*1 LYNCH, Petitioner, Wayne JANECKA, Appellant, James M. Allan v. Texas, Appellee. The STATE of KAMPS, Birgit Respondent. No. 68881. No. D-1818. Appeals Texas, Court of Criminal
Supreme Court of Texas. En Banc. 12, Feb. 1992. 31, Jan. 1990. Rehearing 11, Overruled March 1992. 15, Rehearing On Jan. 1992.
Dissenting Opinion Rehearing Jan. 1992. Rehearing Dismissed Feb. Storey, Sartwelle, JoAnn Thomas P.
Houston, petitioner. Barnett, Wray, Nancy
T.J. Fritz M. Houston,
McCoy, respondent.
PER CURIAM. settling brought against
After a lawsuit
him employer, Lynch and his M. James
appealed discovery imposed sanctions
against him in the course of the lawsuit appeals
$1000.00. court of dismissed
Lynch’s appeal in reliance on Schein v. Inc., Group,
American Restaurant (Tex.App. S.W.2d 78 Worth —Fort denied), disapproved
writ
a case we
later
(Tex.
Knauf,
Felderhoffv. 1991). denying petitioner’s application error,
for writ of we should not be under- approving disapproving
stood as of the appeals’ analysis dispositive
court of
issue in this case.
233 O’Brien, Sparks, Doug W. Kenneth Houston, appellant. Holmes, Jr., Timothy Atty., Dist.
John B. Taft, (Opinion A. after Robert Moen G. Houston, only), Attys., Asst. Remand Dist. Huttash, Atty., W. State’s Matthew Robert Paul, (Opinion on Re- Atty. Asst. State’s Austin, hearing only), for the State. AFTER REMAND FOR OPINION EVIDENTIARY HEARING DAVIS, Judge. W.C. mur-
Appellant
capital
was convicted of
der under the remuneration section
Code,
19.03(a)(3) and
Penal
Sec.
V.T.C.A.
by injection
sentenced to death
after
findings to
jury
returned affirmative
special
Art. 37.-
the first two
issues under
071(b),
appeal
On
we
V.A.C.C.P.
direct
affirmed the conviction.
Janecka
Appel-
(Tex.Cr.App.1987).
rehearing,
filed a
lant then
motion for
alleging
disposing
of his
this Court erred
point
first
of error wherein he contended
overruling
mo-
trial court erred in
quash the
as he was
tion to
indictment
adequate
deprived
notice
the State’s
include
indictment the
failure to
within the
providing
individual
the remu-
name of the
killing
in the
he was
neration
which
charged.1
found
original submission this Court
On
item
appellant
requisite
denied a
held the
to be a defect
of notice but
error
Applying
than
of form rather
substance.
the test set out
Adams v.
held the
(Tex.Cr.App.1986),
we
S.W.2d
harmless.2
error to be
Adams,
decided af-
supra, was
Because
tried,
agreed
cause
we
ter the instant
rehearing
in his motion for
charging
complete
instrument
1.
of the facts of the
determined whether
For a
discussion
(Tex.
convey
requisite
see Janecka v.
S.W.2d 813
case
Cr.App.1987).
some
item of “notice."
failed to
inquiry
given,
ends.
If sufficient notice
whether,
not,
step
determine
If
the second
is to
test,
important question
Adams
Under the
case,
deficiency had an
in the context
particular
form
to answer is whether
defect of
ability
prepare a
impact
defense,
the defendant’s
charging
prejudiced
sub-
instrument
so,
impact.
great
how
and if
rights
be
of a defendant.
It must first
stantial
given
that he be
an opportunity to demon-
indicted but never tried for the murders of
strate harm as a result of the trial court’s
family.
Wanstrath
Waldhauser was
error in overruling the
quash.
motion to
available as a witness in the Zabolio case
We
appeal
abated the
and ordered the trial
but was not called because he was con
court to hold a
to allow
sidered untrustworthy and unreliable.
