of ety array punishments killing of an for refusing grant a motion discretion help of the State’s of another. With continuance, showing that there must be a Bryant hypotheticals, reformed her earlier prejudiced his coun defendant was the full assertion that she could not consider Duhamel inadequate preparation time. sel’s range punishment. no error in There is State, 80, (Tex.Crim.App. 83 hypotheticals presenting the venireman with 1986) 643 (citing Hernandez legal concepts. Point of illustrate Id. which 397, (Tex.Crim.App.1983) and Sanne 399-400 twenty-four error is overruled. (Tex.Crim.App. v. State denied, 1980)), cert. 480 U.S. Motions III. Pretrial (1986). 94 L.Ed.2d twenty-five appellant point of error contends Appellant’s counsel trial court erred claims the him rendered of the continuance Appellant argues the denial continuance. motion for defense; adequate how prepare an prepare for unable to inadequate time to that he had establish, ever, argue, not must less following: he does argues he Specifically, trial. arising cause prejudice to his any specific had practitioner and counsel is a solo defense continue the court’s failure to from the trial days prepare before only forty-three had appointed counsel dire; In Hernandez included trial. of voir the State beginning (Tex.Crim.App.1981), 72 L.Ed.2d 14. White v. denied, t. cer 512 trial, no appellant prepare allega ‍‌​​​​​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌‌​‌‌​‌​​​​​​‌​‌‌‍ time than for We note there are

