*1 up- judgment scintilla, appeals and render on the court of mere and “the evidence order. holding the Commission actually may preponderate against the record agency and nonetheless decision of the evidence.” Charter
amount to substantial
Medical, (citing Lewis v. 665 S.W.2d Ass’n, Loan
Metropolitan Sav. & (Tex.1977)).
11, 13 case,
In this there is evidence finding support record to the Commission’s JENKINS, Jr., Appellant, Leo Ernest Kilroy competitive knew Goodrich’s Bammel Field. There were position parties the two about conversations between Texas, Appellee. STATE Further, leasing field. activities 71,040. No. acreage pooled unit abutted the Goodrich’s Kilroy’s discovery locat
upon which well was Texas, Appeals of Court of Criminal ed, Kilroy knew and there was evidence that En Banc. by temporary would be affected Goodrich 5,May 1993. in this field rules. Given the circumstances case, it for the Com unreasonable Opinion on Grant of Reconsideration rights mission to determine that Goodrich’s 11, 1995. Oct. materially by proposed affected
were rules,
temporary field and that Goodrich was hearing.
therefore entitled to notice of the review, scope
Because of our limited voiding temporary
Commission’s decision if
field rules as to Goodrich must stand there support evidence the record to it.
Contrary appeals’ opinion, the court
adequate appropriate notice was an factor for
the Commission to consider when determin-
ing pro- whether Goodrich was entitled to a light temporary
duction allowable in of the support
field rules. There is evidence finding that did not
Commission’s Goodrich tempo- hearing
receive notice of the on the
rary field rules for the Bammel Field. These clearly
were rules that affected Goodrich’s gas place
ability to recover the underneath record to
its lease. There is evidence to find
support the Commission’s decision not bind temporary
that the field rules did up to allow to make
Goodrich and Goodrich time its well was gas production for the in. hold that the Commission
shut We legal authority to its decision to base temporary field
exempt from the Goodrich notice, and that this deci-
rules on a lack of evidence. supported substantial
sion is judgment
Accordingly, we reverse
795 *5 Freed, Wentz,
Floyd III and Kurt B. W. Houston, appellant. *6 Holmes, Jr., Atty., Kimberly
John B. Dist. Stelter, Aperauch Andy To- Mark Vinson & bias, Houston, Attys., Dist. Robert Hut- Asst. tash, Austin, Atty., State’s for State. OPINION MALONEY, Judge. capital murder
Appellant was convicted of
pursuant
to Texas Penal Code Section
19.03(a)(2).
find
made affirmative
ings
special
to it
on the two
issues submitted
imposed
court
the sentence of
and the trial
ap
death. This case comes to us
direct
peal. Tex.Code
art. 37.071
Crim.Proc.Ann.
2(h).
upon
§
will reverse based
our dis
We
position
appellant’s points
of error seven
teen,
nineteen,1
address
eighteen and
and
seventeen,
eighteen
process
Appellant’s
of law under the Fifth and Fourteenth
1.
of error
United States Constitution
and nineteen are as follows:
Amendments to the
Larry
it refused to order the witness
when
Point of Error Number 17
pre-
produce
previously
statements
Bitter
striking
testi-
The trial court erred
testimony.
pared by himself that related to his
mony
Larry
granting
Bitter or
a mistrial
Point of Error Number 19
produce
because of the failure of Mr. Bitter to
right
Appellant
court denied the
his
The trial
previously prepared
re-
statements
himself
against
and due
to confront the witnesses
him
lating
testimony.
to his
1,
process
10 and
of law under ARTICLE SEC.
Number 18
Point of Error
CONSTITUTION,
right
when it re-
SEC.
TEXAS
The trial court denied the
his
Larry
pro-
Bitter to
against
and due
fused to order the witness
to confront the witnesses
him
plan. Appellant
thirteen,
to facilitate
challenging the suffi-
able
point of error
to kill
had wanted
ciency
the evidence.
told Jackson that he
also
committing the of-
immediately after
Hart
chal-
of error thirteen
In
Ap-
fense,
opportunity.
had not had the
but
sus-
lenges
sufficiency of the evidence to
military
his
and
argues that while
pellant
finding on the second
tain an affirmative
in-
exemplary, the
were not
prison records
issue,
probability
“a
special
whether there is
passive
Appel-
nature.
of a
fractions were
acts
[appellant] would commit criminal
psycho-
that the
continuing
lant further contends
State’s
that would constitute a
of violence
society[.]”
faulty
A discussion of the facts
because it was
logical
threat to
evidence was
necessary.
this issue is
The evi-
relevant to
con-
upon
twenty minute interview
based
early
at trial established that
dence
incarcerated
while
ducted
29, 1988,
August
appellant and
afternoon
years prior to the commission of the
some six
Eugene
accomplice
Hart entered the Golden
introduced
Appellant also
instant offense.
Texas,
County,
Nugget
Shop
Pawn
Harris
had written for the
poems
that he
letters
duty,
jewelry and
the two clerks on
stole
shot
showing that he was remorseful.
purpose of
money
fled on foot. Evidence connect-
ing appellant and Hart to the scene led
reviewing
sufficiency of the
arrest,
day.
their arrests the next
After
jury’s affirmative
sustain the
evidence to
police
directed
officers to the loca-
issue,
special
we consider wheth
finding on a
pistol used
tions where he had thrown the
evidence,
light
viewed in the
most
er that
committing
spent
the offense and the
shells
verdict,
lead
ra
favorable to the
would
pistol.
ap-
In a
from the
written confession
conclusion
of fact to the same
tional trier
triggerman
pellant confessed that he was the
v. Vir
beyond a reasonable doubt. Jackson
shootings. Appellant
in both
further stated
307, 318-19,
ginia, 443
99 S.Ct.
U.S.
pawn
plan
had initiated the
to rob the
he
(1979);
2788-89,
v.
without [objection omitted] circumstances, pre-devised scheme. These Yes, A. sir. together the other evidence elicited State at the punishment phase trial, in [*] [*] [*] [*] [*] [*] cluding appellant’s plans evidence of to kill Q. you drugs possession Have found accomplice, appellant’s prior his criminal his Department inmates at the of Cor- tory, poor military prison records and rections? psychologist’s testimony [objection omitted] support jury’s could not be rehabilitated Yes, sir, A. we have. finding special affirmative on the second is Q. drugs type you What have found on sue. Point of error thirteen is overruled. Department inmates in the Texas Corrections? seventeen, eighteen of error nineteen, appellant complains Heroin, of the trial marijuana, Everything. A. co- compel court’s caine, LSD; failure to State’s witness to all that are available produce reports certain which related to his in the free world we found on have testimony. Appellant claims that the trial inmates. court’s actions violated Texas Rule of Crimi- Q. you drugs get Do know how those in?
