*1 challenged implicit2 could have found the
finding jury.
I Virgi- would hold the Jackson v. applies nia standard of review to the find- fact, ings trier rational whether case, In judge jury. it be the instant follows, It trial court was the trier of fact. therefore, Virginia Jackson applies implicit
standard review Thus, findings ques- court. trial whether, under tion for the court below standard of re- Virginia the Jackson v. view, any rational trier of fact could have accomplice Taylor
found that was not an witness as a matter of law. Appeals applied the
Because the Court of wrong in its determina- standard of review cause, petition
tion of this and because this “improvidently granted’ was not under our rules, I respectfully dissent.
MILLER, J., joining. JACKSON,
Tommy Ray
Appellant,
Texas, Appellee.
The STATE of
69434.
No.
Texas,
Appeals
Court of
Criminal
En Banc.
Feb.
1988.
findings
express
the affirmative
findings
juries
appeals
express
review to
2.
In
in which
State, 719
insanity.
In Arnold v.
challenged,
ap
Court has also
defense
have been
ap
(Tex.Cr.App.1986), this Court
plied
Virginia
S.W.2d 590
the Jackson v.
standard of review.
findings
express
(Tex.Cr.
plied
review to
that standard of
OPINION
DUNCAN, Judge. Jackson, appellant, Tommy Ray The was murder, capital convicted V.T.C.A.Penal Code, 19.03(a)(2).1 Thereafter, jury § findings special made affirmative 37.071(b)(1) (2), required by issues Art. V.A.C.C.P., punishment accordingly was at death. assessed trial court Appellant’s cause is us on di- now before 4.04, 2, pursuant appeal rect to Art. V.A. § C.C.P.
At the outset we are confronted with the question legality threshold as to the stop and search and warrantless ultimate appellant seizure of the and the automobile driving through was the streets which he Austin, when was detained William Pruitt, Department the Texas of Public Dunny officer with Safety, and Donovan an Department. appel- Police The the Austin lant contends that arrest and search of person and search of the was in vehicle of the Fourth and Four- contravention Amendments to the States teenth United Constitution.2 Omitting parts, escape, 1. paragraph its formal one of the offender is so and that about warrant, procure a which is no time to indictment of that there convicted warrant, may, alleged: peace such officer without pursue and arrest the accused. intentionally ... did there cause argues record in his individual, Robison, by death of an Rosalind peace not reveal that the officers cause does shooting gun; awith and the said defend- acting satisfactory proof upon were "... intentionally ant did then and there cause the representations person a credible death of the said Rosalind Robison escape, appellant was about to nor was there committing attempting course of to com- anything visible to indicate that the officer to robbery mit the said Robison[.] Rosalind procure no time to war- there arrest 2. In his brief for the first time asserts time, however, rant." At did person that his search of arrest and 14.04, court, supra, in as a assert Art. ground the trial 14.04, violative was also of Article V.A.C. suppress any seized items C.P., which states: introduced into evidence at the trial which were Thus, 14.04, by satisfactory proof supra, Where it to a as is shown to Article of this cause. nothing officer, peace upon representation preserved of a credi- review. See Nelson committed, (Tex.Cr.App.1980). person, felony ble has female, concisely possible age, last twenty-four years
We will now as p.m. identify approximately the facts and circumstances that seen at 10:00 on the November, 1983, upon probable driving relied to show that 17th of and was two-door, white, ap- arrest and search the her vehicle: a 1979 Olds- cause existed to mobile, bearing plate, license pellant’s person and the motor vehicle he an Indiana occupied stopped. the time 84F5245. he was number *3 Robison, deceased, receiving report, the Rice Shortly Rosalind was a after concerning University the information the de- student at the of Texas at Aus- entered roommate, tin, Information and resided with her Maria ceased into the National Crime following Salazar, day and on the apartment computer located the Center Thursday, description of the deceased and vicinity University. teletyped On a regions in Texas. to several approximately 10:00 her vehicle November p.m., Ms. the deceased informed Salazar Pruitt, an assistant commander William Engi- going that she to the Petroleum was Department of Safe- with the Texas Public neering University pick Building at the Service, ty, Narcotics on November up Dupree, study some notes from James a Bill telephone call from received a teaching Engineering assistant the De- Small, federal employee with the partment. phoned Du- After the deceased Intelligence government the El Paso pree still in his to confirm that he was Pruitt Center in El Paso. Small advised office, proceeded University. she to the family a and the that Robison was relative According Dupree’s testimony, she met reputable private inves- employ desired to a notes, him, with retrieved the and between locating her. After tigator to assist midnight 1:00 a.m. left the Petroleum and Small, speaking Pruitt contacted the Engineering Building through the front Department and confirmed Austin Police exit. Salazar testified she believed her reported had indeed been that Robison apartment roommate would return missing the information concern- and that departure, within an hour of her and