less nevertheless, involuntariness, coercion, we, or of but held: tions of original warnings regarding the lack of either Although relatively for this is short time signing of recorded statement or the the trial], [capital preparation in a no murder statement; appellant alleges transcribed specific, serious matter has been raised merely recording comply the not did appellant and the oth- the record does not statutory requirements. with Under these appellant’s erwise show the defense facts, the agree we with the tran State prejudiced by having more was counsel not on scription of the oral stands its statement prepare for time to trial. long voluntary, As as confession is own. Hernandez, 643 at Like S.W.2d 399-400. currently permitted are to re law officers any specific preju- appellant allege does not into defendants’ statements writ duce oral allege that dice to his defense. He does not they рaraphrase ing; are even allowed unfairly surprised he was at trial or unable to E.g., 724 statements. Bell v. S.W.2d effectively any of the State’s cross-examine denied, 780, cert. (Tex.Crim.App.1986), 793 The bare counsel witnesses. assertion that 1046, 910, 479 107 93 L.Ed.2d 860 U.S. S.Ct. adequate did not have time to interview (1987). warnings appear as long And as the potential alone State’s witnesses does not statement, the written it is admissible.15 Cooks, prejudice. establish allowing appel court did The trial not err The assertion counsel did not have 725. Ap lant’s written statement into evidence. adequately investigate rec- time medical pellant’s twenty-sixth point of error over potential mitigating for evidence with- ords ruled. any showing of fails to out harm likewise Duhamel, establish an abuse discretion. twenty-seven points of error showing of at 83. Absent a twenty-eight appellant alleges that Section prejudice, can not trial court we hold that the of the Texas is unconstitu 19.03 Penal Code overruling appellant’s its discretion abus'ed failing that the erred in tional and trial court twenty- Appellant’s motion for continuance. jury could to instruct be point fifth of error is overruled. guilty of found murder for each victims Appel capital for both. instead of murder IV. Trial authority support prop no оf his lant cites point twenty- Appellant avers of error osition, any argument provide nor does he admitting court his six that the trial erred beyond conclusory ap From his assertion. objection. Appellant confession over written brief, specific pellant’s we cannot discern his 28, in custody that while on June asserts arguments, and we not brief will gave he law officers an enforcement Appellant’s points for him. of error are case recorded, statement which oral was inadequately multifarious and briefed. State transcript recording written of the audio was (Tex.Crim. Gonzalez, 692, 697 provided appellant’s signature and intro- State, 799 App.1993); Goodwin v. against Appellant at trial him. assert- duced (Tex.Crim.App.1990), n. 1 cert. de recording did not ed that because audio nied, 1259, 111 S.Ct. warnings required by Article contain (1991). Therefore, twenty- his L.Ed.2d 1076 38.22(3)(a)(2), transcription of that state- twenty-eighth points of error seventh ment, though it contain the re- even does are overruled. quired warning, written is infirm and should error, thirty-third suppressed. point asserts In his have been State recording not of- that the trial court erred that since the audio asserts evidence, warning requirements requested instruction on the issue miti- fered as 38.22(3)(a)(2) this inapplicable gating Article are circumstances. He claims error exercising its precluded the “rea- and irrelevant. warnings. written does not contend that confession fails required incorporate ” Penry. Point infirmity tional condemned response” any mitigating moral evi- soned dence, required by Penry Lynaugh, thirty-three is overruled. as of error 106 L.Ed.2d is affirmed. trial court judgment of the in- following The trial court submitted OVERSTREET, J., result. in the concurs struction: CLINTON, J., dissents. you deliber- You are instructed that when questions posed special ate on the MALONEY, concurring. Judge, issues, you mitigating cir- are to consider appel- point of error thirty-second cumstances, In his any, supported by if the evi- trial, phases is insufficient presented dence in both of the lant claims the evidence presented by probability or the a finding whether State that there is support a mitigating Defendant. A circumstance acts of vio- criminal he would commit that include, to, any may but is not limited continuing a constitute lence that would and aspect of the defendant’s character society. agree that the evidence I threat the crime which record or circumstances of finding support an affirmative is sufficient to you could make a death sentence believe issue, separately but write on the second you inappropriate in this сase. If find that supports exactly emphasize what evidence mitigating any there are circumstances we finding also to caution that that case, much you this must decide how confines of Fur- sight on the should not lose thereafter, deserve, weight they any, if sufficiency of analyzing when man and Jurek give effect and consideration to them issues. punishment on the evidence assessing personal respon- the defendant’s sibility you Special at the time answer I. determine, you giving If ef- Issue. when majority pains avoid takes Athough the evidence, any, mitigating if that fect to the so, finding on the sec- saying affirmative an sentence, a sen- a life rather than death virtually the fact that the rests ond issue tence, response to the appropriate is an of mother and a double murder offense was defendant, responsibility personal apart by strangulation. The evidence child special you to answer the are instructed largely itself is facts of the offense from the “No”. issue under consideration insignificant. (Tex. In Fuller v. following evidence offered State held that such Crim.App.1992), this Court unadjudicated misconduct:1 extraneous “adequate the constitu instruction is to avoid withdraw and need to be prior appellant would often 1.Notably, the Statе offered no evidence "cope.” testified He also prosecution or left alone in order resulted in criminal conduct that appellant become vio- testimony appellant be a had never seen psychiatric that would that he appellant good reputation society. had a continuing and that threat to lent abiding. peaceable being and law following evidence on offered the appel- Appellant’s current wife testified to 2. punishment: behalf at good relationship peaceable nature and lant’s appellant Appellant’s that father testified 1. and their children. with her good relationship children from with the had a year daughter Appellant’s testified old 3. marriage, with the children as well as his first father, good appellant a that he had was marriage. that He testified that from his current siblings and abused her or her beaten or appellant as never "as much never seen he had loved him. that she testified spank” He further his children. employer testified 4. A former diffi- first wife was appellant’s divorce from his good and had never shown a worker during separation was their cult. He stated A business associ- anger violence at work. appel- or following years the divorce two and for dealings appellant, with in his ate testified that rights up one until his visitation lant exercised displayed any violence appellant had never up and pick his children day he went to when anger. occupants the new informed was appel- dispatcher/jailers testified that 5. Four moved children had his ex-wife and house that prisoner. sustaining been a model lant had that since away. also testified He ap- that she and Appellant’s sister testified appel- 6. injury a car accident head sexually as children pellant abused cope” were "couldn’t spells where he had lant has sister. their older easily He testified frustrated. became with his alleged incidents year period, from the 1. A 72 old woman testified that alleged inci- until approximately years half ex-wife and children two and one seventy-two year old wom- involving the appel- dent prior to the trial she had hired prior to the instant trees, years dispute an two-and-one-half lant to trim her arose job problems offense. associated with and she hired someone else. She said remorse consists of lack of The evidence hire, upon learning new hamburger taking of the solely appellant’s angry, her became chased testimony of sauсe. meat and tomato about to use to (cid:127)with a hammer he was reputation police officer that one fix to kill her. her roof and threatened overwhelming. hardly bad is that she Appellant’s ex-wife testified of misconduct Apart from evidence appellant from 1970- was married to ago and a sin- nearly twenty years occurred but had not been contact with arising threats gle recent account of verbal him that he since then. She testified job, we are left dispute related to a from a and beat their two children with a belt never been who has with a defendant home and that one time she came motiveless,2 crime, non- and a charged with a found the older child with bruises on victims, the de- killing of two premeditated head. also testified that She virtually unknown. What of which are tails required professional children have in its majority unwilling to make clear is psychiatric help that one tried to and of this case alone— opinion is that the facts longer no commit suicide. child— strangulation of a mother and parental rights over the children has finding by a rational affirmative support an they adopted been her and have appellant would constitute trier of fact that also testified current husband. She strangula- continuing sоciety. The threat to sep- appellant were that while she and shockingly child is so tion of a mother and divorce, he broke arated before their finding by a support a disturbing as to alone raped her. into her house and re- rational trier of fact that the individual Appellant’s former sister-in-law testi- point of consti- sponsible depraved appellant beat fied that she once saw society. The tuting continuing threat with the buckle end of his two children sup- majority’s emphasis on other evidence a leather belt. disingenuous. As port the second issue is involv- previously, mentioned the misconduct involving appellant’s ex-wife The misconduct from his marriage ing appellant’s wife and children from his first occurred and children twenty marriage occurred fifteen to twenty years prior to the trial of first fifteen to Thirteen years prior to the trial of this case. passage of time since these this case. The of those al- place years passed between the time allegedly took and the fact events alleged incident in- charges leged incidents and the in criminal none of them resulted year woman. volving seventy-two old evidentiary value. There is a their weakens in criminal con- None of this evidence resulted dearth of evidence of violent noticeable year prosecution. during a thirteen by appellant duct changes appel- such neuropsychologist examined in some cases result behavioral 7. A who appellant injured person might had mild to moder- lant testified that the be more irritable probably pathology, due to the ate frontal lobe tempered. psychiatrist The State’s also or short injury 1975. He testified amnesia, sustained in brain appellant it testified that if had suffered impairment and abstract that this affects mood psychogenic than or- would be amnesia rather "organ- thinking. called the condition He also that, given ganic. his limited exami- He testified organic or affective disor- ic mood disorder appellant, conclusive- nation of he was unable to might impairment testified that such der.” He psy- ly rule out that had suffered age. degenerate He or worsen with tend to chogenic amnesia. impairment, being or- testified that such also nature, ganic could be treated with medi- majority’s suggestion was in 2. The cation. morning of the offense the victims’ house on the addition, could be viewed as evidence which In surprised by their return has no basis in and was testimony mitigating aggravating included the or evidence. injury psychiatrist а head can of the State's “freakishly” it not violate imposed, does II. or the Constitution. reviewing sufficiency of the In evidence cases, Texas, 262, 276, punishment capital issues in this Court 96 S.Ct. 428 U.S. Jurek Georgia, 2950, 2957, must remain mindful of Furman v. 49 L.Ed.2d 239-40, every capital calls Accordingly, not murder (1972) L.Ed.2d 346 and its aftermath. it imposition penalty; the death Furman, per opinion, in a curiam Su imposed only upon a factfind- may be narrow preme penalty Court struck down death yes to two or ing by the who answers sentencing Georgia, schemes in Texas and empha- specific questions. This Court three concluding imposition carrying that “the 58, 64 in Keeton v. sized out” of those schemes cruel and constituted (Tex.Crim.App.1987), punishment. In four con separate unusual make ... are the law to we bound Brennan, curring opinions, Douglas, Justices penalty is not “wan- certain the death discussed, vary and Marshall all Stewart tonly freakishly” imposed, that the ing degrees, arbitrary manner in which jury’s purposes consideration sys imposed the death sentence was special accomplished. ... are issues [ ] juries virtually tems which acted with Every murder committed the course Thereafter, unfettered discretion.3 the Tex way robbery is in some cold-blooded penalty death scheme was the as amended not, Each such murder does senseless. narrowly Legislature identify to more the however, penalty, our most merit the death implicating penalty offenses the death and punishment. final jury’s the at decisionmaking process focus backdrop we against It is this historical that sentencing. Supreme upheld the Court sufficiency on review of the evidence should constitutionality primarily of the new scheme issues, keeping in the special mind that the for three reasons: Legislature narrowly has the circum- defined By narrowing mur- capital its definition under which a defendant is death- stances der, essentially Texas has that there said reason, worthy. is not For this defendant statutory aggravating must be at least one automatically upon a con- sentenced to death degree circumstance a first murder case capital still viction of murder. State is before a death can con- sentence even be required prove special beyond to the issues By authorizing sidered. the to defense doubt, separate and to reasonable in addition bring jury the separate before the sen- proving guilt. the defendant’s tencing hearing cir- mitigating whatever relating pause I to Furman and Jurek cumstances to the de- revisit individual adduced, support can facts which an fendant be Texas has en- this case because the sentencing that jury finding sured will have affirmative on the first and second guidance intricately adequate perform to enable here are bound with it to issues sentencing By simple function. fact that was a double murder providing its this judicial surely prompt jury’s of the deci- would run afoul of Furman review case. We every mur- jurisdiction, suggest in a statewide that double sion court with and Jurek Ann. provided promote has a means Texas der Tex.Penal Code 19.03(a)(6)(A) rational, evenhanded, necessarily § an af- consistent warrants and special I finding the two issues. imposition death sentences under law. firmative however, system emphasize, this the existence of evi- Because serves to assure “wantonly” appellant of death will not dence this case which renders sentences be Douglas punish- emphasized it indeed the law and to the cruel unusual 3. Justice eighth punishment Id. at apply death ment clause of the amendment. cruel and unusual J., (Douglas, concurring). penalty arbitrarily discriminatorily. fur- S.Ct. at 2733 or He recognized system Brennan that "rather than ther reasoned that a which "leaves Justice judges resulting juries the in the of ‘extreme’ cases” for discretion of selection uncontrolled existing committing penalty, death schemes fostered whether defendants determination arbitrary imposition, as imprisoned[,]” which he viewed die or be these crimes should 294-95, 310, selectively ap- penalty Id. at to be "wanton freakish.” enables death 2754-55, (Brennan, J., concurring). contrary equal protection plied, notions of S.Ct. at to our beyond investigator time to deathworthy the fact that he killed had not had sufficient transaction; persons single potential in a criminal two interview all the State’s witnesses. motion, specifically, by strangu- the manner of death opposing appellant’s prosecu- lation, proof appellant appel- killed explained that he had informed tor touching letting go not until each them and investigator probable of the witnesses lant’s Considering was dead. that one of the de- subject their general matter of telling. ceased was a child is even more testimony. judge appel- The trial denied facts, upon agree I Based these that a ration- motion, stating appellant’s lant’s investi- probability al could find that there ais gator could the State’s witnesses interview would commit criminal acts voir dire. appellant’s while counsel conducted continuing violence that would constitute a judge Appellant now contends the trial society. threat denying the motion for continuance erred comments, emphasizing With these counsel had insufficient time because this is one of close in which we those cases majority prepare for trial. The which especially cognizant should be of the confines be- holds there was no abuse of discretion Jurek, join opinion of Furman and I specific cause has failed to show majority. prejudice from the denial of the motion. Ante, However, be- BAIRD, Judge, dissenting. complexity of the case and the cause of the Believing judge the trial erred offense, prejudice I gravity of the believe continuance, respect- I motion for presumed. should be fully dissent. I. II. procedural A brief review of the facts is guarantees the The Sixth Amendment twenty-fifth necessary put appellant’s to right to the assistance of counsel. effective point proper of error in context. The instant 668, Washington, v. 466 U.S. 104 Strickland capital prosecution the murder is notable for 2052, But that 80 L.Ed.2d 674 S.Ct. adju- pace proceeded through at which it the right meaningless if is “rendered a defendant dicatory process: on from indictment to trial adequate in of is forced to trial the absence only the merits in three months. Rojas- prepare.” time to United States v. 16, July capital

