*1 LANE, Appellant, Doil Edward Texas, Appellee.
STATE of
No. 71835. Texas, Appeals
Court of Criminal
En Banc.
Nov. *3 Braunfels, Langham,
Vеrna Victoria New appellant. Wenk, Michael Atty., S. Asst. Dist. San Marcos, Paul, Austin, Atty., Matthew State’s for the State.
OPINION KELLER, Judge. beginning January
In a trial
capital
was convicted of the
murder
eight-year-old
Bertha Martinez committed
20, 1980, Hays County.1
on March
19.03(a)(2)
provides
intentionally
1. Texas Penal Code
that a
son
commits the murder
in the
person
capital
per-
commits
murder when “the
constitutes sufficient
jury
punishment
issues
confession
answered
See
favor,
capital
murder conviction.
support
State’s
sentenced
238, 243-249
appeal
is auto
also Muniz
death. Direct
Court
denied,
37.0711(j).2
(Tex.Crim.App.), cert.
510 U.S.
matic under Article
(1993).
Point
will affirm.
dangerousness
b. Future
Sufficiency
the evidence
eleven, appellant
point
of error
Underlying
a.
offense
that the evidence
insufficient
contends
jury
capital murder count
in the
dangero
jury’s finding of future
support the
charge
underlying
offenses of
contained
phase
punishment
usness3
*4
aggravated
assault.
kidnapping and
sexual
guilt,
questions
in
we examine
trial. As
of
confessions, appellant
In
admit-
various oral
most
to
light
favorable
the evidence in
assaulting,
kidnapping, sexually
ted
and
to
determination,
inquire
and we
jury’s
ten,
murdering
point
the victim.
of error
jury could have made
whether
rational
appellant
is
contends that the evidence
insuf-
beyond a reasonable
that determination
support
ficient
to
his conviction because
Matamoros,
474.
901 S.W.2d at
doubt.
corpus
proof
delicti for
there is insufficient
of
ap
of
The
offered evidence
State
kidnapping
there
evidence
and
“direct”
dangerousness through both
pellant’s future
appellant
aggravated
that
sex-
committed
testimony
specific instances of
character
and
ual assault.
probation
Appellant’s sex offender
conduct.
when,
Evidence
sufficient
viewed
repeatedly en
appellant
officer testified
verdict,
light
most favorable to the
a
gaged
acts of
con
inappropriate
in
sexual
jury could
found the essential
rational
duct,
hoarding
including the
of female un
beyond
a reasonable
elements
offense
probation
opinion,
derwear.
In the
officer’s
307,
v.
443
99
Virginia,
doubt. Jackson
U.S.
appellant
continue to commit criminal
would
(1979).
2781,
S.Ct.
ing murdering This Bertha Martinez. issue, required committing attempting Article 37.0711 to 3. The course of commit rape-” aggravated 3(b)(2), probability kidnapping ... [or] ... “whether there is a asks: acts of would commit criminal that the defendant refer the Texas to articles to All references continuing would constitute a which violence unless otherwise Code of Criminal Procedure sociefy.” threat indicated.
508 appellant participated capital
her that she did not know what
had done
in another
she
mur
subsequent day, appellant
confessions,
to herself.
aOn
appellant
der.
In oral
admitted
boy
car
blond-haired
exited a
rape,
participating
kidnapping,
the 1990
neighbor’s
walked toward the
children.
nine-year-old Nancy
and murder
Shoe
neighbor
porch,
When
saw the
on her
Wichita,
recog
maker
Kansas. We have
startled,
car,
they became
ran back
their
participation
nized
an offense similar
driving away,
away.
and drove
As he was
to the one on trial constitutes
evidence
wheel,
steering
cursing
beat
State,
dangerousness.
future
Coleman v.
881
screaming.
jury
could have inter
344,
(Tex.Crim.App.1994),
347
cert.
preted appellant’s
attempt
actions as an
—
denied,
-,
763,
U.S.
115 S.Ct.
130
take the
children
of of
commission
(1995).
v.
L.Ed.2d
See also Barrientes
fenses similar to the one on
These
trial.
(Tex.Crim.App.1987),
524,
752 S.W.2d
526-527
involving
neighbor,
perhaps
events
while
denied,
1241,
t.
U.S.
cer
enough
support
finding
not alone
(1988).
S.Ct.
violence those means.” Coons unable detect evidence a 2. record? Incomplete appellant, psychi conscience within and the specifically predicted appellant atrist that thirteen, point appellant In of error con- engage would in violent sexual behavior through incomplete that the tends record is Psychiatric against prison. males in testi of his claims that no fault own. He volume mony person continuing that a constitutes a eight missing of the statement of facts is is, society generally, especially threat the entire defense exhibit volume dangerous persuasive evidence future missing. argues He that defense exhibit four 298, 304 ness. Fisher v. important advancing points of especially (Tex.Crim.App.1993). appeal. examining error on After the state- significant eight. Perhaps the most evidence of ment of facts we have located volume dangerousness future is the defense that was admitted exhibit 3(e), issue, defendant, required by mitigating § Art. asks: a sufficient 37.0711 thеre is Whether, to warrant that circumstance circumstances taking of the into consideration all evidence, including imprisonment of life rather than circumstances a sentence offense, back- imposed. the defendant’s character and sentence be death ground, personal culpability and the moral Nancy’s involvement pellant four. Pur- had admitted into evidence was defense exhibit time, murder) supplement, lying. At that Detective motion to suant the State’s poly- original taking now includes the defense idea of Snyder the record mentioned the point, appellant Point of error thirteen is over- also exhibit four. At some graph test.