when ing description and that of the vehicle her stayed up until 4:00 she did not Salazar At that time an officer with was correct. maintaining vigil out of concern for a.m. a Department gave Pruitt Austin Police Robison, time she retired. When at which concerning the information pertinent woke-up a.m. she discovered Salazar at 7:00 including her disappearance, deceased’s still not returned. Later that Robison last description, when she was physical morning attempted to find the seen, identifying she of the information all morning number, deceased at some of her classes and the and the license vehicle failed, contacted number. Department and when that Salazar Police case Austin not know Dupree who informed her he did evening, proceeding while Later whereabouts, (the deceased’s) although Austin, Airport Boulevard in Officer down evening previous at the had seen her coincidence, Pruitt, observed a ve- by pure Building. Engineering Petroleum description Robi- matching hicle patrol his unmarked He drove something wrong, son vehicle. Suspecting that vehicle, confirmed directly car behind with the Miss- Salazar contacted an officer and description, and license number Police of the Austin Persons Section it was the vehicle which determined that missing persons Department and filed a have been us- last known to Rice Robison was William report on Rosalind Robison. Further, able to observe ing. Pruitt was Missing Persons assigned to the an officer by a operated vehicle was original that the Robison although Section revealed that male, occupied a female by black and patrol officer on black report received a Obviously, the children. several black 18th of November it came to atten- did questioned vehicle operator of morning The re- tion on the of the 19th. Robison. description of Rosalind Robison, match a white port noted that Rosalind I, solely Amend- addition, on Fourth be decided error will not raise Art. § does Constitution, principles. point ment of the Texas therefore his Following his arrest the automobile was Pruitt continued follow observe processed finger prints, proceeded Quickie- photographed, into a vehicle as it gasoline Pickie While and searched. Several items evidence station. seized, finger acquired were such as stopped, Department Pruitt called the hairs, requested prints, papers, tampon, tissue Safety of Public gravel, card, slip, bank bank Austin Police be contacted and unit purse. Taken from the dispatcher meet him at the location. The the deceased’s book, person check did so Police was his and also advised the Austin exactly taking 24” bank card in Department as to what which contained “Teller appel- Over place in to Officer Pruitt the name deceased. reference all of the seized Dunny objection observations. Donovan lant’s items Officer during into Department the Austin rendez- introduced evidence course Police explained voused with Pruitt who the situa- of the trial. tion to The vehicle was Donovan. followed agrees Although ap *4 by to a both officers Market Basket Gro- standing challenge pellant the sei has cery kept Store and under observation person zure of his and the search of his Af- occupants while the were in the store. person, made which contend was inci return, parking
ter their the vehicle left the arrest, valid in its dent to a it asserts brief thereafter, Immediately lot. Pruitt that the search and seizure involves two Donovan, pro- with the armed information (1) privacy appel different interest: the by Pruitt, stopped vided the vehicle. and, (2) lant’s interest the automobile the automobile, The driver of identi- the later person. then interest in The State ar appellant, fied as the was out of ordered gues position challenge is in appellant no patdown vehicle where a was search as it the search automobile conducted and to in- Donovan commenced stolen; thus, legitimate expecta he had no appellant terview as to how he came into privacy tion of it.3 The record this possession reply of Robison vehicle. In unequivocally case indicates auto queries concerning Donovan’s ve- deceased, belonged to the who at no mobile hicle, appellant responded that a friend of appellant gave time her consent to the or his from had Houston loaned the vehicle to accomplice possession to be in him at a U-Tote-M Store somewhere Chapa vehicle, hence it In was stolen. Austin; however, he did not know his 723, (Tex.Cr.App. 727 729 name, friend’s got how the friend to the 1987),Judge Clinton, writing major for the there, U-Tote-M or left Store and had no complex concept ity, aptly synthesized the idea how to When locate friend. standing when he wrote: pressed name, further as to this friend’s Illinois, supra, Rakas the sub- replied by first it was a man question constitutes a stantive of what name of Robert Richardson. On subse- purposes for the Fourth “search” quent inquiry, appellant interpolated merged effectively Amendment names and stated that Richard Robertson procedural question been a what had had him loaned the vehicle. “standing” challenge such search.
Appellant
matter,
open
then ordered
of whether
It became
automobile,
“reasonable,”
trunk of
or “le-
“justifiable”
where the officers
some
belonged
personal
gitimate expectation
privacy”
par-
discovered
items
in a
which
deceased, including
purse
place
to the
exists
has
a brown
ticular
which
been
action,
Katz
governmental
containing
card.
her student identification
breached
States,
347,
Appellant
placed
v. United
was then
under
389 U.S.
88 S.Ct.
arrest
(1967);
Smith v.