was indicted for murder on 555, Contreras, 231, 240, 474 106 S.Ct. U.S. attorney appointed approxi- An 1991. (1985) J., 560, (Blackmun, L.Ed.2d 537 88 July mately on 29. On two weeks later Ungar Sarafite, concurring). In 9, judge granted appel- September the trial 841, (1964), 575, 11 L.Ed.2d 921 the 84 S.Ct. discovery for of witnesses and lant’s motion Supreme that “a States Court warned United later, days September evidence. Eleven myopic upon expeditiousness insistence 20, the submitted to a list of State justifiable request delay for can the face of a thereafter, Shortly potential witnesses. ‍‌​​​​​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌‌​‌‌​‌​​​​​​‌​‌‌‍76 right to defend with counsel an render the list, supplemented raising the the the State Id., 589, formality.” 376 at empty U.S. 84 potential to 87. Addi- number of witnesses Similarly, in at 849. Powell v. Ala- S.Ct. tionally, tendered or made available the State bama, 45, 55, 287 77 L.Ed. 158 U.S. inspection for more than 100 items of evi- (1932), the Court stated: dence. prompt disposition of criminal ... The 14, appellant a motion October filed On encouraged. eases is to be commended and continuance in order requesting a two month defendant, reaching a But in that result witnesses and review to interview the State’s crime, charged must not be 21, with a serious immediately the evidence. On October stripped right to have time dire, his prior of voir the to the commencement sufficient of counsel, prepare his to advise with counsel Appellant’s a motion was heard. proceed to To do that is not explained that he was not practitioner, solo defense. spirit regulated promptly in the calm of he and his ready proceed to to trial because