If
*3
opportunity
the
fully develop
allega-
he had been called
testify,
plea
all the
tion of
Appellant’s
harm.
remaining
bargaining material, including
capital
the
grounds for rehearing were
charges against him,
denied. Janec
would have been
ka,
Attorney had also O’Brien “totally agreed” pated Quash in the defense. He filed a 3. The defense motion Sparks’s testimony. seeking identity of with the Indictment the following rea- the for the remunerator Attorney Randy called was as an Shaffer sons: hypothetical expert given witness and a information; a. to seek in using the same facts as the instant case. capital to defend the b. to be able required Shaffer testified that trial counsel a element of remuneration to allow actual, alleged formal notice the remun- of of- jury of the included verdict lesser strategy at- adopt erator in order a of murder; fense of lesser tempting secure a conviction. specific allegation in the indict-
Without the c. to seek instructed verdict ment, the defense be unable to cast would regarding: close of the State’s case the so doubt on individual who was named (i) re- insufficient evidence as possibility and thus raise the of a lesser munerator; being given A charge jury. the formal (ii) proof re- possible variance also, allegation opinion, was Shaffer’s garding the remunerator. necessary possibly enable the defense to what 4. was of The defense unaware sufficiency by the the ei- test of evidence attempt regard- prove the State would motion for ther a instructed verdict or ex- identity the the of remunerator sufficiency argue appeal. There was Mark cept possibilities the were that absolutely way “no other to do it.” theOn Duff-Smith and Walter Waldhauser. issue, punishment pointed that Shaffer out Waldhauser, 5. co-defendant Walter plea evidence of Waldhauser’s favorable plea bar- appellant, made written against bargain mitigate impo- could act to prior to gain agreement with the State punishment. capital sition of in- began that appellant’s trial date Master, sitting by order Special A of he would be agreement cluded an court, following findings made the of (30)years in the Tex- thirty sentenced to fact: Corrections, Department of as The State’s file was closed to the 1. prosecuted for other not be would defense, report police and the offense had crimes that he committed. by the defense from not obtained agree- plea 6. Waldhauser The written any other source. for im- ment have been admissible among The confession Waldhauser peachment purposes 2. had things the State. by other reveals: a witness been called as a wit- was not called as a.Page 1. Waldhauser paragraph appellant last — unable jury ness the State. that Walter Waldhauser never stated bargain. plea details his “Mark.” hear the mentioned name fact, re- upon Based attempt no to dem- The defense made record, appellate and all doc- resulting view harm or establish onstrate file, in the trial court’s the Master uments overruling of the Motion to from the following conclusions of law: made Quash defense was not aware since the harmed any requirement appellant 1. The that it had burden However, failure to name the remunerator Appellant’s Motion State’s do so. in the indictment and the Court’s failure following Judgment filed Arrest Quash grant appellant’s Motion to failure to alleged conviction the Indictment. person providing the remunera- name the give proper allegation regarding tion failed to the defendant 2. The lack of an properly identity notice and left him unable remunerator negative impact on the himself. indictment had a defend preparing and con- terms was, if strategy Walter 9. The defense ducting his defense. in- named Waldhauser had been put never to a test of 3. The State was the remunerator been dictment as regarding identity of the re- proof and the called as witness allege murder, then, by its failure to munerator capital convicted of remunerator. handled appellant’s attorneys would have *5 (sic) punish- punishment state and testimony the 4. The of Walter Waldhau- differently. They ser, by would argument ment if as a witness the called light the for the compared provided and contrasted ammunition have would have by impeach him and would have virtue defense to sentence of Walter Waldhauser comparison prosecution’s provided unfavorable be- plea bargain and the an of his punishment of Waldhauser jury for a death sentence tween the rеquest to the appel- of requested punishment though they were and the the even for killings.. lant. co-participants in the op- deprived of the 5. The defense was knew what theo-
10. The defense never a variance or con- portunity to establish during its case ry pursue the would State re- the evidence sufficiency test the of regarding identity the of the in chief remunerator. garding identity of the except it could be remunerator or until Duff-Smith Waldhauser were findings and conclusions The above defense its case and the State rested by the trial court on subsequently adopted go- not learned that the State was then the eviden- record of March 1988. The prove any theory. together tiary hearing, rely The defense was unable above, subsequently were and conclusions identity re- any allegation of the court. Clerk of the filed with the indict- by the since the munerator State the Adams under question It is a of law allegation an re- ment did not contain whether, context of the “in the standard identity of the remunerator. garding the requisite case, (failure convey some this (sic) Duff-Smith was nevеr 12. Markam the de- ‘notice’) impact on had an item of killings. prosecuted