Lawton v. State

proof, I increases the State’s burden says nothing about the content of that wit- ness testimony, Appeals did not a venireman must be able to hold that the Court of ness’ would possibility content of upholding consider the upon Caldwell err its reliance testimony will meet his threshold of challenge against venireman for cause doubt, may be.2 A reasonable whatever that Blaydes. possi- fails to consider such a

venireman who respectfully I dissent. bility has in essence drawn an inference knowing the facts show without about what WHITE, J., McCORMICK, P.J., join. what the facts are. Moreover, per- a venireman should not be requirement a corroboration

mitted to add accomplice witness rule to the

similar to the proof. See Texas Code of

State’s burden (“A Procedure, Article 38.14 convic-

Criminal testimony upon of an

tion cannot be had

accomplice corroborated other evi- unless tending with dence to connect the defendant LAWTON, Appellant, Stacey Lamont committed; corrobora- the offense and the merely tion is not sufficient shows v. offense.”) Essentially, the commission of the Texas, Appellee. The STATE accomplice rule increases the State’s burden by requiring the to submit additional State No. 71759. accomplice an wit- evidence to corroborate Texas, testimony. Appeals Boozer v. ness’ See Court Criminal (State in- (Tex.Crim.App.1984) S.W.2d 608 En Banc. proof by failing to creased its burden of Dec. 1995. object accomplice witness instruction imposed because jury charge). This rule was Rehearing 1996. Overruled Jan. in- accomplice’s testimony was considered herently suspect. 296 S.W.2d Cast (“An (Tex.Crim.App.1966) accom- witness”). Be-

plice witness is a discredited legislature has not determined

cause the testimony “single” is similar- of a witness permit-

ly suspect, a venireman should not be proof by burden of

ted to increase State’s requirement.

imposing a corroboration may challenge for cause

The State prejudice who “has a bias or

venireman upon

against any phase of the law which rely entitled to for conviction

State is Pro- Texas Code of Criminal

punishment.” 35.16(b)(3).

cedure, “phase of Article One upon is entitled

the law” State greater require

rely that the will “beyond a reasonable proof

burden of than

doubt.” Cook excluding the

(Tex.Crim.App.1993). Because upon based one wit-

possibility of conviction impartially inability to evaluate and shows an that he could never A venireman who states may challenge credibility. single The State testimony witness' of a the basis of the convict on he is biased venireman for cause because such a never believe such witness because he would 35.16(a)(9). favor. Art. defendant in the defendant’s expresses in favor of the a bias witness

545 coconspirators

had informed his that he (shoot) anyone might would “bust on” who attempt burglary interfere in the spree. pre-dawn Eve, In the hours of Christmas by daughter, victim was awakened his who informed him that his truck being was bur- glarized. The victim ran out into his front yard gunned by appel- and was there down lant; shortly inju- he died thereafter of the Appellant coconspira- ries sustained. and his apprehended high-speed tors were after a car chase. points appel one error and two Killingworth, Tyler, Newton, Donald Brent charges reversibly lant the trial court erred Houston, appellant. for in conducting a voir dire examination and a Paul, Matthew Attorney, W. Asst. State’s pre-trial hearing in his absence in violation of

Austin, Marty, Atty., Edward J. Asst. Dist. 28.01, respectively. Articles 33.03 and The Huttash, Tyler, Atty., Robert A. State’s Aus- gives same incident rise to both of tin, for the State. allegations. record, According to the morning after the 18, 1993, voir dire on June judge, trial OPINION Kent, Judge proceedings recessed the but MEYERS, Judge. speak asked to with counsel for both sides July appellant was tried and con- reporter pres- her chambers. The court was victed of murder under Texas Penal discussion, ent for the appel- in camera but 19.03(a)(2). offense, Code The murder in lant was apprised excluded. The court the course of robbery/burglary, was commit- parties that veniremember Jackson had in- 24,1992. ted on December affirma- preceding formed the bailiff on the .that tively special answered the issue submitted night, telephone she had received a collect 2(b)(1).1 under Article jail. call from the County Smith The caller sentenced to death as mandated Arti- speak had asked with Jackson her first 2(h) § 2(g). cle 37.071 pro- Article 37.071 “Stacey.” name and had identified himself as appeal vides direct to this court. Judge parties Kent informed the that for twenty-eight points raises of error. We af- appellant’s protection own and that of the firm. venire, she intended to order that a record kept telephone placed by be of appel- calls A brief review of the facts be in will useful party objected. lant. Neither considering the issues raised. Reviewed light verdict, the most favorable to the the “concern,” Expressing the State then following: evidence established the On the telephone impacted upon asked how the calls night of early morning December of proceedings. Jackson and the voir dire The 24, 1992, Fields, appellant, December Karlos Defense echoed the State’s “concern.” conspired and Carlos Black to and did bur- Judge responded Kent that she would not glarize County. several vehicles in Smith dismiss Jackson without evidence that the Using shotgun, appellant a stolen stood prejudiced incident had her. The State of- guard coconspirators burglarized Jackson, while his agree Judge fered to to excuse but the appel- vehicles. Witnesses testified that grounds Kent resisted this offer on that it lant would stand at a distance from the vehi- would create an incentive for defendants to being burglarized, pointing shotgun cles the call they veniremembers wanted excused jury at the windows and doors of the duty. Expressing houses near from concern that parked. Appellant which the vehicles prejudiced, were Jackson was Defense counsel of- 1. All article references are to the Texas Code Criminal Procedure unless otherwise indicated. stated that challenge parties and the trial court peremptory to a to re- Both fered use protect to purpose in the dismissal was their again suggested move Jackson. State proceedings. integrity the trial Com- parties agree both to dismiss venire- (a Adanandus, full at pare 866 S.W.2d having to member to avoid examine her conducted proceedings were day of voir dire Judge Kent consented to the open court. ex- eight were during which veniremembers Jackson, agreed insisted that excusal but dis- parties and three were amined both brought and herself she be into chambers defense, five were missed for cause Agree- for the record. recount the incident jurors.) these facts potential Under kept as this, to the Defense stated that under ing 33.03 and on Article appellant’s reliance circumstances, they felt the unusual resolu- misplaced. 33.03 nei- Article Adanandus is necessary integrity tion was to “maintain govern nor intended to purports to was ther jury system.” counsel added Defense arose govern peculiar situation which action better than this course of was this case. losing peremptory challenge. a Jackson was judge’s into then called chambers Similarly, we are convinced that asked to relate the incident for record. meeting accurately be de in camera cannot reported the facts of the incident She pre-trial proceeding within the as a scribed anyone named added that she did know 28.01, meaning Article mandates Stacey anyone jail. parties Both de- pretrial proceed all presence at question clined to Jackson. Jackson was Riggall 590 S.W.2d ings. duty. thanked and from Im- dismissed overruling (Tex.Crim.App.1979),an order mediately following testimony, the Jackson’s stated that Riggall’s motion dismiss Judge parties the court room. returned to specified day, been heard on motion had party Kent asked either wished make findings fact and conclusions and recited for the record. Defense counsel statement order, entry We held that law. responded record to re- that he wished the indicating that along with the recitations they flect that had discussed the matter with hearing on there had some adversarial been appellant, placing denied made con the matter from which court call, telephone highly and that was law, pro clusions of fact and constituted agreeable resolution of the matter By ceeding Article 28.01.2 Id. con under agreed excusal Jackson was trast, in Malcom v. integ- way protect his in the best interest we held be rity of trial. cause the record was devoid hearing type that some adversarial must Article 83.03 a defendant Under findings-of-fact and conclu held which led present during proceedings. be all voir dire supporting granting or over sions-of-law 216-220 Adanandus ruling pleading, it contained no evidence — (Tex.Crim.App.1993), cert. meaning proceeding within the of Article of a (1994). -, 1338, 127 L.Ed.2d had been overruled 28.01. Malcom’s motion But, we not the in camera do believe that mere the docket sheet. Id. by a notation on appellant proceedings complains of which at 792. present proceedings within the voir dire meaning 33.03. The in camera of Article Again, con we note that the situation meeting adversarial el fronting lacked the traditional parties in this ease was most the proceeding. a voir Jackson Realizing pro ements of dire to that she needed unusual. State’s, in the tradi appellant’s, was instructed or examined the the venire’s tect and examination; interests, nei Judge of dire called an in camera tional sense voir Kent parties the party question meeting apprise her. She was to the of incident ther desired to agreement, strategy to the upon suggestion, develop deal with dismissed the and by parties problem telephone chal call without con request of without of and both challenge. ducting a or other- peremptory public trial-within-a-trial lenge for cause or present the trial court heard his motion appears to have been no actual when 2. In fact there Riggall its hearing his counsel was and entered order. as neither nor form, creating public separate wise scandal which The verdict in three para- would jeopardize integrity graphs, jury of appellant the trial. The allowed the to find parties guilty capital in themselves raised the issue of of murder of what to course and Jackson, vehicle, they, court, robbery burglary about of a of do not the or suggested capital robbery, murder in the course of or of the best resolution of the issue capital in agreement burglary murder the course of of a was excuse her. While initially paragraph vehicle. It was under the first showing misgiving some about this solution, jury appellant stating: guilty, found Judge ultimately Kent consented to WE, JURY, Defendant, dismiss Jackson. When informed of this res- THE find the problem, appellant LAWTON, GUILTY, olution consented STACEY LAMONT open 33.03, Murder, in Capital court.3 As Article with we are of that is murder commit- the in camera robbery convinced that in meeting, committing dur- ted the course of ing vehicle, which suggested burglary charged Jackson’s dismissal was of a in agreed by parties, two the indictment. was not proceeding governance under the of Article added). (emphasis Pursuant to the indict- 28.01. The resolution of the Jackson issue presented ment and the during negotiation the result was of not of an adver- trial, jury the trial court instructed with proceeding. sarial The resolution was one to both of the capital alternate theories of mur- consented, which trial court not one alleged charge, der in the indictment. In its Thus, proceeding which ordered. of jury they the trial court instructed the that if appellant complains was not within the unanimously agreed, they appel- could find scope Appellant’s of Article 28.01.4 first guilty capital lant of murder in of the course points and second error are of overruled. alternative, robbery, they and in the that if

