Johnson v. State

they did I in this instance that sel, which find without the assistance of his law- not sustain. fully appointed counsel. reason, other, appel- Thus, if no for this by be axiomatic now that It is or should should set aside. lant’s conviction be judge appointed magistrate

once a has counsel, and thereafter he con- the accused respectfully dissent. counsel, that this amounts

sults with right of the to counsel

to an invocation by the Con-

guaranteed Federal State upon then

stitutions. The burden is an affirmative waiver

State to demonstrate right by

of the to counsel the accused be- interrogation may institut-

fore further State, 657 ed. See v. S.W.2d Wilkerson JOHNSON, Appellant, Elliott Rod (Tex.Cr.App.1983). v. is inconsistent with Miranda and its “[I]t Texas, Appellee. The STATE authorities, in- progeny for the at their stance, [interrogate reinterrogate an or] 69170. No. custody clearly if he assert- accused in has Appeals of Court of Criminal v. right ed his to counsel.” See Edwards En Banc.

Arizona, 451 U.S. (1981), part held in

L.Ed.2d 378 which Oct. 1984. ..., having expressed his de- “an accused 30, 1985. Rehearing Denied Jan. police only through sire to deal with the Rehearing Denied March 1985. counsel, subject interroga- is not to further by has tion the authorities until counsel him,

been made available to unless the

accused himself initiates further communi-

cation, exchanges, or conversations with police.” Also see v. Coleman (Tex.Cr.App.1983); S.W.2d Phifer (Tex.Cr.App.1983); State, supra. Wilkerson police the ac-

When contact accused,

cused is not initiated as instance,

happened in this and at that mo- his

ment in time the accused has invoked appointed and has counsel

right to counsel him, a confession that represent before can become admissi-

is thereafter obtained evidence, prosecution must estab-

ble knowing intelligent relinquish-

lish a right to coun-

ment or abandonment

sel, ‘upon case depends “which each sur-

particular facts and circumstances case, including the back-

rounding the of the ac-

ground, experience and conduct ” Zerbst, cused,’ 304 U.S. Johnson 1019, 1023, 82 L.Ed. heavy

(1938). extremely is an This indeed sustain, prosecution must

burden' that the 8, 1982, appellant and three April

On drove to Beaumont to commit other men of the other robbery. Appellant and one Andrews, men, at a Maurice rendezvoused Shop around noon Schlotzsky’s Sandwich to observe Granado’s Jew- and walked over carrying Andrews was a white elry Store. in one hand. The two en- handkerchief jewelry tered the store where Joe Granado working. Ap- and Arturo Melindez were in his confession that pellant claimed Melindez to lie down ordered Granado and the counter and that he saw Grana- behind something yelled reaching do for it, Andrews, got gun.” Ap- he’s a “Watch pellant Andrews then turned stated that shot and around and fired a the door and started outside. He walked to said he heard “a few more rounds” by the street the time was almost across rejoined him. Andrews gunshot died from two Joe Granado head. Arturo Melindez was wounds to the also shot to death. One of wounds by .38 Granado was caused a caliber bullet than three feet fired at a distance of less The other wound was from his head. by .22 caliber bullet fired less caused a Stanley Dr. than a foot from his head. the location of the LeBer testified angle of the bullets were wounds and shooting consistent with someone Granado position a in front of and above Gra- from a nado. Dr. LeBer also testified that (on only), appeal Dexter Patterson Ned- right and laceration to Granado’s bruise erland, appellant. for by force type ear caused a blunt McGrath, Atty., James S. Dist. and John striking the ear and was consist- or DeWitt, Beaumont, Atty., R. Asst. Dist. gun. ent from the butt of blow Huttash, Austin, Atty., Robert State’s for that she worked Louisa Morales testified the State. Shop which at the Belle and Beau Tailor jewelry door to the store. was located next 12:15 in the Morales testified that at about two April 1982 she heard afternoon on OPINION somebody like noises that sounded loud DAVIS, Judge. W.C. hammering pounding the wall 1¾ n She waited about jewelry store. mur- jury capital A convicted the door of minutes and walked to “yes” to each der. The also answered men walk- shop. saw two black tailor She of the three issues and the court side, from Grana- together, side fast punishment at death in accord- assessed not see their Jewelry She did 37.071(e), do’s Store. ance with Art. V.A.C.C.P. faces, but appearance described their many rated of the details testified to said one man was taller than the witnesses: other. My name Elliott Rod Johnson.