ruled. list of dates on which he gave officers a attempt apparent donated blood—another
3. Confessions an alibi. establish a. Voluntariness July appellant contacted Detective On Snyder him to some old and asked interview six, through appel- points of error one say appellant neighbors who would challenges the of his con- lant voluntariness Nancy’s murder. Later to do nothing with Martinez fessions to the murders of Bertha detec- (“Bertha”) day, appellant contacted another (“Nancy”). Nancy Shoemaker examination. requested polygraph allеges police con- tive and that the obtained the He 38.21, the of Article Fifth fessions violation July appellant con- morning of On the Amendments the United and Fourteenth Snyder tacted another officer asked Constitution, States Article I message appellant de- had received argues po- He Texas Constitution. FBI polygraph examination. sired to take a advantage of lice took his mental retardation examiner, agent Napier, polygraph a trained using psychological techniques, clever Napier police talked came to the station. making product sugges- his confession the interviewing tech- police about Wichita claim, To first tion. evaluate this review niques. leading surrounding to and the events day, an approximately At 11:40 a.m. that confessions. police to the station.5 officer drove 25, 1991, Wichita, April police in On voluntarily offi accompanied the Kansas interviewed connection *6 a.m., police offi approximately 11:55 cer. At Nancy’s murder. The interview lasted warnings complied gave appellant that cers appellant one hour and was terminated when 436, Arizona, 384 U.S. with Miranda v. interview, lawyer. During requested a (1966). 1602, 16 Appellant L.Ed.2d 694 S.Ct. appellant involving Joyce an offered alibi acknowledged understanding of indi his each police Joyce Wacker. The later from learned appel warning. police permitted vidual 26, April Waeker that alibi was false. On subject any to talk he wished and lant about police and appellant contacted Wichita questions only follow-up to asked occasional they people asked that who would contact subjects by appellant. introduced verify running his that bus not when was Nancy disappeared. This communication p.m. 12:40 and 12:55 Sometime between apparently attempt was to fabricate an- p.m., told officers that he wanted to appellant other alibi. police appellant that he go home. The told leave, they to offered to take was free During ensuing investigation, appellant At if their assistance. him home he needed repeated Exploited to phone made calls point, changed his mind and appellant that Missing Children’s of the Wichita Unit inter- that to continue the decided he wished police Snyder department. Detective even- appel- that Later information revealed view. tually appellant he explained to that needed to home to retrieve lant had wanted return appointment to make an if he wanted to talk. inspect. police for the to girls’ panties July under surveil- appellant was On afterwards, stated, appellant “This police. day, appellant That Soon lance car, help.” happened got if had riding I officers in their wouldn’t have flagged down stepfather home, mother and explained ride offi- He that his for a and offered the asked girls he panties when was cantaloupe July appellant forced him wear to eat. On cers Later, appellant began to admit his verify that a child. told the officers that he could (who Nancy by stating ap- murder Dwayne officers that involvement Peterson told Appellant did have valid license. not driver's it, “I you didn’t do but I’ll tell it if about ment similar in nature to the one about you say.” Agent what Nancy’s except that’s want me to murder that Bertha’s murder responded Napier police subject. interview, that were not During taped was the being in pleased only interested but wanted appellant participating admitted Appellant acknowledged to hear the truth. assault, kidnapping, sexual and murder of police truth, wanted the and he Bertha. purported to truth remaining tell the in his the end (approximately At of the interview Appellant statements. thereafter confessed p.m.), appellant 7:06 told that they officers Nancy, that he killed began officers ask- might speak again. Appellant want to to him ing questions about the details. acknowledged agreeable that he would be approximately p.m., police At 4:00 appel- An further interviews. officer drove permit asked if would he them to approximately p.m. home at lant 7:15 Later tape-record a statement. consent- evening, appellant was arrested. ed, tape placed recorder was day, July approximately On the next at open warnings and turned on. Miranda p.m., Marcos, 3:05 two from officers the San repeated. They warnings were consisted of police department questioned appel- Texas (1) (2) silent, he right had a to remain lant about the murder. The interro- Bertha anything against he said could be him used outset, gation tape-recorded at the fol- (3) court, right lawyer he had a to a lowing “recordings procedure” except (4) during advice before and if questioning, appellant, officers did ask after lawyer, he could not hire a the court would reading rights, if he still to talk to wanted (5) appoint him, one for if he decided to interview, Early them. one questions lawyer, answer now without a he Texas officers told stop answering could time he also “already Woody” the ac- talked to of—one right stop answering had the until he complices Bertha’s murder and lawyer. warning, ap- to a talked For each story stepfather generally “his knew —and pellant individually acknowledged he un- happened.” appel- what officer told it. ap- derstood The officers then asked lant, you.” “But A we want hear it from pellant wished to continue to talk them. interview, following later in little Appellant acknowledged that he did. For colloquy developed: reference, procedures future refer to you anything do over at OFFICER: Did para- followed officers in Kansas *7 City Park? graph procedure.” the “recordings as Yeah, Woody way APPELLANT: taped was a The interview condensed ver- my everything forces life. during sion of the information obtained untaped taped Woody you earlier did conversations. The OFFICER: What force to question interview was in the nature of a and do? That’s we want What what to know. Woody you
