*1 Billy George HUGHES, Jr., Appellant, Texas, Appellee.
The STATE
No. 70504. Appeals of Criminal of Texas.
Court
April May Denied
Certiorari
See S.Ct. 1967.
288
OPINION MALONEY, Judge. murder,
Aрpellant was convicted of specifically peace murder of a officer. 19.03(a)(1). § This Tex.Penal Code Ann. originated County cause Austin and was Matagorda County change transferred to trial, punishment phase At of venue.1 answered the three issues submitted to it the affirmative and the trial court penalty. assessed the death Tex.Code CRIM. 37.071(b)(1), (2), Appeal art. PROCAnn. to this Court is automatic. Tex.Code Crim. 37.071(h). art. ProoAnn. fifty-five points of raises error.2 appellant challenges sufficiency
Because
support
jury’s
of the evidence to
affirma-
tive answers to the first two issues submitted
prior
appellant's
protection provided
1. This cause was transferred
as to the
the Texas Consti-
trial in
We
first
affirmed
first
protection might
tution or how that
differ from
appeal, Hughes
conviction on direct
provided by the United States Constitution.
(Tex.Crim.App.1978),
S.W.2d 581
cert.
13, 1992,
Accordingly, on October
this Court
440 U.S.
(1979),
directing appellant
to file a
issued an Order
we
but reversed that conviction when
supplemental
providing argument and au-
brief
granted appellant
corpus
relief on his habeas
support
points
alleging
thority
error
of his
application,
parte Hughes,
Ex
does not resolve issues of factual firearms testified time. The State’s juror, re-weighing super as a or thirteenth unusually pull, hard or a deliberate that an evidence; rather, only act “as a final we type handgun required to fire the act was ensuring ... ra due-process safeguard Appellant by appellant in the offense. used tionality Moreno v. of the factfinder.” upon capture two and a fled the scene and (Tex.Crim.App.1988). later, ready at the days appeared to fire half con- approaching helicopter operator. We of fact could We conclude a rational trier evidence, light most clude the viewed evidence and disbe have believed State’s verdict, jury’s supports the favorable to the events., As we lieved version is- affirmative answer to the first submitted stated Carter (Tex.Crim.App.1986), cert. sue. (1987), 467, the defendant asserted that the of where grounds B. State constitutional accident, an is the fense had been argues if that even the evi credibility “judge of of the witnesses and constitutionally under dence is sufficient testimony.” weight given to be their Jackson, place of adopt, should this Court trial, largely presented Evidence standard for constitutional suffi the Jackson testimony, through appellant’s own revealed “against ciency, sufficiency factual the over reasons to fear had numerous tеst whelming weight of the evidence” being pulled troopers, including over DPS the Texas Constitution. cases under probation for a violation of the terms of his asserts, test, jury’s Under this addition, appellant federal offense. to the first submitted is affirmative answer driving car was to be returned a rental punish unusual” sue amounts to “cruel and replaced over two months earlier and he had *6 “overwhelming light evidence” ment of the original plates plates he license with appel and that Reichert’s account was false Appellant had been trav- claims he “found”. today need not lant’s account was true. We months, eling cross-country living for several or not this Court should decide whether forged off of stolen and cheeks and stolen sufficiency adopt a standard of re different just attempted Appellant credit cards. because view under the Texas Constitution credit to check into a motel with a stolen review, sufficiency under a factual even card, card, questioned had been about overwhelming weight of the evidence would Finally, the trunk of and had fled the motel. finding appellant’s account not dictate a appellant’s firearms and vehicle contained State’s, than the so as was more believable ammunition, shotgun.6 including a sawed-off deliberately. act find that did not Trooper appellant sat Reichert testified that best, appellant presented At some evidence car, staring straight ahead as Freder- evidence, it in contradiction of the State’s but approached. further testified
ick Reichert overwhelming did not amount to evidence gunshot, im- only single a muffled he heard case was incredible and that the State’s ap- mediately Frederick turned to face after supportive of verdict.7 Points of error falling pellant just prior to the deceased ground. positive that one and two are overruled. to the Reichert was stealing verability. Appellant following admitted some and ammunition were 6. The firearms guns. appellant’s a .30 found in the trunk of car: the other carbine, caliber M-l loaded with fifteen-round testimony, clip, gauge According he fired short barrel twelve shot- 7. a sawed-off troopers. gun, aught only being upon three loaded with double buckshot after fired first Magnum magnums, stopped, Colt Appellant inch Sauer, a .300 Winchester that after he was testified shotgun glove compart- caliber shells. and extra and .38 wallet from the reached for his li- that he could retrieve his driver's purchased ment so Appellant testified that he had cense, through suddenly ammunition, came when two shots shotgun of a at the insistence gun officer, for his when police having his rear window. He reached after been friend who was a happening blindly fired he realized what was that his friend con- robbed. stated fleeing cross- shotgun shot before the scene. On one vinced him to saw off the barrel having told sev- greater admitted carry maneu- examination order to it in his car with acting un- points In of error three and four 5. Whether the defеndant was challenges sufficiency or the domination of another at of the evidence to der duress crime; jury’s the time of the support the affirmative answer to sub- two,8 eighth mitted issue under the and four- age personal cir- 6. The defendant’s teenth amendments to the United cumstances; States Constitution, one, and under article sections evidence; Psychiatric nineteen, thirteen and of the Texas Constitu- 8. Character evidence. tion. Id. at 675. subject offense did not involve grounds A. Federal constitutional which, alone, justify facts would an affirma reviewing the constitutional suffi tive answer to the second issue. The instant ciency support jury’s pursuant offense was not committed to the finding special affirmative on the second is type prior planning pres of calculated often evidence, sue we ask whether viewed ent in cases the offense alone is suffi where verdict, light most favorable to the could lead finding support cient to an affirmative on the beyond a rational fact finder to conclude second issue. Moreno v. probability reasonable doubt there is a (defendant (Tex.Crim.App.1993) the answer to the second submitted “carefully plotted for months to abduct and “yes”.