517 a rote exercise. justice view not devolve into go the haste of must but to forward with does not the mob.1 of discretion standard abuse judge’s examine trial require to the a court Id., 59, 287 53 at 60. Accord Rather, the answer in a vacuum. decision attorney ingly, an “[i]t is fundamental than his judge discre trial has abused whether a firm, must have the of a command facts continuance a for tion motion the he the case as well as law before can present in the “must found circumstances reasonably be render effective assistance of case, 490, particularly in the reasons every parte Lilly, 656 counsel.” Ex S.W.2d also, parte judge trial at the time the (Tex.Cr.App.1983). presented 493 Ex See Ybarra, (Tex.Cr.App. request Ungar, 946 376 U.S. at is denied.” 1982); Duffy, parte Thus, Ex 516 the S.W.2d where circum 84 S.Ct. at 850. and, (Tex.Cr.App.1980); Flores v. judge’s stances that the trial decision indicate (Tex.Cr.App.1978). Conse disagree beyond “zone of reasonable attorney only a quently, an must nоt have ment,” appellate not hesitate an court should investigate opportunity reasonable to find abuse of Some of an discretion. case, facts his client’s Butler determining factors to be considered (Tex.Cr.App.1986), but must judge abused discre whether a trial has reasonably a also be afforded sufficient in denying tion a motion for continuance amount of time to those facts and review severity grav of the offense and include: the they potential determine how relate to ity punishment, length of time of the deny attorney an defense. To reasonable trial, prepare had to which counsel time which to review the results of his complexity of the case and number investigation endangers the effective assis witnesses, length re of additional time prevents him tance counsel because it quested, oppos and the inconvenience effectively “present[ing] all available resulting ing parties judge trial from a testimony support other evidence to generally, Ex continuance. See Parte Wind Ybarra, defense his client.” 629 S.W.2d at ham, (Tex.Cr.App.1982).