answer session similar to the to do? direct examina- did force interview, During tion of a trial witness. I don’t about APPELLANT: want to talk appellant participating in admitted to it. assault, kidnapping, sexual and murder of Doil, you OFFICER: I know don’t but Nancy. approximately p.m., po- At 4:30 (Lane you’re doing alright [appel- man. appellant lice asked would talk about crying lant] [the and he and Richards Appellant agreed case. Bertha to talk and time). talking officer] are the same surprised. did not seem to be He subse- you’re alright Hey, doing man. What..tell quently admitted involvement in Bertha’s me, Woody you do what did force to there? gave approximately and murder details. At you But and her APPELLANT: would p.m., “recordings 6:45 followed the officers letting them [sic] talked about about me that, procedure,” except asking if instead of today? get out talking, he wished to continue the officers appellant asked to confirm that he had OFFICER: talk ... talk about We’ll we’ll later, know, agreed taped you to talk with state- ... we them. but we’re
5H way needing a appellant came all the from Texas listen to some about to discussion your tory. “father-figure.” Napier the s that he did side of testified style change interviewing upon not based his get APPELLANT: ... let one Can me intelligence suspect always but cigarette. more soft-spoken man- conducted interviews your OFFICER: To listen to of what side that, intelligent ner. He for less testified us, Woody already feel, you has told I and people, only diffеrence the interview know, you it’s fair that we let do that. simpler language. Ap- would be use of Woody you So tell ... tell us what forced however, pellant, appeared to have a never to do to her. Come ahead Doil. so, officers; problem comprehending the Woody Appellant stated that him had forced significantly language vary from used did not sexually story assault Bertha. This con- average person an interview intelli- with already he had the Kan- formed what told gence. One of the Texas officers testified police day day sas As before. he had the appellant appeared to understand before, appellant being also admitted in- officers, questions being asked. howev- volved the murder. er, appear appellant’s did to know that intel- July Snyder Sometime on Detective ligence may average. been below Wacker, Donny appellant contacted whom violence, threats, promises There were no accomplice in implicated Nancy’s as an mur- Although appellant of the interviews. Appellant der. had characterized Wacker interviews, during never asked for food primary contacted, actor. When Wacker given request upon per- hе was drinks admitted involvement in the murder but trial, At cigarettes.6 appel- mitted smoke appellant primary as the characterized actor. expert testify lant called an p.m., At approximately 5:15 Kansas offi- mentally retarded an intellectual with taped cers conducted a second interview con- age years. emotional about Nancy’s cerning “recordings murder. The challenge police compli- not does procedure” except that, was followed instead ance with Miranda or Article 38.22. In- asking if he wished to talking, continue stead, he his argues that will was overborne officers asked to confirm that he techniques police during used interro- agreed had to talk During with them. gation. police He that the took ad- claims interview, Snyder Detective stated that he retardation, vantage of his mental emo- Donny had talked to Wacker there tionalism, please authority his need to discrepancies were between Wacker’s and figures. of using He accuses the officers Snyder ap- stories. did tell technique, complains “false friend” and he pellant discrepancies Ap- what those were. approach planned their officers pellant subsequently admitted that he was doctors, by conferring the interview actor, primary raped he psychologists, amongst Ap- themselves. Nancy. strangled police pellant also claims that surveillance Appellant concedes that the interviews *8 him constituted harassment contributed key.” Agent Napier were “low characterized psychological pressures to the he suffered. key, “very as professional, interviews low nonconfrontational, gentle, Involuntary confessions offend supportive, Although Napier they empathetic.” process Kan- due flow from the and the when ap- sas in improper officers discussed how enforcement offic advance conduct of law interview, 157, proach they Connelly, did not discuss ials.7 479 U.S. Colorado v. 163-167, 515, 519-522, appellant’s capacity. intellectual There was 107 93 L.Ed.2d S.Ct. prepared interpreted expansively. 6. Officers testified that case more been should be provide appellant if food appellant’s arguments desired some. We decline to make Therefore, solely issues him. we will address the alleges Appellant that Article 38.21 and grounds. on federal 853 Johnson v. provide protection Texas Constitution broader 527, (Tex.Crim.App.1992), de S.W.2d 533 ni cert. constitution, than the federal does not but he ed, 852, 154, 510 126 114 S.Ct. L.Ed.2d U.S. protеction differs, explain how the he nor does (1993). 115 explain why provisions present the state in 512 (1986). determining
473
police
continuously
whether
tioned more or less
for eight
having slept
night
improper,
conduct is
the court should
hours without
take
be-
fore,
fed;
police knowledge
being
repeated
into
a
and without
suspect’s
account
weaknesses,
on
special
veracity.
attacks
his
including youth
low
Colorado,
intelligence. Gallegos v.