issue is Cantu money”). kill someone for Nor did the sub 667, 674 (Tex.Crim.App.1992), cert. de ject facts that shock offense involve were so — —, nied 125 ingly brutal or heinous nature as to alone L.Ed.2d 731 Factors to be consid support finding an affirmative on the second ered in its deliberations on the Lynaugh, issue. See Franklin secоnd issue include: (1988) S.Ct. L.Ed.2d 155 1. The circumstances of the of- (victim stabbed, robbed, sexually repeatedly fense; lying days). assaulted and left in sun for five 2. The calculated nature of the defen- evidence, following The State conduct; dant’s offense, subject in addition to the facts of the 3. The supports jury’s finding deliberateness exhibited in the it which claims execution; crime’s the second issue:9 severity 4. The Testimony existence and of the de- former wife that *7 offenses; previous fendant’s appellant her on beat numerous occa- conflicting gested, might explain empty eral different and versions of the of- the three shells years many gun. fense over the and did not know how Frederick’s expert different versions he had told. The defense called an witness who testi- fied, hypotheticals, appel- on the basis of that positive Reichert testified that he was Freder- lant’s version of events was consistent with more gun. ick did fire his The deceased was found physical the evidence than the State’s version. holding gun following shooting, his the but no testimony by His was contradicted witnesses for tests were conducted on the deceased’s hand to the State. gun determine whether he had fired it. The did presented While some evidence shells, empty contain three but Reichert testified evidence, which contradicted the State’s the gun he that examined Frederick’s at the scene overwhelming weight of the evidence does not malfunctioning. and found it to be Tests con- lead the version of conclusion gun ducted on thе deceased’s also found it to be events is more credible than the State’s. malfunctioning. testimony There was that one of appellant's bullets that 8. The second submitted issue read as follows: the struck vehicle could type gun by have come the from carried the [appellant] probability Is there a would testimony was deceased. There also that be- commit criminal acts of violence that would appeared cause that bullet hole to be older than continuing society? constitute a threat to holes, may the other bullet it have been the result incident, shooting might of an earlier have which 9. list does not include all of the evidence the This gun involved a similar to the one carried the supports jury's claims affirmative find- State record, deceased. Reichert also that a week ing, upon testified but based our review of the prior supportive to the offense he and Frederick had fired list the evidence most includes which, firing range, sug- jury’s finding. their revolvers at a Estes, sions, her, attempting Testimony 11. an assistant one time choke S.E. warden, ma- causing prison was following her blood to vomit violent; incident; dangerous nipulative, pistol Appellant’s aiming 12. actions in Testimony 2. wife that cap- helicopter prior at to his the DPS lant’s acts of criminal violence esca- had ture. during marriage, lated that she be- their lieved he would commit future acts of addressing Consideration of other cases would violence and that he cause her sufficiency support an evidence to prison; harm if from released finding on the submitted affirmative second helpful issue to our here. are determination disfellowshipped Appellant 3. from his to Kunkle v. State church, Witnesses, due to Jehovah’s (Tex.Crim.App.1986), cert. de S.W.2d 435 lying, checks and writing bad his “bad nied, S.Ct. chance, a business deals”. Given second (1989), comparable L.Ed.2d 604 again disfellowshipped. There, argued instant case. defendant to kill a threatened or harm only act of shown to since the violence church in on appellant’s elder who sat have him been committed disfellowship proceedings; tried, he was evidence offense for which Appellant’s prior felony 4. conviction for ex- support jury’s affirma was insufficient (appellant tortion made several bomb at finding dangerousness. tive on future Id. by telephone threats to radio and televi- itself,10 the 445. In addition to the crime stations, claiming kidnapped to have sion presented State evidence that the defendant demanding two children hundred one problems had behavioral attitude dollars); thousand school, respect rules and that he lacked for Owens, Testimony 5. of Gene the F.B.I. others, rights testimony psychological investigator investigated appel- had who likely that he to continue to commit would lant with the extortion of- connection future acts of violence and evidence of the fense, that appellant would constitute possession defendant’s a loaded .22 caliber continuing society; threat violent gun, reported which had been stolen. Id. there was We held sufficient guns, money and 6. Stolen numerous stolen upon could which a rational trier of fact cheeks, forged most stolen often beyond have doubt that found reasonable persons placed appellant had who continuing be a threat defendant would trust; position society. reports of stolen 7. Several faked traveler’s In Delk v. 708-09 cash; exchange checks in prior (Tex.Crim.App.1993), defendant’s Numerous guns and ammunition which simple included a assault and an offenses appellant had traveled with the trunk