unanimously agreed, they appel- could find four, three, five, In points appel guilty lant capital of murder in the of course alleges together argues burglary lant jury various of a vehicle. The re- was grounds prem quired, therefore, for reversal of which unanimously agree each on appellant guilty ised his assertion that murder robbery committed under the theo- ry in the burglary unanimously agree course of of a vehicle is guilty not a that he was capital burglary offense. Tex.Penal under the of a theory, Code vehicle but 19.03(a)(2) Assuming they §§ split simply and 30.04.5 for ar could not their vote and find gument’s appellant appellant guilty capital sake that is correct and murder. Under capital record, murder as defined in this jury’s only section verdict can mean 19.08(a)(2) vehicle, burglary jury unanimously excludes of a found record, upon guilty careful review of the entire in capital murder course appellant presents robbery find that no in unanimously finding reversible addition to alleged ultimately guilty error. The errors are him capital murder course unanimously burglary Having harmless because the also appel- a vehicle. found guilty convicted lant murder course robbery. robbery, course even if murder course beyond He appel was then informed court of its intent conclude a reasonable doubt that telephone placed meeting to have the numbers of the calls lant’s absence from made no contri recorded, Id; by appellant punishment. and asked if he had bution to his conviction Tex. objection 81(b)(2). personally agreed R.App.P. to that He order. this and the trial court entered its order in this regard. point alleges appellant 5.In three reversible error nullity in that the a not verdict was authorized any point appellant argues We are that error if 4. also convinced Texas law. In four beyond Appel failing quash harmless a reasonable doubt. the trial in court erred to a flawed during meeting appellant the alleges lant's assistance was not indictment. In five imposition punishment in capital needed order to further his defense. Since the of for a mur- appellant's presence "reasonably burglary not bear did a der committed in course of a the of relationship opportunity punishment the to de vehicle is unusual substantial to cruel and under fend,” Eighth no harm his the the resulted of absence. Adanan and Fourteenth Amendments of dus, conjunction, 866 S.W.2d In federal at 219. constitution. offense, in the con- burglary not “manner and means” of a vehicle is a alternative theory the junctive any of proof when of one and re- appellant’s conviction sentence would Id. guilty verdict. support will a main unaffected. Under these circum- offense stances, upon pleads alternate theories alleges no error When the State appellant offense, prove required not to any remedy granted. the same is can be alleged; proof the theories guilt under all of State, Appellant cites Cumbie v. guilt theory of offense will under one for the Applying Id. these suffice for conviction. proposition jury charge that a is fundamen case, re- appellant’s the record principles tally requires defective and reversal when provided him with that the indictment veals charge authorizes conviction for conduct him- prepare that he must to defend notice offense, for which not an well as conduct against charge self reading which is an offense. Our of Cumbie robbery the alternative theories of under progeny support appellant’s its does not vehicle, arising burglary of each from Moreover, appellant’s argument contention. also conduct. The record same criminal ignores aspect fact that the Cumbie evi- presented sufficient shows the State upon finding requiring automatic reversal robbery under the dence convict charge of certain error in was overruled Al offense, theory of the and that State, 171-174 manza 686 S.W.2d capi- unanimously fact convicted Almanza, (Tex.Crim.App.1984). Under de robbery. tal murder in the course of Under termination of ex whether reversible error facts, potentially these the trial court jury charge requires case-by-case in a ists quash the failing erred in indictment be- analysis, prejudiced and the error must have allegedly cause it contained an erroneous Id.; appellant. Daniels v. 754 S.W.2d theory of prac- alternative the offense has no 214, (Tex.Crim.App.1988); Lawrence v. tical of the effect on the outcome case. (Tex.Crim.App.1985). From providing rob- appellant with notice record, appellant prejudice cannot show bery theory actually under which he was arising alleged from the error. convicted, the indictment fulfilled its function Similarly, appellant cannot show providing appellant with notice arising alleged harm from the indictment 21.24(c). against him.6 Art. charges quash error or the court’s failure short, alleged error was harmless purpose indictment. The of an indictment is particular under the facts this case. We give particu “to defendant notice of the therefore, third, must, appellant’s overrule he charged, lar offense with which fourth, points of and fifth error. court, conviction, pronounce enable the on Appellant’s point of error sixth proper judgment.” Lehman v. his contention that evidence was voices (Tex.Crim.App.1990); 84-85 5.W.2d Arts. insufficient to establish that he murdered A 21.04. conviction can never rest robbery. Appellant victim in course of offense, upon conduct which is a criminal argues sup insufficient to the evidence was part upon or in whole or in conduct not port finding that the murder was commit alleged an indictment. Id. But neither of ted the intent to obtain or maintain “with is present these situations case. property,” over code control Tex.Penal presents Appellant’s case the situation where 29.02(a), because pleads the State alternate theories of the supports only ... one reason- same offense but one theories is flawed. the evidence his plead Appellant all accom- The State is allowed to alternative able conclusion: plices unsuccessfully completed the evidence had their theories offense which is, may ultimately prove; attempted personal property it is in the allowed to theft walking their anticipate proof pleading in the vehicles and were toward variances gravamen alleges hampered pre- unpersuasive; the- he of both that was most burgla- i.e., identical, paring appellant a defense the distraction of the ories offense But, light ry theory of a vehicle of the offense. in victim in the course of theft. murdered the case, particular argument of this this facts Tommy trucks when Appellant complains Featherston shut the generally of the court’s toolbox inside the back of his truck. The testimony admission numerous witnesses’ apparently prompted appellant noise establishing throughout night that hours Karlos Fields to shoot at Price. murder, immediately preceding appellant accomplices burglar and his had short, appellant argues that because the ized various vehicles furtherance of a murder was committed after he abandoned planned conspiracy.7 According to the rec attempted robbery, his he did not have the ord, specifically the trial court stated that requisite property intent to control when he carefully considering appellant’s objec after Appellant shot the victim. that admits White evidence, State, tions to the it concluded that the 40, (Tex.Crim.App.1984), v. 404(b). evidence was admissible under Rule arguments. undermines his See also Ulloa Tex.R.Crim.Evid.8 The trial court further v. (Tex.Crim.App. 570 S.W.2d 954 1978); held had considered evidence of each Lightner S.W.2d burglary individually and (Tex.Crim.App.1976). determined for pro each offense admitted that it was more In White we held the “intent to ob prejudicial. bative than Tex.R.Crim.Evid. property” tain or maintain control of the appellate 403. On review we defer to the regard deals with the robber’s state of mind only upon trial court’s decision and overrule ing theft, attempted the theft or and not the finding that the decision was outside the component robbery. assaultive disagreement. Rogers bounds of reasonable requirement S.W.2d at 42. There is no (Tex.Crim.App. appellant retain the proper intent control 1993). ty committed; when the assaultive act is required may violence occur after the offend Appellant concedes that the evidence of er escaping. has abandoned the theft and is spree immediately preceding crime Id. under offense trial has some relevance to the appellant guilty issue capi- of whether was concedes, appellant As this prove tal that it tended to case established that the assaultive act oc- appellant intended to commit theft when he immediately attempted curred after burglarized parked the vehicles in front of theft, appellant attempting escape. But, appellant argues the victim’s home. explained, As we have it is irrelevant that other evidence established these facts property control of the had been thus, prejudicial a far less manner and may thwarted and that he have abandoned probative value of the extraneous offense component the theft at the time of his assaul- outweighed by prejudicial evidence was its Having tive act. conceded that the evidence effect. Tex.R.Crim.Evid. 403. is sufficient to establish each of the elements robbery, appellant defeats his own conten- Appellant downplays importance tion that the evidence was insufficient to spree building of the crime evidence for underlying robbery. establish the offense of understanding accurate of what occurred Appellant’s sixth of error is over- during the offense. The evidence established ruled. that when shot the victim he did