nal Evidence 614 and that Yes, variety A. sir. There are a of differ- thereby right denied confrontation and ways. ent process due of law under the Fifth and Four- *8 Q. ways you ... What various have found teenth Amendments to the United States drugs get Department into the Texas of Constitution, I, and Article Sections 10 and Corrections? 19 of the Texas Constitution. [objection omitted]
During punishment phase the of trial Lar- Through employees, A. officers and civil- Bitter, ry investigator weekends, a narcotics with the ians who to visit on come (TDC), Department of through Texas Corrections tes- a the mail.... there are series importa- through ways get tified as a State’s witness about the of different to it in the drugs widespread tion of has into TDC and their mail. We’ve had LSD that been However, Appellant objected testimony relevancy. by holding 2. to Bitter’s ir- that the as issue of special highly prejudi- relevant to the issues and reports produced have been under Rule should granted running objection. cial. was a imply 614 we do not mean to that Bitter’s testi- fifteen, In challenges of error fourteen and mony only was relevant. We hold that where overruling objec- the court's of his admitted, reports such as Bitter's is admissibility testimony. tions to the of Bitter's sought produced such as those should be if re- dispose Because we of this case on the basis of quested under Rule 614. seventeen, points of error we do not address the sir, Yes, he would. stamp an A. postage a placed behind coming it envelope. have seen We to person is confined Q. The fact that way. that Corrections, Department of Texas the amounts, automatically cut the avail- Q. you talking about small that Are would drugs of or largest is the amount controlled substance ability or what of Texas you’ve found on an inmate her? dope to him or Department of Corrections? No, sir. A. in excess of a half A. We have seized that as Bitter stated On cross-examination marijuana. pound of We have seized findings reports and job he made part of his of an ounce of cocaine. excess into investigations drug importation of his they ingest drugs that are Q. How do requested Thereupon, appellant the TDC. syringes ingested? they use or Do purposes given reports those for that he be what? pursuant to of further cross-examination infirmary. an In the A. Each unit houses The trial Evidence 614.3 Rule of Criminal business, infirmary has course of reports that judge production ordered needles, hypodermic syringes and denied appellant, but specifically concerned run, way prison is in- because the any other request respect with to appellant’s nearly every mates are allowed access objected the court’s report. Appellant They portion prison. are able to appellant’s confron- ruling in violation of was syringes, and sometimes sometimes steal rights, con- process and was tation and due bring syringes part officers will objections trary Appellant’s to Rule 614.4 they dig what he does for inmates. So Appellant requested that overruled. were cans; as medical them out the trash purposes reports produced for away, they use personnel throw them request was denied. appeal. This record syringes. 614(a) Evidence Texas of Criminal Rule sjj s}: provides that: may Q. person the fact that a have Would other than the defendant After a witness penitentiary on at least two been examination, has testified on direct occasions, person have a bet- would that court, call party who did not on motion of understanding of to obtain ter how witness, attorney for order the shall penitentiary? attor- or the defendant and his the state be, may produce, [objection ney, as the case omitted] addition, saying has that if this witness days prior punishment The Court is 3. three trial, investigation [appellant], that I’m requesting phase done an filed a motion bring report, these other compelled see that but all witnesses be entitled to State’s reports they things are [sic] made in connec- that he testified to to with them all "that testimony" punishment don’t subject and I tion with the matter of their relevant to the issue at; upon reports get reports right “that witness relied to look as well as such have a those correct, expert opinion lay to form the basis of his Your Honor? opinion ruling reflects change [sic] in in the case.” The record did not its The court granted day on the it was objected: that the motion further dispose com- object denying Because we Defen- filed. the Court I would plaint Rule we need not address the under right and cross-examine dant's to confront respect appellant's with motion. guaranteed by issues raised the Sixth accusers which is *9 Constitution, to the United States Amendment request production of for the 4. After his initial given by right process the Four- due the denied, reports appellant argued: Constitution, was and the to the teenth Amendment specifi- It further violates bring state's constitution. 614 from the Texas Rules Rule Evi- cally of Criminal Rule 614 of the Rules also the fact Criminal Evidence to bear and right you to see that have the already granted dence that state an order that the Court has relating report has to the that the witness they bring reports with them. all those that what the wit- subject with any reports specifically matter concerned court then stated that The produced, testified to. relating but no ness were to be objections appellant's as "a Appellant questioned court’s The court overruled reports. other interpretation very of Rule 614.” broad ruling: 802 A moving
the examination and use of the rial discoverable under the Rule.7 recent Roark, party, any v. decision, statement the witness is United States 924 federal possession (8th their and that relates to the Cir.1991), applied F.2d 1426 which subject concerning matter which the wit- comparable federal rule to facts to those here ness has testified. persuasive. is 614(a). Rule 614 de- TEX.R.CRIM.EVID. Roark, defendant, In a member of the rives from the common law rule set forth in Club, Angels Motorcycle Hells was indicted our decision in Gaskin v. 172 Tex. Id. at drug-related for various offenses. 7, (App.1961).5 Crim. 467 S.W.2d HU- government agent called DEA 1427. The WENDORF, AL, LEN D. ET TEXAS Heald, who had no involvement in the offense OF at VI- RULES EVIDENCE MANUAL defendant, testify expert as an with the 1991). (3rd ed. Because we have never Id. at Angels organization. on the Hells interpreted scope application before 1430. Heald testified that he had visited at 614, appropriate it to our of Rule to look Angels’ Hells meth- least one hundred of the Gaskin interpretation guid- of the rule for Moreover, amphetamine reports and had written substantively ance. as Rule 614 is labs Act, 18 illegal drug similar to the federal Jeneks U.S.C. about the activities of the Hells 3500, may helpful.6 § federal caselaw also be Angels, including operation of the labs. The Tait, Anthony government also called an subject
Material
to Rule 614 must “re-
agent who had worked undercover as a Hells
subject
concerning
matter
which
late[ ]
Angel. Tait testified that he had made hun-
the witness has testified.” TEX.R.CRIM.
614(a).
tapes
in relation to his activities
argues
appel-
dreds
EVID.
The State
Angels,
including
request
scope
lant’s
far exceeds the
of mate- with the Hells
the defen-
Gaskin,
incorporated
sought
production
5.
the defendant
The Jeneks Act was
into the Fed
reports prepared by arresting
of offense
officers
Procedure as Rule 26.2.
eral Rules of Criminal
Gaskin,
647,
who testified for the State.
Shyres,
States v.
898 F.2d
657 n. 4
United
Holding
69,
468.
that it was error for the trial
(8th Cir.),
S.Ct.
cert. denied 498 U.S.
compel production
reports,
of the
court to fail to
(1990) (Rule
virtually
ments under Rule 614.11
Campos
reports prepared by him in the exercise of
State,
81,
v.
468
(Tex.Crim.App.
S.W.2d
83
Moreover,
investigative
duties.
we think
1971) (police
reports
officers’ offense
are
requests
it reasonable that when a defendant
Gaskin);
discoverable statements
under
production
of a statement under Rule
State,
244,
Darrington v.
493 S.W.2d
245 614,
burden,
party
the State bears the
as the
(officer’s
(Tex.Crim.App.1973)
report
offense
contesting production,
why
to show
the state-
subject
rule);
was “statement”
22
Gaskin
or
produced.
ment should not
cannot be
See
(1982)
§
TEX.JUR.3d Criminal Law 2446
Augenblick,
348,
United States v.
393 U.S.
(describing
applicable
Gaskin Rule as
where
355-56,
528, 533-34,
89
21
S.Ct.
L.Ed.2d 537
state’s
report
given
witness has “made a
or
(1969) (government properly bears
burden
statement”);
see also United States v.
explaining why statements under
Act
Jeneks
Welch,
(5th
485,
Cir.),
810 F.2d
490
cert.
produced);
could not be
Moore v. United
955,
350,
484 U.S.
108 S.Ct.
98
denied
States,
(D.C.1974) (under
16,
353 A.2d
19
(1987)
L.Ed.2d
(investigation reports
376
explaining why
Jeneks Act burden of
materi-
Act);
can be “statement” under
Jeneks
produced
al
government).
can’t be
is on
States,
678,
Lewis v. United
340 F.2d
682
Here, the State failed to show that the wit-
(8th Cir.1965) (well-settled that notes and
ness did not have control of or access to the
reports made in course of criminal investi-
reports.
In the absence of evidence to the
Jeneks).
gation are “statements” under
contrary,
reports
we hold the
were in Bitter’s
possession,
As to the issue of
the State’s
“possession”
meaning
within the
of Rule 614.
narrow,
interpretation
overly
essentially
is
requiring physical possession in the court-
of Rule
Violation
614 results
reversal
room. We think a more reasonable view is
unless the
is
error
shown to be harmless.
“possession”
that a
is in
statement
of a
81(b)(2).
prin-
See TEX.R.APP.PROC.
This
if
readily
witness
it is within his control or is
ciple applied to
violations
the common law
accessible to him.
United
v.
States
See, e.g.,
Gaskin
rule
well.
Pinson v.
Heath,
(10th
1011, 1018,
580 F.2d
1
1018 n.
State,
299,
(Tex.Crim.App.
598 S.W.2d
300-01
Cir.1978),
1075,
cert. denied 439 U.S.
99 S.Ct.
1980);
State,
248,
v.
514 S.W.2d
253
Hoffman
(where
850,
(1979)
59
42
L.Ed.2d
there was
State,
(Tex.Crim.App.1974); Campos
n. 5
v.
cooperation
police
close
between local
81,
(Tex.Crim.App.1971).
468 S.W.2d
84
Un-
prosecutor,
prosecutor
federal
federal
cannot
Gaskin,
recognized
der
we
determin-
technicality
say
“stand on
that he does
ing harm we must consider whether the ac-
possession”
not have actual
of the statement
cused was denied effective cross-examination
authorities);
by
Augenblick
held
local
v.
possible impeachment
or
due to the denial of
States,
586, 597-98,
United
377 F.2d.
180
State,
195,
reports.
Cullen
S.W.2d
(“statement”
(1967)
Ct.Cl. 131
under Jeneks
(Tex.Crim.App.1986).