aggravated assault. There was also testimo- vehicle, including of his a sawed-off shot- ny a num- that the defendant threatened *8 gun; physical people ber of with violence or death bank, Appellant’s plans to rob a written occasion his wife had on one threatened firearms; involving of the use shotgun. a that “[al- with We observed witness, though of came Testimony own a threat violence ever appellant’s no such prison supervised appellant until commission of the instant warden who fruition offense, row, to show appellant on death that a con the threats themselves tend un- predisposition man who a towards violent conduct manipulate had learned the amounting than sub- system appeal to the media for his der conditions to less benefit; recog- provocation.” stantial Id. at 708. We own road, along they persuaded get him to into 10. The at issue Kunkle was the murder robbery. the the deсeased in the of a de- car. The defendant shot committed the course head, pushed body looking out of around wallet and the fendant and his friends drove took his walking Spotting the car. someone rob. deceased lence, dangerous- nized that the evidence of future his extortion conviction involved Delk, “minimal”, physical viewing it threats of violence. See su- ness was but held that Further, pra. testimony appellant’s light in the most favorable to the verdict we capable wife indicates that say a could rational could not have string more than of violence. The threats support found the sufficient to an evidence by appellant committed crimes two finding affirmative on the second submitted preceding and a half months the instant of- issue. Id. fense, appellant’s weapons collection In Cockrum v. along way, that indicates vio- (Tex.Crim.App.1988), cert. Kunkle; escalating. lent tendencies were See (1989), plans robbery Cockrum. The of the bank pointed the defendant readiness to fire on the DPS son, good awas brother and that he had been helicopter upon capture his further demon- good prisoner, a and that he had not commit propensity Viewing strate for violence. prior support ted acts of violence of his light evidence in a most favorable to the claim that the evidence was insufficient to jury’s finding, we hold a rational trier of fact justify jury’s finding affirmative on the beyond could have found a reasonable doubt second issue. We held the defendant’s commit criminal would future dominant role the commission of the rob acts of violence that would constitute con- bery/murder, prior planning of tinuing society. threat procurement weapon, fense and aof testimo ny from two law enforcement officers that he grounds B. State constitutional reputation had “a bad within the communi As discussed connection with his ty”, and his burglary convictions for of a error, appellant urges first two this building, attempted burglary of a habitation adopt sufficiency “against Court to a factual possession marijuana, supported overwhelming weight of the evidence” jury’s finding. affirmative Id. at 593-94. Al Appellant argues test, test. that under such though argued prior the defendant that his overwhelming weight of the evidence violence, extraneous offenses did not involve jury’s demonstrates the verdict on the sec burglary “provides we noted that an inherent ond submitted issue not a rational one. potential to escalate into violence” and bur Again, today we need not decide whether or glary “provides particularly of a habitation adopt not this Court should a different stan high potential for violence.” Id. at 593. sufficiency dard of review under the Texas By contrast, in Keeton v. type Constitution because even under the (Tex.Crim.App.1987), the defendant sufficiency urged by factual appellant, review theft, felony had been convicted of one with overwhelming weight of the evidence revoked, probation burglary as a result of a would not lead to the conclusion that coin-operated of a psychiatric machine. No jury’s finding affirmative on the second issue testimony, testimony character or evidence of was not rational. While some of the evidence other acts of violence was offered. We held pointed by appellant may tend to weaken support the evidence was insufficient to issue, the State’s evidence on the second it jury’s affirmative answer on the second issue. “overwhelming does not amount to such evi Id. dence” as to lead to the conclusion case, although jury’s finding the instant none of affirmative was not rational.11 prior physical lant’s convictions involved vio- Points of error three and four are overruled. “overwhelming by ap- 11. The evidence” 3. The extraneous offenses committed *9 non-violent, pellant property-related points were following: to includes the crimes; "equivocal" 1. The uncalculated and nature Appellant’s appel- 4. assertion that because offense; of the instant appellant lant's wife had not seen since their thirty-three appellant's 2. Evidence that of divorce in 1974 and because Owens Gene than thirty-six years, including years prison, his in appellant not in seen more thirteen crime-free; years, testimony given their should be little weight; or no fifth, sixth, “deathworthy” and eighth appellant is not In seventh and his error, jury’s be re points appellant of claims the his death should therefore sentence penalty, today and article assessment of the death not formed a life sentence. will to We applied appellant, are violative of 37.071 as to con decide or not this