In point seven com unplanned response not do so as an but as plains reversibly part that the trial court premeditated plan. Appellant erred of a admitting cars, accomplices extraneous offense evidence dur his conspired burglarize ing guilt/innocence phase they correctly of his trial. which anticipated would con- crimes, appellant's argument poorly, wrongs, 7. We note that Evidence of other or acts is inadequately, does not briefed. prove not admissible to the character of a complain individually. of each instance We ad- person in order to show that he acted in con- argument appellant's dress as it is briefed. That however, formity may, therewith. It be admis- is, general complaint category as a about whole purposes, proof sible for other tive, such as of mo- complaint of evidence and not as a of each of the intent, opportunity, preparation, plan, category. instances within the knowledge, identity, or absence mistake accident. 404(b) pertinent part 8. Rule states in that:

553 an ex- gifts. as excited utterance many plan This had court statement tain Christmas hearsay “a night. ception rule which states: in the to the carried out course the been relating startling to event a Appellant’s conspiracy in this was to statement role un- declarant was made while the guard necessary, an armed condition stand as by the excitement caused jeopardized their criminal der the stress of anyone kill who by the is not excluded night’s The the crime event or condition” endeavor. evidence of 803(2). Ap- hearsay rule. the mur Tex.R.Crim.Evid. spree provided the context which State, pellant argues that because Featherston’s S.W.2d der occurred. Smith v. 898 (The police response to was made in (Tex.Crim.App.1995) of declaration 838 murder, an after the immediately questioning about hour robbery antecedent to murder spontaneous nor under the in kill neither Smith’s and intent was established motive victim; of the event. ing he the victim’s truck excitement the needed robbery); escape to from the foiled Tex. determining critical factor in The 404(b). spree The crime R.Crim.Evid. evi is an excited utterance when statement dence the accom also served corroborate 803(2) declarant Rule “is the under whether 38.14; See, testimony.9 Long plice Art. v. emotions, dominated the excite was still (Tex.Crim.App.1991), 273 823 S.W.2d fear, ment, pain of the event.” McFar denied, rt. U.S. ce land (evidence (1992) L.Ed.2d — -, t. cer appellant’s extraneous offense corroborated (1993). 2937, 124 The S.Ct. L.Ed.2d 686 time he confessions wherein detailed the manner elapsed the the occurrence of event between committed). in which each murder was only one consid the utterance factor disagree these facts we must with Under admissibility determining ered in probative assertion that the value That hearsay statement. the declara Id. compared evidence was minimal its response questions tion is likewise was prejudicial highly nature. The evidence is only not factor to be considered and does one prejudicial appellant highly in that it is inadmissible. Id. alone render the statement motive, probative premeditated of his admissibility The state an out-of-court murder, type role in but this is general exceptions ment under the prejudice Rule which concerns due hearsay exclusion rule is within trial law, process. course of or due cannot We court’s discretion. Coffin hold the trial court was outside (Tex.Crim.App.1994) See disagreement bounds of reasonable when it Tex.R.Crim.Evid., seq. Rule 801 et admitted evidence of the extraneous of- supports record trial court’s deci- Appellant’s point fenses. seventh of error sion to admit Featherston’s out-of-court is overruled. Hukill statement. Detective testified eight, appellant upset” of error Featherston was still “excited and alleges leading permit that the trial court erred in to the victim’s death. events record, ting testify according Detective Hukill to about the And to the Featherston Featherston, hospital hearsay statements of T. the was interviewed at to which the eye-witness shortly after of the victim and to victim had been taken son-in-law event; apparently, the was not The court admitted the out-of- victim’s death murder.10 testimony anyone" might particular ready who to "bust on interfere 9. attacks in early morning Ryan, burglary progress. unequivocally C. who on the We testified that with the offense, two she had seen the trucks offense evidence is admissi- hold extraneous using accomplices were his 404(b) purpose corrobo- ble under Rule for the spree parked their crime outside her home. She ration under Article 38.14. male, unidentified whom she testified identify positively appellant, could not was incident, an hour after the Hukill had About truck, pickup pointing long sitting in a white questioned about had shot the Featherston who gun testimony at her window. This barrelled terms, general identified victim. Featherston accomplice Carlos Black’s testimo- corroborated ny standing by as the individual shooter at each crime scene sat White truck. shotgun pickup brandishing white 554