for the Wanstrath defense, prepare ability fendant’s Adams, 707 impact.” great an case, reviewing finally, how present after In the court, through the case, The trial at 903. opinions in the we S.W.2d prior record and review the Master, correct to Special findings of fact Special find the Master’s substan- prejudice sup- record for on remand are relative to the issue defect of form rights from the adopted tial by the record and will be ported by as directed legal charging instrument may turn to the We now this Court. Although we remand instructions. cause was re- Court’s question upon which the law, conclusions of by those manded; is, are not bound whether are constrained in the instant case we demonstrating he suffered successful by the reached the conclusion in form hold a result of the defect harm as Ap- record. supported trial court is the Adams standard. under proof sufficient of possibility of Duff-Smith. Absent pellant was faced with remunerator, against allegation naming one defending an as the defense Duff-Smith possible both remunerators: Markham to seek strategy would have been a convic- Duff-Smith and Walter Waldhauser. murder, the lesser thus tion on offense as to being addition to the indictment silent up or to avoiding penalty, the death set killing, paid prosecutor’s for the who concerning appeal a variance be- issue for open inspection by not defense file was allegations in the indictment tween equi- It is counsel. difficult to measure proof trial. ty requiring prepare a defendant to Similarly, the facts elicited at the eviden- trial, case, especially capital in a without could tiary reflect that defense material, highly if not benefit notice of a if had been have benefited Waldhauser being by the “substantive” factor revealed as remunerator. Waldhauser had named in its which allow indictment will fact been named in another related investigation strategic re- decisions indictment, may per- fact which pending garding the case to be made. haps upon reflect the State’s motivation Adams, supra, Unlike case structuring charging the instаnt instru- instant cause not concern a choice of does practical upon ment has no effect but substantially descrip- unnamed similar disposition appeal. basic strate- There, tive in the indictment. elements defense, gy had Waldhauser been Adams he was from contended hindered remunerator, assuming named as Wal- preparing against charge his defense testify, called dhauser would have been obscenity allege because the State failed to im- attempt have been to first of two films allegedly which were obscene. plea agreement. peach Waldhauser with alleg- Without notice of what material was re- capital If a conviction was nevertheless *6 obscene, contended, edly Adams he could turned, point that defense would out prepare adequate not an We defense. Waldhauser, participant in the an active agreed finding Appeals’ with the Court of killings, granted leniency by had been quash that motion to should have being appellant that the inference granted for of also failure noticе but equal an we deserved sentence. While agreed panel’s with that that conclusion some may review such contentions with Adams had failed to show his substantial rights skepticism, speculate we prejudiced by had been can but the defect similar, form. films have jury Because the were so would returned same verdict they depicted in that same essentially special answered the issues the same or acts, is, however, conduct sexual Adams could not entirely logical It manner. possibly applica- have a theory defended on had to that the State would have call Wal- to one film not the ble but other. testify to had the dhauser stand specific allegation contained a indictment contrast, presents the instant case language The used as to the remunerator. similarity different The scenario. agreement at plea shows Adams, supra, ends with the number of using him as least considered witness. possible descriptive elements which could allegation separate indictment The on a provide have been included to notice of the relating killings nam- to the same series If indictment named offense. tend ing as remunerator would Waldhauser remunerator, Duff-Smith the record as was a known to show that Waldhauser provided reflects the defense have any equation. By naming not factor in the testimony showing Waldhauser never di- remunerator, effec- as the State individual rectly confirmed Duff-Smith’s involvement explor- tively prevented defense from and never the name “Mark” mentioned relationship statements, ing of Waldhauser both appellant. own Waldhauser’s preferential as well treat- the case as an trial because he was not never issue at Although it is witness, ment the authorities. money called as a showed could certain that the defense appellant, shared himself and no means between against cap- successfully have identify did not the source of the funds as defended ital offense or charging obtained a sentence less instrument convey failed to death, than there is no doubt that the requisite sub- some item of ‘notice’. If suffi- rights appellant stantial pursue such given, cient notice is this ends our in- strategic avenues was prejudiced by the not, quiry. If step the next is to decide defect in form. whether, case, in the context of the impact had an on the defendant’s ability testimony The evidentiary elicited at the defense, prepare and, finally, how hearing reflects the State’s failure to name great impact. impacted upon ability remunerator the defense attempt prove Adams, a variance I, at 903. In S.W.2d Janecka between