507,
unauthorized use of a motor
19 L.Ed.2d
vehicle
740,
Maryland,
transported
County
to the Travis
Jail.
U.S.
S.Ct.
timely
ap-
suppress.
properly
3. The
raised
tion to
pellant’s standing
the automobile at
mo-
(1979),
Appellant’s
61 L.Ed.2d
tion.
argument
centers on
reasonably, justifiably
but also of who
although
had been
Robison
fact
legitimately
that expectation.
harbored
reported missing, the
was not
automobile
determining
The limits for
existence of a
stolen,
reported
nothing
there
legitimate
expectation
privacy as to a
in the record that indicated the deceased
particular
first,
accused is twofold:
did had
given
not loaned or
the vehicle to the
(sub-
he exhibit
his conduct “an actual
Further,
appellant.
asserts
jective) expectation of
privacy[;]”
peace
stopped
that at the
time
officers
second,
did,
if
subjective
he
was that
knowledge
they possessed
expectation
society is prepared
“one that
that a
source
crime
”
recognize
as ‘reasonable.’
Smith
perpetrated.
disagree.
We
Maryland,
H
Austin,
they
stealing
where
had discussed
trial court
the jury
instructed
Clary
accomplice
an automobile
as matter
utilized
future rob-
of law
and
it
appellant
could not convict the
becoming acquainted, Clary
beries. After
upon Clary’s testimony unless it found
was introduced to
several women
“other
evidence in
case outside the
appellant, including
McKinney,
Pam
whose
tending
Clary
evidence of
Otis
...”
James
appellant
house
Clary
both the
and
fre-
connect the
with the offense
quented, and on several occasions made
charged.
overnight visits.
determining
sufficiency
evi
morning
On
of November
dence
the testimony
to corroborate
of an
appellant accompanied by
Clary, left
accomplice, we eliminate from considera
Halfway
spend-
Dismas
House. After
tion
accomplice’stestimony,
case
this
ing
day
much of the
at various locations in
Clary,
that of
re
James
examine the
Austin,
east
began
the two
their search for
maining
evidence to ascertain whether
Appellant
a car.
already procured
had
independently
appel
tends to connect the
weapon
Ricky
appel-
from a
Johnson. The
capital
lant to the commission of
murder.
Clary
lant
carefully
examined several
State,
(Tex.Cr.App.
Reed v.
it was following Through that on the Rickey Johnson. revealed weekend had rented from Hall, investigator disappearance appellant Aus- with the Robison’s Howard “beer, li- Department, buying the State was able freely spending money tin Police food, the officer retrieved asked and whatever we quor, establish weed Johnson, Rickey as Johnson lead gun from for.” investigators to location where McKin- Lindly partially confirmed Ms. concealed. had been also testified ney’s testimony in that she Salazar, de- the roommate of the Maria appellant had that it was indeed true ceased, testimony by pretrial to her added keep gold watch requested she a Seiko evening informing jury that on the however, re- safety Lindly, a chain. with wearing a disappeared she was Robison Moreover, Lindly wit- request. fused such watch, face with a small white gold Seiko a small cali- Clary possession nessed Additionally, safety link chain. and little Exhibit handgun to the State’s identical ber kept in the that Robison she confirmed as the murder identified which was kit, tool blanket of her automobile a
trunk weapon. a road emer- orange towel case of Hall, in the vehicle passenger Anita gency. arrest, appellant’s testified at the time acquaintance of McKinney, a female Pam appellant he first met the that when she Clary, related that appellant and both the however, vehicle; days three some six months met the some she had driving the white Oldsmobile. he was later Further, approximately prior his arrest. Staha, with the another officer Howard death, Clary prior to Robison’s one week he ar- Department, testified Police Austin in his visits accompany appellant started to arrest and appellant’s scene of rived at the vis- residence. When the McKinney under ar- placed appellant had been after appellant nor commenced neither its first patdown search rest he conducted however, vehicle; on the possessed Clary appel- on the which was seized a checkbook appellant’s arrest Friday morning prior to Donovan buttressed person. lant’s up at Clary showed appellant’s adding that testimony by McKinney in the white Oldsmobile. home 24” card. “Teller was Robison’s checkbook McKin- appellant chauffeured At that time Ewald, President Vice J. Senior Vincent Austin, during ney to various locations Austin, con- Republic Bank with purse in the lady’s which time she noticed account had an the deceased firmed that She of the vehicle. passenger front area a “Tell- issued and had been the bank with pos- appellant was also testified that the 17, 1983 at November 24” and on er card watch lady’s gold Seiko session of a withdrawal fifty dollar p.m., 11:39 sister, Linda give it to had tried to on a automatic the card transacted addition, appel- She, in