*1 804 despite acquittal s for the However, point offense of murder. at that IBANEZ, Appellant, Efran Castro Appeals
the Court of did not know if the v. attempt retry appellant would for Texas, Appellee. The STATE of Moreover, some included lesser offense. without an information or indictment nam- No. 69330.
ing offense, particular Ap- of Court Texas, Appeals Court Criminal peals rule any specificity could not En Banc. sum, certainty. Appeals’ the Court of 11, holding June resolve not an actual controver- sy capable adjudication. of final It antici- Rehearing 11, May Denied рated controversy presumed hypo- thetical facts. necessary
It was not for this Court Appeals’
address the merits of the Court of
holding regarding prosecution the future for lesser included offenses.4 Appeals
The Court power had no
decide that issue because the issue dou jeopardy
ble could arise if subsequently charged with some less See, parte
er Ex e.g., included offense.
Robinson, (Tex.Cr.App. S.W.2d 641 552
1982). Therefore, we find that the Court Appeals’ holding advisory. We ex
press opinion at this time as to whether be tried for lesser could some
included offense. rehearing motion State’s de-
nied. WHITE, JJ.,
TEAGUE and concur
result.
ONION, P.J., and DAVIS and JJ.,
McCORMICK, dissent.
DUNCAN, J., participating. 602, State, (Tex.Cr.App.1980); 4. this Court has same v. 605 S.W.2d 605 note that made the 791, Harris, (Tex.Cr. 792 past addressing parte 600 S.W.2d mistake in cases double Ex 555, Rogers prior S.W.2d jeopardy implications App.1980); v. 575 559 of an (Tex.Cr.App.1979); capable 574 S.W.2d controversy Moss v. the existence of actual See, (opinion e.g., (Tex.Cr.App.1978) adjudication. Taylor rehear of final 546 (Tex.Cr.App.1982); Granger ing). *2 Austin, Huttash, Atty., ert State’s for State.
OPINION CAMPBELL, Judge. for
Appeal taken from conviction is Code, Penal capital murder. V.T.C.A. finding appellant 19.03(a)(2). After affirmative find- guilty, jury returned 37.071, special under Art. ings to the issues at Punishment was assessed Y.A.C.C.P. judg- enter a death. will reverse and capital acquittal of murder. ment of intentionally Appellant was convicted of knowingly causing the death of Wil- committing the in the course of liam Morris Appellant raises six robbery. offense of finding In our grounds of error. view of by the introduced State that the evidence capi- for support a insufficient to conviction ground murder, of we need reach tal error three.1 three com- ground of error court erred not di- plains that the trial recting a verdict trial Appellant asserts that the murder. granted have a directed ver- court should disprove failed dict because: exculpatory matter contained within by the was offered lant’s confession guilt/in- entirety during the its State in trial; secondly, the phase of the nocence trial, including the en- adduced at proves a murder at most tire use of a vehicle. an unauthorized urges that the in its brief argues it has exculpatory and was not case. proven its charged by indictment Appellant was intentionally knowingly having Paso, El Segall, appellant. E. Scott in the Morris death of William caused the alleged committing robbery, the Simmons, Atty. Mat- course of Steve W. Dist. robbery being the decedent’s Dekoatz, object Robert thew Karen Shook and Dinsmoor, Paso, El Rob- car.2 Attys., Asst. Dist. alleged: pertinent part having proceed pro se The indictment Appellant, elected filing appointed [(Intentionally of a court knowingly after the counsel, brief cause the death MORRIS, individual, raising has several other filed brief WILLIAM of an MORRIS; and disposition strangling Due to our the said WILLIAM errors. three, [appellant] ground and there inten- we also do not reach said error pro tionally death of complained [decedent] cause the se brief. errors evidence, The State’s viewed in the given to trial the box was verdict, most favorable to the estab- employer to return to the family lished the year was a seventeen the deceased. Thus the box was old Mexican male. The deceased a 38 presented anyоne trial for to iden- year old homosexual Appel- white male. tify. lant and the deceased met for the first time appellant’s confession, summarized, 28, 1980, evening January *3 states that the deceased him in woke the relationship. entered into drinking a After night of the get middle and tried to the dancing together and gay at two bars the sodomy to commit on the de- appellant and deceased were seen leav- ceased. claims he had an