Joy Moore testified shortly after April noon on she left work to run Thursday, April 8th, 1982, On

an errand. some- She noticed two black men noon, time around I was my house standing near the shop. front of the tailor laying down. Malcom Davis guy She noticed that the taller one of the two named my Maurice came to house and was swinging a white handkerchief in his woke up.me Maurice said that we had hand. Moore parking walked to a lot and something go got up put do. turned around to see if the two were still my clothes I thought they because ment They there. gone. were She testified that (sic) something going like get high. jewelry store and the shop tailor were We went got outside and in Malcom’s probably only places the two men could car, a little white car. Malcom was driv- gone have in the few minutes she was not ing and we went to a house in Pt. Ar- looking them, they unless had run some- thur, I don’t know whose house it was. where. Moore identified as the Malcom went in and me and Maurice shorter of the two men she day. saw that stayed in the car. He came back and Quimby William testified that he saw (sic) then we Burger went to a Aonic two black men Schlotzsky’s walk into got something stand and to eat. Maurice around noon April on 1982. He noticed said he knew go get where we could them they because did not order anything some I jewelry. asked him what about just and walked into the restroom and then money he said he didn’t know. Mal- carrying paper walked out towels in their com drove us over to the new mall on our Quimby hands. shortly also saw them af- way stopped to Beaumont and we the noon, ter on the same side of the (sic) street as guy O’Neil, sears A store. named Store, the Jewelry walking Granado in the who I from know the streets was stand- store; ing parking direction of in they carry- the were still there the lot. met him We ing there and then paper the someone asked him where towels. (sic) his truck then him was told we was A .38 receipts caliber revolver and going to drive over to where his truck marked Jewelry “Granado Store” were was. We drove over to where his black found premises Davis, on the of Malcome pick up parked. truck was O’Neil one of four men involved in robbery; pick walked over the up truck. O’Neil expert firearms gun testified that the was opened the door on the side driver’s the same shooting one used in the of Joe (sic) where Malcom was and nelt down. Granado. quantity Police also found a already Maurice had it in said was Beau- jewelry taken in robbery at Maurice get mont where could jewelry jewelry Andrews’ residence. No was talking O’Neilwas how it would be about appellant’s residence; found at neither was easy get jewelry for this store to robbed gun the .22 robbery caliber used in the ever they supposed and that he knew were recovered. Police found a white handker- working jewelry be on for other stores chief on the in jewelry counter store. like Zale’s and and stuff. Gordon’s (sic) old Appellant usually O’Neil said there be one challenges sufficiency man in the store. O’Neil said that we the evidence to him convict because he riding deep, were too for one of us to contends that his confession is “not corrob- get come in the I told car with him. by any orated evidence from source” running them I couldn’t do no I because part that he robbery took inwas They me my had VD and balls hurt. told during the store robbery. go to with Maurice and that Maurice was Appellant’s (sic) confession was going Schlotzky’s intro in a sand- (sic) duced at trial. shop The confession corrobo- witch around the corner. Mau- got I park- my rice told me this old box and I turned head when when jewelry time, lot across from the store. last laying see that was still (sic) down, Maurice had riden to Beaumont in raising up the old man was pick up I truck with O’Neil and rode trying something. to reach for Maurice got with Malcom in I out his ear. had his I back turned and hollered Mau- looking Malcom’s car and for went Mau- (sic) it, say rice’s name I out. “Watch (sic) passed by rice. I the sandwitch got gun.” he’s old man had his shop completely, and thats when I saw hand between a little shelf like and I stopped truck out in the O’Neil’s street. portion gun. could see a little of a Mau- I went to O’Neil’s and asked him truck rice jumped turned around and he back where Maurice He told me to was. look and fired a shot. I towards the walked there and see the back didn’t I Schlotz- door I’m opening telling the door him ky’s (sic) sign. me It took awhile to see to come on man and I hear a few more sign I and when I it told him saw OK. rounds. One round like sounded it came (sic) walking I started to the sandwitch (sic) biger gun. from a I was almost shop. (sic) I went inside the sandwitch (sic) acorss the street when Maurice shop I and went to the restroom. Mau- came out the door. I told him to “come rice was in the restroom the sandwitch man, you got to walk faster”. We (sic) shop got there. when Maurice straight walked to Malcom’s car and I using the and then I restroom used got in got the back seat and Maurice together the restroom. We left passenger the front side. Malcom drove past jewelry shop walked and we laying off. Maurice and me down like didn’t what we because saw had the seat drove when Malcom off. Mau- (sic) usually person told us it one (sic) rice to had kill Malcom we them there there was two. We walked and to straight come on. Malcom drove parking over to Malcom’s car in the lot to his house in Pt. Arthur.” big building where the was. We were render may “... confession sufficient discussing people being about the two circumstantial evidence that would be in- us, All there. three of me Malcom and State, sufficient without it.” Watson v. Maurice were talking about it. I told 559, (Tex.Cr.App.1950). 227 S.W.2d (sic) do, youre going Maurice whatever State, See White v. 591 S.W.2d (sic) on and if go youre do it because not (Tex.Cr.App.1980); Bridges going nothing, might go. to do we as well (Tex.Cr.App.1962). Testimony S.W.2d (sic) say go Maurice “let’s man.” I Dr. LeBer established Joe Granado back jewelry walked behind him the died as a result of shots fired at close two store. Maurice had a hankerchief white range, with two different caliber bullets. (sic) in his fumbling hand and with was Jewelry Jewelry from Granado’s Store was (sic) getting paranoid it because we were at found the residence of two the four going in about in. We the store went participants robbery. in The .38 used together mostly. pulled Maurice out his killing was also found. Louisa Mo- grey pistol got color short when we jewelry worked rales next door to store counter. I men to up. told the stand and heard two loud noises around 12:15 up told the I old man to stand and Mau- p.m., appellant time confessed to rob- up. rice told the other to stand dude bing Granado. She saw two black men “Lay Maurice said and the two down” together out store jewelry walk men laid floor behind down on the Joy right after the Moore saw two to the noises. counter. walked back corner of men, she identified as out the black one of whom the room and looked window. appellant, standing jewelry near the store Maurice walked the counter and around shortly also noticed that watching looking them he was after noon. She was (sic) holding envelopes them and stuff. Mau- other man was a white hand- kerchief, envelopes something by appellant in putting rice was this little mentioned in his confession. A white handkerchief mon necessarily words are not to be de- jewelry found on the counter in the fined in charge jury.’ to the store. charged on the law of King, supra, 553 at 107. parties. In addition defense counsel not did These facts and circumstances taken prosecutor’s to the voir dire jur- or to the amply connection with the confession es- concerning ors’ probability, answers nor