370 U.S.
Id. at 428. We found that
circum-
other
49, 53-55,
1209, 1212-1213,
82 S.Ct.
finding
stances militated in favor of
the con-
(1962) (suspect’s young age
L.Ed.2d 325
tak
voluntary, including:
fession
determining
po
en into
account
whether
appellant’s
polygraph,
desire
take the
coercive).
unduly
lice actions were
Arm
expressed willingness
stay through
686,
(Tex.
strong v.
despite
afternoon
his lack
suste-
Crim.App.1985).
given
a
Whether
confession
nance,
appear
fact
did
and the
he
involuntary
was
as a
(apart
matter of fact
uncomprehending.
have
or
been tired
prophylactic
by
from
imposed
rules
Mi
Id. We also noted that the defendant was
)
by
totality
randa must be decided
three times and each time ac-
Mirandized
circumstances on an individual basis. Galle
understood,
knowledged that he
and we
52,
gos, 370 U.S. at
at 1211.
S.Ct.
Arm
actually
found that the defendant
consulted
strong, 718
at 693.
Some relevant
counsel and was free at all
to do
times
so.
length of
circumstances include the
detention
Although
question
light
Id.
was close in
interrogation,
whether
the defendant
intelligence,
of the defendant’s limited
permitted
family
an
access to his
or
concluded
his “will was not unconstitu-
attorney,
presence
and the
absence
tionally
by police
overborne
coercion.” Id.
physical brutality. Armstrong, 718 S.W.2d
case,
support
In the
factors
at 693.
ing
the voluntariness of
confes
Several cases have addressed the volun-
weigh
favorably
sions
much more
than in
by
suspect
tariness of a confession
a
ab-
Smith.
had contacted the Wichita
Pate,
normally
intelligence.
low
In Reck v.
police
point
being
numerous times to
a
367 U.S.
81 S.Ct.
we find to be volun- confessions ted). through tary. Points of error one six are overruled. opinion in "cus- formally about whether arrested after first tody” does not during statement as it "Nancy” sec- the first statement but before the recorded *10 point express impact of of error. “Nancy” We our resolution statement. ond recorded
514 Honor, pro- argues
PROSECUTOR: Your
will
copies
we
State
“provid-
those
were
Court,
transcripts
vide
for the
so the Court
meaning
ed” to defense counsel within the
of
can
along
tape.
follow
with the
Appellant,
hand,
the statute.
on the other
(At
time,
argues
tapes
copies
provided
certain
were
entered as
never
court).
in open
were listened to
because
were
on
never served
defense
appellant’s position
counsel. We believe that
February 9, 1994, during
On
on
the trial
is too narrow.
merits,
trial
hearing
court conducted a
admissibility
taped
determine the
of the
con-
statute,
construing
In
appel
Nancy’s
fessions to
murder as extraneous
plain
apply
meaning
late court must
itsof
offenses. At
hearing,
defense counsel
language
words unless
of the statute is
objected
“Nancy”
also
confessions
ambiguous or would lead to
results.
absurd
were inadmissible because he had not re-
State,
782,
Boykin v.
818 S.W.2d
785-786 &
copies
ceived
tapes.9
of the
He contended
But,
4 (Tex.Crim.App.1991).
786 n.
when the
3(а)(5) required
§
that Article 38.22
the State
of
ambiguous,
may
words
a statute are
provide a
copy
true and accurate
no later
look to extratextual
attempt
factors to
twenty days
than
before trial. Defense coun-
meaning.
ascertain the statute’s
Id. Some
requested
sel
ruling
received an adverse
of these
the:
factors include
on the issue.
(1)
attained;
object sought to be
According
3(a)(5),
§
to Article
38.22
(2) circumstances under
which
statute
oral statement of an
accused made
a re-
enacted;
of
interrogation
sult
custodial
is admissible
(3) legislative
unless:
history;
day
later than
20th
before
date
(4)
statutory
common law
provi-
or former
proceeding,
attorney represent-
sions, including laws
or
on
same
ing
provided
true,
the defendant is
awith
subjects;
similar
complete,
copy
and accurate
of all record-
(5)
particular
consequences of a
construc-
ings
defendant made under this
tion;
article.
(6) administrative
construction
the stat-
Although appellant acknowledges receiving
ute; and
transcripts
“Nancy” tapes,
of the
he asserts
(7)
(caption), preamble,
title
emergen-
that he has
copies
never received
of the
cy provision.
(i.e.
recordings
tapes).
Implicit in this asser
Tex.Gov’t.Code, § 311.023.11
is
tion
the idea that
the transcripts them
3(a)(5).
§
not “copies”
selves are
under
We
“provide”
We find that the word
recently
transcripts
decided that
do not
(1)
capable of
meanings:
two
to make avail
“copies”
recordings
constitute
under the
(2)
able; furnish,
supply
equip.
or
or
State,
Tigner
statute.
v.
928
Dictionary
English
Random House
(Tex.Crim.App.1996).10
(1987).
ed.,
Language,
Unabridged,
2nd
But, copies
recordings
statute,
of the
were admit- As in the text of the
both definitions
played
pretrial may
conjunction
ted into
preposi
evidence and
be used in
suppression hearing
August
tion
23. The
“with.” Id.
If the first definition is
tapes
Nothing
say today
9. Defense counsel had received
issue in that case.
in what we
“Bertha" confessions. Counsel's statement at
holdings Tigner.
contradicts the
pre-trial hearing,
provided
the
copies
“We have been
...,"
appears
to have referred
provision
part of
11.This
the “Code Construc
those,
tapes.
the "Bertha”
Act,”
applies
tion
which
to the Code of Criminal
Procedure, at least to the extent it
been
has
Although Tigner
dealt with
38.22
Article
subsequent
amended
re-enacted
60th or
3(a)(5),
disposition
§
it does not
control
311.002(2).
legislature.