196-98
In order
physical
Act “need not be within the
control
determination,
appellate
make such a
prosecution
possession’),
to be ‘in
rev’d
question.
court must review the documents in
348,
528,
grounds,
on other
393 U.S.
89 S.Ct.
However,
Id.
where the defendant is denied
(1969);
pellant’s little of his hand. “A. McDonald might “Q. farther testified cocaine being So basically doesn’t person lessen the inhibitions aof with an cause them to commit criminal acts neces- personality.” sarily? “antisocial *13 No, drugs “A. but increase the likelihood “Q. Again, you are familiar with what an acting of out usually behavior for what personality antisocial is? leads to criminal acts.” Yes, “A. sir. cross-examination, On Field drugs testified “Q. person You have a who has demon- might person make a something they do personality.’ strated that ‘antisocial How they would not do if drugs. were not on does that affect him? presented The State also ap- evidence of “A. might It lessen the inhibitions. pellant’s prior burglary two convictions and really you That’s what it does. It makes appellant’s military reflecting records his dis- your
lower
going
inhibitions.
It ain’t
to charge “Under Other Than Honorable Condi-
change your personality.
going
It’s
Appellant’s prison
tions.”
records reflected
(Emphasis
enhance it.”
Supplied).
reports
numerous
usually
misconduct
in-
volving appellant’s refusal to
Appel-
work.
punishment,
At
presented
the State
paroled
lant
prison
had been
from
twice
Field,
testimony of
psychologist.
Dr.
Field
when he committed this offense.
appellant
testified he
prison
interviewed
February
April
presented
testimony
The State also
primarily
be-
appellant’s
doing
cause of
Jackson who
refusal
to work.
time on a
He
misde-
appellant
IQ
charge
jail
testified
meanor theft
County
had an
of 104
which
while
average.
appellant
was above
appel-
awaiting
He also testified
was there
trial for this
“any
lant
not
psychiatric
appellant
did
have
kind of
offense. Jackson testified
attempt-
disorder.”
ed to enlist
appellant
Field testified
his aid to kill
had an
accom-
plice
personality
“antisocial
who also was
county
disorder.” He said
incarcerated
jail. Appellant
“operate
poison
individuals with this
wanted to
refuse to
inside
him. Jack-
appellant
the law”
son
and have no
testified
told him
conscience. He testi-
he did not
may
accomplice
fied these
trust the
“panicked
individuals
show
because he
remorse but
usually
they
[appellant] real
caught
pawnshop”
“because
have been
bad
which
or
they
appellant “extremely
made
pay
penalty”
Appel-
have had to
nervous.”
for their
expressed
behavior.
lant
no
remorse
Jackson for the
pawnshop killings.
“Q.
they
any type
Would
show
of re-
presented
testimony
also
State
morse for their antisocial behavior?
investigator
Bitter who was a narcotics
with
remorse,
They may
“A.
show
but that’s
Department
the Texas
of Corrections. He
they
because
caught
they
have been
investigates
testified he
trafficking
narcotics
pay
penalty
have had to
for what that
prison system
prepares reports
was,
being
behavior
but as far as
remorse-
based on his observations. Bitter testified
itself,
ful for the actual action
no. Not
drugs
prison sys-
inmates can obtain
usually.”
tem.
opinion
Field’s
was that
could not
Appellant presented
testimony
be rehabilitated and he would be a threat to
Marquart who was an Associate Professor of
society.
Criminal Justice at Sam Houston State Uni-
report,
versity.
Field’s
which
Marquart
was admitted into
testified about the diffi-
evidence,
history
culty
predicting
indicated
had a
future behavior based on
“drug
study
abuse and some alcohol abuse.” Field
his
of 92 inmates whose death sen-
drugs
had,
person
another,
testified
would not cause a
with
tences
for one reason or
been
crimes,
an antisocial personality
to commit
commuted to life.
also
Coleman v.
but
would “increase the
(Tex.Cr.App.1994).
likelihood of 881 S.W.2d
acting
usually
out behavior for
Marquart’s
study
“only”
what
leads to
concluded that
criminal acts.”
percent
about ten
of these individuals later
2nd,
September
finger on
doctor
committed criminal acts of violence. Mar-
lant’s
in a
quart provided
specifically
merely required appellant
no
re-
to soak it
cross-examination,
lating
appellant.
On
solution.
Betadine
Marquart testified that at least one member
also testified
did
The officers
his
group
research
committed another
intoxicated,
had
appear
and he
control
to be
Marquart
many
how
homicide.
did
know
of his mental faculties. McDonald testified
group
members of
research
received
not be considered “under
person
how a
would
killing
penalty
the death
two or more
positive
but still test
the influence”
cocaine
people
robbery-murder
having
in a
after
cocaine
for cocaine. McDonald also testified
prison.
twice
time in
served
*14
“ability
deprive
does
individuals of their
not
thirteen,
point
appellant
In
of error
chal-
to think and make decisions.”
lenges
sufficiency
sup-
of the evidence
complies
Appellant’s
statement
written
port
special
an affirmative answer to
issue
38.22,
2,
with Article
Section
V.A.C.C.P.
two which asked the
to consider wheth-
And,
supports findings appellant
the record
probability
[appellant]
“a
er there is
rights,
was informed of his
he understood
would
criminal acts
commit
of violence
them,
them,
knowingly
and he
he
waived
continuing
a
would constitute
threat
soci-
voluntarily
sup
confessed. The record also
ety.”
applicable
of
Under
standard
re-
ports findings appellant’s finger injury and
view,
hold, as
original
we
we did on
submis-
incapable
not
him
his cocaine use did
render
sion,
support
the evidence is sufficient to
an
See,
voluntarily confessing.
e.g.,
of
Nichols
special
answer
two.
affirmative
issue
See
State,
185, 189-91 (Tex.Cr.App.
v.
754 S.W.2d
307,
Virginia,
Jackson v.
443
99
U.S.
S.Ct.
1019,
1988),
denied,
cert.
488 U.S.
S.Ct.
2781,
(1979);
109
State,
61 L.Ed.2d
560
Harris
(1989).
819,
of
no of a evidence causal connection between with Kimble v. S.W.2d 15.17(a) appel (Tex.Cr.App.1976). twenty- violation of Point Article of error voluntary lant’s decision to is confess. nine overruled. (Tex.
Boyd v.
124-25
point
thirty, appellant
of error
denied,
971, 112
Cr.App.), cert.
S.Ct.
U.S.
finding
claims the trial
erred in
court
from
(1991).