Court should whether eighth and amendments to the fourteenth the Tex proportionality duct a review under Constitution, one, and article United States under such as Constitution because even of thirteen and nineteen the Texas sections review, pointed by appellant to the evidence Constitution, mitigating the evidence because overwhelmingly not out mitigating as does against penalty overwhelmingly the death weigh support in of the the State’s evidence outweighs justifying imposi- its evidence jury’s issues.13 verdict on submitted Appellant urges tion.12 this Court to conduct through eight Points five are over of error independent aggravating of the an review ruled. mitigating to determine and evidence nine, and elev points lant’s deathworthiness. of error ten en, in appellant claims the court erred trial grounds A. Federal constitutional objections in overruling his the definitions guilt/innoeenee of instructions Supreme The United States Court thereby “intentionally” “knowingly”, de required held that such a review is has impar nying right his fair and appellant to a eighth fourteenth under the amendments law, process tial in violation trial and due of Pulley States United Constitution. amendments to sixth and fourteenth Harris, and article (1984). Moreover, the United States Constitution previ we have L.Ed.2d one, of Constitu section nineteen the Texas ously re-weigh declined to evidence and tion. of a make an individualized determination light defendant’s deathworthiness of portion the court’s The definitional of mitigating evidence. Burns 761 charge provided, part, that: relevant (we (Tex.Crim.App.1988) 356 n. 4 “intentionally,” A or with person acts any pretense of ... have “abandoned balanc intent, respect nature his with of ing mitigating aggravating evidence so when conduct or to a result of his conduct determine, independently jury’s objective it is conscious or desire his
verdict, ‘justness’ ‘appropriateness’ the result. engage in the conduct or cause imposition given sentence in a the death case”). “knowingly,” A acts or with person knowledge, respect nature with grounds
B. State constitutional his surround- conduct or circumstances ing when his conduct he is aware Appellant argues pro we should circum- nature his conduct or that the greater protection our consti vide under own person knowingly, A stances exist. acts require proportionality review tution and knowledge, respect with with to a result of one, article thirteen and nine under sections that his his conduct when is aware teen of Texas Constitution. reasonably to cause the weight conduct is certain overwhelming asserts that the further compels finding result. mitigating "initial 21 testimony Appellant points 13. to evidence of his Estes' on cross-examination that behavior”, crime-free, years violence-free his about future dan- conclusions upon good prison, the gerousness largely years the fact twelve behaviоr were based officer; police "meaningful, productive [he] in which had killed a activities row, engaged" youth when has been death years), (twenty-four was committed psychiatrist crime 6. The testified that he State's certainty mental state be- his unstable and emotional could not state with committed fore and at the time crime was acts of would commit future violence. divorce, problems and disfel- due financial to his Witnesses, support lowship the Jehovah’s We note that also asserts various claims, twenty- penalty death not be Peray-related that the should his claim imposed against through twenty-eight. him. one *10 added). (emphasis it a result of con- claims the em- more accurate to view as phasized portions permitted of the definitions duct offense which also includes nature of liability to find criminal from the circumstances nature of conduct ele- and/or knowledge of conduct or circumstances sur- underlying depending upon ments con- (ie; rounding pull trig- the conduct intent to duct which elevates the intentional murder to ger) consequences than rather from the or recognized capital accordingly murder. We (intent results the conduct to cause death Cook, dicta, capital in that in a murder deceased). involving case more than one conduct ele- it ment would not be error the definitions opinion
In
day,
our
handed down this
Cook
Texas,
more than the result of conduct
include
(Tex.Crim.App.
with an intentional
gives rise to
by shooting
gun;
him with а
deceased]
capital
murder,
proving capital
murder.
peace
that the said deceased
a
officer
was
prove
the State must
that the accused inten-
acting
discharge
in the lawful
of an official
tionally
knowingly
or
caused the death of an
duty
[appellant]
and that
then
engaged
individual and also that the accused
peace
a
there knew
said deceased was
(ie.,
in other criminal
kidnapping,
conduct
officer[.]
robbery,
assault,
aggravated
escape
sexual
institution)
penal
knowledge
including
of This offense can
viewed as
two
(ie.,
certain circumstances
that the victim was
of the three conduct elements. The State
officer). Therefore,
peace
required
prove
while we have
inten-
capital
tionally
said that
murder
knowingly
is
result of conduct
caused the death of the
offense,
(result
conduct),
Turner v.
deceased
and that
cert, denied,
(Tex.Crim.App.),
peace
lant
knew the deceased was a
officer
(circumstances
conduct).
(1991),
it
surrounding
L.Ed.2d 162
is
Cook,
Code,
Cook,
14. As stated in
"Penal
Sec. 6.03
Prior to
we held in Kinnamon v.