Tex. Gov't
Pos
Code
appellant's
Tigner
claims.
the issues were
462,
(Tex.Crim.App.
tell v.
693 S.W.2d
transcript
"copy,”
whether a
constitutes a
1985).
(Tex.Crim.App.1968),
Barbee
"proceeding”
whether voir dire is
within the
denied,
meaning
Tigner
t.
395 U.S.
of the statute.
does not address
cer
(1969).
meaning
"provide,”
it
not an
because was
S.Ct.
second definition is then actual deliv- Your Ml also UNKNOWN SENATOR: Hence, required. is ery may statute be attorney has ac- provides that the defense and must look extratextual ambiguous, we to to tape in for him cessibility to that order meaning.12 to factors determine its his own devices as it out on cheek warn- not that oral confession whether or history legislative consists of The relevant then the prerecorded, and ing has been during the floor debate in the Sen- remarks young beatings place, and then the take amending ate. concern existed about Some woman, confesses, young or the or the man permit surreptitious recording. statute man, right? old 8(a)(5) concern, § To was inserted offset [sponsoring amend- SENATOR BROWN give in the bill to defense counsel notice 3(a)(5) § That’s legislation including ]: ing recording enable about the existence of a сorrect, senator. accuracy: him its to test you And can tell SENATOR: UNKNOWN [sponsoring SENATOR WASHINGTON tell that through splicing, you can that 3(a)(5)]: surreptitious § Since this is a “high through tech....” recording where the defendant doesn’t R.S., 2, Debate, 55, it, that, Leg., tape twenty days S.B. 71st requires it Floor know about 1989). Washing- trial, prior they give (April Senator that the other side side 3 made, “give” explaining the recordings of the in copy they’ve a of ton’s use word So, appellant’s inter- playing provision support a which is to create level field. tends recording, pretation, to “accessibili- you’re going give to make but the references it, playing tend to lawyer you ty” “levelling the field” guy’s copy a of can subsequent approval dissenting Judge of those decisions.” opinion, his con ture’s Baird prior performed Boy- following an section discussed decisions tends that we have incorrect Hence, analysis looking beyond change statutory in statute. kin lan and the of absence dictionary contrary, Judge guage a despite protestations to a to determine whether to the ambiguous. apparently clearly is considers a considered opinion word He in Moosani Baird’s dictionary part competing definition of a word contained in the definitions as the examination of stаtutory meaning analysis, text to be an "extratextual” source of plain which was followed of a However, we of prior information. have held use analysis factor of an of the extratextual dictionary definitions of words contained in precedent. court statutory langauge part "plain meaning" of is dictionary using Judge argues Baird also analysis appellate initially that an court conducts meaning analysis part plain of a definitions ques in to determine whether or not the statute rewriting judicial of be- statutes would result ambiguous. Bingham is tion English "virtually every lan- cause word (Tex.Crim.App.1995). S.W.2d 209-210 guage one definition.” This view has more than Contrary opinion, Judge to his current Baird has dictionary mistakenly presumes definitions recently recognized, dissenting opinion, a plain are tools with which conduct may validly dictionary be de definitions used to definitions, meaning analysis. In addition plain meaning statutory language. termine the reading meaning analysis plain include must (Tex. Moosani v. 573-574 construing phrases in context and words and (Baird Judge Crim.App.1995) dissenting). J. grammar in accordance with rules them misreading Baird accuses us of that dissent. usage. Bingham, See and common But, engaged the Moosani dissent in the same 311.011(a)). (citing Tex. Gov’tCode 209-210 analysis Judge our Baird faults in kind case, grammar In the thе rules opinion today: opinion explored "travel,” first usage simply any light on common do not shed differing dictionary definitions “provide.” proper definition of subsequently statutory lan concluded Moreover, Judge position Baird advocates Only guage question ambiguous. after today logically His view would untenable. Judge to the cen this conclusion did Baird refer meaning statutory assessing plain result in tury-old case in which we held the word "travel vacuum, resulting in “I cannot Further, language an ambiguous. ing” conclud to be it, approach. explain I it when I see it” Judge but know ing in which Baird sentence section meaning definitions, plain approach relegate would Such dictionary the Moosani discussed subjective statutory language to traveling analysis “Because the term dissent stated that: impression appellate judges no standards ambiguous, may fac look to extra-textual interpretation. Legisla- guide prior and the tors such as our decisions *12 (October support argument copies the State’s Tex.Atty.Gen.Op. district clerk. 17, MW-71 1979). case, need be “made to In this available” defense defense counsel placed on legislative history counsel.13 notice of Because the is the existence and conclusive, recordings, contents оf the and the record we must turn other to extra- ings were available to him in the district textual factors. provided clerk’s office. He was thus with a title, Nothing preamble, emergen- or copy tape. of the cy provision appears relevant to the inquiry before us. statutory There are no former While we have determined that de provisions or common law relevant to this provided copy, fense counsel was awith the then, Primarily situation. attempt we must question provided remains whether he was object sought by to ascertain provi- the the copy twenty days “proceed before the consequences particular sion and the a ing.” argues of appellant Because State, Burgess tapes provided, construction. See were never explains v. he never 424, applicable proceeding pre whether the is (Tex.Crim.App.1991). hearing object trial or trial provision appears of merits. If to be bound provided copy was first a surrounding with the of circumstances its enact- recordings hearing, 3(a)(5) pretrial at the then obvi § designed ment: to offset the ously, provided he could not have been a disadvantages to the per- defense caused