ing together between 12:00a.m.—1:00 a.m. agreement with whereby the deceased The deceased was discovered his maid would deceased “be the woman” and the 29,1980, on January approximately at 9:00 appellant would “be the man”. a.m. partially He found in was bed cover- ed with a The sheet. cause of death was The deceased’s agree- violation of this strangulation. There was no evidence a angered ment ap- drunk and entry, forced any nor was there evidence of pellant strangled fear, the deceased. In struggle. apartment The ‘neat was and wanting and apartment, out of the tidy’, although several dresser drawers appellant grabbed keys the car and fled. partially оpened. The deceased was The killing admits an intentional wearing chains, bracelet, gold two and a taking and an intentional of the deceased’s body watch when his was discovered. vehicle; however he clear makes that he testimony There was effect anger acted out of that the jewelry appeared to be valuable. No mon- taking spe- of the car He was incidental. ey apartment was found in the and testimo- cifically taking any property. denies ny established that the deceased had and fingerprint testimony The medical com- payroll cashed a check for at noon $110.97 ported appellant’s confession. His day before homicide was discover- fingerprints glass were found on on the is, best, ed. Appellant’s confession am- nightstand bedroom, in the deceased’s as biguous checkbook; as to whether he took a well as rearview mirror of the ve- vehicle, none in apartment, was found hicle. possession appellant. of the reviewing sufficiency When of the There evi- any was no evidence to indicate that dence Court is negotiated deceased’s checks were this bound rеview the light after his The property death. definite- favorable to the most ly missing deceased’s car. wheth- verdict. must determine er, viewing in the after the evidence gave When was arrested he prosecution, any most ra- favorable police a statement which led to the dis- tional of fact have found the trier could covery of the vehicle. The vehicle was beyond essential elements of the crime Juarez, Mexico, locked, found in Virgi- doubt. See v. reasonable Jackson ashtray. Among property nia, 2781, U.S. 61 L.Ed.2d 443 99 S.Ct. found in the vehicle was a box (1979); State, 614 560 v. S.W.2d containing jewelry. assorted box Griffin (Tex.Cr.App.1981). Additionally, under 155 entangled found partially shirt rule, our voucher bound state left rear No one floorboard. ever identi- doubt, beyond disprove, a reasonable fied the box or its as contents being property of within the deceased. Prior evidence contained [decedent], committing Robbery, Chevrolet course offense of wit: a 1977 Station Wagon, to wit: defendant without consent of the the said on or about the effective 1980, ..., [decedent], day January, deprive 29th [dece- did then with intent unlawfully, intentionally knowing- property,
there of said and there dent] intentionally ly, committing knowingly bodily while in the course of theft cause in- property jury by strangling and with intent to obtain [decedent] [decedent].
807
in order to
offered
the State.3
i.e.
the murder occurred
statement
Palafox
(Tex.Cr.
State,
177
608 S.W.2d S.W.2d
property.5
v.
facilitate
State,
App.1980);
748, (Tex.Cr.
v.
Well, he tried bed was like this and do and I sat down opinion by joined dissenting I bed....” Davis, point Judge I out but write W.C. additionally support facts to conclu- dialogue quoted in Immediately after the dissenting find the follow- sions. opinion we ing: majority writes: money, any just “M. You didn’t take admits an intentional “The you telling me the truth? keys, are taking of the killing an intentional this, they’re contradicting Because vehicle; however makes missing money, they that he is some say anger and that he acted out of clear asking, I have why you I’m know that’s inci- the car was and that the proof. the truth have told me because dental.” any money? You didn’t take 17-year-old boy who no naive This was checkbook, No, I just E. took his male homo- a 38-year-old was seduced keys I took out the the checkbook appellant admit- In his sexual. that, good fell What out. drink- skipped school and had been ted he thing do was out I wanted to Bar ing day. Apartment He all went and....” night question, p.m. on the about 7:30 keys, knowing So took frequented. he knew homosexuals place stationwagon were and left played pool with the bartender He *6 got stationwagon ring, “just the and money” and he “ran wanted out because around,” taking the kept driving even more, hopefully friends. get from to some way wrong way on a one street “because to bar shortly thereafter the He returned scared;” “got then control was he [he] the and was there without to and took Juarez.” [himself] man in. and another came deceased off money for the gаve appellant of fact contained deceased statements Since those buy appellant began to undisputed, juke box and in his confession are there was money. appellant without nor drinks for was jury for this to resolve other conflict They together and the deceased may weigh danced against jury which the hugged appellant. The de- Nevertheless, opinion dissenting kissed and them. been appellant he had once undisputed “support an ceased told finds such facts man, appellant was “married” and appellant murdered the to inferenсe.... Ac- “tomorrow.” going his husband maintain to be deceased with intent to obtain and confession, the course, cording there property.” Of control him to the go to with him set in the deceased invited facts of the matter out are other cash a deceased could so the on the issue Diamond Bar opinion of the Court that bear Bar the Diamond Considering Appellant knew sufficiency check. of the evidence. They