witnessed Lindly. in Austin. machine teller face with morning wash his the next lant Urbanousky, a Through Joe Ronald from the taken orange towel he had Department Pub- the Texas chemist for towel turned the McKinney later vehicle. frag- hair proved that Safety, lic the State investigators. police over to hair were pubic appellant’s ments similar sister, McKinney’s Pam Lindly, Linda ve- of the victim’s in the rear seat found the East Austin with her at also lived who Negroid pubic hair found and that a hicle address, on November testified that microscopically panties the victims to a take her had the she pubic hair. same as clinic, transportation local Schlachter, techni- an identification Paul white, driving Delta 88 Oldsmobile. evi- cian, the scientific supplemented then spotted a brown she While finger prints from the identifying board; dence gratuitous- purse on the front floor Robison recovered effects of personal purse her that the ly, appellant informed *9 appellants. as of the vehicle the trunk wife who “belonged to the friend’s Next, appellant The above obviously evidence was ad- the State connected the very dition to the inculpatory the Rickey fact that weapon. to the murder Johnson appellant was found in possession the gun corroborated that he had rented the victim’s vehicle and property other stolen appellant Thanksgiving before sometime belonged to which her. weapon and that the was returned to addition, by pubic In him his brother. hair eliminating Clary’s from testimony
After
fragments
samples
hair
and other
recov-
only
consideration we need
determine
pant-
ered from the vehicle
the victim’s
testimony
the
whether
of the other wit-
physical
appellant’s,
finger
ies
the
nesses
other
evidence intro-
matched
State tends to link the
appel-
the
prints
belonged
duced
found
items
were
on
which
lant
the
with
commission
the offense.
the
victim which were retrieved
the
State,
State, supra;
v.
Reed v.
Brown
Also,
trunk
the automobile.
several wit-
Meyers
(Tex.Cr.App.1984);
appellant
in pos-
nesses confirmed that
was
State,
v.
(Tex.Cr.App.1982).
In directly appellant the instant the corroborat tends to but does connect evidence shows that was participation offense this Clary shortly kidnapping before that a ration- case. We therefore conclude day again and the Clary’s next was jury al could have believed that company appear when both made an crime, circumstantially linked this McKinney Although ance at the residence. testimony Clary. In- even absent the presence company of the accused deed, that a trier it is inconceivable rational accomplice, near the time of the judge the evidence in of fact could offense, while alone is not conclusive it Therefore, hold that the other manner. we important nevertheless is in de factor accomplice testimony of James witness termining Killough corroboration. sufficiently Clary more than corrobo- State, supra, at su 708; Brown thus, rated; was sufficient to evidence pra. Further, prior to the commission of guilt. appellant’s establish offense, Clary neither nor argues the trial next possessed an automobile but November failing committed reversible error court appellant appeared grant motion for a mistrial white, McKinney driving home Delta 88 argument during prosecutor’s at the Oldsmobile, ultimately proven which guilt-innocence stage of close addition, ap In belong the victim. prosecutor commented on trial because pellant possession to be in found Losada v. testify. appellant’s failure to victim's “Teller 24” card. It should also be (Tex.Cr.App.1986), S.W.2d 305 noted that this card was not succinctly reiterated what we Court possession per but was on his immediate constituting comment consider would son in his checkbook. Use card was of a criminal defendant to on the failure proven place taken approximately have the dictates of the testify in violation of time of the deceased’s initial abduc tion Amendments and as University campus. from the of Texas and Fourteenth Fifth *10 38.08, in Article
statutorily embodied
V.A.
He started
with that car. And
off
C.C.P.6
go any
I
point,
further,
before
A
on a
think what he said about each one
prosecutor’s comment
defend
of
testify
through
ant’s failure to
offends both our
it.
as he
He said
these
[went]
Federal
and
Nick
prove
Constitutions.
anything. He made
this doesn’t
State,
(Tex.Cr.
ens v.
S.W.2d
occasions,
statement on several
that
App.1980). For a statement to constitute
prove any-
in and
this doesn’t
itself
testify,
to
a comment on
failure
put
things to-
thing. You
all
those
language of such
statement must be
gether,
gentlemen,
you
and
ladies and
intended,
manifestly
or of
either
such
picture
this case.
see the
in
naturally
the jury
character that
would
several
those
glossed
He
over
necessarily
and
take it to be
comment
attorney]
things, but he [the defense
to testify.
on the defendant’s failure
Mr.
car. And
talked about
State,
(Tex.Cr.