1990),
(Tex.Crim.App.
that the
may
delineates three "conduct elements” which
inclusion of all of the conduct elements in the
(1)
be involved in an offense:
the nature of the
mental states definitions in a
murder case
conduct; (2)
conduct;
(3)
the result of the
inconsequential
long
so
as the definitions
surrounding
the circumstances
the conduct."
correctly applied
application para
Cook,
(quoting McQueen
(2) person a different property jury ed the engaged an officer is not injured, harmed, discharge duty otherwise lawful of an if affected. official he is engaged in an stop unconstitutional or deten juryA charge on causation is called tion. only when the issue of concurrent causa presented. tion is Robbins v. In Montoya (Tex.Crim.App.1986). “Con (Tex.Crim.App.1987), cert. current causation” means that more than (1988), “ conduct, that is ‘another cause’ cаse, murder argued the defendant [appellant’s] conduct”, addition to inwas that because the deceased officer was not Here, issue. Id. at 351 n. 2. there was no acting in discharge the lawful of his official real issue of concurrent causation and ac duty offense, at the time of the the defendant cordingly charge erroneously included was entitled to a instruction on the the instruction. lessor included offense of murder. We held: an charge
When abstract is erro Whether making [the officer] was a lawful neously given law, theory on a without determining arrest is not relevant to if [the specific application case, to the facts of the acting discharge officer] lawful acting commission the offense weapon police
of his
A
officer is still
duties.
1, §
rights
Art.
discharge
Appellant’s
his official
under
within the lawful
violated
arrest,
clause)
(the
an
post
duties when he makes
unlawful
ex
the Constitution
facto
capacity
long
acting
within his
so
he is
of the United States.”
peace
aas
officer.
determine
instructed to
Montoya,
Relying
reasoning
Id.
had used or exhibited
whether
rejected
similar
we
a claim
*13
of-
deadly weapon in
the commission
(Tex.Crim.App.1988),
v.
through thirty-eight, appellant claims the tri
charge
given
separa-
in violation
jury
court’s
al
refusal to inform the
doctrine,
powers
tion of
reversal is not called
effects of their
answers
submitted
any
beyond
for
harmless
because
error was
eighth
issues violated the
and fourteenth
Tex.R.App.P. 81(b)(2);
reasonable doubt.
see
amendments to the United States Constitu
also Rose v.
553-54
one,
tion and article
sections thirteen and
(Tex.Crim.App.1987) (op.
reh’g) (separa-
on
nineteen of
Appel
the Texas Constitution.
81(b)(2)
subject
powers
tion of
violation is
complains
lant also
of the trial court’s refusal
analysis).
previously
opinion
We held
this
jury
to instruct
that if
special
was not entitled to a
given
sentence,
required
life
he would be
charge
Therefore,
mitigating
on
evidence.
twenty years,
serve at least
pos
without the
mitigating
the inclusion of a
evidence instruc-
sibility
parole
good
off
time
behav
permitted
tion which
to answer no to
ior.
any
special
could not
issues
have con-
Appellant’s
jury’s
findings
tributed to the
contentions are without merit.
affirmative
thirty-nine
repeatedly
This Court
issues. Point of error
is over-
declining
has
held that
jurors
ruled.
to inform
the effect
their answers
to the submitted issues does not render arti
forty
forty-
See,
cle 37.071
e.g.,
unconstitutional.
Rous
one, appellant
claims the trial cоurt erred
seau,
687; Draughon,
at
S.W.2d
refusing
to instruct
that the term
Cantu,
337-38;
Appellant’s
relating
parole
claims
to
instruc
case
necessary
such an instruction was
be
is
tions
also a settled issue. We have consis
during
testimony
cause of
elicited
tently found no merit in such contentions.
psychiatrist,
cross-examination of the State’s
See, e.g.,
State,
487,
Jones v.
843 S.W.2d
495
Nottingham,
Dr. John
David
the term
—
(Tex.Crim.App.1992), cert. denied
U.S.
“probability”
“any probability”.
means
That
—,
1858,
(1993);
113 S.Ct.
failure to
as more
than
define the term
thirty-nine
In point
appel
jury
speculate
not allowed the
to
as to the
meaning
potentially
lant claims
trial
court’s instruction on
of the term and
convict
mitigating
attempted
establishing something
was “an
“on
circumstances
less
act”,
judicial
legislative
likely
amendment of a
than the fact that the defendant more
two,
of
section
violation
article
one of the
than not would commit criminal acts of vio
30,
(5th Cir.1987)
charge
23. The
in the
case
June
instant
was submitted
F.2d 915
on
1988. Arti-
10,
time,
1,
June
At
September
on
this
article
cle 37.071 was amended effective
37.071(b) provided for the submission of three
Supreme
pursuant
1991
Court's decision
special
charge
issues and did
call for a
not
on
Jacobs,
Penry.
