*1 is re- judgment of the trial court The is remanded and this cause
versed proceedings
trial court consistent holding.
our JONES, Appellant,
Sandra Texas, Appellee. STATE 3-82-355-CR(T).
No. Appeals
Court of
Austin.
Nov. 1983.
Rehearing Denied Dec.
1979, lying in face down a ditch roadside gun- Luling, outside of with a fatal pockets shot wound to his head. His front out, had inside although been turned $31 and his wrist were on watch found still person. shells, Spent six-millimeter rifle butts, cigarette ciga- assorted empty an package, rette blue lighter, a butane an empty sack, whiskey shot-up bottle can, beer leaning and a six-millimeter rifle against post a fence near were discovered body; bloody the towel smeared type same as the blood deceased’s was found one and one-half miles from scene. The local authorities also discover- ed small in the roadway holes where appeared body the deceased’s had been dragged. day, Later that same de- pick-up ceased’s truck was discovered Luling approximately 200 mother’s home. A visual inspection pickup truck revealed Austin, Roy Greenwood, E. appellant. for door, blood on the driver’s side the driver’s seat, and bed of the back the vehicle. The Horn, Jeffrey L. Van Criminal Dist. inspection also revealed a bullet on crease Atty., Lockhart, Q. Minton, Roy Minton, pick-up the front hood truck. Burton, Collins,Austin, Foster appel- & lee. Upon investigation, au- further the local thorities had discovered the deceased C.J., PHILLIPS, Before and POWERS frequent company been in with the GAMMAGE, and JJ. days preceding lant the The his death. appellant, originally record shows that PHILLIPS, Chief Justice. visiting Chicago, Luling appeals Sandra Jones the trial court’s mother and She was seen with brother. judgment, upon jury’s based nights the deceased before his murder two murder,1 finding appellant guilty of 6, Luling. Friday, July at a local bar On sentencing twenty-five years her to brother, appellant, her de- and the Department Texas of Corrections. spent morning driving ceased around Appellant challenges the trial court’s afternoon, drinking the area beer. That (1) judgment evidence is insuffi- appellant accompanied and her brother cient, (2) court the trial erred allow- deceased to bank a local where he cashed ing the State to introduce evidence of a checks, money kept $600 given polygraph appellant. examination person. spent They then afternoon grounds do not We reach the other of error Luling sup- auction. Sometime around by appellant we find raised since reversible pertime, the deceased and accompanied by error sufficient evidence. dropped appellant’s brother off at thus remand. We reverse and lant’s mother’s home. The deceased Johnson, shortly was found then seen David were thereafter morning Saturday, July grocery Luling at a short dead on the store and a 19.02(a)(1) (1974) (1) intentionally § knowingly 1. Texas Pen. Code Ann. or causes states: death of an individual. (a) person an A offense if he: commits case, appellant close of Shortly At the period later at a friend’s home. grant an instructed court to moved they seen at another thereafter were produced the State citing that verdict paid the deceased friend’s home where her of to convict catching a the deceased friend bull $20 court refused. The trial charged crime. they recently purchased. The last time early together was in the eve- were seen tri- phase of the During *3 Friday, July ning of twenty- al, that she was appellant testified married, old, mother of six years six Friday p.m. At around 10:00 on this children, normally, a of Chica- resident and night, the deceased was last seen alive. journeyed to that she had go. stated She pick up home to his rifle He had returned her mother and Luling to visit “go hunting.” His father so that he could she visit- normally stayed two weeks while person in the truck an unidentified saw testified She further ed relatives there. off. A pick-up him as the truck drove with with sexual intercourse that she had had later, midnight ear- a little after few hours Friday his insistence the deceased at Saturday morning, pick- the deceased’s ly Appellant testified night of his murder. private prop- up parked seen truck was physically forced her had that the deceased yards appel- erty approximately 200 from his demands. She further comply with Luling. cursory home in A lant’s mother’s escaped the farm told how she pick-up inspection of the truck a relative attacked her and had house where he had that the truck of the landowner revealed up dirt road. The deceased then run empty and that the doors were locked. was truck, apolo- pick-up then followed his time, appellant same approximately At this her, struggling gized appellant for quite upset home returned to mother’s pick-up truck. talked her back into of her with a dark stain on the front proceeded the de- Appellant then to have a dis- further testified that blouse. She stopped pick-up truck her brother. The next morn- had then cussion with ceased can ing, shortly body was shoot at a beer before deceased’s and started to found, pick-up lying was in the road. He then returned the deceased’s truck rear yards ap- placed the rifle in the again observed the truck and Ap- day, appellant was seated. pellant’s mother’s home. Later that the truck where rifle, Chicago. picked up pointed appellant pellant flew home to then take and demanded that he The record shows that the deceased died testified that the deceased her home. She gunshot his head as a result of wound to gun off.” “grabbed the and it went then least fired from a six millimeter rifle at intentionally shot him. having She denied head, inches from his sometime be- 15-18 truck, dragged body got of the his She out early Saturday p.m. Friday 10:00 tween roadway to the ditch—wear- across the dirt expert tes- morning. The ballistics home, high drove ing her heel shoes—and positively he could not state that tified that ap- pick-up truck parking the deceased’s rifle, found near the de- the six-millimeter mother’s proximately from her body, weapon be- was the murder ceased’s that Appellant further testified home. slug into too rifle had shattered cause the returned home she did have blood when she entering the de- pieces, upon small of and that she did have on her blouse skull, an accurate examination. ceased’s discussion with her brother. testify similar to the He that it was did phase murdering At this employed in weapon that was initially appellant had Sheriff testified that fingerprint expert, A called the deceased. that the deceased had told the authorities testified that he found by the males, body the driv- been shot two black fingerprints in the truck on lant’s ditch, pockets dragged into the panel above the main- side inside door er’s driving they had sticker, gone through while been among places other within tenance country. testified that He further truck’s interior. appellant changed granted her version of the court should have events throughout several times his investi- lant’s motion for an instructed verdict. We gation Appellant of the murder. ground had dur- overrule this of error. ing cross-examination confirmed that she initially We note that as of the time story, told such a but insisted that it was a appellant for a moved directed fabrication. evidence was insufficient to
Appellant contends that
judgment.