the indictment and evidence dur- 739 813. This S.W.2d Court answered the trial, stage the first ability and its question posed by first Adams in the af- mitigate punishment at stage. the second holding appellant firmative. After test, appellant Under the Adams has dem- was entitled to indictment-notice of the particular onstrated harm in that the defect remunerator, identity of the we remanded charging of form in the preju- instrument this case in order to allow rights. Adams, diced his substantial su- provide concerning impact evidence what pra. this notice defect had on his defense. Ja- I, (opinion necka S.W.2d The conviction and sentence are re- rehearing). versеd, and the cause is remanded to the 44.29(c), trial court for new trial. Art. In response to the evidence adduced at V.A.C.C.P. hearing, several of fact were made.1 majority The holds that these find-
WHITE, J., concurs the result. ings record, supported by of fact are DUNCAN, Judge, concurring accepts and therefore them true. I as do dissenting opinion. dispute accuracy not findings. of these Instead, I provide believe that these facts do not think that the was able showing an insufficient of harm to warrant under show Adams v. reversal under Adams. (Tex.Cr.App.1986) was harmed by the absence the indictment of the majority inexplicably focuses on four name of the going individual who was aspects might defense that *7 supply the money for the murder. How- changed pleaded have had the State ever, I still maintain that it is incorrect to identity of the remunerator the indict- designate that information a matter of majority’s ment. The first assertion is that form rather than substance. See: Janecka Walt Waldhauser would have been forced v. 739 (Tex.Cr.App.1987) S.W.2d 813 testify, allowing appellant op- to thus (Duncan, Therefore, dissеnting). J. as far portunity impeach Waldhauser’s testimo- concerned, as I supra am Adams v. ny. suggestion Such a is unfounded. Therefore, applicable. was not even I con First, appellant’s quash had motion been cur in the result. granted, and the had amended the State indictment, the indictment could have iden-
CAMPBELL, Judge, dissenting opinion. tified either or Markham Waldhauser proper evaluating The standard for a mo- individually; Duff-Smith it could have quash, tion to when based on a notice de- identified both Duff- Waldhauser and fect, was set out in Adams v. 707 Smith; it could have identified Waldhauser (Tex.Cr.App.1986). S.W.2d 900 Duff-Smith; or, finally, it could have important question alleged any The is whether a de- all of these combinations adequate prepare Assuming arguendo fendant had notice the alternative. that his step answering defense. The first the State would have chosen to narrow its question this is to by alleg- decided whether the prosecution available theories of Because, majority opinion majority op. pp. sets out these here. See 235-236. fact, findings of we need not reiterate them
239 appellant. Wаldhauser was only single and further Whether remunerator assuming have indictment is irrelevant to the that the State would chosen named in the person, is partic- that there no of mitigating Waldhauser as value Waldhauser’s assuming legal basis for that Waldhauser case. ipation in this majori- have at The testified trial.2 Eighth The Amendments Fourteenth ty’s finding harm is an first reason guaran- States Constitution to the United legal on an unfounded conclusion based any defendant can introduce tee that a assumption. unfounded factual mitigation imposing a death evidence in of is majority’s The second observation that Penny Ly generally v. sentence. See pleading created the additional would have 2934, naugh, 109 S.Ct. 492 U.S. benefitting from of possibility Lynaugh, (1989); Franklin L.Ed.2d 256 argument Again, proof. variance 101 L.Ed.2d 108 S.Ct. U.S. that faulty assumption on the rests Jury Shreves, (1988); M. Sicola and K. alleged would have that Waldhauser A Mitigating Consideration Evidence: of remunerator. As discussed sole Challenge to the Constitutional- Renewed above, that there is no reason to believe ity Penalty, the Texas Death Ameri- options by limited trial State would have its (1988). can Journаl of Criminal Law amending way.3 the indictment in this addition, Supreme the United Court States suggestion possible majority’s third upheld validity capital- has the facial of our argue that harm is was forced ability to sentencing scheme and allow involuntarily, his that confession was made sentencing jury mitigating to hear relevant if named as the and Waldhauser evidence. remunerator, he could have focused ef- Thus, essentially requires Texas Law First, impeaching forts Waldhauser. aggravating of five circum- one argument, again, once assumes an can stances be found before a defendant amendment indictment would have murder, guilty capital be found testify. somehow forced Waldhauser considering impose that whether Second, testified, even had Waldhauser may be jury death sentence asked any is no there reason believe that mitigat- whatever evidence consider prove other evidence admitted can ing circumstances defense remuneration would not been intro- have that, bring it. appears It as thus Thus, duced. with an before even amended indict- Florida, Georgiа capital- the Texas ment, appellant would have been forced to guides and sentencing procedure focuses discredit his all own confession and other objective jury’s consideration evidence that was introduced on the remu- indi- particularized circumstances neration issue. There no basis for belief and the individual offend- vidual offense amended indictment would have impose er it can a sentence of before allowed this radical shift in de- *8 death. strategy. fense Texas, 262, 273-74, Jurek v. U.S. majority’s attempt justify The final a (em- 2950, 2957, (1976) S.Ct. L.Ed.2d that, appellant’s is at reversal conviction Therefore, added). if the phasis evidence punishment stage, appellant could have and sentence of Waldhauser’s involvement