Although grant the decision III. continu ance Tex.Code Crim.Proe.Ann. art. case, majority purports the instant lies 29.03 within discretion trial judge’s the trial decision for review State, judge, 697, v. 844 725 Cooks S.W.2d ignores but the aforemen- abuse of discretion and, Poe, (Tex.Cr.App.1992); v. 732 Collier tioned which determine reason- factors “[wjhere (Tex.Cr.App.1987), S.W.2d 334 that decision. ableness of in repre denial a continuance has resulted was, First, capital case and this was prepared sentation counsel who was not therefore, qualitatively from all oth- different ... this Court has not hesitated to declare an appellant could have er for which offenses State, abuse Rosales v. 841 discretion.” Carolina, charged. v. North been Woodson (Tex.Cr.App.1992). 372 In re S.W.2d 2978, 2991, 280, 305, 49 428 viewing trial judge whether a has abused his qualita- of this 944 Because L.Ed.2d discretion, appellate an court must determine difference, heightened there is a need tive judge’s clearly if so the “trial decision was is reliability in the determination death wrong as lie that zone within outside punishment. appropriate Ibid. Conse- persons might disagree.” which reasonable cases, capital quently, in it is fundamental (Tex.Cr. State, v. 842 682 Cantu S.W.2d time appellant’s counsel have sufficient App.1992); Kelly v. 824 S.W.2d witnesses, acquaint interview which to and, Montgomery (Tex.Cr.App.1992); prepare an ade- himself the facts and with (Tex.Cr.App.1990) Ybarra, at 946. quate defense. spite (Op. reh’g). In of the deferenсe judge of whether the trial judge question an granted a trial abuse standard, the motion abused his discretion appellate court’s re discretion supplied by emphasis author unless oth- erwise noted. 1. All is Accordingly, for continuance also necessitates an examina tinuance reasonable. I re- confronting appel spectfully tion dissent. of the circumstances and, Ungar, supra; lant’s counsel. Wind