yet certain when Featherston made his state- hold a valid Texas license driver’s and the ments. Within the hour of county, persons of the than citizens other complains, service, disqualified jury Featherston had been awakened are who from who by burglars dark, morning in the hours personal of hold a valid identification card or Eve, shooting Christmas witnessed of by department. his certificate issued father-in-law, life, future feared for own his 1, January became on This statute effective informed his fiancee her father had been pre-trial hearing, appellant In a 1992. estab- gunned down, then accompanied and his then jurors in prospective lished that his case the hysterical dying fiancee her father to the registered from of all were summoned a list hospital. Considering magnitude of the and those who been voters have issued or crime, murder, rapid se- and the driver’s renewed licenses identification quence staggering culminating of events 1,1992. January plain cards since Since the death, reject appellant’s victim’s we must meaning county of “the of the citizens who elapse categor- assertion that the of one hour hold” includes all of the citizens who hold ically removed Featherston’s statement from cards, ap- driver’s licenses or identification exception hearsay. the excited utterance pellant’s array probably was called viola- discretion; The trial did not court abuse its 62.001(a)(2). But, § “noncompliance tion of Appellant’s point eighth of error over- with the mode and manner of service or ruled. summoning the error only venire constitutes injury when has been shown.” Lewis v. Appellant’s point ninth of error com 560, 563-564 plains prosecution repeatedly made “the 920, t. U.S. 112 503 improper cer prejudicial arguments during 1296, (1992), [quoting S.Ct. 117 L.Ed.2d 519 closing opening arguments.” Appel its 572, 251 Miers v. 157 Tex.Cr.R. S.W.2d complain any specific lant does not state (1952) succeed, challenge To ]. ment; attempt catalogue “rather all than upon noncompli a criminal conviction based improper arguments, appellant those sim § ance with 62.001 must establish that the ply portions Court to directs this the relevant noncompliance actually compromised the Appellant the record.”11 us to find leaves Appellant fairness trial. Id. makes him; error and his this argue case for allegations no that the fairness of his trial briefing, such, inadequate presents and as compromised, was and he not establish does nothing for our review. Garcia v. prejudice the noncom actual caused (Tex.Crim.App.1994); Tex. 62.001(a). contrary, pliance with To 74(f). Appellant’s point R.App.P. ninth array record reflects that the was summoned error is overruled. county’s pop from a fair cross-section of point In his tenth error prejudice, showing ulation. Without argues array duty in jury that the called to hold court abused cannot the trial its his case called in violation of overruling motion. discretion 62.001(a)(2) the Texas Government point overruled. His tenth of error is probably Code. correct. error, appel point his eleventh provides: 62.001 Section constitutionality challenges the of Article lant (a) jury wheel must be reconstituted 2(b)(2) grounds permits on that it by using, source: as the to death for jury to sentence a defendant (1) persons of all current the names on the might merely anticipating human life that a pre- registration voter lists from all the that under Ti Appellant argues be taken. county; cincts Arizona, S.Ct. son v. (2) (1987) on be fur- Enmund Flori all a current list to 95 L.Ed.2d names da, Safety, 73 L.Ed.2d Department nished 458 U.S. Public (1982), death county anticipation that will result showing citizens of the who 1140 disregard the re- the trial in each instance to Our review of record reveals that during objections court sustained various marks. arguments, but the trial court instructed State’s Appellant’s elev Eighth is an rea under the of an intentional murder. insufficient mens point enth error is overruled. of the federal constitution for Amendment imposition of death. error, appel twelfth his 2(b)(2) § provides Article 37.071 that the mitigating alleges that the definition lant guilt/innocence charge parties a contained 2(f)(4) § consti in Article evidence 37.071 penal §§ charge under 7.01 7.02 the evidence tutionally infirm because excludes code, in the jury the shall be asked sentenc- character, history, or circum of defendant’s ing charge He that the crime. concedes stances the 2(e), itself, § Article special issue actually caused the whether defendant constitutionally not infirm. actually of the or not death deceased did of the cause death deceased but intend- special answering first issues Upon two kill or the deceased another or antic- ed 2(e) § mandates affirmatively, Article 37.071 ipated taken. that a human would be life jury determine that the added). (emphasis Whether, all taking into consideration evidence, including the circumstances Eighth court held The Enmund that the offense, of the the defendant’s character of the Constitu- Amendment United States background, personal moral proscribes tion a execution of individual defendant, culpability of the there a who, acting albeit in the commission of a mitigating or cir- sufficient circumstance others, crime with does not himself intend a sentence cumstances to warrant that partic- that murder be committed and whose imprisonment rather than death sen- life ipation in attenuated. 458 the offense is U.S. imposed. tence be 790-791, at 102 at 3373-3374. The S.Ct. added). 2(f)(4) Tison court held that the federal constitution § (emphasis Article 37.071 major proscribe does the execution requires jury instructed that each be participant possesses in an offense who juror “reckless indifference” towards the murder mitigating shall consider evidence be by parties acting committed with him a juror regard as might that a re- 158, crime. 481 U.S. at 107 S.Ct. at 1688. ducing the defendant’s moral blameworthi- directly ap- Neither Enmund nor Tison are ness.