tablish the offense link to it. request any did ever definition. Therefore, appellant may complain not now ground of error is overruled. alleged application an unconstitutional Appellant grounds asserts seven other of Art. case. 37.071 this error, most of which deal constitu- ground of error is overruled. 37.071, tionality applicability of Art. V.A.C.C.P. Appellant contends that Art. 37.071 is it unconstitutional because does not al

Appellant 37.071(b)(2)1 contends that Art. proportionality low review to determine applied present is unconstitutional as penalty proportionate whether the to oth case application because the of Art. 37.- er similar crimes. This contention was ad 071(b)(2) vague was so that it amounted to dressed and overruled United States arbitrary capricious punishment pro- as Harris, Supreme in Pulley Court hibited in Furman Georgia, U.S. (1984). U.S. 79 L.Ed.2d 29 (1972). 33 L.Ed.2d 346 Specifically appellant complains that appel In his next of error permitted jurors giv- court to serve without lant claims that Art. 37.071 is unconstitu any proper probabil- them definition of equal protec tional because it violates the definitions, ity jurors given and the own process provisions tion and due of the Unit dire, during voir reflect confusion. ed States Constitution because it is not Ap on a based national uniform standard. repeatedly have prob held that We pellant that the United States Su contends ability need not be defined because it is a preme set a national stan Court should ordinary meaning. word of common and consistently upheld dard. That court has (Tex.Cr. King v. right the of states to set their own stan State, App.1977); Granviel v. imposed by the dards within the limits 107, (Tex.Cr.App.1977). Appellant ar United States See Furman Constitution. gues jurors equated many probability that 2726, Georgia, v. 408 U.S. “possibility” and “chance” and this (1972); L.Ed.2d Jurek reflected confusion and not “close to a U.S. 49 L.Ed.2d 929 S.Ct. all, ‘probability’.” of First of we definition Carolina, (1976); Woodson North agree jurors do not that the confused. were 49 L.Ed.2d 944 U.S. jurors The record reflects that most were (1976); Harris, supra. Pulley v. agreement in in probability fact that is of error overruled. chance, likely repeat, meant to and something might happen similar sense Art. 37.071 is Appellant contends that again. say they cannot did not have a We 37.071(d)(2) Art. unconstitutional because proper probability since the definition of any to requires jurors answer “no” ten to require term a definition: does not case in special issue on a death submitted imprison- simple require in to a sentence of life terms used are words order ‘Where themselves, Appellant claims in their ordi- ment rather than death. and are used puts an burden nary meaning, jurors supposed are to that this unconstitutional pro- equal him meaning on and denies know such common and terms a defendant in every other crime such eom- tection because for and under such circumstances 37.071(b)(2): a continu- probabili- of violence that would constitute there is a acts 1. Art. whether society. ty threat to that the defendant would commit criminal except Next, capital any Texas murder one “no” that the contends “court would allowing vote be cause for mistrial. jury prospective erred in the jurors to be informed of effect of their Under 37.071 in Art. as amended agree any special failure to on issue.” under which sen tenced, if juror special one votes “no” to a prosecutor repeatedly prospec- The told agree issue and does not other with the jurors jurors that if “yes” tive all the vote jurors, the defendant is assessed mini special to the issues the court would assess punishment mum of imprisonment. life death, juror if any one votes “no” to of but The defendant not is forced to face retrial pun- issues the court will assess possible Thus, a un death sentence. imprisonment. at life ishment der current Art. 37.071 a defendant in 37.071(d) Art. states: only juror effect need convince one to vote (d) charge jury The court shall that: get “no” order to punish minimum (1) may any it not ‘yes’ answer issue ment. We a addressed similar contention agree unanimously: it unless (Tex. in Molandes v. 571 S.W.2d 4 (2) may it not issue answer ‘no’ Cr.App.1978) where we held that “the con agree. 