Long v. State

259 allegation of alleged robbery in the The a murder in the course his last indictment. committing robbery in the course of of error is overruled. allegation of included within it the judgment and sentence of the trial attempting to commit course rob- are court affirmed. bery.” 595 at 862. 229, also v. 774 S.W.2d

See McGee MILLER, JJ., in concur CLINTON and (Tex.Cr.App.1989), 234 and cases cited the result. Consequently, appellant’s therein. third points error are

and fourth overruled. six, points of error numbers five and contends counsel that trial ren- by failing ineffective

dered assistance charge authorizing

object court's in

conviction murder committed while “attempting” course of to commit rob- LONG, Appellant, David Martin aggravated bery or sexual assault when v. alleged in the indictment. As that was Texas, Appellee. The STATE of above, discussed the trial court did not err charging in the manner it did. No. 69781. aggrieved portion Since the Appeals Texas, Court Criminal correct, charge was trial counsel cannot be En Banc. deemed to have ineffective for been object Strickland,

failure to it. See 466 4, Dec. 693, 104 at 2067. The U.S. S.Ct. fifth 5, Rehearing Denied Feb. points and sixth of error are overruled. last point

In his

alleges that the evidence is insufficient to aggravated

prove murder the course of alleged

sexual assault as in the indictment.

Appellant does not the sufficiency contest prove

of the evidence to murder in the robbery alleged

course which was

the indictment and the jury submitted to charge.

the court’s settled that It is “when guilty returns a verdict on indict charging

ment conjunc several acts

tive, ... if the verdict stands evidence respect

is sufficient with of the acts States,

charged.” Turner v. United 396 398, 420, 642, 654, 24 90 S.Ct. L.Ed.2d

U.S. (1970). See also v. Mil United States 130, 1811,

ler, 136, 1815, U.S. S.Ct. (1985);

85 L.Ed.2d 99 Pinkerton v. United

States, 328 U.S. n. 66 S.Ct. (1946); n. 90 L.Ed. 1489 Pinkerton (Tex.Cr.App. Thus,

1983), and the cases cited therein. prove only need

the State one under charged in

lying offenses the indictment support capital

order to the conviction for Because does not con

murder. sufficiency prove of the evidence

test development neces-

further of them as is points of error. sary addressing Jester, Dalpha daughter her Donna Jest er, all died as a and Laura Lee Owens chopping result of wounds numerous in their heads and faces which a Their bodies were flicted with hatchet. September boss on discovered Donna’s 27, 1986, at home in Lancas the women’s in the body ter. Laura’s was found front yard, Dalpha while Donna and were found laying on the bedroom of bed back weapon the house. murder was found wrapped rinsed off and in a towel sink in the victims’ home. bathroom Donna, Through diary kept by entries police were able to focus on prime According to the dia suspect. their confession, ry subsequent Dallas, Cunningham, E. appel- Brice for appellant picked met she him Donna when lant. up hitchhiking September as he was Vance, Wetherholt, Atty., John Dist. A. go” place no to appellant 1986. Since “had Beach, Scott, A. J. Whittier & W. Asst. home stay Donna allowed him to in her Dallas, Huttash, Dist. Attys., Robert exchange repairs. for Donna also house Austin, Atty., State’s for the State. agreed cigarettes to supply appellant with wine, 20/201, specifically MD while he worked on her home. appellant According testimony to from