Griffin
up
car
there
putting
in
Anderson
App.1977). For an indirect comment to
you,
you
Jackson told
also told
what
error, it
call
constitute reversible
must
that
people about
what Jackson told
or
a denial of
assertion
fact
police
particular,
car in
offi-
first
contradictory
that
the de
evidence
two
to
names
cer he talked with
position
is in a
to offer.
fendant
Short
car
He had the
guy
Houston.
from
(Tex.Cr.App.1984);
went the idea of right. objection All THE COURT: cross-examining him they could use disregard sustained, jury will purpose in accomplish their trying anything said as indication or any case, the Defend- and that is to have or not the Defendant testified. whether Higginbotham guilty. not Mr. ant found I for a move MR. HIGGINBOTHAM: things talking about all those started mistrial, Judge. board, that Mr. Anderson on the [second Denied. THE COURT: put up prosecutor chair the case] say I intended MR. WALSH: What I talk a little bit And want to there. who testi- none of the witnesses was that may he I not touch about what said. trial, police officers in this fied about, I but want he talked everything Jack- of these other witnesses any thought high things that I hit the car, said that talked to about son points. testify so defendant to the failure of but Code Criminal 6. Article 38.08 of Texas against circumstance be taken as a states: shall him, Procedure to or be alluded shall the same nor Any action shall defendant a criminal therein, in the cause. counsel permitted testify commented behalf in his own got Clary; Wainwright Witt, told them he that’s the as set out ments *11 I point trying to L.Ed.2d 841 make. However, Witt, (1985). id., Wainwright v. Appellant last asserts that the sen applicable. is not even quote tence the underlined from the portion a substantial is true that prosecutor’s argument It closing is a direct Cathey dire examination was con- voir comment on the failure to testi contradictory responses her cerned with to fy- her questions regarding attitude about the gave The record shows that penalty. On one occasion the State death implausible contradicting explanation challenge did her for cause “because acquired as to how he the Robison vehicle opposition penalty.” stated to the death to Officer Donovan and on least two However, questioned the defense then other occasions he informed State’s wit- prospective juror challenge and the State’s nesses that he borrowed the vehicle from a granted. Consequently, for cause was not Looking prosecutor’s friend. argu- at the regarding the standards the excusal of a ment, Higgenbotham “Mr. or Mr. Brook- juror prospective opposed to who attorneys] shire neither one told [defense penalty Wainwright death as set forth in said, you and got no one this case had T Witt, id., just simply implicated not Clary. Clary just car from James Otis that ground of this error. up got ...,’” showed car I with that began question Cathey The State then to portion in context with the other relevant regarding proof the State’s standard of argument, of his simply reminding he was necessary return jury to authorize a to jury appellant explained that whenever responses issues, special affirmative to the witness acquired pos- as to how he assuming guilty verdict has ren- session of the Robison car never stated dered: Clary gave it to him. This was By Mr. Walsh: means a remark manifestly "... intended or of such a character the jury would [******] naturally necessarily take it to be a your feelings With about the death
comment on the defendant’s failure to testi- if penalty you given these two fy.” State, Losada v. id. We also con- questions [special or three issues under clude that arguments were not such 37.071(b), answer, Art. V.A.C.C.P.] they called for a denial an assertion you could follow that standard of a rea- of fact contradictory evidence which you require sonable doubt or would only appellant position to offer. higher to meet such as burden assuming Even did in- statements beyond beyond a shadow a doubt or directly refer to appellant’s failure to testi- you all doubt before could answer those fy, we find that the trial court’s immediate questions “Yes?” disregard instruction to was sufficient to I say beyond A. would have to all error, any. State, cure if Hawkins v. doubt. 660 S.W.2d (Tex.Cr.App.1983); Q. you you So before told have could— Thompson State, 537 S.W.2d 734-35 Judge and you us that could follow ” (Tex.Cr.App.1976), Alvarez v. “Yes, the law and answer but before (Tex.Cr.App.1972); see ques- could answer “Yes” to all those also supra, Gardner v. at 700 n. 13. prove tions we would have ground Appellant’s of error is therefore doubt; you beyond right? all is that without merit and is overruled. Right. A. Appellant ground his next of error Q. to square So we’re back sort of one contends that the trial court erroneously business, this Cathey. on law Mrs. Like granted challenge the State’s Judge for cause says, procedure this be as will against venireperson Dolly Cathey, and in he outlined. But one of the instructions posits proposition his brief give going such under the law that he is exclusion was violation of require- jury is that if believe that the question Now, “Yes” your you’re voting should answer mind when doubt, beyond they are you require go way a reasonable would them to all the telling me you’re doubt, vote “Yes.” And what beyond beyond it be all or would is, as as the and the instruction far law you doubt? reasonable Do understand? that, goes along you just go couldn’t A. Yes. that; you have have it would Q. try- I hope trying to—I’m —I’m beyond all doubt. ing to stay middle define my A. mind. going a definition and to without into *12 Q. you your if Right. So even felt explain going without into a defini- this proven beyond mind that we had of But beyond tion a reasonable doubt. doubt, you reasonable would want told question. that’s the line You bottom proven your you mind to have it to be- beyond doubt, you us all that that’s what yond you doubt where wouldn’t have all wrong nothing that. mean. There’s all; right? is that doubt Remember, wrong answers there’s no Right. A. here; wrong okay? nothing So there’s challenge to sought standard, The then veni- your