argued that Waldhauser’s involvement fact, were, mitigating, the absence of offense, coupled with sentence of this his against name from the indictment mitigated Waldhauser’s thirty years, would have lighter of his against prevent could imposition penalty of the death not evidence that, require argument is legal if would 3. A twist on this variance 2. I know nо doctrine that named, witness, specific was remunerator to Waldhauser mere- the State call as challenge opportunity to his would had the have ly because was named in the indictment. In he clearly identity. Appellant’s states confession addition, whether Waldhauser was or not number that he has know Waldhauser appel- affect named the indictment would not years. portion appellant’s confession This ability call as a witness. lant’s Waldhauser any type make of mistaken iden- would seem to tity untenable. claim being presented sentence from guns and con- to 12 go and then to the Bahamas and jury.4 sidered sell them. my To the knowledge, best buying guns Walt was from Don Fan- observation, As a final appellant’s con- pawn shop. tich’s fession establishes that he had actual knowledge that Waldhauser remunerated “I didn’t see Walt but one time from him for the murders he committed. In December 1975 until June of 1978. In addition, clearly the confession states that my Walt called mother and told her appellant also money believed that the he wanted to see me. This inwas paid originated from “Mark.” There- July August. summer in or I living at fore, no pleading by additional the State my grandmother’s got and after I his mes- provided have with infor- sage I called him. mation that he did not already possess or “Walt said he keep wanted to in touch suspect.5 with me and said he had some things stated, Simply possible effect on the say fire but he didn’t what. Walt came conduct of defense that are my grandmother’s over to several different identified majority do not bear close times and would take me out to eat. Dur- scrutiny. addition, appellant’s own ing time, working this I was Jimmy words establish that he knowledge of Manteris and I Jimmy know that Walt and the issues of which he now claims that the had some dealings togeth- kind of business deprived reasons, him. For these I er. Walt or Mark Jimmy Duff-Smith sold respectfully dissent. policy Manteris an insurance camping on a
trailer that Manteris in 1977 owned McCORMICK, P.J., they either had it burned stolen to col- BERCHELMANN, J., join. lect the insurance on it. “About I Christmas of moved in
APPENDIX Village with Ben Barr in apart- Lakeside The following complete ments. I transcription lived there 3 months. I went to of a Pipethreaders statement work for Texas by appellant Katy made on the on No- 29,1980. Freeway. vember I met Rick typed statement was Thran and his wife pre-printed they on a Brenda and me form which asked to move in and related various statutory warnings expenses share the Wilcrest Estates waivers. These portions Apartments. have been omitted.
“I know appointed that I have April “Around Walt took me to eat Attorney Phillip named repre- Scardino to at the Mason and he Jar restaurant told me sent me while I am under I there arrest. have was a dude that to be wasted needed told McAnulty meaning Detective I that want killed. He me I had to do it told make a my statement I attorney’s without because had to do this I was because presence or fully advice understanding organization involved and had run being I am not promised guns. anything. I had He didn’t know when it needed to be intended everything to tell done give know but he would me more detail about Right situation when I came later. back to Texas at three weeks later he came Georgia year, from to Rick and Brenda's and sat out in we light car which is a blue Buiсk LeSabre *9 “I have known Walt Waldhauser since with white interior. I 1975. was introduced him by a Paul McDonald who was a bond runner there. “At that time he told me that there were got running guns Walt me in people involved two other involved that had to be through Florida to the I Bahamas. would family wasted also. He said it was a whole fly Miami, from Houston to Florida with 6 and there was kid I involved. told him it Appellant argue complete does not that the failure of the 5. The text of confession is evidence, jury itself, to hear this in and of con- appendix opinion. included as an to this stituted error. Mark. He didn’t tell he didn’t mention had to be killed. why me all three I no use to talk to me further because was asking me if I could find a kept “Walt being going kept do that. He wasn’t going I gun to use.' I told him wasn’t it. persistent about me if Walt asked buy gun my in name. this, just “I left out that before Walt gun. This before get could was Brenda my job and told me came to about times Rick had moved several Brenda and something up come and there two had were her to Brenda and asked days. Walt went say people more involved but he didn’t one I him help get him one but didn’t hear kid. of them was a told told me later that Brenda asked. Walt talking he in the car “Walt when was get one for and that $110.00 