448,
by overruling Denney outside After examined Department Safety timony of of Public Texas objected to the jury, he presence (DPS) Denney testi Sandra whose chemist report because of Dowden’s admission mony was on a record based DPS business reliability had not of the document been by employee. Appel prepared another DPS proven. erroneously argues lant the trial court admit clear, is So the record “[APPELLANT]: Denney’s testimony ted under Cole 98 are depicted tests that are State’s (Tex.Cr.App.1990). The somebody run by else tests that were preserve any argues appellant failed to State you; correct? appeal. agree. error for We Cole They by run a chemist were “[DENNEY]: Denney reflects record Sandra named Donna Dowden. supervisor of the crime in Hous- DPS lab Denney guilt-innocence ton. testified at nothing do “[APPELLANT]: You report prepared from DPS that was running particular tests? with the those *16 Donna Dowden who also was a DPS chemist perform I not those did “[DENNEY]: specialist. serologist Denney a testified and tests. report from Dowden’s that Dowden tested though you had Even “[APPELLANT]: samples murder various blood found at the in depicted run tests before like what’s sample appellant’s as of scene well as work, the your is but this State’s Denney samples blood. these blood testified product of Donna Dowden? work genetic Den- contained the same markers. Yes, sir. “[DENNEY]: ney based on that testified her calculations only eight of percent population the had the object I further would “[APPELLANT]: genetic appel- in same characteristics found reliability the those test results. to of lant’s None of tested sam- blood. the blood They proven. have not been ples from murder scene contained the the admitting I am Overruled. “[COURT]: accomplice’s genetic markers. re- Dowden’s 98.” as port also was admitted into evidence Later, Denney testify about began to when exhibit 98. State’s tests, appellant made results of Dowden’s the appellant lodged The sever- record reflects objections made to admis- same he objections of to the Dowden’s al admission No. 98. of State’s sion First, objected Denney report. opinion formed there an “[STATE]: Was that testifying report of “to contents genetic of the dried as to the markers is not evidence.” the State offered When genetic compared [appellant’s] with blood evidence, for report Dowden’s admission into markers? appellant objected proper predicate that Yes, the chemist conclud- “[DENNEY]: reliability laid and had not been had been ed— up. proven time, Honor, object. Your at this
“[STATE]: I would “[APPELLANT]: No. objectionable would offer in evidence State’s question going State to be next tendering [appellant] for his previously 98 after I set reasons that for same record, inspection. do For the before the Court. forth you again or will be object I need to state those I would “[APPELLANT]: my for reason aware of reasons? introduction State’s I request proof “[COURT]: am aware of I’m them. lant’s to make an offer of overruling them.” support change of his motion to venue. record, objec- On this we hold ask “[APPELLANT]: would that “proper tions predicate” that the and “relia- proof go Court allow an offer for bility” not been established failed along my request with for this motion to clearly present any error trial Cole to the up appeal carried for this case as well 52(a). Appel- court. Tex.R.App.Proc. See as the affidavits attached to motion that object Denney’s testimony lant did not that incorporated and motion itself as an portion was in contravention of Tex. proof offer that the Defense would offer 803(8)(B) prohibits R.Crim.Evid. which things in evidence to show that these are hearsay by police “matters observed officers prejudicial right fair trial personnel.” and other law enforcement See Defendant, particular Your Honor. Cole, Appellant at 800 fn. 4. also S.W.2d Denney’s made no claim that admission you (Empha- I’ll let “[COURT]: do that.” testimony violated the Constitution. supplied) sis 52(a). Tex.R.App.Proc. proof Appellant’s offer the tri- informed addition, any admitting error in newspaper al court of a series articles that Denney’s testimony was harmless. Her tes began morning newspa- to run that in a local timony goes support finding appel per. violence, gangs These articles said that lant pawnshop because of his some prevalent prison sys- and were However, blood was found there. several tem, gang and that some members had dis- placed other witnesses his ac and Appellant tinctive tattoos. also informed the complice pawnshop close to the before trial court that a local television station was just Moreover, killings. after the present programs about a series of about admitted in his confession he was there activity. Appellant cocaine-related criminal himself, jury wounded heard the said he did not his file motion sooner because finger. other evidence about his wounded “anticipated he could not have such a media used fin even the evidence of his prior to ger [when event he filed injury support motion].” arguments *17 guilt-innocence newspaper at The he articles and television shows could not have voluntarily Denney’s testimony nothing appellant confessed. had to with or do this case. jury could not have caused the to or convict trial The court denied motion be- affirmatively to special answer the issues. “timely it properly cause was not or raised.” 81(b)(2). Tex.R.App.Proc. See of er Points Honor, I “[APPELLANT]: Your a filed twenty through twenty-two ror are over change motion The venue. Court for of ruled. has denied it its a hear- without face twenty-three, In appellant of error ing. I would ask the three affidavits denying claims court his the trial erred change go up to motion venue for of change hearing. motion to venue without a it proffer with as a the evidence on of points In twenty-four twenty- error of appeal the same as we had a if full- five, appellant trial claims the court violated hearing blown on that motion. the Sixth and to Fourteenth Amendments Constitution, I, the United and Article States punishment are “[STATE]: We at 10, Constitution, by Section of the Texas phase point, the trial. At this there is denying change motion his venue without procedure change no to file a motion for hearing. a jury given venue. The Court has in- read, to, any structions not listen or in appellant orally
The record reflects way particu- listen to facts this about requested change written a venue motion very specific lar case. The has been just Court punishment phase trial before the of the case, selection, in its admonishments to about began. including jury The reading approximately watching anything or had lasted three months at television for point. granted appel- The trial court about the case.
811
society
were
constitute a threat
going
I’m
to overrule it.
and would
“[COURT]:
hypotheti-
timely
properly raised.”
1984 interviews and
don’t think it’s
or
based on the
(Emphasis supplied)
involving the facts of the case.
cals
Appellant argues the trial court
appellant
oc
Field’s 1984 interviews
change
erroneously denied his motion to
ven
years
“this
curred more than four
before
hearing.
reflects
ue without
The record
offense,
indictment,
appointment
and the
requested
hearing, object
appellant never
State,
v.
821 S.W.2d
of counsel.” See Cook
hearing,
claimed the
ed to the absence of a
denied,
600,
(Tex.Cr.App.),
503 U.S.
604
cert.
required
hearing.
Constitution
See Tex.
(1991).
1705,
998, 112
ings
prison in
before the 1984
proposition
charges
not be filed at
need
Smith,
terviews. See Estelle v.
451 U.S.
a statement
is made for Estelle
the time
(1981);
101 S.Ct.
naed here for an evaluation of Field’s testimo- other exhibits unrelated to Department when he was in the Texas ny). I Corrections another time. believe that’s part parcel of some of the TDC rec- your Does that address “[THE COURT]: ask, just Your ords the case. would objection? Honor, those records or the testi- before Yes, Your Honor. The “[APPELLANT]:
mony psychiatrist psychologist of that or (referring oral statements statements evidence, hearing that we have a offered testimony) made are unrelated to Field’s presence outside the to deter- voluntarily the refusal to made because qualifications possesses that he mine inquiring officer make a statement to an opinion as to or to make such an whether or may mandate an automatic loss of credit [appellant’s] right against self-incrim- penalty A could be attached. loss of time. right counsel were violated in ination you slip have the COURT]: Do “[THE making psychologist to a such a statement *19 referring Lykins)? opinion (apparently to custody psychiatrist while he was in or Yes, sir. “[APPELLANT]: without counsel. objec- grant I’ll can do I’ll that. We overrule “[COURT]: “[THE COURT]: referring psychiatrist psychologist (apparently to that before the or tion. This case supplied) anything to do with (Emphasis Lykins) comes on.” doesn’t have they’re talking about. the situation pages of facts The next 25 of the statement I believe the issue “[APPELLANT]: discussions about other matters. contain by [appellant] to began [Field] Field’s statements made parties When the to discuss statements and the voluntariness those again, appellant stated the court hearing” presence going is to be an issue. “allows outside the [him] 705(b) by allowing appel- not (Emphasis Overruled.” R.Crim.Evid. “[THE COURT]: presence of Field outside the supplied) lant to voir dire jury prior giving opinion an on to his Later, just called Field to before the State appellant’s personality, antisocial future dan- following objec- testify, appellant made the possibility of rehabilitation. gerousness and tion. 705(b) party, upon opposing allows the Rule my evidence I’d “[APPELLANT]: offer “underlying explore the facts or request, to objections outside the that were denied hearing expert’s opinion in a data” of the presence jury regard to 38.22 of the jury. presence of the outside the concerning state- [Field] before testifies [appellant] ments made while was in cus- pre- argues appellant failed to The State tody, interrogation. a result custodial appeal not any error for because he did serve again re-urge would our motion to be We 705(b) Appellant hearing. request a Rule able to examine this witness outside the 705(b) by his claim argues preserved he Rule presence jury. objections discussion of his set out our ruling. Over- “[THE COURT]: Same Appellant on point of error seven. also relies (Emphasis supplied) ruled.” filed, which the trial court de- motion he nied, requested in which he claims he to voir Appellant argues the trial court violated experts presence 38.22, outside the dire State’s by allowing him Article Section jury. of the question presence Field outside the jury appellant’s on the voluntariness of However, only appel- this motion raised argues ap- statements Field. The State It lant’s voluntariness claim under Estelle. pellant preserve ap- failed to claim for this 705(b) request hearing. Ap- did not a Rule peal. disagree, appellant’s We and hold ob- objections set out in our discussion pellant’s jections preserve were sufficient this preserve point of error seven also failed claim. 705(b) Assuming appellant’s his Rule claim. record, On this we also decide the trial [him] the court “allows statement 38.22, complied court with Article 6. Section up hearing” “basis for to come [Field] on the Appellant legal question raised a about the diagnosis that could be with the he did” Field, and, voluntariness of his statements to 705(b) request a Rule construed as a hearing presence after a outside of the hearing, “request” in the con- was made court, effect, jury, finding the trial made a objections under Estelle. text appellant voluntarily made the state- objections Appellant’s motion and his set out 38.22, Finally, ments. Article Section in our discussion of of error seven did applicable not even because Field did not clearly specifically request a Rule testify about oral or written statements 705(b) 52(a). hearing. Tex.R.App.Proe. See appellant made to him. objections Appellant also relies on various addition, record, any on this error during examination. he made Field’s direct allowing appellant question in not Field giving opinion appel- an Prior to Field presence outside was harm personality, lant an antisocial less since knew the factual circum following objections. made the appel stances of Field’s 1984 interviews of object I would to what “[APPELLANT]: claim lant. made no he needed diagnosis his is until can take him question circum Field to discover the factual prove up qualifications to voir dire to And, appel if stances of these interviews. diagnosis specifically in make such a present lant had on the other evidence this case. issue, opportunity he had an to do so offer He can determine that “[STATE]: proof exception. bills of Tex. cross-examination. 52(b). 103(a); Tex.R.App.Proc. R.Crim.Evid. *20 Point is overruled. of error seven Overruled. “[COURT]: nine, to eight qualified He is not “[APPELLANT]:
In of error appellant argues Tex. answer. the trial court violated
814 705(b) appeal. Tex. claim for See (Emphasis sup- Rule Overruled.” “[COURT]: 52(a). R.App.Proc.