State If that’s that’s with that. ground she reperson Cathey fine; on the you what we want to know. that’s in an tate follow the court’s instructions. point, would meet. The defense burden of sistency yond all doubt. that’s what would ments are which is would instruct something less you is: “What would mum. den of By the Court: Now, So following inquiry Cathey effort [******] the trial court require assuming of proof] require, beyond proof than the law How something to have her Cathey’s responses, and she did state she beyond you question that was asked is much beyond that the maximum [bur- than told you State attempted recognizing a reasonable less than the then took Mr. Walsh that you less clarify to meet a all require I maximum, be- all doubt, I mean requires it to don’t to intervened doubt. place: position. require- rehabili- them At this doubt, higher know, maxi- incon- could you of I her heart she vote lenge for cause. court’s prove that the swered you’re A. Yes. you’d A. Yes. instructions Q. what able doubt? yond a You trial court If for go beyond So Eventually, doubt, your told inquiries, Cathey beyond a “Yes” answer. to the burden say, you saying to reasonable if us [Emphasis standard is a I told “Well, would even would special issues should be beyond all granted the State’s all doubt though you me? but I doubt;” doubt, you got require, beyond require of direct all doubt. added.] beyond reason- and I conceded that before feel At that very strong I that’s told is reply the State like I’ve to read she could juncture, you hold the fine, Is that what chal you too. got an be- all doubt, beyond all prove?” you And said if a consistently held that This Court has beyond a higher than which is a standard juror manifests an intention prospective that? you see reasonable doubt. So proof to a stricter burden of hold the State trial phase capital murder A. at either Uh-huh. doubt,7 beyond a reasonable that of than you, Q. asked Higginbotham Mr. Then venireperson certainly sub then such a the instructions you “But could follow cause, for be, challenge for to a State’s ject would My instructions the Court?” upon “phase of the law clearly this is a reasonable beyond a go they only have for con rely is entitled which the State doubt. doubt, all beyond 1293 35 Vand.L.Rev. stan- tutional Guarantees? various article McCauliff, 7. For an excellent (1982). Burden proof see dards of of Proof: Evidence, Consti- Belief, Quanta Degrees 17 35.16(b)(3), punishment,” impaneled juror as a chal- viction Art. unless State, v. 726 S.W.2d lenged, V.A.C.C.P. Wilkerson but cause shall be unreason- State, (Tex.Cr.App.1986); 542 Franklin ably on account of delayed his absence. (Tex.Cr.App.1985); Haw 693 S.W.2d added). (Emphasis State, (Tex.Cr.App. kins v. S.W.2d State, In Porter 623 S.W.2d 1983); State, 665 Woolls v. S.W.2d (Tex.Cr.App.1981) this Court held that (Tex.Cr.App.1983). Venireperson Cathey “may” the verb indicates that attachment abundantly require made it clear she would jurors directory absent and not man prove punish the State its case at the datory. for order the denial to consti stringent phase of the trial ment a more tute reversible error it is incumbent on proof beyond than standard a reasonable injury to establish that an oc Therefore, adequate finding an ba doubt. grant curred the trial court’s failure to support sis in the record to court’s trial request for attachments. Dent Cathey conclusion that hold the would State, 504 455 (Tex.Cr.App.1974); S.W.2d proof State to stricter burden of Stephenson issues, purposes resolving special we (Tex.Cr.App.1973); *13 Brown v. hold that it was not error to sustain the challenge (Tex.Cr.App.1971). S.W.2d No State’s for cause. abuse of the trial court’s has discretion Appellant next raises three related shown; appellant’s ground is of error grounds of error for which he neither re- therefore overruled. proposed cites the factual context of the presents or any legal authority. errors Second, appellant complains the First, argues court the trial trial court prospective excused number of denying appellant’s erred in motion to at- jurors any being given. Af without reason (nine) prospective jurors tach a number jurors’ prospective ter the excuses were appear. who summoned were and did not qualifications tried, heard and their The trial court per- had assembled those ready after the announcements of ar jurors sons who had been summoned as raignment, appellant interposed the ob an this case and the clerk then called the jection original “exclusion from to the the of the jurors names absent are who panel following people....” of the some subject ground of the of error. After nu- objection cur The was that “the prospective jurors disqual- merous were excused, jury compli rent this array ified or was not in trial court took its Upon noon returning recess. from the ance with dure_ Code of Criminal Proce- lunch break both the defense and State all It’s found 35.04. cited I’ve 35.04_ ready, announced to the 35.01 and court Article arraigned. The then moved for complaining What we are about are those jurors writs of attachment for “those who jury duty who were summoned for did up.” not show The trial court denied comply for—either not with the did statute the motion. as far as excuses are concerned and were panel, still dismissed from the overall or 35.01, Y.A.C.C.P., provides: Article just up didn’t we ones that show and a case When is called for and the trial why have no reason know didn’t parties trial, ready have announced for the, appellant up.” show Yet has failed jurors the names of those summoned by showing demonstrate harm that he was case shall be called. Those not accept objectionable juror. forced an
present may exceeding fifty be fined not Esquivel S.W.2d An may dollars. attachment issue on denied, (Tex.Cr.App.1980),cert. request party either absent 251; 66 L.Ed.2d S.Ct. Porter juror, summoned brought to have him State, supra; Stephenson su person A court. before forthwith pra, Consequently, is 5. is present, may who summoned but not at 905 n. no error upon appearance, jury Accordingly, appellant’s ground of before the is shown. qualified, be tried as qualifications to his error is overruled.