plicable to Article 37.071. that do not believe these definitions We singularly in combination are in conflict or scheme, penalty Under our death Constitution. Ed with United States an order to convict accused of 110, Oklahoma, 104, 455 102 dings v. U.S. actor, jury primary as a must find that he 869, 874, (1982); Lockett 71 L.Ed.2d 1 S.Ct. intentionally committed the murder 605-06, 2954, Ohio, 586, 98 S.Ct. v. 438 U.S. felony. underlying of the Tex.Penal course (1978). 2965-66, Penry 973 57 L.Ed.2d 19.03(a)(2). And, § before the accused Code stated, Lynaugh, Supreme Court may be convicted of murder for the another, established, Eddings is the Underlying Lockett and it must be conduct doubt, punishment be beyond principle should di- a reasonable that the accused culpability promote rectly personal specific “intent related harbored If sentencer the commission of’ the intentional the criminal assist defendant. assessment of Tucker v. 771 is to make individualized murder. S.W.2d denied, penalty, appropriateness of the death 530 492 cert. back- about the defendant’s S.Ct. 106 L.Ed.2d 578 “evidence U.S. 109 7.02(a)(2). (1989); ground is relevant because and character Tex.Penal Code belief, society, short, may long held this jury have found that who commit criminal acts appellant only anticipated that death would defendants disadvantaged back- inconsequential are attributable to under Article 37.071 is result prob- concerns; ground, to emotional and mental to Enmund and Tison lems, culpable than may less defendants already appellant intended to be had found that “Thus, ... excuse.” commission have no such promote at or assist in the who least imposed sentence at the penalty stage (1984); Hughes 79 L.Ed.2d 29 should reflect a response reasoned moral S.W.2d 294 (Tex.Crim.App.1994), cert. — -, to the background, defendant’s S.Ct. character (1995); L.Ed.2d 857 Colella v. and crime.” (Tex.Crim.App.1995). added; omitted) (Emphasis citation 492 U.S. 302, 319, 2934, 2947, noted, already 106 L.Ed.2d As Article 37.071 (1989). 2(f)(4) Holding fluidly statutory “mitigating our defines defi- evidence” juror to be “evidence mitigating might regard nition of that a congruent evidence is reducing the defendant’s moral with that of blameworthi the United Supreme States added). (Emphasis ness.” Court, Evidence is not we overrule twelfth per mitigating; juror se individually each point of error. evidence, determines any, mitigates what Appellant contends in his thirteenth against just the imposition of the death sen point that the trial court violated guaran the State, 42, tence. Banda v. 890 S.W.2d 54 against tee cruel punishment and unusual — denied, (Tex.Crim.App.1994), cert. U.S. process and denied him due under the Unit -, 2253, 132 (1995); 115 S.Ct. L.Ed.2d 260 ed States Constitution when denied his State, 322, (Tex. Johnson v. 773 S.W.2d 324 motion to jury inform the that a life sentence Crim.App.1989), part, v. Johnson affirmed capital for murder mandates a minimum thir — Texas, -, 2658, 113 S.Ct. 125 ty-five year imprisonment before the accused (1993). Moreover, L.Ed.2d 290 reviewing eligible parole. 8(b)(2). is § for Article 42.18 sufficiency, recognize “jurors for we that the Smith, facts,” judges In are the 847-853, exclusive of the 898 S.W.2d at Abdnor cf. State, 726, v. (Tex.Crim.App. 871 S.W.2d Willingham 897 S.W.2d 358- 1994), reweigh and we do not credibility (Tex.Crim.App.1995), cf., recently we re weight only evidence but ask wheth jected arguments that the failure to inform a er the support jury’s evidence exists to capital jury murder that a life sentence car finding. E.g. Virginia, Jackson v. 443 U.S. mandatory incarceration, ries a minimum vio 307, 319, 2781, 2789, 560; 99 S.Ct. 61 L.Ed.2d lates the United States Constitution. Chambers v. Though appellant arguments, raises various — U.S. -, t. cer neither the law nor facts of his ease remove (1994). 128 L.Ed.2d 491 it from the control Willingham. of Smith and supports When the evidence both and con Thus, reaffirming our decision that the mat verdict, jury’s flicts with the we must assume parole eligibility, ter of including mandatory that the factfinder resolved the conflicts in mínimums, proper is not a consideration for favor of the verdict reached. Turro v. jury’s deliberations, sentencing we refer (Tex.Crim.App.1993). appellant holding to our in Smith and Will- Thus, mitigating to conduct a review of evi and, ingham we hold that the trial court’s dence we would have to sit as an omniscient charge jury refusal to on the effects of omnipotent juror, assessing thirteenth parole in this ease Appel was not error. mitigating assign effect of evidence and point lant’s thirteenth is overruled. ing particular greater weight evidence than the jury apparently did. decline to We de point fourteen alleges mitigating clare as a matter of that the evidence support was insufficient to usurp jury’s law or to discerning role of jury’s negative mitigation answer to the Ap credibility weight of evidence. 2(e). special § issue.12 Art. 37.071 We have pellant’s point fourteenth of error is over held, and following for the reasons must here ruled. reaffirm, appellate sufficiency that an review negative of a regarding verdict mitigation In point appellant alleges fifteen special is constitutionally issue neither re that Article 37.071 is unconstitutional be quired possible nor under our current law. mitigation special cause the issue eludes a Harris, Pulley 465 U.S. meaningful appellate S.Ct. review of the sufficien- answer, Appellant actually says jury “affirmative” since that is how the in fact answered "negative” special but we will assume he meant issue. regard is constitutional punishment scheme cy mitigating concede to evidence. We jury’s law, review of appellate less of whether appellant’s assertion that under current Pulley, 465 possible. mitigation re- verdict impossible sufficiency it is to conduct 872-73; 37, 104 Hughes, 897 at mitigation U.S. at S.Ct. jury’s to the view the answer point Appellant’s sixteenth But, at 294. special render our S.W.2d issue. this does not unconstitutional, of error overruled. punishment scheme of error seventeen First, re meaningful note that a 2(e) facially § alleges that Article 37.071 jury’s view determination assign it does because unconstitutional penalty pre appropriate of death is is not aggravating proof as burden possible, cluded. It is and we do review the confused We are mitigating circumstances. regarding special is sufficiency of evidence ag respect argument with 2(b). only § Article It is sues under Article 37.071 gravating evidence under mitigation aspect our (2)(e) ask the since it does not sufficiency scheme which is unreviewable for Compare aggravating evidence. consider Accordingly, of the evidence. we note 2(c) placing (expressly Article 37.071 re does not the United States Constitution regarding “aggravating” proof of burden quire sufficiency jury’s a deci review the 2(b) § on under Article 37.071 circumstances Harris, regarding mitigation. Pulley v. sion State). argument in this re Appellant’s 37, 871, 465 U.S. 104 S.Ct. 79 L.Ed.2d 29 gard is meritless. (1984); Appel Hughes, 897 S.W.2d at point lant’s fifteenth of error is overruled. legislature has that the Texas We concede regarding assigned proof not burden point, appellant his sixteenth State, 876 mitigating evidence. Barnes v. facially that Article 37.071 is uncon asserts 316, (Tex.Crim.App.), de 330 cert. S.W.2d 44.251(a) requires stitutional because Article — -, 174, nied, 115 130 U.S. S.Ct. sufficiency mitiga review answers to the (1995). We also concede that L.Ed.2d 110 argu special For purposes tion issue. this placed implicitly upon appellant the burden is ment, appellant concedes that such a suffi cir persuade jury produce to and ciency impossible. review is We concede mitigate against the exist which cumstances 44.251(a) How problematic.13 that Article is Appellant imposition death in his case. ever, appellant’s that Article bald assertion con that this violates the federal complains because Article 37.071 is unconstitutional However, we are unaware of stitution. 44.251(a) puzzling is is and ulti unworkable burden of requirement constitutional mately Why untenable. or how a flaw in be proof regarding mitigating evidence 44.251(a) constitutionality Article affects the placed to extent that party, on either and 2(e) § of Article 37.071 is not to us. obvious is appellant, we note that it the burden is on contrary, To the we are convinced that the place not to the burden. unconstitutional so 44.251(a) unimportant flaw Article is to the 639, 649-651, Arizona, v. 497 U.S. Walton constitutionality capital punishment of our 3047, 3054-3056, L.Ed.2d 511 110 111 S.Ct. general constitutionality scheme in to the Barnes, (1990); 876 at 330. S.W.2d particular. long of Article 37.071 So as argues, Fur jury hearing citing also precluded not from is 2726, 238, evidence, Georgia, 408 92 S.Ct. effectuating mitigating our man v. U.S. While, added). face, 44.251(a) implies usually re- (emphasis we are 13. On its Article unnecessary, according to if quired what we have held be not to their to construe statutes impossible, possible: plain meaning, Boykin v. 782 818 S.W.2d (a) appeals (Tex.Crim.App.1991), court of criminal shall reform such a The construction of death to a sentence of confine- sentence required where it would lead absurd results. division the Texas ment in institutional meaning plain leads case the statute’s Id. In this Department for life of Criminal Justice legal logical absurdity impossibility. We evidence to court that there is law, insufficient already finds held that as a matter have support negative ... a answer to an issue sub- jury's the Article answer to cannot review 37.071(e) jury this to a under Article mitted 44.251(a) 2(e). Article is unworkable. code. (1972), ings appellant’s eighteenth 33 L.Ed.2d 346 that the failure of the and overrule legislature assign point produc clear burdens of of error. 2(e) proof regarding