copy twenty days hearing. before that Hоw mitting recordings to be Af- surreptitious. ever, any complaint we find regarding fording defense counsel access to the record- pretrial hearing Although was waived. ings purpose effectuates this as much alleged pro that he had not been requiring delivery. long actual So as defense copies vided motion suppress, to counsel is informed of the of the existence twenty days motion was filed than be more recording permitted reasonable access to Hence, pretrial hearing. fore the even the 3(a)(5) copy, purpose § has been allegations true, it the motion were Requiring delivery met. actual would have possible objection could have been consequence excluding adverse evi- twenty days remedied more than before the dence that legally is both relevant and ob- hearing. upon appellant, It was incumbent tained where the defense has suffered therefore, object pretrial hearing at the harm but opportunity has had the to evaluate comply the State’s failure to with the statute. and test If legislature the evidence. had 52(a). Tex.R.App.P. McNairy See v. require delivery, they intended actual (Tex.Crim.App. 835 S.W.2d 107-108 “served,” could “given,” have used the word 1991); Wilson of “provide.” “dеlivered” instead Given ref'd). (Tex.App. Corpus pet. Christi - object sought by the statute and the had, did may He not do so. If he he have consequences constructions, differing of the twenty-day to a been entitled continuance of 3(a)(5) “provide” we hold that the word hearing copies to examine of the record means “make available or furnish.” however, present case, ings. In the defense case, tapes In the were copies counsel stated that he of the played pre-trial hearing at origi and admitted recordings but wanted examine the 2.21(a),14 Hence, into placed evidence. Under Article exhib nals. the trial court was not hearing its admitted into filed pretrial evidence are with the on notice that defense emphasis unambiguous. dissent adds its own Senator makes the statement does, Of course it statement, Washington’s supreme and attaches helpful but it neither nor accurate do meaning “give." and definitive to the But word so. statement; "give" is not critical word in Washington’s "know” is. The focus Senator provision 14. The states: they physical "if comment is know that.” If possession tape, knowledge rather than county Each clerk the district or court shall statement, were the crux of the senator's papers receivе file re- all and exhibits in statement, he would have said "if spect proceedings, process to criminal all issue point that.” The is that the dissent takes one cases, perform in such all other duties word, on it to focuses the exclusion rest of imposed upon them law. statement, doing that so then declares 403.17 under Rule weighed probative value copies its possess counsel did not of the record- very argues that the evidence was The State ings. motive, identity, to the issues relevant clearly Although ob defense counsel of various defenses. rebuttal *13 trial,
jected hearing pretrial at because trial court did not believe that We trial occurred more than four months before overruling appellant’s its abuse discretion providing tapes pretrial began, addressing the factual After objections.18 hearing statutory requirement satisfied the appellant’s points background, we turn to proceeding as concerned. as far the trial presented. the order Point of error seven overruled.15 (1) background Factual c. Extraneous offense nine, hearing points The trial court conducted eight In of error objec- relating appellant’s extraneous offense complains that address confessions appeal, hearing and on Nancy’s At this murder constituted inadmissible evi- tions. “Nancy” confessions point argued In State of an extraneous offense.
dence identity because the Bertha eight, argues he was were relevant error evidence extremely similar. any non-character-conformity Nancy murders were not relevant 404(b).16 argument, offered a support its State purpose point under Rule of To prejudicial outlining the similarities between nine, he chart error claims substantially out- two cases: effect evidence CASE
BERTHA MARTINEZ CASE NANCY SHOEMAKER PROFILE PROFILE VICTIM VICTIM —
— (1) (1) One Victim One Victim — — Female Female Victim Victim — — Child Victim Child Victim — — (9 old) (8 old) Approx. Age yrs Approx. Age yrs Same Same — — Stranger” Stranger” Victim was “Unknown Victim was “Unknown KIDNAPPING KIDNAPPING — — was Abducted Victim was Abducted Victim
— — Victim was Victim was Abducted/Public Abducted/Public Area Area — — Near Victim was Near Victim was Abducted Abducted Victim’s Home Victim’s Home crimes, wrongs, acts is affirming of other or 15. As an alternative method of the trial Evidence Judge judgment, person prove court’s error is harmless because Baird contends character of not admissible “appellant was aware conformity acted in in order to show he of the statement and contents” and there was its however, may, be admissible for therewith. It no evidence that the Judge was inaccurate. stаtement motive, oppor- proof purposes, other such proposed analysis Baird's harm flies intent, tunity, plan, knowledge, preparation, holding Tigner face of the acci- identity, or absence of mistake or Tigner, (Tex.Crim.App.1996). In 545-546 dent. ...” 3(a)(5) is a statute we held regarding Article 38.22 admissibility of evidence and that a provides: 17. Rule 403 analysis focus on the effect harm erroneously must evidence on trial rather admitted relevant, may Although be excluded if or than on whether the defendant ambushed outweighed substantially probative its value give by surprised the re- the state's failure danger prejudice, of unfair confusion analysis proposed by quired notice. Id. The issues, misleading jury, or consid- Judge appropriately more directed to Baird is delay, presenta- or needless of undue erations interpreting facially ambiguous statute as we tion cumulative evidence. case. See id. at 546. have done the Texas Rules All references to rules are to 16. concerning express opinion the issue of We 404(b) provides in of Criminal Evidence. Rule motive. part: relevant — — Physically Victim was Physically Victim was ( City ( Plaine, Relocated ... ... Bell Park/ Relocated Residence) Kansas) Commanche St.