Third,
distinctly
purpose
no other
than to
inflame
similar
but
preceding
immediately
jury
prejudice
minds of the
them
different from the
error,
Appellant
specify
contends
does
ground
against
him.
denying
photographs
trial court erred
form the
of two
basis
which
panel.
quash
jury
error,
motion to
complained
nor does
cite
After
panel
qualified, but before
jury
had been
support
any authority to
his contention.
commenced, appellant
the voir dire had
consequences
grave
which
Because
court to
the trial
presented
motion to
previous
like
presents,
case
the three
this
alleged
in essence
quash
jury panel. It
re-
grounds of error we
endeavor to
will
jurors
ex
sixty prospective
that over
his claim.
view
persons and that writs
cused
unknown
During
offered
the trial
two
had been denied.
affi
of attachment
prior to the
photographs of the deceased
accompanied the motion stated
davit which
autopsy. Regarding
performance
jurors
approximately one-half
depicting
de
photographs
introduction
made available for
“had been
summoned
condition,
Court in
ceased in such a
mo
denied the
selection.” The trial court
(Tex.
State, 475
Martin
tion.
Cr.App.1972) held:
35.06,V.A.C.C.P.,provides as fol-
Article
photograph
compe-
if a
We hold that
lows:
tent, material, and
to the issue
relevant
and determine
The court shall hear
trial, it
not rendered inadmissible
interrogat-
challenge
array
before
gruesome might
it is
merely because
qualifica-
as to their
those summoned
passions
jury,
arouse the
tend to
[Emphasis
tions.
added.]
solely to
unless it is
inflame
offered
*14
provides:
and Article 35.10
descrip-
jury.
the
a verbal
minds of
If
array
challenge
to the
has
When
body
the
and the the scene
tion of
made,
made,
if
has been over-
or
admissible,
photograph
a
de-
would be
ruled,
proceed
try
the
the court shall
(Em-
the
is admissible.
picting
same
present who have
qualifications of those
omitted).
added) (footnotes
phasis
jurors.
to serve as
been summoned
photographs herein are
We find that the
timely.
Thus,
not
appellant’s motion was
material,
competent,
and relevant
noted,
35.06, V.A.C.C.P., re
As
Article
at trial. State’s
that were raised
issues
challenge
array
quires a
59,
photograph
appel
Exhibit
first
in
before those summoned are
presented
to,
the condition
objected
demonstrates
lant
Ap
terrogated
qualifications.
as to their
body
The
body was found.
in which the
timely
the chal
failure to
raise
pellant’s
fully
with the hands
seen
dressed
could be
qualified by the
lenge
panel
before
behind her back with
of the deceased bound
op
of the
court constituted a waiver
trial
similar to the one that
a blue bandana
challenge
Esquivel
array.
portunity
This
testified
owned.
witnesses
addition,
State, supra,
In
at 523.
v.
relevant facts as to
photograph illustrated
show
record fails
demonstrate harm
proving
clothing which was essential
accept
ing
was forced
and the man
identity of the deceased
objectionable juror
that he was de
The
in
her arms were bound.
ner which
State, 689
impartial jury.
nied an
Neal v.
60,
Exhibit
photograph, State’s
second
420,
Es
(Tex.Cr.App.1984);
424
clearly
wound and was
showed
fatal
State, supra, at 523.
quivel v.
illustrated
to its location and
relevant as
the medical examiner to
which led
the facts
ground of
In
last
error
a
The
was contact wound.
conclude that it
in ad
court erred
he claims that the trial
in
did not abuse its discretion
court
trial
gruesome
mitting
photograph that
admitting
photograph. See Adams
either
his
inflammatory
prejudicial.
brief
661,
(Tex.Cr.App.