“the trial court
tying appel-
admitting
erred in
the results of
poly-
lant to
point
the murder at that
was that
graph
examination made of
...
she had been
company
seen
the victim’s
generally impeach
the truthfulness and
Friday
body
as of the
before his
was dis-
veracity
appellant.”
Saturday,
spot
covered on
that there was a
Friday,
on her
ciga-
blouse that
that two
Upon
record,
examination of the
we find
type appellant
rette butts of the
smoked
phase
body,
were found near the
trial, appellant, upon being cross-examined
*4
heels)
wearing
(high
was
shoes
that could
by
special
the
prosecutor,
taking
admitted
account for the
in the
holes
road near the
polygraph
having
exam and
in
lied
re-
body,
appellant’s
and that
truck was found
sponse
questions.
to several of the
Sheriff
appellant’s
about 200
Reed was then recalled and testified as to
mother’s house.
the
polygraph
substance of the
exam and
the
objection,
results of the test. Over
Appellant contends
that
this
Sheriff Reed
polygraph
testified that the
appellant’s punish
Court cannot consider
examiner had
indicated to him that
ment-stage testimony
assessing
the suf
lying
lant was
in denying
part
her
ficiency
However,
of the evidence.
evi
murder.
dence from the
stage is con
along
testimony given
sidered
with the
objections,
Even
the absence of
guilt-innocence stage
the
purpose
for the
the trial court should not have allowed the
testing
sufficiency
the
of the evidence.
regarding
polygraph
the
exam be
(Tex.
Daughtrey v.
jury.
fore the
polygraph
The results of a
Cr.App.1976).
applicable
This rule is
to
examination are never
admissible
court
those individual elements of the offense
any
to establish
matter.
Crawford
defendant;
by
the defendant
(Tex.Cr.App.1980).
need not admit all elements of the offense
Despite
contentions,
State’s
apply.
for the
Daughtrey
rule to
right
complain
did not waive her
to
of this
supra;
Smyth Cf.
by
answering
reversible error
her
(Tex.Cr.App.1982);
State, 522
Garcia v.
improper questions.
appel
Nor did
(Tex.Cr.App.1975).
S.W.2d
right
lant
complain
waive her
of this
reversible error
her
admissions
Appellant does not contend that
punishment stage. The State cites no au
evidence,
testimony
when her own
is
thority supporting
theory
this
of waiver.
considered,
support
is insufficient to
We hold that there
nowas waiver. This is
judgment.
argues only
She
that this Court
facts,
especially
under these
since the
true
may
Here,
not consider her
testimony.
polygraph issue
implicity
was used to
im
stage appellant testified on
peach appellant’s accident defense.
direct
present
examination that she was
appellant challenges
shot,
Since
pointed
the sufficien- when the victim was
evidence,
cy
victim,
we must resolve the
the rifle at the
that the rifle dis
disposition
charged
issue to
pulled
body away
determine
of this
and that she
case.
report
Hooker v.
Reversed and Remanded.
of the deceased. At no time did
firing
admit the
of
the rifle or that she
act
GAMMAGE,Justice, concurring
part
knowingly caused the
intentionally
or
dissenting
part.
are
death of the deceased. These elements
I concur in the reversal of this convic-
judicial
a
confession
essential to constitute
tion,
respectfully
but must
dissent
mayWe
not
to the offense of murder.
majority
the decision of the
to remand the
pre-
presume
presence
their
to defeat
cause for a new trial.
innocence, may
nor
sumption
appellant’s
appellant’s
infer them to convert
excul-
we
Appellant’s testimony
punishment
at the
patory
judicial
into a
confession.
statement
stage
forcibly
her trial —that
she was
State,
(Tex.
825
Harrell v.
659 S.W.2d
See
who,
raped
by an assailant
after an
twice
.App.1983).