plied) opinion appel- that giving to Field an Prior Moreover, in the trial any error rehabilitated, appellant lant could not be 705(b) noncompliance Rule with court’s objections. following made the knew the “under because harmless testimony. Ap object. lying of Field’s I There facts data” would “[APPELLANT]: 1984 evaluations expert pellant copies had of Field’s showing that he is an has been no the basis of his formed type He which making of determination. addition, provided no Field type opinions. expert not an to make testimony in the damaging, inadmissible opinion. make “[APPELLANT]: objection.” “[COURT]: [******] such a I am determination, Your Honor. He is not going to overrule competent to your ing party of the presence S.W.2d discovered presence of the expert’s opinions without fear at 168 opportunity to a Rule (Rule jury 705(b) 705(b) hearing outside jury. that could allows the explore the basis have been Goss, of elicit oppos 826 damaging hearsay or other inadmissible ing sup- (Emphasis Overruled.” “[COURT]: jury); presence of the see evidence plied) McBride, 609; Vasquez v. 862 also S.W.2d appel- giving opinion an Prior to Field State, 932, (Tex.App.—Cor 935 819 S.W.2d society, a threat to lant would constitute 705(b) ref'd) (Rule 1991, pet. pus Christi following objections. appellant made expert party calling allows the object to that. I would “[APPELLANT]: opinions without explore the basis for the competent to make an evaluation He is not inad jury exposed to otherwise having the gave for the same reasons before. data). eight and of error missible Points ruling. Overruled. Same “[COURT]: nine are overruled. ****** ten, appellant ar of error competent allowing He is not Field gues “[APPELLANT]: the trial court erred personali testify such an evaluation. antisocial make about competent to ty because he was disorder objection.” Overrule “[COURT]: reflects opinion. The record offer such an supplied) (Emphasis degree psychology, Field had bachelor’s objections went Appellant’s psychology and a degree in social a master’s appellant’s request qualifications, and Field’s was a counseling psychology. Field Ph.D in pres outside the Field on voir dire to take recently professional counselor who licensed “prove up” qualifica his of the ence psy clinical board for passed had the state 705(b) a Rule request not a for tions is field for practiced chologists. He “underlying facts or hearing explore the years. 15 He interviewed about McBride expert’s opinion. See data” of the evaluations based prepared written twice (Tex.Cr. State, 600, 607 fn 16 862 S.W.2d v. court did not The trial on these interviews. (objection that doctor was “outside App.1993) compe Field was its discretion to find abuse challenged the expertise” doctor’s his field of appellant had opinion that express an tent to State, qualifications); cf. Goss McBride, 862 personality. See an antisocial denied, 162, (Tex.Cr.App.1992), cert. 168 607-08; 829 Fuller v. S.W.2d at U.S. -, L.Ed.2d 722 125 113 S.Ct. de (Tex.Cr.App.1992), cert. S.W.2d 705(b) (1993) (a hearing affords a defen Rule — -, nied, 113 S.Ct. U.S. opportunity to determine dant an foun (1993). L.Ed.2d may also opinion and it expert’s dation raises several Appellant’s brief make a time ammunition to supply sufficient ap qualifications that challenges to Field’s expert’s because ly objection trial court. present did not admissibility). pellant it lacks a sufficient basis present opportunity to an Appellant had Therefore, preserve his appellant failed to *21 drug by proof ticipated appellant matters offer of or bills of would use his use to these 103(a)(2); exception. urge jury negatively special See Tex.R.Crim.Evid. to answer 52(b). And, Tex.RApp.Proc. op- that, being he had an the inference if issue two with portunity life, to use these matters to cross-exam- appellant to he would not was sentenced ine Field. We decline to hold the trial court dangerous drugs un- because would be testimony erred to admit Field’s based on available the “structured environment” appellant presents matters for the first time prison. claimed it needed Bitter’s The State 52(a). appeal. on Tex.R.App.Proc. See testimony argument. rebut this to Moreover, go these new matters do not to oral motion. “[APPELLANT]: One other qualifications. They go the issue of Field’s anticipate during that at some time weight given testimony to be his and may proffer trial of this case that the State admissibility. not to its Point of error ten is through jury witnesses before this testimo- overruled. ny general, about TDC that the Texas twelve, points Department general, In of error of Corrections in eleven and appellant argues the trial court violated his the Institutional Division of the Texas De- right effectively Justice, partment confront the witnesses of Criminal or whatever against called, him under the penitentiary, testimony Sixth and Fourteenth it’s the state Amendments to the United States Constitu drugs to the effect that there are in TDC I, tion and Article Sections 10 and of the drugs readily and that are available Constitution, by allowing Texas TDC, that there is assaultive conduct presence voir dire Field outside the TDC, that, things general like statements jury prior giving jury opin Field his about the institution itself. dangerousness ions on future object any testimony, “I would such personality disorders. The record reflects Honor, Your in that those issues them- present did not these constitutional directly selves are not that evidence See, supra. claims to the trial court. There only jury two reflects on the issues the fore, appellant presents nothing for review. has, and to determine whether or 52(a). addition, Tex.R.App.Proc. ap In [appellant] deliberately committed this pellant opportunity was not denied the expectation offense with the reasonable “full punish cross-examination of the State’s somebody going to die or that he ment op witnesses and was not [the denied continuing society. himself is threat portunity to right exercise] constitutional they attempting “I believe will be to show to confront” against the witnesses him. See is a the institution itself bad institu- 52(a); Barney v. Tex.R.App.Proc. tion, and, therefore, [appellant] should be (Tex.Cr.App.1985). S.W.2d 127-28 Texas insti- eliminated because has bad Points of error eleven and are twelve over me, inherently prejudicial tution. To it is ruled. any statutory and doesn’t come within rea- fourteen, of error claims testimony. son for an offer of such The the trial court abused its discretion admit- [appellant] issue is the individual and not ting testimony availability Bitter’s about the Certainly the institution itself. if offer we drugs prison. of error fifteen something [appellant], to this about sixteen, appellant also claims the trial specifically drugs about how he’s on or not court violated the Fourteenth Amendment to drugs, drugs in that he cannot receive I, the United States Constitution and Article TDC, may open then we the door to the Constitution, by Section of the Texas evidence, go into such but other- State admitting this evidence. wise, prison system the entire Texas state punishment hearing began, Just before the highly prejudicial. is not relevant and is appellant objected to the admission of Bit- ter’s because it was irrelevant and
prejudicial. [appel- If State claimed the evidence there’s evidence that “[STATE]: was admissible because it was is of a different lant] relevant while he’s two, special drugs, if issue and because the State an- character than without there *22 TDC, drugs in they him in would be removed from a struc- put that if is evidence available, saying is drugs and with tured environment. What we’re that will not be in order for them to make a rational no from the that is mis- that evidence decision, they be aware of what leading jury. feel it is relevant should We goes in that I believe unfortunately, system on environment. to establish that now, thought right they’re left with the right drugs, now includes that as it exists inmates, and, drug-free structured more that TDC is and so drugs are available to danger. system [appellant] in that would not be particularly, that inmates them. know how obtain “All offered so far indicates of the evidence Basically, it’s an unfair stan- “[STATE]: [appellant] drugs an has used for extended indicates that he com- dard. The evidence
period of that. of time. There is evidence drugs. on this offense while he was mitted jury drugs not to know that are For the If cannot show evidence about we penitentiary leaves the available TDC, inherently is unfair. drugs in that they give him impression that should false unfair when How is that “[APPELLANT]: life, would, fact, danger in he not be a you’re looking punishment issues in at the drugs because no would be available. case? Is it the inten- “[THE COURT]: State’s it thing The whole about is “[COURT]: in chief or tion to do that on the ease questions to those should that the answers rebuttal? concerning [appel- facts be based on the We feel it’s relevant “[STATE]: purpose individually. The whole lant] in case chief. Penry jury the deci- is so that the makes all available and not
sion on
of the evidence
making
limited in
a rational decision.