tion Article 37.071 creates an uncertainty unconstitutional in our claim, his state Under constitutional capital punishment Appellant’s scheme. ar “particularly that it is note asserts gument federal confuses the constitution’s worthy” the federal constitution that where eligibility demand that death be narrowed to proscribes punishment, “cruel and unusual” reasonably group clear and well defined proscribes the Texas “cruel or constitution offenses, Furman, inas with its demand that punishment. unusual” The noteworthiness jurors individual be allowed to make individ Ap not self-evident distinction is to us. ualized, reasoned, responses well moral arguments authority pellant ex offers no determining exist whether factors which miti plaining why noteworthy; difference is gate against imposition of the death sen briefing regarding his this inade tence, in Penry 492 U.S. at 109 S.Ct. quate. adequately To brief a state constitu (1989). Tuilaepa at 2937-2938 See v. Cali proffer specific tional issue must fornia, -, U.S. S.Ct. 129 arguments supporting and authorities his (1994) (discussing L.Ed.2d the constitu the state contentions under constitution. demands). conflicting apparently tion’s are inadequately Otherwise his contentions requirement clarity federal constitution’s v. briefed. Narvaiz defining eligibility applicable death is not cert. provisions allow to consider 122 L.Ed.2d 791 S.Ct. give mitigating effect evidence. (1993); Robinson Gregg 153, 199, Georgia, 428 U.S. (Tex.Crim.App.1991), 222 n. 4 cert. de (1976). 2909, 2937, short, 49 859 L.Ed.2d In —nied, -, 2765, 114 129 U.S. S.Ct. Furman dealt with the untrammeled discre (1994); L.Ed.2d 879 Morehead v. 807 sentence, impose to tion the death but the 577, (Tex.Crim.App.1991); n. 1 679 untrammeled discretion to afford life to a Appellant’s 74 Tex.R.App.Proc. and 210. eligible does not death defendant offend the point of is nineteenth error overruled. United States Constitution. produc- The failure burden to define the point twenty, In error persuasion regarding tion Article 37.071 alleges given pursuant that the instructions 2(e) § capital pun- does not render it or our 2(d) § to 37.071 Article 37.071 Article constitutionally ishment scheme infirm. 2(f) § are violative the United Con States of error is Point seventeen overruled. Carolina, McKoy stitution v. under North 1227, 108 433, 110 494 369 U.S. S.Ct. L.Ed.2d points eighteen of error and nine In (1990) 367, Maryland, and Mills v. 486 U.S. teen, appellant argues capital punish that (1988). 1860, 100 108 S.Ct. L.Ed.2d 384 is United ment violative States and These con eases hold that United States Appellant adopts Texas Constitutions. by requirements stitution is offended that arguments dissenting of Justice Blackmun’s — mitigating may given only be effect Collins, U.S. -, opinion in Callins v. But, by jury. the unanimous vote of the (1994) 1127, 114 435 in S.Ct. 127 L.Ed.2d Mills, in McKoy unlike the schemes Justice concluded which Blaekmun that the require Article 37.071 does not the unani competing requirements of the federal con jury agreement give mous effect to expressed Penry in Furman and stitution mitigating contrary, To circumstances. ultimately response, are irreconcilable. scheme, single capital punishment more our a we refer to the authoritative juror holdings mitigating at who believes that circum Gregg, 428 96 S.Ct. at U.S. Jurek, Texas, 2915-2916, by 428 stances exist effectuates his belief answer U.S. 2(e) (1976), ing affirmatively. § If the 49 L.Ed.2d and more Article 37.071 S.Ct. - -, one, recently jury Tuilaepa, hung is the defendant will S.Ct. eleven apparent imprisonment. reconciling be life Article conflicts of sentenced to 2(f). adopt Penry, 37.071 Furman and We these hold- added statutory mitigation instructions Moreover, jury it is true that the while courts, patch-work quilt a any of trial have created they may not answer instructed that are defendants capital murder issues in a manner that would under special subjected jurors arbitrarily erratically ten in a life sentence unless result answer, incorrectly follows asserts agree to that this instruction penalty. Appellant death jury may not answer be hypothetical the instruction that could single defendant that a in a result- special capital issues manner different subjected one of seven punishment ing capital unless verdict this “is sentencing argues schemes facts, appel- very type unanimous.14 Under these quintessential arbitrariness —the argument jurors will be misled lant’s in Furman.'’ condemned merit; juror every lacks knows more than currently we have is true that It punishment imposed cannot be without the sentencing effect. procedure one jury agreement on all three unanimous de applicable particular procedure The jury is not informed special issues. All offense. depends on date fendant hung jury, but each consequences committing capital on the same those juror will know that without his her vote procedures. See day subject to same are Ap- imposed. sentence cannot be the death The choice and 37.0711. Articles 37.071 point pellant’s over- twentieth of error is arbitrary See not but well defined. erratic ruled. (Tex.Crim. Powell 897 S.W.2d twenty-one, appel of error (reversed im court App.1994) because trial argues provision lant of Article of Article 37.071 posed using death version juries in 2(g), proscribing be law). authorized yet effect and not hung formed that a will result in life misrepresents Appellant also constitutional sentence, In Davis v. is unconstitutional. law. rt. 495 U.S. ce cap to our That the amendments (1990) 2193, 109 held that the L.Ed.2d slightly have punishment ital statutes created prohibition against informing jury of imposing the for death different schemes hung jury effects is not unconstitutional. create the untrammeled sentence does not distinguish from Appellant fails to his case which offends the United States discretion twenty-first point is overruled. Davis. His Constitu Constitution. The United States proscribe the amendment tion does not twenty-two, appel point In of error Likewise, ap capital punishment statutes. capital punishment argues lant that our pellant misinterprets the law his assertion Eighth scheme violates the and Fourteenth mitigating instructions fash that the various Amendments to the United States Constitu violate Furman. ioned trial courts also imposes tion because death sentence against proscriptions constitutional The erratically arbitrarily violation arbitrary of the death imposition and erratic Appellant argues Equal Protection Clause. against apply to decisions Texas, 262, sentence do 428 96 S.Ct. that Jurek v. U.S. sentence; imposition of the trial death 2950, (1976), 49 929 in which the L.Ed.2d charge jury miti are free with courts Supreme upheld our United Court States they that scheme, gating discern instructions where punishment longer is no con capital re constitutionally are such instructions trolling legislative amendments because the seventeen, hoc, supra. quired. point of error along with ad extra- See to Article 37.071 ev- where Appellant presents result would be death sentence the scenario in which four 14. special inappro- jurors jury that the first issue should eryone believe believed it be on the negatively, four different special answered and then be Appellant’s argument priate punishment. that jurors that the second issue believe against informing jury of the proscription negatively, and then re- should be answered consequences of deadlocked is unconstitu- mitigation special maining jurors four believe the "majority men- it leads to a rule tional because affirmatively. Appel- be answered issue would be, might tality,” is best addressed whatever issue, that if at each the individual lant asserts subsequent point of error. under the voting majority, jurors into with the were bullied 560