OPINION filthy police, home was women’s MILLER, Judge. dog feces from and smelled of hair and Appellant convicted a jury was dogs freely through several who roamed capital murder. V.T.C.A.Penal 19.- Code § slept Although initially home. he out- 03(a)(6). appel- assessed car, appellant side in Donna’s lived with punishment injec- lant’s at death lethal Donna, Dalpha, approxi- for and Laura tion after the returned an- affirmative mately during time he one week special swers to the three issues submitted loving developed apparently and sexual pursuant 37.071(b). Appellant Art. rais- relationship During that week with Laura. points es thirty-five of error this direct began appellant to fear that Donna had appeal. Finding no reversible error hitchhikers, bodies, possibly dead of other judgment points, those we affirm the of the backyard. Appellant in her testified buried trial court. murders, September day on the of the 27, 1986, Appellant challenge experienced he these fears does not the suffi- Also, unexplained the filth ciency support jury’s lot of emotions. of the evidence adversely affect- guilty findings affirmative the smell in the house verdict or its on and Thus, repairs on the special proceed him.2 He issues. ed did several day consume only house that and did not a brief recitation facts with appel- Dog” years psychologist testified throughout old. This 1. referred to as "Mad Also was sensitive to record. lant indicated him that he strong he would be odors feel like and “would testimony psychologist 2. from a forensic Later irritat- out of or he would become either control who revealed examined (sic) agitated sense certain when he would ed or time of recalled foul odors at the his mother’s odors.” death which occurred when challenge court’s erroneous denial of that and Laura arrived alcohol until Donna cause, it must be shown that: Donna and for jobs. home from their When to talk Laura went to the back bedroom 1. the voir dire of the individual venire- thought they Dalpha, appellant transcribed; with person was recorded and Appellant then re- conspiring against him. the defendant asserted a clear and Laura and hid the hatchet. When trieved challenge clearly specific for cause artic- living area to watch tele- returned to therefor; ulating grounds vision, go he he told her to outside because challenge for cause is de- 3. after the her, needed to talk to but instead at- court, by the trial the defendant nied Appellant her the hatchet. tacked challenge peremptory on that ve- uses a then went into the back bedroom nireman; Ap- Dalpha. killed Donna and house and challenges are ex- peremptory 4. all yard and re- pellant returned to the front hausted; peatedly struck Laura.3 challenges peremptory have 5. when all ax, appellant cleaning After off the fled exhausted, makes a the defendant been drinking in Donna’s car MD 20/20 all peremptory chal- request for additional night in Buf- He was arrested that while. lenges; and intoxicated, driving but was falo for while defendant must assert finally, eventually later released. juror sat on the objectionable that an (from Dallas felony arrested on a warrant case; i.e., must out the defendant County) Austin on October being forced court that he is to the trial public he had also been arrested where juror seated whom try the case with authorities took intoxication.4 Lancaster peremptory exercised a he would have County. appellant back to Dallas one. challenge had he had points appel- In his first three points of er In these first three refusal to complains lant of the trial court’s ror, trial court failed appellant contends the jurors upon his prospective excuse three pro for cause to granting challenge contends challenges for cause. The State Gener, Barnett, and Rich jurors spective preserve points these for appellant failed to punish views on of their ardson because review, or, alternatively, point each that offenses. ranges lesser included ment for reviewing merit. After the record without peremptory chal a Appellant exercised dire, agree with the State’s from voir juror after his lenge prospective each on former contention. denied, he but challenge for cause was challenges 568, peremptory exhaust all 790 failed to In Harris v. During ones.5 Duncan, any additional Judge request or (Tex.Crim.App.1989), 581 juror Bur- prosecutor’s voir dire writing majority, clearly explicated for the ju the twelfth chett, as due was selected necessary steps preserve error who there was ror, whether chal he asked Burchett court’s denial of a defense to the trial her back know about prospective juror. anything should lenge cause to a for jury.” you on this 397, ground I choose “before Also v. see Jacobs remark, objected to this Defense counsel (Tex.Crim.App.1990). In order to war Defense sustained. objection and the was by this Court for the trial rant a reversal Richardson, appellant juror prospective initially 5.As Appellant attacked Laura from be- ground for his clearly a Dalpha particularly articulate defenseless also failed hind. was year challenge reflects cause. The record against appellant she was a 65 old wom- for as the trial partially needed a walker "excused” Richardson an who was blind and when peremptory mobility. judge sustained defen- used his tenth All three victims noted he had for inquired whether his challenge. Appellant ‍​​​​​​​‌‌​‌‌‌​​​​​​​‌​​‌‌‌​​‌​​​​​‌‌‌​‌​‌‌​‌‌‌​‌‍and arms. then wounds to their hands sive overruled, challenge which chal- for cause (nor find one lenge do we never heard police that his name was told Austin Nevertheless, judge record). trial Through fingerprint Kyle Sanders.” "Aaron no challenge for which for cause identity denied the comparisons police determined his true given. again felony basis was warrant. arrested him Ledbetter, Wade, venirepersons sal of challenge for cause on this basis counsel’s denied, and, therefore, pre- nothing instructed Striplin, and the At disregard the comment. Burchett for our review. We will address served dire, of Burchett’s voir the conclusion concerning error point merits of this accepted juror, her as a but defense State remaining venirepersons. Appellant four reurged challenge cause counsel for argument applicable to all presents one again denied. Defense counsel which was four. accepted protest” Burchett “under then they only remaining juror a since had one Appellant asserts that the beliefs challenge peremptory and the next venire- penalty prospec regarding the death police The man was a Dallas officer. State excused not so jurors tive who were venireman, Wallace, this responded that disregard strong they would the evi already made comments6 would respect appellant’s guilt and dence with subject challenge him to a cause.7 Voir those beliefs special issues or shortly dire concluded thereafter without impair prevent their substantially or using defense counsel ever their fifteenth jurors. proper inquiry performance as challenge. peremptory disqualifying jurors in for the trial court in Although appellant accepted Burchett penalty Witherspoon, death cases under protest,” arguably making “under her an Witt, 412, 469 U.S. Wainwright v. “objectionable juror,” appellant use did not (1985), S.Ct. 83 L.Ed.2d peremptory challenge his final to excuse Texas, 38, 100 448 U.S. S.Ct. Adams record, juror. Under this (1980), is a 65 L.Ed.2d 581 whether preserve any Appel- has failed to error. prospective juror’s prevent views would points lant’s first three of error are over- performance of his substantially impair the ruled. juror duties as a accordance with error, appellant In the fourth juror’s and the judge’s instructions excusing avers the trial erred in sev- State, 774 S.W.2d oath. McGee v. venirepersons upon en the State’s chal- judge’s de (Tex.Crim.App.1989). The trial lenges for cause on the basis of Wither prospective juror under cision to excuse Illinois, spoon v. 88 S.Ct. U.S. principle only upon reversed will be (1968). 20 L.Ed.2d 776 Before ad- discretion, and, reviewing clear abuse of dressing challenge the merits of each decision, pro this Court considers cause, preserved note has we not spective juror’s dire as a whole and voir regard error for to three of these review judge’s due to the trial accords deference venirepersons. Crane Crane, A re ruling. 786 S.W.2d at 344. (Tex.Crim.App.1990), dire prospective jurors’ voir view of Court held that if an does not follows. object venireperson when a is excused for ju- Rodriguez indicated on his cause, Venireman may challenge ruling not that record, questionnaire form that he did not be- appeal. ror reviewing After Upon question- penalty. object find failed to to the excu- lieve in the death cause, evidently and the final venireman 6. This venireman indicated that he cused for probably testimony po- challenged by would believe the of a defense counsel peremptorily lice officer over other at trial. using perempto- witness he was his fifteenth who stated by prosecu- challenge. questioned ry When juror. parties agreed 7. The to select an alternate action, the trial propriety of such tor as to the venireman, Wallace was the first but the State give "[qjuite frankly, judge responded I don’t agreed and defense counsel excuse him. The to right Apparently exasperated with damn now.” judge pointed out that the State and de- judge decid- process, the trial selection challenge peremptory fense to use each had one juror. alternate ed not to select an juror. selecting Art. while 35.15(d), V.A.C.C.P., the alternate See Harris, Harris, S.W.2d at 35.15(d) appel- Clearly, under Art. (trial judge properly prohibited defen- 581-82 orig- using precluded his fifteenth lant was from exercising original fifteen dant from one of his pro- challenge peremptory on an alternate inal challenges during peremptоry alter- selection of juror. spective juror). ex- nate The next two veniremen were counsel, if Himbert stated that she were a ing the court and defense swers. from juror she not be able to follow the Rodriguez that he could follow the would stated “yes” stage law or her oath and answer guilt/innocence but under law at the punishment impose to issues. no circumstance could he vote religious of his capital punishment because complains Appellant next of the excusal Rodriguez further stated beliefs. juror juror prospective DeLeon. On her evidence to if there was sufficient even form, questionnaire DeLeon indicated that special issues support “yes” answers to the religious she did not because beliefs punishment, he would have to vote “no” penalty. DeLeon believe the death be- part of a he could not be