parte
violate Smith. State August report? examination 1976 interview was in violation of Smith. that, your own And I mean recall trial, punishment stage ap- During the years independent later recollection *17 pellant’s psychologist testified that having your re- without averted to earlier prior lant’s criminal resulted from behavior port. called psychological condition stress-induced in rebuttal, Obviously rely your integrity I “fugue called will on state”. State giving an honest answer. Nottingham. Dr. It established in a voir us “hazy” episodes, appeal rights only but his that he had occasional claims in this that violated, Further, respect ap- were forty-two with first no blackouts. in the interview fifth, fourth, forty-three, drank, under the Nottingham pellant when he that he told amendments, at trial he sixth and fourteenth but "mean”, the second interview became while in fifth, eighth and violations claimed under "got appellant he nicer" when he drank. said Further, appeal ap- fourteenth amendments. on country Appellant explained trip his around the authority pellant presents argument with no being prompted by his in the first interview as respect Therefore, his amendment claim. fourteenth frustration, feelings in the second inter- but only appellant preserved error has trip purpose of his was for the view stated that respect claim. with to his fifth amendment breeding. visiting Fi- people in horse interested nally, Nottingham that in the first inter- stated Nottingham were some testified that there day appellant on the of the told him that view responses discrepancies between in of beer and that offense he had consumed a lot Nottingham stated in two interviews. amnesia”, "spotty in second had while he appellant himself as the first interview described appellant he ev- told him remembered interview having getting outs, point of black- intoxicated to the erything. interview while second having point and stated denied ever drunk to why thinking very carefully port upon” A. That’s I’m con to be based the evaluations Smith), about it. in ducted violation cert.
I S.Ct. would have remembered that I saw probably him. I would have remembered drinking alleged involved testimony Nottingham’s Review activity, criminal around the time of the upon shows that his conclusions were based alleged something offense. Because that’s the 1988 interview alone. voir dire Not On my I see a lot of in It’s a common work. tingham testified that the 1976 interview element these kinds of situations. So appellant stated that he suffered from black probably my would have stuck in consumption outs due excessive of alcohol mind. memory night and that his of the I think don’t I would his remember rea- by “spotty offense was marked amnesia”. going country son for around the at the contrast, By Nottingham testified that in the time. I don’t think that would have stuck. second interview told him that al Q. any Or of the other inconsistencies. though “hazy episodes”, he had he did not A. I don’t think so. Those would be the experience blackouts and he had a clear rec things kind of I would remember. night ollection of the of the offense. Before Appellant objected allowing Nottingham jury Nottingham appel that if testified testify grounds testimony that his state”, suffering “fugue lant
would be tainted from the 1976 interview. expect [appellant] very “would not to have a Appellant’s objections were overruled and good transpired during recall of what Nottingham Nottingham testified. testified fugue Nottingham so-called state.” further only about the 1988 interview and made no testified as follows: Nottingham reference to the 1976 interview. Q. you anything [Prosecutor] Did see opinion not, that in testified your examination of the defendant on that offense, nor had he been at the time of the oecasion[, interview,] the 1988 that would suffering “fugue from a state”. These con- you may lead to believe that he have suf- expressly clusions were premised upon state- fugue fered or in a been so-called state at by appellant ments made during the 1988 the time of the commission of the offense interview. for which he was under indictment when Smith,
In Estelle v. you the United saw him? with counsel Ex ment fifth missible, upon ness was nation and without trist’s the testimony on the issue of and derived from” the earlier examination. accused without Crim.App.1988) (psychiatric testimony States based parte unconstitutional amendment rights. testimony Supreme so inadmissible where was based Woods, questioning psychiatrist’s long However, violation of his sixth amend prior Court held that as it was not “influenced has a basis rights against interview, warning regarding his opportunity when the future independent it it self-incrimi may dangerous psychiatric to consult psychia be ad (Tex. by indications from what he told A. A. rounding the offense for happening. concerning his recall of the events sur- charged at that period edged on to me that at times when he uses casion, Q. amnesia, where he did not know what was *18 April n [Nottingham] [Prosecutor] [Nottingham] when of time where he had 28th of this [5] n you time? And n examined the defendant No, Yes, year, did sir. There were no n sir. He acknowl- you to which question n have ofme periods he an n him any oc- may point alcohol that it to a he use where upon hypothetical by and not influenced ear words, memory, Quote, hazy, unquote. his admissible); lier examination was see also Vanderbilt v. specifically I asked him whether ever he blackouts, (Tex.Crim.Aрp.1981) (psychiatrist’s experienced testimo had absolute abso- ny amnesia, responses very admissible clearly where his were lute and he denied it upon hypothetieals pur based and “did not that never had occurred. impact
Q.
you
penalty
...
the
did he indicate to
on for
death
because
What
April
year,
you
appellant’s family
28th
when
this
examined
crime on
and
him,
However,
concerning
ability
appel
his
to recall
family.
the
the victim’s
because
early
events of
1976?
objection
arguments
made
to
lant
no
these
trial,
preserved. Appellant’s
no error
is
periods
A He indicated there
no
were
arguments
claim that
so
these
were manifest
amnesia.
improper
objections
ly
that no
were neces
Q. And that he had total recall.
sary
forty-
is without merit. Points of error
Well,
recall,
usually
A.