Moreover, Furman, appellant presents trarily erratically imposed. no equal protection State, 238, violation. Sonnier v. Appellant’s 408 U.S. at 92 S.Ct. at 2727. 511, 913 (Tex.Crim.App.1995). S.W.2d 521 arguments suffer from the same fundamental Equal Protection Clause of the Four misunderstanding of Furman which have requires teenth Amendment persons that “all already points addressed. See seventeen and similarly be situated shall treated alike” un reiterate, twenty-two, supra. We Furman Doe, der [quoting, Plyler the law. Id. v. 457 deals with the im- untrammeled discretion to 202, 2382, U.S. 102 72 S.Ct. L.Ed.2d 786 pose penalty the death not with the decision (1982) committing ]. Because those the same mitigate exist circumstances day subject offense on the same are to the against imposition penalty. of the death scheme, same statutory similarly situated de 2937; Gregg, 428 at 96 S.Ct. at U.S. similarly fendants are — purposes treated for -, Tuilaepa, 114 S.Ct. Sonnier, the Fourteenth Amendment. su twenty-four Point of error is overruled. Florida, pra; See also v. Dobbert 432 U.S. 282, 302, 2290, 2302-2303, 97 S.Ct. 53 point twenty-five In appel of error (1977); L.Ed.2d 344 Dinkins v. cf. alleges lant that the trial court Arti violated (Tex.Crim.App.1995). Ap S.W.2d 3(c) by admitting unadjudicated cle 37.07 pellant’s twenty-second point of error during sentencing extraneous offenses overruled. phase Appellant of his trial. asserts that 3(e) admission Article 37.07 forbids point In twenty-three, error unadjudicated during extraneous offenses raises the arguments same which he raised in sentencing phase of a murder trial. point twenty-two I, Article under Sec. 13 of Appellant’s argument directly contrary (prohibiting Texas Constitution cruel or 37.071, holding our Article and not Arti I, punishment), unusual and Article Sec. 3 37.07, sentencing cle phase controls of a law). (guaranteeing equal protection of Gentry murder trial. arguments addition to the made under the S.W.2d cert. constitution, appellant argues federal 490 U.S. protections Texas Constitution are (1989); Rumbaugh L.Ed.2d 1013 broader, proffers argument but he no (Tex.Crim.App.1979). authority specific to the Texas Constitution. twenty-fifth Appellant’s point of error is explain fails to protections how the overruled. Texas differ from Constitution those guaranteed by the federal constitution. point twenty-six argument authority, appel

Without such of error appel alleges lant’s lant the trial inadequately briefed. court erred Nar vaiz, Robinson, 415; admitting unadjudicated 840 S.W.2d evidence extrane S.W.2d 4; Morehead, during sentencing phase at n. at ous S.W.2d 579 n. offenses 1; Tex.R.App.Proe. Appel alleges Appellant his trial. that the admis twenty-third point lant’s of error is sion process over of such evidence violates the due guarantees ruled. Ap federal constitution.

pellant urges overrule pre us to well-settled cedent holding surprise, that absent unfair twenty-fourth point error, his unadjudicated extraneous offenses are appellant alleges mitigation admis special that during sentencing phase sible issue renders Article 37.071 and the entire Gentry, murder trials. at punishment Texas scheme See unconstitu 793; Rumbaugh, that 629 S.W.2d at 754. Find argues mitigating tional. special ing long permits compelling issue untrammeled no reasons to overrule discretion appellant’s sentencing standing precedent, afoul which runs of the consti we overrule twenty-sixth requirement point. tutional death not be arbi- Moreover, E.g. 15. to the extent that we have ad- the Fourteenth Amendment. Rucker v. I, rejected dressed Article Section we have (1961). 170 Tex.Crim. 342 S.W.2d 325 arguments protection that it broader offers than Allen, warning. Dr. him without twenty-seventh pellant Ms error shot point through alleges hypotheti- psychologist, the trial erred in testified court cals, appel- like admitting opimon into written confes his someone evidence the that in appellant’s accomplice, contmuing sion of Carlos Black. to soci- threat lant constituted Appellant alleges was inadmis appellant’s the statement ety. testified to Police officers hearsay. Tex.R.Crim.Evid. 802. The sible eommumty. Reason- reputation in the bad prop counters that the statement was State disagree that tMs evidence able mrnds could erly admitted as an out-of-court statement beyond a reason- supports jury’s verdict 801(e), under Rule states wMch doubt, that is not the standard able but hearsay review; only ... statement is not the de- look for evidence sufficient we subject jury’s testifies trial ... and with- rationally support

clarant at verdict concerning the state- to cross-examination ourselves. reweighing the evidence out ment, is ... statement consistent Frnding the evidence sufficient testimony verdict, his and is offered to rebut jury’s with rationally support express charge against him implied point twenty-eighth overrule improper of recent fabrication or influence error. or motive. the trial court is affirmed. judgment record, According ques- to the BAIRD, J., Regardmg points concurs. during tioned Caídos Black cross-examination five, three, join I the concur- four and error preparations about the he and the district Maloney. ring Judge As to opimon of attorney had undertaken for his trial testimo- judge trial eight, of error I believe the erred ny. Appellant flatly never accused Black of hearsay admitting statements. How- fabricating testimony his with the State’s ever, error cured because I believe the assistance, clearly implied but it was declarant, Featherstone, at trial testified testimony Black’s was influenced dis- testimony Ms he Ms during recounted attorney’s tutelage. trict Under these facts join I conversation Detective Hukill.

it far from clear that the trial court abused majority opimon. remamder of the Therefore, appellant’s its discretion. twen- ty-seventh point of error is overruled. CLINTON, J., arguendo to the dissents three, disposition points treatment and twenty-eighth point, appel In Ms five. 30.02 identifies “bur- four and Section argues lant that the evidence is Msufficient to offense, servmg pro- glary” as a discrete support jury’s that he determination special agamst places intrusion in where tect would commit criminal acts violence expect free such an intru- people to be from continuing would constitute a threat to soci particularly sion. 30.03 and 30.04 Sections 2(b)(1). ety. on Art. 37.071 sec. An attack “machines” and “veMcles” as sub- describe sufficiency regardmg of the evidence Legislature “burglary” jects. When the used dangerousness special future is re issue 30.02, it in in Section meant what alone light viewed m the most favorable Moreover, committed in the said. verdict. Flores — capital murder. See course of theft is not (Tex.Crim.App.1993), cert. slip n. (1994). opinion -, 313, 130 L.Ed.2d 276 supports jury’s If exists wMch

verdict, upheld. their decision must be OVERSTREET, J., participating. not record, According the the indi- to evidence MALONEY, Judge, concurring. spree M veMcle planned that a well of cated appellant pomts an armed of three and four burglaries, appellant stood as error committing guard protect the bur- claims that murder committed in the course to those accomplices burglary a of veMcle glaries; appellant assured his of does not constitute capital willing anyone kill at- murder under Texas law. of he was to who that spree. permit In- five the tempted interrupt to their crime error claims that to deed, attempted interrupt imposition penalty the victim of the death for murder when ap- burglary in burglaries, the record indicates that committed the course of a of a the Eighth Chapter violates appropriate vehicle the Fourteenth within is 30—it to con history Amendments. The Court not in legislative does address sider order to determine the of merits these claims but concludes the of legislators intent at the time of error, any, if was harmless since enactment. found committed murder in the following Section 19.03 was enacted join of burglary robbery. course I Supreme United Court’s decision in States opinion, separately Court’s but write to ad- 238, Georgia, Furman v. 408 U.S. 92 S.Ct. contentions, appellant’s dress merits (1972), L.Ed.2d which struck provide insight some to the bench and bar on previous capital pro- down murder Texas subject. this Had conviction been Eighth vision as unconstitutional under solely based on murder in the course of and Fourteenth Amendments. After Fur- vehicle, I