him she could get kept saying me that we needed to with legal. it was if I needed it done now and wanted to know right, day Brenda and “If remember get somebody help quit my me. I had day bought the or else the he Rick moved job worrying I about because was gun, gave it to me. Brenda did asked Walt I I thing at that time. told would whole I pistol for but me what Walt wanted somebody help else to him I ask because said I didn’t know. didn’t tell her and to do it. I asked him if he didn’t want mag- pistol gave me was a .22 “The Walt get somebody and he said I couldn’t else single It num Frontier Scout Colt action. much I didn’t was in it and knew too wooded handles. was dark blue brown up my have no choice and to make mind to good shape. Walt also It was used but it. brought magnum of .22 hollow a whole box boy “A I knew named Rick Bufkin deal, points. I did not want to do the still I moved with Rick and Brenda. asked I too. the last but Walt told me had About doing job and he Rick Bufkin about June, up do it Walt set it for me to week go said he for it he needed because by myself I out on it. He was but backed mоney keep up and shoot- some his habit go myself like up I do it shook wouldn’t ing speed. I think Walt and Rick Bufkin somebody pressuring him. This is was killing family, I’m talked about but not go up set it when he said he would sure because I didn’t hear them. Rick Buf- sup- day it was with me himself. On kin arrested later on was about week done, posed told me that morn- to be Walt killing another and after that Walt was go rent a car and had he wanted me happened to Rick that worried about what money for it. I went to Avis given me might say something. Dairy Ashford and rented a Chev Rental on pressuring get still me to Citation, my “Walt was light name. Sometime blue saying light night, someone and was was PM I PM and 8:30 between 7:30 green get had to it done. I asked near apartment and we' Memorial drove to his School, apartments I I see person living High another think. didn’t Stratford Spaulding. said that Debbie was doing about it named Mike car and Walt Debbie’s go inside I didn’t people he had killed in Florida out of I went Mike said town. see her. go days didn’t and that he would for it. Three the bedroom later, Penney Mike and his wife and Rick big bought bottle of Cham- “Walt had everything they Thran and Brenda sold container and it had a pagne styrofoam in a Georgia. Mike never talked and went may yellow. have been Walt lid on it. It anybody I didn’t asked else to with Walt. plan go there to show told me the job. help on the inter- plans they were them some because building that would a house and told me that the dude that needed ested
“Walt Champagne to $50,000 get gave He had taken us inside. to be killed bribe him just He told me to follow something job he had in them also. to do with the this, talking. He wear- let him so the I asked Walt about Houston. When *10 I a vest and tie. was any my questionz. ing He a blue suit with he avoid would time, jeans and shirt. wearing jeans, dress peoples name at this blue tell me the didn’t baby’s him room and and shot baby head once and then ran out. The was house, peoples Walt Before we went to the baby in a bead. I ran out after Walt and I stop pay phone on the side told me to at the got anything know if he had because don’t Katy Fwy and around Blalock or got in he had a briefcase. When we phone Campbell so he could make some going the mace can was still off and it car phone one call and sаt calls. He made back I burning my eyes. took Walt home was something car. said Walt about get and he said he had to inside and made a right man there then and was at the was long phone distance call. I also went home something. Then he made at least store or Apt. kept to the Wilcrest I the car three phone more at this two calls and we were days kept so and took it I or back. place waiting about 30 to 45 minutes alto- I pistol for several months but told Walt gether. He came back to the car after up cutting kept I it had cut it with a torch. phone calls and said we leave as my ace in the hole. I later heard the pay phone rang. I think this soon as paper news on TV and read in the that the was out on the lot of a Gulf Stattion. peoples name was Wanstrath. phone rang couple and then of times he “I read the name Mark DuffSmith in the way. said we were on our paper and asked Walt who that was. Walt driving “I was and he directed me to lady’s told me that it was the brother. where it was. I didn’t know where the always led e off that there was some Walt strеet was I some street that was but saw people wanting people other behind something. off Briar It was Westheimer. directly said it was dead but he never Mark house, got parked we When we anything. always said there behind Walt driveway. dark and about 9:00 It was three and a half million dollars behind was rang PM. to the front door and We went outcome this and that was what the was the bell and the man and the woman came supposed give. He has also said that They to the door. knew Walt and called big drop the the make its at the boat would gave my him name. Walt them name as year. end of the Im not sure what he I Bobby something like that and never by this. meant hardly gave Walt them said two words. 