I’m not
that evidence
“[COURT]:
sure
risk.
going
go
“I’m
ahead and take the
prison
they
in
people
about other
and what
put it
deny
I’ll
motion and let the State
it,
get
they
if
want
I’m not sure that’s
jury
purpose
in. The whole
is for
relevant to his case.
knowing all
intelligent
an
decision
make
is relevant
is the fact
“[STATE]: "What
to be able to stand
the facts. For one side
to him if he wants it.
that it is available
argue
an absolute
what amounts to
why
They
That’s
we offer it.
can’t stand
falsehood,
deprive
that would be unfair and
up
argue
directly or infer that
either
necessary
they need to
jury of
facts
drugs,
that he would commit
while he’s
know.
act,
peni-
up
if
lock him in the
an
but we
sake,
argument’s
For
“[APPELLANT]:
life,
tentiary for
and that no
are
might
you’re saying
[appellant]
because
available,
going
danger-
that he’s not
to be
argument,
that the State
make a certain
ous.
in
in its case
to counter that
should be able
that,
unless
understand
but
“[COURT]:
stage of
get close to that
chief before we
raised,
general
that
character
issue
telling
the Court
the trial? We’re
trial.
of TDC is not an issue
going to make.
argument
is the
we’re
They
they
raised it when
start-
“[STATE]:
made an
It’s
it’s been
“[COURT]:
because
[Appellant’s lawyers]
voir dire.
both
ed
issue
the case.”
constantly
[appellant]
on if
voir dired
environment,
drug
of his
used the evidence
placed in a structured
support
jury argument for
manner.
of his
behave
a different
use
he would
negative
special
issue one because
of voir dire was
answer
The whole tenor
He also
drugs, that this
no deliberation.”
be removed from
“there could be
should he
drug
jury
happen.
urged the
to consider
wouldn’t
answering special
issue two.
use
go
proper time for us
“That wasn’t the
hap-
of what
However,
juror
got the horrible facts
may be a
“You’ve
into that.
there
victims],
answering
but in
thought
pened
[the
sitting
got the
who’s
here who’s
life,
especially when look-
Special Issue No.
up
if
that he
mind that
he’s locked
time,
ing
give appellant
penalty
at
the death
be-
no matter
fact
was,
using drugs in
what his conduct
that he had to be
cause other inmates were
*23
cocaine,
prison.
emphasized
under the
crack
then
The State
the brutal
influence of
you
testimony
have to look at the
evidence
facts
and Field’s
rest
offense
you
[appellant]
appellant
dangerous
that
have about
that
was
and could not
before
you.” (Emphasis supplied)
be rehabilitated. The State also mentioned
appellant
in the
that
did
behave well
responding
testimony, appel-
to Bitter’s
army
pris-
or
structured environments
argued
give
lant
it would be unfair to
him the
argued appellant commits
on. The State also
penalty
doing
death
because inmates were
support
drug
crimes to
habit be-
serious
drugs
prison.
in
appellant
cause
refuses to work.
testimony
“The
of Mr. Bitters was offered
you
availability
drugs
to show
means,
justifies
to him
“The end
throughout
system
you
if
thought
so
killing people
not it
whether or
means
[appellant] in a structured environment
jewelry
burglarizing
get
or
their homes to
crimes,
they
wouldn’t commit
then
want
whatever he wants because he doesn’t
you
drugs
to think that
in
there would be
know that about him.
work. You
that structured environment. All I can
you
dope.
do
know?
‘What else
He takes
that,
say
gentlemen,
ladies and
is that I
taking dope
than cocaine.
He’s been
other
you
give [appellant]
want
fair
and not
get
That’s not inclusive.
does he
Where
penalty
you’ve
the death
because of what
money?
burglarized
We know he
two
doing
heard some other
in
inmates were
separate places
and he committed
rob-
prison
drugs.”
with
bery-murder.”
Appellant
argued
also
should dis-
Appellant argues
testimony
Bitter’s
about
regard
testimony
Bitter’s
because there was
availability
prison
drugs
in
was “imma
no
appellant
evidence that
“was found to
terial,
blatantly prejudicial.”
and
irrelevant
any
prison] relating
any
have
[in
incidents
Appellant
argues,
also
as the basis of his
drugs
any shape
or form.”
claims, that it
“fundamen
constitutional
was
“In an
penalty
effort to secure the death
tally
testimony
unfair” to admit
be
Bitter’s
him,
against
they brought you Agent Bit-
prison
to “maintain a
cause the State’s failure
I
general
ter.
think the
thrust of his
system
drugs
corruption”
free from
or
causes
testimony is
drugs
that
there are
drugs
prison.
inmates to use
The State
TDC,
TDC,
drugs
because there are
injected
argues
appellant
that since
the issue
every
there’s
[appel-
reason to believe that
drug
of his
use into the trial and since the
drugs,
will use those
lant]
and because he
“society”
special
term
issue two includes
will, therefore,
drugs,
uses those
he
contin-
“prison society,”
availability
drugs
society.
ue to be a threat
I assume
society
special
relevant to
issue
became
they
getting
that’s what
were
at.
Rougeau
two.
“Well,
gentlemen,
you
ladies and
I want
denied,
(Tex.Cr.App.1987),
cert.
485 U.S.
proof.
take the State’s
Look at all of
own
(1988).
1029, 108 S.Ct.
At the State Field’s produce failure state- testimony dangerous, cause of Bitter’s “to prepared by himself relat- previously ments dangerous. could him more make ing testimony.” of error at guilt-inno- Even own witness nineteen, eighteen appellant claims cence, McDonald, provided process trial due court denied support finding. cross-examination to right to law and the confront the witnesses “Q. person, You who have a has demon- against Fourteenth him under Fifth and personality.’ strated that How ‘antisocial *24 Amendments to the United States Constitu- does that affect him? I, tion and of and Article Sections 10 the might “A. It the lessen inhibitions. Constitution, Texas when it refused to order really you That’s it does. It what makes produce Bitter to these “statements.” your going lower inhibitions. It ain’t to Bitter, investigator who was narcotics change your It’s personality. going to system, prison within about the the testified (Emphasis supplied) it.” enhance in availability drugs prison. of On cross- record, this Bitter’s about On examination, prepared Bitter he re- testified availability drugs prison in rele- the of was ports concerning investigations drug of his great appellant to how a threat was to vant system. activity prison in Bitter did not the society. “prison” Rougeau, See 738 S.W.2d Appel- reports have with him at trial. these at 660. The record contains evidence that requested lant the trial to order Bitter court appellant might is a drug-user drugs and produce reports to pursuant to the Tex. dangerous normally him more than he make 614(a). trial court ordered R.Crim.Evid. The Therefore, about avail- is. the evidence the any produce reports specifically Bitter to ability drugs prison was relevant request appellant but his relating to denied just appellant dangerous show could be as requested reports. Appellant as to other society nonprison society prison he is in as production other reports because he drugs freely available. where are See id. “about wanted to cross-examine Bitter those Also, appellant The made the “structured envi- other instances.” trial court denied this argument request. Appellant trial which the claimed claimed the court’s ronment” State 614(a) ruling appellant Rule urged he would make. the violated When process rights and due under special two confrontation answering issue to look Appel- the Federal and State Constitutions. appellant “had to be the the fact under the lant not cross-examine Bitter on issue did of crack when influence cocaine” he commit- prison availability drugs in the offense, the jury ted the one inference could system. that, appellant draw was if received a life sentence, he well in the would do structured submission, original On this prison environment due unavailabili- juris Act” Court relied on federal “Jeneks drugs ty of The State was entitled to there. prudence erred to hold trial court about
rebut this inference with
evidence
reports.
requiring
produce
Bitter to
See
availability
prison.
trial
The
opinion
3500. This Court’s
U.S.C. Section
court did not abuse its discretion in admit-
original
on
submission relied on United
ting
testimony.
Montgomery v.
Bitter’s
See
(8th
Roark,
Cir.1991),
States v.