10 or jurors unless more right a stitutional to unanimous verdict felony only cases extends to of the return a 37.071(e) Art. states: accused, verdict adverse to the ... (e) jury If the an returns affirmative legislature may provide for the return a finding on each issue submitted under verdict favorable to the less accused on article, the this court shall sentence the agreement.” provi than unanimous defendant death. If returns a sion a defendant because it “allows favors negative finding on or unable to an- resulting impris a favorable verdict in life any issue under swer submitted this arti- agreement onment to be returned of ten cle, the court shall the defend- sentence jurors,” rather than force a defendant to Depart- ant confinement in Texas “face the ordeal a possi retrial and the court, ment of Corrections for life. The bility of death-producing verdict a new state, attorney for the or other attor- jury.” Molandes, supra, at 4. See also may ney for the defendant not inform a (Tex.Cr. Brown v. 554 S.W.2d 677 juror prospective juror the effect App.1977). agree of the jury of failure on an issue Supreme The United States has Court under this submitted article. expressly upheld Art. 37.071 a special- as prosecutor, by telling jurors procedure pen- ized utilized when the death juror if one voted “no” the court alty is Texas, supra. involved. Jurek life, in told would assess effect them the Special issues such as the three in Art. agree failure on an effect of issue. do appear anywhere 37.071 not else However, appellant not to the did because, statutes Texas Art. be- 37.071 prosecutor’s Nothing pre statements. is statute, the penalty death death and Esquivel objection. served absent an v. being penalty special significance, a spe- of 516, State, (Tex.Cr.App. 522 scrutiny sentencing procedures cial and are State, 1980); Cooper 578 401 v. S.W.2d required. Georgia, Furman v. 408 U.S. (Tex.Cr.App.1979). (1972); 92 33 L.Ed.2d 346 of overruled. Jurek, ground This error is supra. 37.071 effect Art. then in equal did not therefore the protec- violate contends, Appellant specifying without provision tion of the United States Consti- statute, any part charge of the of the tution, mentioned, actually and as a favors jury, appar- the charge that court’s to the subjecting defendant him the not phase, ently punishment the and Art. possible imposi- ordeal of another trial and of guidelines 37.071 Lockett v. violate penalty. tion the death Ohio, 438 U.S. 98 S.Ct. ground (1978) Eighth This of error is and overruled. L.Ed.2d (2) Fourteenth Amendments to probability; the United definition of failure to sub- States Constitution because do “not questions mit as to the voluntariness of clearly guide jury understanding mit- appellant’s confession; (3) allegations that igating purpose circumstances and their attorney defense failed any to interview option and of their to recommend life im- trial; prior (4) witnesses failure to prisonment though aggravating even cir- object testimony that cumstances are found.” carry gun. known to a Appellant simply alleg cites no cases and sufficiency The and effectiveness of very generally es charge that the and stat an attorney’s gauged assistance must be t applied ute are unconstitutionally. Locket totality representation of the of the clearly prior indicated record and accused to see that he has received reason aspects of the character of the defendant ably parte effective assistance. Ex Robin type mitigating are the factors that son, (Tex.Cr.App.1982); 639 S.W.2d 953 permitted. should be Art. 37.071 and case State, (Tex.Cr. Passmore v. 617 S.W.2d 682 law that developed has under Art. 37.071 1981). App. The facts and circumstances of exactly demonstrate that types those each case must be examined. mitigating circumstances are admissible. Alexander, (Tex. parte Ex 608 S.W.2d 928 Appellant’s first concern State, Cr.App.1980); Milton v. 599 S.W.2d ing request proba failure to a definition of (Tex.Cr.App.1980); following see cases bility is without merit. held We have 37.071, Art. V.A.C.C.P. probability by given. no definition of need Therefore, request failure to such defini Appellant previously complained of hardly tion can called ineffective assist jurors fact that were informed that a King, supra; Granviel, ance of counsel. defendant would imprison be assessed life supra. only ment if one of them any voted “no” to special issues. he Now seems to be upon ap The second claim which complaining that they should be told in the pellant bases his ineffective assistance alle charge option of “their to recommend life gation is defense counsel’s failure imprisonment.” clearly is not the law. appellant’s to the voluntariness of confes jury supposed to consider all the sion. Defense counsel filed a motion for a special evidence answer the issues hearing on the voluntariness of the confes upon judge based that evidence. The then hearing sion. The record reflects that the punishment, depending upon assesses the was held and the court filed written find answers, jury at death or life. The ings stating of fact and conclusions of law charge correctly in this case instructed the that the confession was admissible and was jury Appellant request on the law. did not voluntarily freely given. In addition charges. additional issues during guilt-innocence stage of trial adequately guide jurors weighing objected again defense counsel to the intro mitigating aggravating circum duction of the statement. presented by stances the evidence. Jurek Although this contention is some 428 U.S. unclear, appellant seems claim what also to (1976); Lockett, supra;