668
685 S.W.2d
merely
states that the record
1985);
State,
19
Id.,
(1980).
176-178,
S.Ct.,
907, 100
3050,
S.Ct.
at
69
at 1311-
firmed.
Jackson, joined by
Robert H.
Jus-
Justice
dif-
Murphy,
tices Frankfurter and
took a
TEAGUE, J.,
disposition
dissents to
problem.
of the
ferent view
Fresh
of Ground
Error No. One.
Nuremburg,
protested:
CLINTON, Judge, concurring.
rights]
Amendment
are
“[Fourth
secondary rights
belong
mere
but
in
majority
Burger
of the
Court was
catalog
indispensable
freedoms.
quote
wont to
that refrain from the 1949
Among deprivations
rights,
is so
none
Brinegar
opinion
Supreme
Court
cowing
population,
crush-
effective
States which
Judge
re
United
Duncan
put-
spirit
individual and
opinion
produces
underscores in his
ting
every
terror
heart. Uncontrolled
Court,
appears
page
at
10.
It
search
seizure is one
of the first
opinions
several
written
Justice Rehn
weapons in
most effective
the arsenal
quist
Justice.
before
ascension to Chief
arbitrary government.
every
one
And
Brown,
See, e.g.,
730,
Texas v.
U.S.
460
briefly
need
have dwelt
742,
1535, 1543,
S.Ct.
103
In the instant and citation of United preceding patterns consideration of the modes or discussion Cortez, 449 411, 101 S.Ct. States U.S. operation of certain kinds of lawbreak- (1981), 690, Maj. opinion, at L.Ed.2d 621 data, 66 trained ers. From these officer 9-10, pages majority address inferences and makes deduc- draws Bill stop by made Commander deductions tions—inferences as a Dunny Donovan Pruitt and Officer person. might well elude an untrained Cortez, supra, 421- “Terry stop.” at See Finally, the evidence thus collected .... (test 422, S.Ct., 697 101 at not whether weighed must seen ... as under- be to conclude” “probable cause officers by those versed in the law stood field of aliens, but whether vehicle would contain enforcement.” picture, they, expe “based on the whole Id., at 101 at 695. S.Ct. officers, rea patrol could rienced Border engaged sonably peace surmise” vehicle was Thus still deal with while officers activity). criminal de- Cortez “probabilities,” the formulation “con- probabilities assayed mands Cortez opinion in is the first effort by] everyday life on siderations [acted expand apply Supreme Court men,” but on all prudent reasonable Ohio, 20 Terry v. 88 S.Ct. 392 U.S. incriminating circumstances as understood (1968), “investigative L.Ed.2d 889 to an peace officers versed in law trained moving motor In that stop” of vehicle. Indeed, probable finding enforcement. Supreme Court went type of situation the Supreme cause Court seems be mov- is not through analysis based Brinegar Brinegar dogma Brinegai ing away from the the refrain in —neither notably Chambers followings, “particularized suspicion” most nor its toward the Maroney, Brown, supra, Cortez. See Texas are cited in Cortez. U.S., (1970), 742-743, S.Ct., L.Ed.2d at 1543.3 See at practical consid- Gates, Rather than “factual and U.S., supra, 462 at also Illinois everyday life on which reason- eration 231-232, S.Ct., at 2328-2329. Cortez prudent [act],” men able and join judg- With those I observations particularized and analysis focuses on “a ment of the Court. particu- objective suspecting basis for activity.” stopped of criminal person lar
Id., 417-418, S.Ct., U.S., at basis, turn, ele-
695. That contains two ments, the first of which is an assessment circumstances, viz: all
based on analysis proceeds with various ob- “The observations, jective information *16 zure, "possessed probable cause to duress 3. Thus the officer it was a form of coercion and “an illicit sub- a balloon contained very believe” authority formid- under official —and stance" because: type able of duress at that. aware, road, "Maples that he was both testified a car is forced off the [WJhen .... participation previous narcotics from his siren, stop by brought to summoned other offi- from discussions with arrests and cers, here such circumstances as are a halt under manner of the tied that balloons disclosed, the officers are then we think frequently used possessed Brown were one position of entered a home: one who has testimony cor- carry This narcotics. valid search at its commencement must department police that of roborated up. saved turns and cannot be what it ‘common’ for that was chemist who noted omitted]. [Citations packaging to be narcotics." balloons used findings make of the two courts below addition, Maples was able to observe began proceeded clear that this search it through compartment glove of Brown's contents phases without critical coercive car, suggestions that which revealed further probable justification of cause. What it might engaged in Brown was activities yielded cannot save it.” possession of an illicit substance.” involve