Marquart special testified the defense at issue two den beyond punishment. Appellant’s complaint is based a reasonable doubt to what members portion following willing gamble Rely were on. emphasized of the argument. ing on Cuevas denied, (Tex.Cr.App.), cert. U.S. Now, Marquart Dr. what did “[STATE]: (1987), L.Ed.2d 716 108 S.Ct. all, down here and tell us? First come argues “gambling” argument its re State Marquart Dr. never took 10 minutes with of whether there ferred determination Dr. Field contact with this man. did have dangerousness,” “probability future Marquart him. Dr. didn’t take 10 minutes duty prove special not the State’s issue Marquart, with him. Dr. what did he tell beyond two reasonable doubt. you? you you told can’t make He he said. determination. That’s what agree. Marquart’s study We many years you fact that spite of the have probability approximately a 9 in 92 showed combined, Marquart Dr. of common sense sample someone commit his research you you comes in here and tells what can’t The a criminal act of violence. ted State’s the evi- You are the ones that heard do. it’s argument was with burden consistent that saw dence. You are ones “probabil beyond a doubt a prove reasonable pictures. You are the ones who saw what ity dangerousness.” of future background. State’s [appellant] did. You know his *26 its of things. argument did not misstate burden Marquart didn’t know these Dr. addition, In court’s proof. the trial instruc things you? other did he tell He “What any disregard to tion to was sufficient cure person you one that was sen- told about State, argument. Andujo See error reason, death, to and for some his tenced 138, (Tex.Cr.App.1988). 755 S.W.2d commuted, person was sentence was twenty-seven of error is overruled. Point released, happened? and what He com- you’re mitted another homicide. So if twenty-eight, ap In of error willing gamble circum- to under argues erroneously pellant the trial court stances, you’re willing gamble based to if request disregard following, the his to denied this evidence that we have shown on jury emphasized portion prosecutor’s day incident on the 29th this horrible argument. really ready of1988, you August well—are gamble with innocent victim’s to another trial, [appellant] phase “At this still you willing gamble about Are life? very important you has a interest because you willing anyone’s out there? Are life he going are whether lives determine that? gamble on dies, community also has an inter- but arguing as to the He’s “[APPELLANT]: return You took an oath to a true est. the law proof. That’s not what burden of verdict, during guilt you which did says. The stage. You did that. State Texas beyond a rea- Our burden is satisfied with that verdict. We’re “[STATE]: is argue you you what re- going sonable doubt. with your today far as verdict. turn here objection. Sustain the “[COURT]: argue with You going that. We’re I would ask “[APPELLANT]: into what is best can take consideration line of jury disregard be instructed we’ve society All heard as well. for argument. throughout Leo this trial is Jenkins. jury instructed. The is so “[COURT]: strictly That’s what “[APPELLANT]: for a mis- move would “[APPELLANT]: charge says. in the Court’s I would law trial. object to that. sup- (Emphasis Denied.” “[COURT]: “[COURT]: Sustained. plied) Appellant argues “[APPELLANT]: I would ask that the trial VA..C.C.P. court jury disregard granted be instructed to that state- should have his motion for mistrial jury’s pun- ment. because “the deliberations at the phase Appellant’s capital ishment murder deny (Emphasis I’ll “[COURT]: that.” vastly disproportionate trial were with the supplied) length punishment evidence.” argument claims this invited the 31, January The record reflects that on jury punishment to decide the issues based p.m., jury at 1:30 retired to deliber- community expected on what the or demand- questions ap- ate the that would determine disagree, ed. argument We and hold the pellant’s punishment. jury deliberated proper plea for law enforcement. See February February into 1st and 2nd. The (Tex.Cr. Brown v. long record is silent on how deliber- App.1974). twenty-eight Point of error days, ated on these and even brief overruled. (sic) possibly exactly states “it is not as- points thirty-one of error thirty- and length punishment certain their delib- two, appellant claims the version of Article February erations.” On the afternoon of 37.071, Y.A.C.C.P., applicable to him violates 2nd, appellant following request: made the Eighth and Fourteenth Amendments to [appellant], “[APPELLANT]: Comes now I, the United States Constitution and Article through attorney, p.m. at 1:37 Sections 13 and of the Texas Constitution 2nd, 1990, February at would this prevented jurors because it individually from respectfully time move a mistrial. considering giving effect to circum- That will “[COURT]: be denied mitigating against stances imposition time.” penalty. thirty- death of error request This failed to inform the trial thirty-four, three and court appellant claims the any grounds Therefore, for a mistrial. version of applicable Article 37.071 himto appellant presents nothing for review. Eighth violates the and Fourteenth Amend- 52(a). Moreover, Tex.R.App.Proc. part since ments to the United States Constitution and *27 I, appellant’s length of the basis of claim is 19, the Article Sections 13 and of the Texas Constitution, jury punishment, of time by the deliberated on instructing jury the at the appellant punishment presenting had the burden of phase give that it could not ef- showing long jury record any fect how the deliberat- appellant’s mitigating evidence ed, against and has not carried this burden. imposition the penalty of the death 50(d). Tex.RApp.Proc. jurors See unless ten or agreed. more brief, appellant In his makes various “as- rejected This Court has these and similar sumptions” jury to estimate the deliberated claims raises under these 16 returning hours and 45 minutes before its State, error. See Hathorn v. verdict. This Court does not cases decide 101, (Tex.Cr.App.1992), 124-26 cert. de - assumptions based on and estimates about nied, -, U.S. 113 S.Ct. 125 50(d). Tex.R.App.Proc. the record. See (1993); L.Ed.2d 744 Draughon v. twenty-six Point of error is overruled. And, S.W.2d (Tex.Cr.App.1992). 337-38 the trial jury court did not instruct the that it judgment The trial court’s is affirmed. give could not mitigating effect to evidence jurors agreed. unless ten or more Points of OVERSTREET, JJ., and CLINTON thirty-one through thirty-four error are over- concur the result.
ruled. MANSFIELD, J., joins with note: Court, point twenty-six, join ap opinion although of error I the the pellant claims denying testimony the trial court erred in have doubt as to whether Bitter’s punishment his motion for availability prison mistrial at the about the was phase fails, however, “for the reason pres- that the trial court relevant. jury abused in keeping any its discretion the ent that admission evidence of this testi- 36.31, together in mony prejudicial, any deliberations.” Article was effect on the detriment, any way requires pro- the to his violated Rule 614 that defense or rights. Accordingly, ad- his constitutional a witness that are vided statements of was, assuming mission of Bitter’s possession that to the their relate error, Tex.RApp. it was harmless error. subject concerning matter the wit- which 81(b)(2). Proe.Rule has ness testified. addition, argu- the State asserted several MALONEY, Judge, dissenting. original why as Bit- ments on submission Believing seventeenth subject reports to Rule ter’s were not disposed properly of in the manner error was that suggested of which statements none submission, I original set forth on dissent.1 subject only posses- be in to Rule 614 can the Nevertheless, prosecution.2 the sion of the I. address State’s Court has decided to In support ground of its third for rehear- argument. belated ing, the on State asserts Court argues newly that its asserted The State original “misstate[d] submission standard possession by the interpretation, requiring evaluating pro- whether a statement need be by party by looking to duced whether the prosecution, language supported witness had control or access the state- interpretation of the Jencks Act. Rule question in ment. It is clear that the correct 614(a) provides: of Criminal Evidence this is whether the statement case a witness than defendant After other possession prosecution.” examination, has testified direct While the State now claims whether court, party on motion not call of a who did prosecution possession has state- witness, attorney for shall order the case, question in this ment is the central it his attor- the state the defendant and original neither raised this submis- issue be, ney, may produce, as the case directly sion nor did we address it. On moving use of examination and original interpret- itself submission State that is party, statement of the witness referring ed the Rule statements possession in their relates possession of the This is evidenced witness. concerning the wit- subject matter which by way in which the State summarized Rule has ness testified. its brief: require produc- grouped points rule was not intended to 1. While error seven- *28 teen, report eighteen together original every on a witness had ever seen nineteen tion submission, disposed regarding topic the Court of the case based on which he was testi- made alone, upon specifically, Rule 614 which was asserted in fying. be More Rule 614 cannot point grounds granted error The every seventeen. interpreted require produce Bitter to rehearing only point on address of error seven- regarding report he had ever seen or made teen. activity drug at T.D.C.J.I.D. argued production would be The State also that grounds granted three The Court and four "extremely onerous” and "herculean." Rehearing: the State’s Motion for single in a State further stated sentence The Reports Larry 3. Bitter made at TDC The subject production reports the were not that Entirely Investigations Regarding Unrelated because to Possession])] Case were not in the Prosecution’s this acknowledges, the himself as reports posses- were not in Bitter’s T.D.C.J.I.D. 4. this Court Were to Find a Violation Even if State’s, com- the and so could not be sion nor 614, Case Should be Re- under Rule this pelled under Rule 614. Copies Court To Include manded Trial exactly what determine While it is difficult to Reports that in the Record so the Trial the single making sen- in this the State was Any[.] Prejudice, if can Determine Court tence, contending the State was it seems that TDC, reports were at the located that because argued original that 2. The submission State possession personal of the they were not in the require- appellant's request the Rule’s exceeded argu- This is not the same witness or the State. "subject pertain to the ment that the statements by for asserted the State its motion concerning ment matter the witness has testi- which rehearing. regard, argued fied.” this the State
823
614(a)
added).