ham, supra. appel The record reflects that represented by practitioner lant was a solo appointed who had been less than three prior began. months to the time voir dire poten Prom the date the State disclosed its tial witnesses and made available its evi

dence, appellant’s days counsel had 32 potential interview the State’s witnesses HINES, Ray Appellant, Thomas and to more than review 100 items of evi course, time, during dence. Of this counsel Texas, Appellee. The STATE of obligation also had the to seek out and inter Duffy, view his own witnesses. No. 893-94. denying appellant’s In at 617. motion for Texas, Appeals Court of Criminal continuance, judge explained the trial En Banc. appellant’s investigator could continue inter viewing potential during witnesses voir dire. Sept. emphasized duty But we have thаt counsel’s investigate “may and interview witnesses sloughed investigator not be off to an if one appointed. responsibility.” It is counsel’s

Flores, also, Butler, at 634. See

716 S.W.2d at 66.

Moreover, complex this was a case: record reflects much of the case rest- State’s testimony, including

ed on scientific medical records, and dental as well as detailed foren- analysis, necessary prove sic which was identity of the victims and their causes of burden, light death. ‍‌​​​​​‌‌‌‌‌​‌‌‌​​‌​​‌​‌‌‌​‌​‌‌​‌‌​‌‌​‌​​​​​​‌​‌‌‍of this considerable appellant requested a two month continu- granted, ance. Had motion been prosecution proceeded still would have within six months from the date of indict-

ment.

Finally, appellant pre- it notable that prior his motion sented one week Consequently, commencement voir dire. judge appel- the State and trial had notice of lant’s need for additional time and would not subject

have been to the inconvenience of during granting a continuance voir dire or after trial on the merits commenced. Under circumstances, these there is no indication that a two month continuance would have judge. or the trial inconvenienced State appropriate light, reviewed in the no When person reasonable could conclude the trial judge’s denial of motion for con-

Case Details

Case Name: Heiselbetz v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 20, 1995

Citation: 906 S.W.2d 500

Docket Number: 71396

Court Abbreviation: Tex. Crim. App.