1979,1 up I Champagne gift. pistol a little “Late in took the used and said it was sitting gave my it to Kevin I sat on the couch and the man was to Weimar brother right gun him out in in chair. The to his and Janecka and told to take woman was post any- don’t let near the woman. The man had oak somewhere and Walt was shirt, sport thing happen had on a to it it was used to on a and the woman because people. couple A months long gown. had told me that when he kill some be- Walt got up my Georgia, I and start fore I went to I went and stood was to make move name) (last gun boy he and a named Cernoch doing pistol, it. Walt had a .38 he He had some mace in had it at the ice house where was work- pulled never it. also got it and pocket. can in his inside coat He Weimar. Kevin went a black couple I it of months up opened pocket gave his coat and I it to me. took a stood Georgia I maced hollered later with me to where lived with think he the woman. She gun mother. I left the and said is this? Karen Holder’s What when I came back to Texas with Karen him “I then went to the man and shot October, 1980. I had around the first of standing right next to twice in the head happened take Karen what had and to told I I didn’t look at him when did it. him. gun. Karen had a conver- care of the once fighting Walt was with her and threw telling sation Walt from her mothers holding her down. He her down operation my back him I needed an straddled across her. He said come on in my I was done back. because get one. I her one time in the shot 15 to 20 thou- going gо “Karen told him needed head. Walt then said he was Karen told Walt that we had get jewwlry in the He told sand dollars. bedroom. fishing that he and I had used to baby I went in the reel me the the bedroom.
243 findings fact hearing and over the make re- of law. After several and conclusions in go fishing Mr. Holmes with that the settings, agreed which were to both probably it to like to have Houston con- appellant, special the master State and go fishing ba- with himself. Walt went hearing findings of the and made ducted you phone the and said don’t nanas over trial conclusions of law. The fact and spasms. His want to do that. voice went special findings adopted the master’s court listening I on the line. Walt was other 11, on 1988. Nei- and conclusions March $600, a total of at a time only sent us $200 party objected appointment ther Union. use his Western He didn’t master, his special findings and conclu- the once name. He sent it to Karen Holder sions, adoption trial thereof. or the court’s my it had and another time name. Once 1990, 30, January On this Court reversed address, a return not 718 St. Wilcrest upon appel- and remanded the cаuse based Wilcrest. in that lant’s demonstration of harm past just job, had in the “Walt after particular charging defect of form in the $30,000 getting split; I I and were to prejudiced instrument substantial $11,000 up getting think I ended between rehearing, alleg- rights. On now $14,000 $2,000 got total. Once I very first the trial es for the time that $1,000 got a This later I a month or so. appoint a judge authority lacked the to always in cash. hearing special master to conduct a on once mentioned the Minnie McFar- “Walt subject of harm. being Estate I land involved somehow. that, argues Specifically, the State figured something Mark had do also to post proceedings, conviction no unlike writ it, Mark, I but when asked to meet gives in Harris judge statute a district pas- Walt said it was best didn’t [sic authority special County appoint, sim].” hearing to hold a in a case on direct master OPINION ON STATE’S MOTION also appeal. points The State out that FOR REHEARING hearing remanding the order cause for specifically stated trial court OVERSTREET, Judge. “[t]he hearing appellant to shall hold a to allow Due to the somewhat protracted nature develop his fully allegatiоn of harm.” more proceedings appeal direct special contends that The State because cause, briefly it is necessary instant authority preside lacked over the master prior actions detail the hereon. The instant hearing, proceeding the entire is void ab alleged offense was on or have occurred initio, hearing a lawful should now be 5, July 1979. about The indictment was objected Had the State at the time held. 11, Appellant filed December 1980. appointed, perhaps on the master was April and sentenced convicted to death Court, might before this we submission This Court 1981. remanded the cause How reached the merits of its claim. have hearing court for a so that ever, object, did we do as the State not so appellant could have opportunity claim.1 not reach said harm as a the trial demonstrate result of appel preserve To issue for overruling court’s error his motion review, quash. complaining party must v. late Janecka Tex. (Tex.Cr.App.1987). timely specific objection. judge The trial make a 52(a).2 special It appointed preside R.App.Pro. then master to is well-settled course, certainly very that while well-settled We do note the trial court was 2. Of it held, hearing,” hearing “hold a egregious ordered to are so that failure some errors made and the trial court and conclu- appellate object does later at trial not waive upon hearing, said sions based the State had See, example, v. review. Rose object opportunity and meth- manner (Tex.Cr.App.1987); S.W.2d Almanza "holding” odology said it at the time (Tex.Cr.App.1984). S.W.2d objection was held. An certainly at that time would preserved error for have the claimed review. *12 244 [sjpecial [mjaster preside to timely specific ing the purpose requiring of a
the
hap-
the trial court to have
“no one could remember what
objection is to allow
that
opportunity
during
the
to make a determination
the trial which occurred over
pened
complained
point
Thus,
ruling on the
it would seem
years
before.”