Cr
attempted
rape,
response
third
to her
home,
pleas
explained
to be taken
State,
158
Daughtrey
In
544 S.W.2d
would also have to “take care of” his
upon by the ma-
(Tex.Cr.App.1976),relied
friends,
grabbed
of the
and who
the barrel
Appeals de-
jority, the Court of Criminal
by appellant whereupon
rifle
it
held
dis-
question of
pass
clined to
on the
sufficien-
clearly
charged
killed him—is
not a
an inade-
cy of the evidence because it had
murder, the offense
judicial confession to
quate record before it. While the Court
charged
jury
and the
for which
point
dictum at one
recited the read-back
was returned.
verdict
language
majority
used
rule
that,
case,
stating
correctly
at the
in the instant
the rationale
majority
*6
State,
offense,"
(Tex.Cr.App.
v.
the evidence order to avoid longer application. has
trial —no valid adopted prior to the
This rationale was Supreme
decisions of the United States States,
Court Burks v. United 437 U.S.
1, 2141, (1978); L.Ed.2d 1 98 S.Ct. 19, Massey,
Greene v. S.Ct. 437 U.S. (1978),
2151,
held double clause WHITTINGTON, precluded Stoney Appellant, trial Amendment a second where solely the first conviction is reversed basis of insufficient evidence to sustain Texas, Appellee. STATE jury’s verdict. longer possible no in cases Since retrial is No. 12-81-0148-CR. evidence, and reversed Appeals of Court of since the rationale behind the read-back Tyler. retrials be avoid- rule was that such should an inculpatory ed because the 19, Jan. 1984. accused would Rehearing Denied Feb. 1984. provide be used sufficient retrial, to sustain a verdict at Discretionary Review Refused basis for the rule in cases involv- read-back Oct. ing longer insufficient evidence no exists. Presiding Judge
As Onion stated Gordon
dissenting portion opinion (Tex.Cr.App.1983), upon by majority
the decisions relied case
the instant
dealt of the evi-
dence, defendant had where penalty stage
guilt only reversal for lack of sufficient
evidence would mean use of testimo-
ny retrial. These cases well *7 questioned light
be [Burks Greene], particularly a motion for if erroneously over-
instructed verdict is the trial. guilt
ruled [emphasis added]
Gordon at 797. just such a before us we have
In case motion for instructed ver-
situation where erroneously In the ma- overruled.
dict was view, because
jority’s this error was waived the stand
appellant took which was made a statement guilt.
even less than an admission notes point the rule at another in the same appellant moved for a directed time paragraph impliedly restricted its use to a the evidence was insufficient However, goes involving judicial confes- majority on situations conviction. punish- from the sions.1 to hold that evidence State, "Further, question.... As stated [Boothe this court has held that where (Tex.Cr.App.1971) p. at 221: ‘It challenges ] evi- defendant conviction, futility to reverse such a would be an exercise in evidence dence to sustain guilt stage including judicial stage, [at case for insufficient punishment confession defendant, testimony deciding where the of trial] is to be considered In Smyth (Tex. guilt-innocence S.W.2d 721 at prove did not Cr.App.1982), upon by also relied the ma- he shot the deceased. jority, the Court of Appeals spe- Criminal In all the cases I applying have examined cifically declined to allow the accused’s (or the read-back rule dealing related cases admission of one element of the offense at with statements of the accused which re- punishment stage to be used to cure sulted in evidentiary objections), waivers to the trial court’s admitting objec- error of the involved statements included admis- testimony another, tionable and other- necessary sions to elements of the offense unproven, wise element of the offense dur- for which the accused stood convicted.2 ing guilt-innocence stage of the trial. case, however, In the instant while we in Garcia v. Finally, 522 S.W.2d clearly have evidence at 203 (Tex.Cr.App.1975), the accused took the guilt-innocence stage to sustain a convic- punishment stand at the stage of his we do not have a murder, admitted he shot the deceased and asked tion for forgiveness. punishment confession at the The Court of Criminal Appeals that, admis- may held because of this be read-back to overcome this deficien- sion stage, cy. Furthermore, the ac- even were cused complain could not the evidence statement in this case sufficient to consti- [judicial penalty stage heroin, ing legality trial] could not then contest confession ” against could be used phasis him on a search.) retrial.’ [em- added; original] brackets in (Tex.Cr.App.1973) Rozell (Accused testified he was example: 2. See for stage, granting get of new trial to co-defendant's Wheeler v. (Tex.Cr.App. purpose.) would serve no 1982) (Accused pleaded guilty and admitted Creel (Tex.Cr.App.1973) possession charged,” thereby of heroin "as waiv (Accused "explain away” took stand to items in ing question search.) legality vehicle, there, they waiving were thus . Brown v. (Tex.Cr.App probable search.) objection cause 1981) (Accused all, testify did not but case (Tex.Cr.App.1972) Brown v. principle sets testify out that if accused does (Accused pleaded guilty and testified as to extra- rights.) waive his offense, thereby waiving objection neous Lasker v. (Tex.Cr.App. S.W.2d 539 same.) testifying State’s witness (Accused 1978) "admitted all the elements of