(emphasis
support
proposition interpret
State in
of this
Tex.R.Crim.Evid.
provides:
The Jencks Act
language
the
of the Jencks Act. The Jencks
After a
by
witness called
the United States
expressly requires
Act
that the statement be
examination,
has testified on direct
the
“in
possession
of the
United States.”
shall,
defendant,
court
on motion of the
contrast,
614
Rule
refers to a statement “of
produce any
order the United States to
possession
the witness that
is in their
[.]”
(as
defined)
statement
hereinafter
of the
substantively
Were Rule 614 intended to
mir-
possession
witness in the
the United
regard,
ror the
Act
Jencks
in this
it would
subject
States which relates to the
matter
refer to a statement of
“in
the witness
as to which the witness has
...
testified
possession
the State.”3
3500(b)
added).
§
(emphasis
U.S.C.
The
holding
majority,
The
requiring
of the
majority addresses
by
the State’s contention
holding
possession
the statement be in the
“plain
of the
language of Rule
614(a),
here,
applies
prosecutor,
as it
speaks only
prosecution
invites
to dis-
requiring
prosecutor
produce
witness
courage
giving
witnesses from
them their
prosecutor’s
statements that are in
pos-
statements
an effort to circumvent
Majority opinion
session.”
rehearing
production requirements of Rule 614. Such
majority
819. The
neglects
specify exactly
an interpretation effectively emasculates the
language
what
contained in Rule 614 so
Accordingly,
Rule.
I would overrule the
plainly requires possession by
prosecu-
ground
rehearing
State’s third
and inter-
emphasized above,
tor alone. As
Rule 614 pret Rule 614 as
original
the Court did on
requires production
“any
statement of the
submission, requiring production of the state-
possession.”
witness that is in their
I do not
case,
possession
ments at issue in this
in the
plainly
see as
majority
require-
as the
witness,
of the
Bitter.4
language
ment
this
that the statements be
possession
prosecutor.
might
It
original
The Court held on
submission
very well be that
the word “their” refers
that:
back to
previously
or all of the
named
think
[W]e
it reasonable that
when
de-
persons
attorney for the state or the
—“the
requests
production
fendant
aof
state-
attorney”
defendant and his
or “the wit-
ment under Rule
the State bears the
“plain
ness[.]” Under no
language” reading
burden,
party contesting production,
as the
rule, however,
of the
can it be said to refer
why
to show
the statement should not or
only
state[,]”
back
attorney
“the
for the
produced.
cannot be
See United States v.
majority
holds.
355-56,
Augenblick,
393 U.S.
89 S.Ct.
majority
argues
“plain
also
its
528, 533-34,
(1969)
(gov-
L.Ed.2d 537
language” interpretation
by
is bolstered
properly
explain-
ernment
bears burden of
those federal
require possession
cases that
ing why statements under Jencks Act
prosecutorial
be in the
arm
govern-
produced);
could not be
Moore v. United
ment.
reasoning
This
light
is flawed in
States,
(D.C.1974) (under
conspicuous
353 A.2d
differences between the lan-
guage of the
explaining why
Jencks Act and
Jencks Act burden of
Rule 614
mate-
respect. All of the
federal cases
produced
cited
rial can’t
government).
is on
*29
submission,
original
3. On
ing
possession
we looked to federal
of 'in the
of the United States' for
interpreting language
caselaw in
contained in
purposes.”
puzzling
Jencks Act
This criticism is
virtually
Rule 614 that was
identical to the lan-
original
because the Court on
submission did not
guage contained in the Jencks Act. In this re-
rely
proposition.
on Roark for that
The Court on
gard,
interpreted
portion
614(a)
we
the
of Rule
original
only
submission looked to Roark
in inter-
any
that refers to
statement "that relates to the
preting
portion
requires
the
of Rule 614 which
subject
concerning
matter
which the witness has
subject
that the statement
matter
“related
testified." The Jencks Act
refers
state-
concerning which the witness has testified.”
subject
ment "which relates to the
matter as to
State,
793,
(Tex.Crim.
Jenkins v.
912 S.W.2d
802
which the witness has testified.”
4,
App.1993);
supra.
see also n.
Ground two of
rehearing complained
the State’s motion for
of
majority
rehearing
4. The
on
criticizes the reli-
interpretation
original
our
on
submission of this
original
ance
the Court on
submission on
Roark,
614,
(8th
portion
ground
United
of Rule
but that
States v.
Jenkins can the rec- Crim.App.1993). court include documents the their ord determine whether exclusion complains rehearing The that it is State prejudicial. The that State contends that the defendant’s burden establish courts done this in the some federal have possession government. is in of the statement Act and that this Court context the Jencks only The further when State contends that similarly acted has other contexts. that the defendant establishes the statement appel at government I would first out that trial possession is in of the does urged for production lant of the documents government fall on to show burden appeal, request was why produced. purposes of but that cannot be The the statement rehearing has obtained the majority’s opinion on not ad- denied. Now State does they part or, reports urges that be made a complaint dress under hold- its new admittedly, of the record. While this Court ing, who of show- indicate bears burden (bill ing permits abatement certain instances that is or not statement Batson, hearing), exceptions, competency possession government that it of the and/or has not used context produced. abatement been can cannot be it of the Gaskin rule and do not think original the Court on submission did "While See, State, appropriate e.g., here. Zanders v. expressly not address who should bear the 708, (Tex.Crim.App.1972), 710-11 showing pos- burden of that the statement is denied, 421 44 cert. U.S. 95 S.Ct. witness, party it held session of the (1975) (where L.Ed.2d defendant denied contesting production bears the burden opportunity to make under Gas- statements pro- showing why the cannot be statement so appellate kin rule for record available party duced. It is not unreasonable that the determined, presumed); can harm is harm contesting production the bur- also shoulder (Tex. White S.W.2d showing is not in den that the statement Crim.App.1973). To allow abatement where possession own It makes its witness. compel produc the trial has court failed party seeking production little sense for the tion of Rule 614 elimi documents under will from an adverse witness to bear the burden any hope enforcing nate the rule in the establishing has whether or that witness production -will or tri future. Parties refuse the statement. in favor compel production al courts will dealing analysis at a with harmless error II. date, assuming properly the error was later preserved. ground re- Although the fourth for State’s granted, majority’s also sus- hearing was reasons, For I would overrule these taining ground apparently third elimi- grounds rehearing and for adhere State’s addressing any necessity nated opinion original the Court’s submission.6 ground.5 Because I would overrule the third ground rehearing, appropriate it is that I for BAIRD, J., joins. ground. also the State’s fourth address copies
The has of the re- State obtained issue, court
ports at filed them with the trial for Re-
and included them with its Motion along
hearing, with a Motion Abate. argues grounds if its other
State overruled,
rehearing are it is least entitled *30 acknowledges granting Forming Their majority the Basis 5. The Made Utilized four, three, grounds ground Trial. three sustains Testimony Phase This at the Punishment ground requested, part, addresses four. that the trial court never The Motion order the State trial, appellant filed motion entitled 6. Prior to [(Instruct any of their witnesses to all Bring Request that State’s Witnesses Defendant's bring punishment Court with them at Any Reports [sic] With Them and All PROPERTIES, LTD., EAGLE M.W.
Branum, and Thomas G.
Brown, Appellants, MARWICK, Appellee.
KPMG PEAT
No. 08-93-00478-CV. Texas, Appeals
Court of
El Paso.
June 1995.
Rehearing July Overruled 1995. REPORTS, phase RECORDS, submission, of this case ALL traiy original to this motion. On WRITINGS and RECORDINGS of kind disposing Court noted that since it was they subject made in connection with the case the basis of Rule it need not address matter of their appellant's respect at the trial of the contentions with to his mo- punishment defendant’s majority in this case. appel- tion. Since the now overrules granted day Motion was respect same it was lant’s contentions with to Rule 614 and complaints, appel- filed. In addition to his other appel- his constitutional claims it should address complains ruling lant specific the trial court’s respecting was con- lant's contentions his motion.