seven
under the
proceed
primary complaint
then to
with the trial
thе State’s
about
that
man-
proper procedural and substantive
hearing
familiarity
with the
ners,
by the trial
appropriately
as
corrected
person presid-
of the
original proceedings
Thus,
is allowed to
court.
the trial court
ing.
points
The State
out that while
complained of error at that time
correct the
original
presided
over the
judge who
In
proceed
and to then
with the trial.
bench,
longer
proceedings was no
on the
rule,
keeping
preserve
this
is-
with
visiting judge
County
in Harris
was a
often
master,
party
appointment
sue of
of a
easily
could have
district courts and
object
judge
to the
mak-
specifically
must
might satisfy
in.
such
substituted
While
appointment.
objection
must
State,
such
there is no indication that
appointment or
made at the time of the
be
if
cause were remanded
would be done
this
opportunity there-
at the earliest feasible
hearing
years af-
yet
over ten
another
case,
In this
the State could have
after.
ter trial.
judge at the time of
objected to the district
Murk,
815
As
stated
v.
we
State
Instead,
chose
appointment.
the State
(Tex.Cr.App.1991), “If one is
S.W.2d 556
fully participate
proceeding
before
appeal, the
complain
of error on
inclined
raising
objection.
its
the master without
it at trial or it is waived
rule is to raise
timely object constitutes a waiv-
Failure to
timely
Because the State failed to
appeal.”
objection now
er of error. The State’s
appoint-
error in the
object, any claim of
rehearing
anything
is
its motion for
The State’s
ment of a master was waived.
timely.
rehearing
hereby overruled.3
motion
that the enactment of Article
We observe
J.,
CAMPBELL,
for the reasons
dissents
1.14(b)
Pro-
of the Texas Code of Criminal
dissenting opinion filed
this
in his
stated
cedure,
1,
pursu-
1985
effective December
31, 1990,
January
Janecka v.
cause on
approval of a constitutional
ant
State,
(Tex.Cr.App.1990).
ous trial
Daniel
they discover that
to meet whenever
(Since
majority
proceeding
is void.
Texas, Appellee.
The STATE
overruled,
distinguished, or
Her-
has not
No. 896-89.
rod, Heath,
I assume
Levy
Fullbright,
Texas,
contemporane-
Appeals
their
they do not intend for
Court of Criminal
requirement
apply
En Banc.
objection
ous trial
State.).
I find
only to the
defendants but
Sept.
1991.
and un-
requirement
impractical
to be
Rehearing
1991.
Denied Oct.
The trial court’s unauthorized
workable.
March
Certiorari Denied
Special
Master in the
appointment of
side the courtroom and within judge, away presence from the the defendant. There is often no
State and
opportunity contemporaneous objec- party.
tion either “earliest feasible by the
opportunity” standard concocted
majority arbitrary, ap- ad hoc invites
proach determining whether or not the preserved has error. I find it to be
wholly unacceptable. ground
I would sustain State’s
rehearing, and remand this cause to the proceedings
trial court for consistent with unsatisfied, yet original,
our and as order.
This should in its rul- Court be consistent
ings prior or at least overrule case law.
Recently we have decided at least three hold
cases which that when a court act,
not authorized law to there need not objection contrary, and also
be an the act is void.2 dissent
aggressive majority’s deci- assertive rehearing.
sion to overrule the motion for
McCORMICK, P.J., BENAVIDES,
J., join this dissent. Walker, pro Wayne se.
Daniel Jr., Skeen, Atty., Dist. Michael J. Jack Sandlin, Tyler, Robert Atty., Asst. Dist. Levy v. 2. Heath v. S.W.2d 808. 335; Fullbright v. 801; S.W.2d