total
none of us
four, forty-five, forty-eight, forty-nine, fifty
recall, usually.
total
have
fifty-one
and
are overruled.
certainly
But
he told
there
me that
were
memory.
gaps
no
in his
had
He
some
In points
forty-six
of error
and for
it,
haziness
with
associated
intoxicated
ty-seven, appellant claims
accusa
the State’s
fairly typical.
state. But that’s
closing
during
arguments
tions
its
a
Nottingham’s
appel-
against
psycholo
breach of
a
opinions about whether
ethics
defense
“fugue
gist
having
appellant
lant suffered
a
for
that
would
state” and other
testified
continuing
society
matters
thereto
not
expressly
related
constitute a
threat
eighth
premised upon
appеl-
appellant’s rights
the
his
examination
violated
under
lant. There
to the
is no indication on the record
fourteenth amendments
United
one,
testimony
his
or
that
was influenced
States Constitution
article
sections
de-
rived from
thirteen
nineteen of
Texas Constitu
his earlier examination
the
forty-
Appellant
forty-two
lant. Points of error
tion.
claims the attack
the
Woods;
equivalent
parte
imputing
three are
See
defense
“was
overruled.
Ex
witness
supposed
Appellant,
misconduct to
his
Vanderbilt.
counsel, or
The State contends the
both”.
forty-four, forty-
argument
proper
summation
five,
forty-nine,
fifty-
forty-eight,
fifty and
evidence.
one, appellant
following
argues that the
clos
trial,
arguments
ing
During
punishment phase
his
violated
federal
state
Dr.
(1)
Dickerson,
rights:
appeal
psychologist,
constitutional
testified
the State’s
Wendall
imposition
penalty
for the
Dickerson
death
be
for
defense.
stated
imposed
opinion
it was
first
cause
tria
did not consider
con-
(2)
l,26
argument
tinuing
society
the State’s
that the death
threat to
and that it was more
penalty
likely
is
than
appropriate
because
not
would not commit
(3)
request
shown no remorse and
criminal
in the future.
the State’s
acts of violence
On
Appellant complains
following
job
They
Your
it. Yet
state-
is reviewable.
know
prosecutor
closing argu-
ments made
punishment:
ment at
Id. at
S.Ct. at
2637. The defendant
objected
argument,
but the trial court
know,
Matagorda County
You
1976 12
permitted
agreed
it and
with the State that "it
speak
opportunity
citizens
had the
this
proper
jury
[is]
that the
realizes that it is review-
they spoke.
Judge Hardy
case. And
And
sen-
automatically
penalty
able
as the death
com-
tenced him.
mands.” Id.
They
questions.
they
answered
And
disagree
here
We
that the statements made
are
dealt
with the issues
the law and evidence
comparable
those made in Caldwell. In Cald-
led them to.
well,
prosecutor
expressly
told
object
Ap-
did not
these statements.
they
responsible
be
for their sentence
would not
pellant
argues
now
these
statements "cannot
of death
their’s
"not the final deci-
because
squared
jury’s obligation under
with the
Here,
prosecutor
sion."
did not state
even
Eighth and
Fourteenth Amendments
assume
suggest
that the
was not somehow
re-
ap-
responsibility
its own
as to the
decision
sponsible
Any suggestion for its verdict.
propriate penalty”, citing
Mississippi,
Caldwell v.
*19
responsible
320,
2633,
jury should feel less
because of the
U.S.
472
105 S.Ct.
305
rebuttal,
Nottingham,
psychiatrist,
question
in
Appellant
Dr.
a
tes-
leased the vehicle
responsi-
Foley,
tified for the
that it was
in
Alabama on
State
“not
a Ford dealer
21,
professional
January
required
a
1976. The
ble” for mental health
to make
lease
26,
prediction
January
in
returned on
of future violence
the context
vehicle
be
suppression hearing
Appellant complains
trial.
Evidence at the
estab-
warrant,
following closing
by
of a
argument
lished the existence
dated
the State:
16,1976, charging appellant
March
with “lar-
Dickerson,
...
[Prosecutor]:
Mr.
who ac-
ceny by
charging
trick” and
that
cording
Nottingham
to Dr.
violated his
carry away”
subject
“did take and
vehi-
professional
by standing up
ethics
here
signed by represen-
cle. The warrant was
and—
dealership
tative of the
which rented the car
Object.
grounds
[Defense counsel]:
No
appellant.
The evidence also established
support
whatever in the record to
that
registered
that
in
the vehicle was
name of
(double voice)
assertion. We—
Marketing Corporation, Foley,
the Ford
Ala-
objection
The court sustained the
and the
bama.
disregard
was instructed to
the com-
standing
A
lacks
defendant
to contest the
Appellant’s
ment.
motion for a mistrial was
State,
search of a stolen vehicle. Jackson v.
overruled.
4,
denied,
(Tex.Crim.App.),
8
S.W.2d
cert.
