Lauti v. State
810 S.W.2d 176
Tex. Crim. App.
1991
Check Treatment

*1 (Tex.Cr.App.1974); Stephenson v.

supra. Consequently, appellant LAUTI, is not enti- Appellant, Aua complain jurors prospective tled to about being excused. twelfth Appellant’s Texas, Appellee. The STATE of of error overruled. No. 69665. During trial evidence showed that after found, the victim's authorities Appeals Criminal fingers off the victim’s and sent cut them En Banc. DPS lab in order that the victim June 1989. Photographs be identified. fingerprints taken and victims then Rehearing Overruled June kept compared fingerprints means, Through files. authori-

DPS identity learned the

ties victim.

During trial after this evidence admit-

ted, appellant asking made oral motion given a day

that he be two continuance for experts purpose having his own ex- photographs

amine the taken of the vic- (the fingerprints fingers

tim’s were de-

stroyed a DPS technician on lab orders County investiga-

from one of Cameron

tors). The trial denied complains

motion. now court’s refusal grant

trial continu- an abuse

ance was of discretion. motion for writing, continuance was neither in Article 29.-08,

29.03, V.A.C.C.P., to, Article nor sworn A.C.C.P., compelled to find V. nothing presented has been for review. (Tex.Cr.

Lewis v.

App.1984); Porter v. 623 S.W.2d 374

(Tex.Cr.App.1981); Minx v. point of

thirteenth error is overruled.

Having found no reversible judgment. *2 any disci- O’Brien, Houston, (court ap- subject the of lant had not been Douglas M. he in the Harris while was appeal), plinary action pointed appellant. on for County jail. Holmes, Jr., Atty., Linda A. B. Dist. John Hobbs, At- and Carl W. Asst. Dist. West one precisely point is This issue Houston, Huttash, tys., State’s Robert recently in issues decided Franklin of the Austin, Atty., for the State. Lynaugh, 487 ap- In of

pellant’s piece mitigating sole punishment phase, of trial presented in the OPINION incarcer- disciplinary while was his record MILLER, Judge. year period without a nine was ated over capital mur- in Appellant was convicted of at 2324. As incident. See id. der, Code, 19.- bar, Penal Section appellant Y.T.C.A. in chal- the case at Franklin 03(a)(2). by the trial imposed Death asserting statute lenged by our death after the affirmative returned Eighth Fourteenth it the and violated findings special to both issues submitted permit it Amendments because did not (2), 37.071(b)(1) Art. pursuant to and V.A.C. to how it was instruction as to appeal to Direct was auto- C.P. this Court mitigating the introduced evidence appellant’s will affirm convic- matic. We The at trial. See id. at 2325. tion. Court, Supreme States Justice United Court, writing a plurality White raises points three of argument appellant’s when it stat- rejected sufficiency not the he does raise of Since ed: evidence and no error turns on of reci- dispense factual review we will with a [, U.S. 262 Jurek points of the facts. tation In his first two (1976)express- 49 L.Ed.2d ... 929] error, appellant of Art. 37.071 asserts that constitutionality of the ly upheld the Sixth,1 Fifth,

V.A.C.C.P. violates the mitigating is manner which evidence Eighth, and to Fourteenth Amendments ‘Special under the Issues’ sub- Specifical- States United Constitution. Capital juries. mitted to Texas ly, appellant penal- contends death that our ty precludes impor- statute mitigating jury, tant information practice to It is the established Texas secondly, this and statute likewise fails to “ ‘whatever permit consideration

permit mitigating a definition circum- mitigating circumstances’ the defendant or how the stances is to consider to sen- able show” punishment. appar- circumstances at re- tencing practice this Court —a interlocking of ent these two issues allows upon it concluded in Lockett lied when us to address them as one. Ohio, 438 U.S.

Although appellant fails to ... that our decision any place require to did not reversal of this Court in the record where in that case introduced, approval our earlier of the Texas thorough Texas review the record demon Issue scheme Jurek.... [T]he expressed intro adher- strates that trial counsel courts have resolute Lockett, mitigation. declaring some evidence of At the to that under duced ence trial, phase appellant capital sentencing procedures intro punishment Texas’ testimony Deputy is free to ask ‘the duced of Sheriff’s defense appel- Swattes L.J. Swattes. testified consider whatever evidence ap Although appellant abridged violations of his been since counsel asserts rights under the Fifth Amendments to peal anywhere and Sixth fails to discuss this in the the United States in his first two Constitution Accordingly, brief. we will not address of his just what at a loss as to these contentions. abridged rights or how have bring question language circumstances the defense can then is be- whether the fore it.’ complex issue is so that an explanatory charge necessary keep disregarding from the evidence Id. 108 S.Ct. at 2325 and 2326. The Su- *3 State, properly King before it. In 553 v. preme jury’s Court concluded that the con- (Tex.Cr.App.1977) 105 S.W.2d cert. de appellant’s prison sideration of record was nied, 1284, 434 U.S. 1088 55 not improperly given limited and it was held opportunity Court this evidence as it questions Special saw fit in relation to Art. 37.071 used Issues the death of common understanding statute. See id. 108 S.Ct. at terms 2330. The required Court went on to hold: no definition. The readily grasp logical can relevance we do not believe that the [special] evidence to the is

instructions or the Texas Issues sue[s]_ precluded charge No additional is re any rele- quired. vant circumstances in this case, unconstitutionally or lim- otherwise State, 933, 592 S.W.2d 947 jury’s here, reject ited the discretion we (Tex.Cr.App.) 893, cert. denied 449 101 U.S. petitioner’s Eighth challenge Amendment 256, (1980). 66 L.Ed.2d 121 to his death sentence. Additionally, appellant neither ob Id. 108 S.Ct. at 2332. Since jected punishment charge concerning challenge is of federal and it nature regarding the absence of instructions miti factually we over- gating request nor did he such rule first and second Therefore, instruction. the trial court judge given opportunity was not to rule third of error as on these constitutional claims and serts that failing the trial court erred in should not be considered the first time instruct the punishment phase at the State, appeal. 622 S.W.2d Williams tempo on how it could consider 116, (Tex.Cr.App.1981), 120 cert. denied 455 rary insanity caused intoxication in miti 1008, 1646, 71 L.Ed.2d 876 102 gation appellant’s punishment. Once (1982). Estelle, O’Bryan See also again, appellant is mistaken in his belief (5th 365, Cir.1983), F.2d 383-385 cert. de that he is entitled to an instruction to the 1013, nied 465 U.S. jury telling they may them how consider (1984). Appellant’s point mitigating evidence under our death stat error number three is overruled.2 ute. See id. 108 S.Ct. at 2326. As we Having appellant’s points recently: stated most finding error and no reversible that, This has repeatedly held al- judgment of the trial court. though murder defendant has a CLINTON, J., reason, dissents for the right to have certain evidence considered others, among developed dissenting in his mitigation punishment, he is not opinion in James v. S.W.2d specifically entitled to instructions (Court 4/26/89). Appeals, of Criminal informing that certain evidence

may be considered or how it DUNCAN, J., concurs in the result. applied. E.g., Cordova v. James Likewise, (Tex.Cr.App.1989). we have held: present was entitled to evi- any mitigating

dence of circumstances evidence,.... present

and did (Tex. dissenting) 2. Cf. Stewart v. cert. denied 474 U.S. 1984) (Clinton, Miller, Cr.App joined by J. J. 88 L.Ed.2d 159