people.” drove there gay “for required, in manner was all the evidence stationwagon. the Diamond At of fact my rational trier judgment best “gay” friend of his every appellant saw proved Bar find the State could not and there homosexuals. While alleged beyond a and other offense element of the appellant. ruption questioning reporter the officer Ellipsis by sin to indicate inter- court while drinking, ap- deceased asked the his confession that uncle his had to come pellant go him, if to get later, he wanted to the deceased’s days “go several to apartment appellant so the could make love Judicial Juarez” because he had been deceased, agreed. appellant and the driving running accused and vehicle They midnight again left about and drove person over a It is Juarez. true that the stationwagon to the deceased’s confession and do not record show when apartment. drink, They drank another un- occurred, but the “Judicial in Juarez” dressed, and the deceased “suck” tried to looking appellant days was three after appellant, but he related driving he been had the deceased’s station- get drunk Appel- and couldn’t erection. wagon Appellant may Juarez. have oth- lant fell asleep, and after or three two abandoning stationwag- er reasons for hours the him deceased awakened and prevent than his connection (the wanted to “suck” him de- murder, enough. which is reason ceased). Appellant “got angry stated he appellant goes Here “broke” to a bar what he told he me ... And like told frequented by he knows is homosexuals. me going that was to be the and he man He meets the buys deceased who going the woman.” be When asked drinks, dances, hugs appel- kisses and during taping the officer willingly goes He lant. with the deceased “And, did he you?” force to another homosexual sо bar deceased can “No, replied, but....” Later he willingly cash check. Then grabbed related the deceased his head and goes to apartment said, “No, he agreement.” Ap- we had an stationwagon. agreed purpose is for pellant got up and out of bed. The de- appellant to make “love” to the deceased. grabbed ceased his arm “and wanted to” first appel- Their effort is a because failure appellant got “angry.” Appellant lant is drunk. When awakened several began strangle the deceased with a later, appellant “angry” hours because shirt, try and the deceased “didn’t to de- change the deceased asked him to roles. Appellant fend himself.”1 continued to gets Appellant strangles out of bed tighten shirt, and then turned the de- while deceased a shirt the deceased ceased face down covered the deceased try does not to defend himself. After the Appellant with a blanket. dressed down, upside deceased is turned pants car from the deceased’s through goes pants lant the deceased’s did, pockets, and when he the checkbook pockets kеys. He takes the car takes fell Appellant out. denied wanted stationwagon. he do it in fear in Does “that,” but the checkbook was never found. attempt escape from dead man and that he admitted took sta- home, get appropriate it to does he take tionwagon, get did he just but use it speak it to his own use? His actions louder away just from dead man or vehicle, words. than He takes *7 No, stationwagon home? drove the he but, across the international border home Juarez, across the international border to larger part day it for the and drives pickеd friend, up and after he awhile a abandoning vehicle. before Marcos, they and then drove around Jua- light and of the confession the other Appellant, money rez. who had no of his record, any rational trier of night own the before and denied could that the State the facts have found deceased, bought from meat at proved the element of offense a market to eat. Later the afternoon We still beyond a reasonable doubt. view he stated abandoned the station- most favorable to the evidence Juarez, wagon leaving keys verdict, wе? jury’s don’t in El ashtray, and returned to his home Interestingly enough, I Paso. he related dissent. himself," "defending logical 38-year-old he was too drunk to
1. It that a man who unless is not just engage a already had act, asked to sexual unconscious. resist strangled be without would allow himself to down, dissenting. up him face DAVIS, Judge, you and turned W.C. down, you upside then covered and inter- its own majority substitutes The him? ration- facts for another given pretation E: Yes sir. and presented the facts interpretation al dressed, okay, you got when M: You By its view the jury. embraced dressed, you got did do? what part confes- majority finds keys. I got E: exculpatory, the confession sion to be keys? verdict and he have the supports jury's its M: Where did on face usurpation of For this exculpatory. pockets. pants E: In his I jury’s role dissent. pants? M: Where were the I it there ... got he What was that was appellant said E: In his confession it or some- don’t know was bundle deceased angry deceased when the thing I don’t remember. sodomy ... get appellant commit tried to to do Appellant refused so clothing? the deceased. A M: bundle get He said: dressed. and started IE: think so. looking for you just I on the bed threw them.