DEFENDANT HAD “NEXUS” TO HAD DEFENDANT “NEXUS” TO LOCATION OF ABDUCTION LOCATION OF ABDUCTION — — Defendant “Penny was Resident of Defendant Delivеred Nearby Brown School Power” Circulars this area VICTIM WAS PHYSICALLY ASSAULTED VICTIM WAS PHYSICALLY ASSAULTED VICTIM WAS SEXUALLY ASSAULTED VICTIM WAS SEXUALLY ASSAULTED *14 VICTIM WAS MURDERED VICTIM WAS MURDERED — — “strangled” Defendant “strangled” victim Defendant victim VICTIM’S BODY WAS “DUMPED” VICTIM’S BODY WAS “DUMPED” DEFENDANT COMMITTED OFFENSE DEFENDANT COMMITTED OFFENSE WITH CO-ACTOR WITH CO-ACTOR — — Woody Broughton DonnyWacker Murlene
DEFENDANT INVOLVED WITH “SEARCH” DEFENDANT INVOLVED WITH "SEARCH” DEFENDANT CLAIMED “TROPHY” FROM DEFENDANT CLAIMED “TROPHY” FROM CRIME CRIME
— — Wore Bertha Nancy Martinez’s Took Shoemaker’s Underwear Underwear argued
The State
that
objec-
the extraneous of-
appellant’s
trial court overruled
identity
fense was
critical
the issue of
findings
tions and made written
of fact and
physical
because there
was
evidence to
law.
conclusions of
The court found the ex-
offense,
connect
to the
and some of
pro-
“highly
traneous offense evidence to be
physical
arguably
evidence could
indicate
motive,
identity,
bative” on
issues of
contrary.
examination,
to the
On direct
potential
the rebuttal of
The trial
defenses.
expert
State’s DNA
testified that
DNA
specifically
high degree
court
of simi-
found a
cross-examination,
test was inconclusive. On
larity
Nancy
between the
and Bertha mur-
expert
possible
admitted that one
inter-
ders;
it attached the
as an
State’s chart
pretation
of the test was that
that
probative
exhibit. The court found
excluded,
being
perpetrator.19
from
substantially
value of the evidence
out-
explained
eyewitness
State
that
it had no
prejudicial
weighed its
and made sev-
effects
testimony
linking
and that the
evidence
to that
factfindings
eral
relevant
determina-
appellant to Bertha’s murder was his own
argued
findings,
confession. The State further
Among
tion.
those
the court held
accuracy
the confession’s
was under attack.
State’s need for
evidence was
The trial court
also
could
have recalled that
substantial because
appellant had attacked
the voluntariness
implicating
the main evidence
defen-
hearing.
the confession
an
pretrial
at
earlier
statement(s)
dant
is his
which he now
Finally,
argued
“Nancy”
State
motive,
seeks to recant and attack and
[there
confessions
for
showed
an] otherwise total
other
committing
“void”
Bertha’s murder —his obsession
n collecting
panties.
girl’s
testimony
forms of traditional
evi-
Long
Nancy
through
expert
19.
before the introduction of the
their own
DNA evidence
confessions,
placed the
the defense
trial court on
appellant.
excluded
testimony
notice
intended to introduce
similar,
they possessed
sufficiently
where
of identi-
used to establish the issue
dence
(1) the of
following similar characteristics:
a crime.
ty
perpetrator
(2)
night,
they occurred
occurred at
fenses
404(b)—relevant
(2)
“purposes
(3)
area,
Rule
they оccurred within
the same
(4)
month,
period
one
defendant
trial
determi
We review the
court’s
(5)
alone,
gun,
carried a small
the defendant
admissibility
purposes
for
other
nation of
manner,
(6)
in a similar
were tied
victims
conformity
an
under
abuse
than character
(7)
(6)
rape,
all
robbery
preceded
State,
Montgomery v.
discretion standard.
from the vic
pennies were taken
coins but
(Tex.Crim.App.1990).
810 S.W.2d
Likewise, in Ran
at 924.
tims. 588 S.W.2d
Identity
are
and the rebuttal of defenses
(Tex.Crim.App
Raising the
does
differed
issue
murder, but,
re-
because
skeletal
automatically
ad
tha’s
render extraneous offenses
found,
body
police
identity,
Nancy’s
mains
were
admissible to show
missible. To be
A
knowledge
of these details.
could have
offense must be so similar
extraneous
jury
the difference
charged
are
could have viewed
that
the offenses
the offense
Bishop
depth
as evidence
details
as the
handiwork.
marked
accused’s
Nancy’s
(Tex.Crim.App
regarding Bertha’s
statements
Walker,
appellant’s knowledge of
.1993).
to be murders reflected
held the offenses
we
(2)
crime,
supplied by
potential
crimes rather
information
wrong,
the “other
police.
impress
jury
or act”
has to
some
way,
irrational but indelible
Further, appellant’s confessions lead the
(3) How much trial
propo-
time does the
police Donny Wacker, appellant’s
accom-
develop
nent need to
evidence of the
plice Nancy’s murder,
whose involvement
misconduct,
extraneous
previously
been unknown.
con-
Wacker
(4)
great
proponent’s
How
is the
need for
firmed
he
were
involved
the extraneous transaction.