An improper
argument
ordinarily
can
1241,
2916,
108 S.Ct.
101 L.Ed.2d
by
disregard
be obviated
an instruction to
(1988);
State,
v.
Viduarri
inflammatory
“unless
remark
is so
(Tex.Crim.App.1981). Any expecta
prejudicial
reasonably
its
effect cannot
privacy appellant might
tion of
in
claim the
removed
such an admonishment.” Bower
society
stolen vehicle was not “one that
is
v.
(Tex.Crim.App.
prepared
recognize
as ‘reasonable’”.27 Id.
1989),
grounds,
overruled on other
Heitman
(quoting
Maryland,
v.
Smith
U.S.
(Tex.Crim.App.
served for a judicial statutory provisions prescribed a method for court of judge of the 228th district Texas, that, effectuating assignment. such an The Order County, as a former Harris and statutory controlling provi- eligible given On cited the judge, assignment. for Stovall, Judge specifically provided and Judge Thomas the sions April assigned appellant’s Stilley was to hear case judge of 2nd Administrative presiding the the Order enti- “to final conclusion”. hold Region, executed a document We Judicial assign Stilley to the in- Assignment by Presiding Judge to of the sufficient tled Order provided, part, stant case. Judge, which as follows: 74.038, to Tex. Pursuant Section assigned Judge Stilley “[t]o the The Order 4.016, Gov’t.Code, and Article Section Matagorda County, District Court of 23rd V.T.C.S, 200a-l, I hereby assign the Hon- first trial Texas.” Because Judge Stilley Allen L. ... Former orable Court,29 in the heard the 130th District ... [t]o 228th District the Court a valid to the 23rd of transfer Dis- absence County, Matagorda 23rd District Court of Court, appellant Judge Stilley trict claims Texas. authority the preside no over second to assignment period ... This is for the statutory authori- trial. overlooks day pro- beginning April, the 27th of contrary. ty Code sec- to the Government assignment this shall continue vided that (Brazoria, 24.124, tion 23rd Judicial District specified may as period after the of time Counties), in Matagorda, and effect Wharton Judge necessary assigned for to the Judge Stilley’s assignment time of at the begun of complete any trial case or cases in effect at time of trial also the during period, pass this and to on motions later, part, provided, in relevant year one growing trial and all matters for new other follows: Judge herein out of cases tried the (c) general There is docket the one assigned during period. this Matagor- 130th courts in 23rd and district Judge hereby assigned Stilley ... is to County. proceedings da All suits final conclusion hear and determine to the jurisdiction of the courts Ma- within 5,410; following The of Texas case: State County to tagorda shall be addressed George Billy Hughes, To be set at vs. Jr. County. Matagorda All district court assigned Judge the convenience of the orders, citations, notices, restraining parties of all interest. process Matagorda County other issued courts through judges the clerk or are Code 74.031 Government sections Matagor- 74.038, 27,1987, the date of returnable to district court April in effect on County to court Judge Stilley’s assignment to the instant da withоut reference case,28 judges. process governed assignment number. On return of may over judge preside of either provided 74.032 that former district court Section subject judges trial. assignment hearing and sec- 23rd judges were to Matagorda judge provided presiding and 130th district courts tion 74.033 that a any judges County may dispose hear mat- assign an administrative district could 1, 1987, originated County govern- September Venue in Austin these 28. Effective However, provisions prior amended and renum- to ment code were 155th district court. assignment trial, at issue here We note bered. transferred lant's first venue was the amendments as would have been valid under County, Matagorda court where 130th district well. reversing place. appellant's first trial took 200a-l, seq., 4.001 et were Article sections conviction, “applicant appellant's first we said is judges applicable assignment of district also custody the Sheriff Mata- remanded Judge assignment Stilley’s time of this County gorda indictment....” Ex answer the provided that former district case. Section 4.015 (Tex.Crim. Hughes, parte subject assignment judges and section App.1987). judge provided presiding of an 4.016 assign judges try district could administrative cases. *21 general ter on the court’s docket without
transferring the matter. 24.124(c) § (emphasis
Tex. Gov’t Code Ann. added).30 No transfer order was needed for Stilley,
Judge assigned to the 23rd district Matagorda County,
court of to hear dis-
pose case the 130th district County. Matagorda
court of Tex. Gov’t 24.124(c). § fifty- Points Code Ann. fifty-five
four and are overruled.
Having any found no reversible error in points presented, judgment we affirm the
of the trial court.
CAMPBELL, J., concurs in the result in my dissenting opinion
accordance with (Tex.Crim.App.
Cook v.
1994), decided, day joins this and otherwise opinion.
MeCORMICK, P.J., WHITE, J., join
this note.
CLINTON, J., dissents. POWELL, Appellant,
David Lee Texas, Appellee.
The STATE of
No. 71399. Texas, Appeals
Court of Criminal
En Banc.
Dec. Although judges this code section was amended in hear from these two district courts can again provide it continues to dispose any general matter on the courts’ that the 23rd and 130rd district courts of Mata- transferring docket without the matter. gorda County general share one docket and