E: sat down M: And ... pants grabbed my arm my he and got just like E: I left them to, as I and well drunk and wanted only things I keys, those were the was, got angry. I got. Okay,
M: I want know but what as excul- majority characterizes this if more or less he wanted to force patory it because shows “[i]n act that wasn’t ... you into sexual wanting apartment, out sodomy, that's when he wanted I keys and fled.” grabbed the car lant him, you to you suck or for suck do by appellant’s shown disagree. facts got angry, for him. You the same appellant got angry, are that shirt, you your okay, and deceased, strangled specifically wrapped it around him you from he knew for and found searched front or from behind? car, left, taking the car. for the conclusion, Contrary majority’s E: From in front. The confes- exculpatory. evidence is not do, he M: In the front and what did and an immediate murder sion shows he turn around? keys and automo- taking of the deceased’s No, try E: he didn’t to defend himself. than facts are no different bile. These try M: He to defend himself and didn’t those Fierro you tightened the shirt around him in which coldblooded (Tex.Cr.App.1986) you Until knew what? until when? belated theft were and somewhat I him thought E: I that he ... heard support ver- found sufficient breathing. still a taxi the defendant shot In Fierro dict. you go of him? M: When let defendant driver drove the as the driver I quickly E: Yes left. The defendant requested location. Okay M: and then. dragged the taxi park, the cab to drove car, I a blan- E: And then covered took several items driver from ket. from him. him, position was
M: You what covered per- the facts may argue that in, up down or face ... face imme- murder and that the mit an inference *8 up, facing mean turned towards were un- the automobile of diate theft ceiling, or ... not murder that he did in the sense related falling bed and I E: He off the was or maintain control obtain with an intent to around, I like him him However, turned them- property. the fаcts of the him turned around. selves, support this and by appellant, also related as words, strangled appellant’s actions an inference that you M: In other intent with shirt, facing he murdered the deceased that your he was 812
to obtain and maintain control sion, of prop- doing usurps and in so role erty. The facts show a murder very and a weigher as trier of fact and of the evi- specific and immediate property. of dence, I dissent. possible Where two are inferences from a facts, set of the jury, Court, it is not this ONION, P.J., and TOM G. DAVIS
who decides which inference
sup-
the facts
WHITE, JJ., join
this dissent.
port.
“
jury
The role of
is
‘to resolve con-
ON STATE’S MOTION FOR
testimony,
weigh
flicts
the evi-
REHEARING
dence, and to draw reasonable inferences
McCORMICK,Judge, dissenting.
from basic facts to ultimate facts. Once a
submission,
original
On
majority,
defendant
found
guilty
has been
of
member,
charged,
which I
crime
was a
held that the
factfinder’s role as
(sic)
weighter
appellant’s
had failed
preserved
disprove
exculpa
of the evidence is
through
legal
upon
tory
judi-
conclusion that
statements contained his
that,
prior
cial review
all
evidence is to be
under this Court’s
decision
light
(Tex.
considered in the
most
favorable to
v.
S.W.2d 177
608
Palafox
”
prosecution.’
Cr.App.1980),
Combs
appellant’s
v.
643
conviction should
(Tex.Cr.App.1982)quoting
S.W.2d
be reversed and an
ordered.
307, 318-319,
Virginia,
Jackson v.
443 U.S.
Upon
consideration, I
further
am now con
2781, 2788-2789,
99 S.Ct.
We note further that this “voucher rule” whether the de- you set will consider forth Palafox Ibanez, fendant, guilty Efren (Tex.Cr.App.1980),“widely condemned Castro irrational, archaic, the lesser offenses of mur- as and included destructive of the manslaughter. voluntary der or truth-gathering process”, seems to be abol- ished the soon-to-be-effective Texas evidence, has been reviewed Rules of Criminal Evidence. See rule 607. previous opinions, majority and dis- both The rationale the voucher rule is behind charge senting, when combined effectively destroyed Rule 607. See given, Presiding lead me to conclude 183-184, J., also Palafox, supra, Dally, Judge he conclud- Onion was correct when dissenting. ed, “In confession and the record, any rational majority imposes Because the its own have found that the view to find trier of the facts could plausible proved of the offense equally sup- when an inference the element ports beyond a reasonable doubt.” non-exculpatory view of the confes- subsequent majority to make to a murder. The abandonment 1. The tries much of the fact majority’s abandoned strengthen later the automobile. does not erroneous do not find it unusual uncommon for a conclusion. things criminal to rid himself which link him *9 respectfully dissent to Therefore, I must State’s Motion overruling of the
Rehearing.
ONION, P.J., DAVIS and W.C.
WHITE, JJ., join in this dissent. POLK,
Romey Lynn Appellant, Texas, Appellee.
The STATE 1043-85.
No. Texas, Appeals
Court Criminal
En Banc.
Feb. Rehearing Feb.
On