L.Ed.2d 929 that defense counsel was ineffective be State, (Tex.Cr. O’Bryan 591 S.W.2d 464 charge request cause he failed to App.1979); S.W.2d Barefoot disagree. issue voluntariness. We (Tex.Cr.App.1980); Blansett v. requested Even if defense counsel had (Tex.Cr.App.1977). S.W.2d given charge one need not have be been ground This of error is overruled. presented raising cause no evidence was appellant’s ground In of error he last the issue. alleges ineffective assistance of counsel. (1) Appellant’s allegation for the upon grounds; He his claim four third bases request ineffective assistance claim is that defense attorney’s the defense failure to attorneys failed any to interview witnesses

prior to trial. place He cites one THOMPSON, Appellant, John Russell during punishment record phase where defense counsel made a motion for continu- Texas, Appellee. The STATE of ance in order to obtain two new witnesses testimony to rebut a State’s witness’ that No. 68987. apparently surprised appellant. Nowhere Appeals Court of Criminal record is there evidence of a En Banc. failure to prior interview witnesses to trial.

This claim is not supported by the record. Dec. 1984. Rehearing Denied Feb. 1985.

Finally, appellant claims that object guilt- defense counsel failed to at the stage

innocence testimony appellant carry

was known to gun and that that why police arrested guns

their drawn. if Even defense counsel objected,

should have this isolated failure is not light error in of the suffi

ciency representation. of the overall

totality representation over the

course of the trial reflects that reasonably

received effective assistance. of error is overruled. judgment is affirmed.

TEAGUE, J., concurs the result.

CLINTON, Judge, concurring. agree do not pre issues 37.071,

scribed Article V.A.C.C.P. “ade

quately guide jurors in weighing the miti

gating presented by ... circumstances

evidence,” majority obviously but

unwilling provide guidance. such Ac

cordingly, futile, since to dissent is I mere

ly judgment concur in the of the Court.

MILLER, J., joins.

Case Details

Case Name: Johnson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 31, 1984

Citation: 691 S.W.2d 619

Docket Number: 69170

Court Abbreviation: Tex. Crim. App.