burglary compelled would be to man, agreed generally it that the death agree appellant that it with could stand. penalty should be for a narrow reserved class persons in imposed and be a manner that person capital A if commits murder he avoided unfettered discretion. Chief Justice intentionally commits murder Blackmun, Burger, joined by Powell, Justices course committing attempting or Rehnquist, dissenting to the Court’s kidnapping, burglary, robbery, commit opinion opinions concurring and to the assault, aggravated sexual arson[.] Furman, observed that 19.08(a)(2) § (emphasis Tex.Penal Code Ann. legislative may bring bodies seek to their added). Chapter Penal Code entitled compliance into with the rul- laws Court’s Burglary Trespass, and Criminal includes juries ing by providing for standards following offenses: judges determining to follow in the sen- Burglary 30.02 capital narrowly tence in or more cases Coin-Operated Burglary 30.03 for defining penalty the crimes which the Coin Collection Machines Burglary 30.04 of Vehicles imposed. is to be Trespass 30.05 Criminal Furman, 400-401, 408 U.S. at 92 S.Ct. at Appellant argues only § burglary C.J., (Burger, dissenting). The Su- encompassed The within 19.03. State preme recognized that Court has since under burglary reasons that all forms of listed in provision defining Furman a an offense as Chapter satisfy underlying offense of capital meaningful ... provide “must basis “burglary” purposes for 19.03 because for distinguishing the few cases in which the Chapter 30 itself “Burglary.” is entitled penalty imposed many death from recognized previously We have Gregg Georgia, cases which is not.” text, 153, 188, if meaning statutory 428 U.S. when (1976) Furman, using (citing L.Ed.2d 859 408 U.S. read established canons con- (White, J., text, relating at 92 S.Ct. at 2764 concur- struction to such should have ring)). plain legislators been to the who voted on

it, ordinarily give plain effect we legisla- primary concern the Texas meaning. provi- ture was enact a new (Tex. Boykin v. sion that withstand constitutional mus- would Only Crim.App.1991). application by narrowly defining ter Furman under plain language lead to in which a death sentence would absurd results circumstances language plain ambigu imposed. Testimony hearings or if is not but could be from ous, gen- do look to in both the House Senate extratextual reflect intent, history. legislative Id. eral within such at concern the offenses included ambiguity 785-86. Because there is sec the definition of murder be limited in keep tion within “burglary” 19.03’suse of the term when order to the bill the confines of introduced, ambiguity originally read in of Chapter view 30—the Furman. When (which, only being “burglary” upon passage, whether House Bill 200 refers the became 19.03) burglary kidnapping, burglary, in 30.02 or section offense of as identified included burglary robbery, rape, underly- it all whether refers to offenses forcible arson as reading pro- ing from a capital public It seems clear offenses to murder. After bill, Bill 200 that ceedings relating House the the debate on the subcommittee elimi- underlying as underlying legislators to include nated all of the with the wanted offenses private impacted exception crimes that kidnapping, expressing the be- offenses violent of minding their own busi- a “at or lief the bill would have chance citizens home better many so if but not want to include of circum- ness” did being held constitutional underlying endanger consti- as elevating capital a murder to murder felonies stances Brennan had tutionality of brought the bill. Justice were limited.1 When back to the floor, capital in murder amending observed Furman that there was discussion about only for “ex- appropriate punishment an the bill to add certain One back offenses. cases, petitioner ... Furman proposed robbery and “[i]f was add treme” amendment ‘extreme,’ pro- or his then rape. Another crime illustrates amendment was nearly murders posed and their are originally to add back the offenses all murderers Furman, 294, at robbery, kidnapping, burglary, also 408 U.S. ‘extreme.’” included— (Brennan, J., concurring). at rape The floor 92 S.Ct. forceful and arson. latter passed, although repre- amendment several capital provision, murder drafting our express sentatives continued to concerns that identify legislature struggling to cir- was they running rendering a bill were risk simple a inten- cumstances that would elevate Representative unconstitutional. Robert It capital offense.2 fol- to a tional murder amendment, proposed the floor Maloney, who elevating circumstances would lows that the expressed his about view addition violent in need to be “extreme” or nature. these offenses: sufficiently Anything render a less would ... guard are all these offenses which deathworthy capital more murder defendant private at citizen who is home or in some a than defendant. murder place get minding their own business and applicable to appel- Under Penal Code in the murdered commission of another lant, defined a Burglary of Vehicles is as felony. 1993, However, Degree in felony. Third this Representatives, Floor Pro- Texas House a Degree was from Third offense reduced 8,1973 Leg., May ceedings on H.B. 63rd felony Acts to a A misdemeanor. Class added). (emphasis rejected The Senate a Leg., 1.01. The offense of 73rd ch. 900 proposed amendment to make commit- or Burglary Coin-Operated Collection Ma- offense, any felony underlying ment chines as a Class A misdemean- was enacted believing provision a broad ren- such would and has so. or remained Senate, der the bill unconstitutional. Texas Leg., legislators Proceedings Floor on H.B. I cannot that the enact- 63rd believe 23,1973). (May permit- intention of Transcript Tape ing any section had bill, by burglary explained by Repre- 1. the author of The is constituted enter- As offense fraud, force, ing night, sentative Cobb: at a threats or house had all entering any [The subcommittee] ... before them of or in like house at manner robbery, categories, rape, time, the other remaining day night, and con- either or of other offenses wherein murder number therein, in either cealed with the intent case committed, arson, things of was this nature. It felony committing crime theft. opinion of the committee—the mem- was bers of the art. 1389. other Tex.Rev.Civ.Stat.Ann. penal code subcommittee who were Chapter (bur- burglary appearing forms of dealing with—dealt with this numerable glary by breaking, burglary private aof residence very likely meetings might that to broaden night by explosives) simply burglary were at the bill unconstitutional. render expansions burglary definition. All on that Representatives, House of Floor Proceed- Texas Chapter incorporated concept entering ings May 1973. on H.B. ultimately Chapter was house residence. considering likely It mur- repealed replaced Chapter with effective "burgla- legislators provision, der understood provision at same time the ry” the 1925 Penal Code. existed under effective, passage with the was made Code, Chapter enti- the 1925 Penal 5 was Under Code. Penal "Burglary" "Burglary.” within tled defined chapter as follows: ting a misdemeanor to underly- serve as the

ing capital offense to murder. Even the SAUNDERS, Appellant, Chance Edward sweeping most of amendments that was re- jected in the pro- Senate —the amendment

posing that all felonies could serve as the Texas, Appellee. STATE underlying contemplate not offense —did in- cluding misdemeanors. The criticism that No. 442-94. rejected amendment made it clear that it was Texas, Appeals Court Criminal many

because offenses that are defined as En Banc. felonies are of a violent nature or suffi- ciently “extreme” accompa- as to render an Dec. nying capital murder a offense. Speaking to proposed amendment to all include felo- offense, underlying nies as the one senator

questioned proposed the senator who

amendment: you writing

Do understand that a hot felony? you

check could be a Do under- going just

stand that a man down and

making using incorrectly a credit card felony. you

could be a Do understand that

improperly filing expense report a correct report you

or contribution whenever are your

reporting expenses election campaign felony?

could be a Senate, Proceedings

Texas Floor on H.B. Leg., Transcript Tape 63rd Side 23,1973).

(May legislative history indicating view of the

that was legislature it not the intent underlying as

include offenses to mur- anything

der of a but felonies violent nature circumstances, involving “extreme” I can

only “burgla- conclude that the reference to

ry” was intended reference that offense as 30.02, is defined section and was not “burglary

intended reference of vehicles.” opinion my

It is also define as murder committed in the course burglary

of a of vehicle violative of the

Eighth and Fourteenth Amendments under

Furman. Had not found

guilty murder committed the course of

robbery as well murder committed vehicle, burglary

course of of a I would be

compelled points sustain these error.

MANSFIELD, J., joins.

Case Details

Case Name: Lawton v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 17, 1996

Citation: 913 S.W.2d 542

Docket Number: 71759

Court Abbreviation: Tex. Crim. App.