Nancy’s
jury
murder. The
could have be-
Montgomery,
(1)How compellingly evidence of the ex- Finally, misconduct serves traneous to make need for State’s the evidence probable very less strong. Appellant’s more or fact of conse- was confessions quence, connecting constituted the him jury guilt/innocence jury charge 20. In accordance with Article 38.22 included an limiting jury’s charge disregard any instruction consideration of contained an instruction to identity, extraneous offenses the issues of mo- involuntary appellant. statements made tive, and rebuttal of defensive theories. “provide,” and because of the term tation Appellant murder. attacked to Bertha’s Tigner involuntary interpretation inaccu- is consistent with being confessions as identity by challenged also rate. v. State. be
showing the DNA test results could being BAIRD, Justice, excluding dissenting. him from interpreted as Hence, hotly identity awas perpetrator. point of error contends The seventh issue, integrity appel- of contested admitting appellant’s judge trial erred critical lant’s “Bertha” confessions Spe- electronically recorded oral statement. importance to the State. cifically, appellant contends the statement circumstances, believe Under these pro- he was not not admissible because the trial court the zone was within Tex. copy of statement. with a vided disagreement when it concluded reasonable 3(a)(5) 38.22, § pro- art. Code Crim.Proc. probative value extraneous vides: substantially outweighed offense was not 3(a) sign language state- oral Sec. No nine is prejudicial impact. Point of error its as a result accused made ment overruled. interrogation be admissible shall custodial is AF- judgment of the trial court proceed- in a criminal against the accused FIRMED. ing unless:
point of error
opinion.
dissent.
MANSFIELD, Justice, concurring.
MALONEY
CLINTON
seven
OVERSTREET,
MEYERS,
and otherwise
JJ. concur
JJ.
join this
recordings
this article.1
true,
senting
date
(5)
[******]
not later
complete, and accurate
the defendant is
proceeding,
than
defendant
20th
provided
attorney repre
day
made under
copy
before the
all
join
I write
opinion
I
of the Court.
analysis,
plurality ulti
protracted
After a
however,
point of error
separately,
to discuss
Legislature’s
mately
use of
holds
Tigner
number seven as it relates to
Ante, 933
provide
ambiguous.
word
(Tex.Crim.App.1996).
In we examined Article to extratextual sources 3(a)(5) plurality looks § Texas of Criminal Pro- of the Code 3(a)(5) 38.22, § is so art. satisfied electronically- concludes pertained as an cedure it to appel long as the was available to statement of an accused. recorded custodial statement Ante, 514. I cannot 933 S.W.2d at lant. specifically probed meaning the of two We terms, agree. “proceeding,” those “copy” as 3(a)(5). 38.22, § terms were used Article recognized Boykin, our constitution- In we Today, analyzing point number of error intent function to effectuate the collective al seven, probe meaning we the of the word legislators who the purpose or enacted opin- used in “provide” as that statute. Our Id., at question. 818 legislation in S.W.2d today holding in consistent with the ion is State, (citing, 785 Camacho v. the case Tigner inquiries each because their (Tex.Cr.App.1989)). To effectuate 431 Tigner, In it was
were different. clear intent, the of statute. apply literal text the “provide” something to the the State did it definitive do so because is We simply The there defendant. issue in mind legislators of evidence what “something” a whether constituted Boykin, 818 was enacted. when statute 38.22, purpose of “copy” for the Article And, “Legisla- at 785. because S.W.2d 3(a)(5). § expect constitutionally to is entitled ture faithfully Judiciary will follow today join opinion of Court both I Only majority’s interpre- adopted.” that was Ibid. specific I text agree with the because supplied indi- emphasis is unless otherwise cated. 1. All
522
(Tex.Cr.App.1991),
when the literal text would lead to absurd
S.W.2d 623
we relied on
results,
plain
excerpts
or when
text is
but
from
Senate
Floor discussions
ambiguous,
constitutionally permissible
is it
to determine
a
ap
whether
defendant could
peal
adjudication
a
for
eourt to
from a
probation.
consider extratextua! factors.
deferred
Id.,
In relying
ed Senate Floor: that,
... requires [The twenty Statute]
days prior trial, give [the State] copy any recordings they side a
other made, playing which is to create level Dey HATTEBERG, Appellant, Andrea So, you’re going field. to make the recording, lawyer give guy’s copy *18 HATTEBERG, Appellee. it, you Richard probably can settle a lot of these eases know that. No. 01-93-00061-CV. plurality sup- concedes this statement Texas, Appeals Court of
ports appellant’s argument, but concludes (1st Dist.). Houston statement is “not conclusive” this issue of Legislature “provide” whether used 3, 1994. Nov. (as “give” suggested by mean Senator Rehearing Overruled Nov. Ante, Washington), or “make available.” at 514. holding plurality’s is contradicted State, binding precedent. Dillehey plurality ap- reading my
2. The
I took the
dissent. I
contends
same
careless
dictionary
resorted to
because,
proach
century ago
as we
Moosani v.