because only that God is the one who can lieved send a man to death.” which “would explained decide who must die. She trial court that these views would lead her venireperson, asked As to the next when automatically against imposition of vote questionnaire on the whether she believed penalty the death that she could find a but penalty, venireperson Himbert in the death person guilty capital murder. DeLeon simple yes or answered “I cannot answer a gave ques- conflicting then answers when no, no; say say yes if I I would have counsel, questioning tioned but further prefer all the evidence no. I would to hear counsel and the trial revealed case first to make such a an individual DeLeon was somewhat confused about stated, decision.” She also how- serious system. The trial bifurcated ever, personal that she had beliefs appeared that DeLeon afrаid to commented sitting judgment prevented her from express opinion, upon reassurances her person rendering a verdict another nothing contemptuous, she said was ultimately in the execution which resulted “yes” to she stated that she would not vote being. of another human Himbert ex- if the punishment issues even State plained recognized that she to the court that the proven beyond a reasonable doubt appropriate “intellectually” that there were “yes.” answers should be penalty but “emotional- cases for the death her ly” she could not live with decision objected to the excusal Knowing someone to death. sentence ques- venireperson Curry.8 She was first punishment affirmative answers to the is- prosecutor determined tioned who imposition penalty, of the death sues led to against penalty, Curry was death answer Himbert stated she would have to voting punish- from on the would abstain to those issues and that she could “no” prevent imposition, its ment issues follow law. as to the juror’s could not take the oath stage. estab- punishment Defense counsel Upon questioning prosecutor, from the defendant Curry lished could find the unequivocally that her Himbert answered murder, Curry was capital guilty of but regarding penalty the death views unwavering position that she would in her in ac- impair performance juror as a her is- answering punishment the abstain from However, Himbert cordance with the oath. sues. if under defense counsel that she were told statements, the light In of these uphold to the law she oath and had sworn in its discretion clearly did not abuse “yes” special to the issues court answer challenges for cause. granting the State’s supported that answer the evidence when State, 717 799 S.W.2d The trial court DeBlanc v. beyond a reasonable doubt. — denied, U.S. (Tex.Crim.App.1990), ef- cert. eventually questioning an resumed 1075. —, L.Ed.2d juror’s an- S.Ct. clarify prospective the fort to error, simplicity and continui- Curry spoon. For the sake of point appellant as of lists In this incorrectly excusal venirepersons ty, excused for merits of the we have addressed the one of the cause but does not address respons- specific point her Curry of venireperson in this fourth find, however, therein, in his We that es in his brief. and been discussed error as if it had complains point of error seventeenth summarily seventeenth overrule Curry upon the excusal of of the trial court’s point of error. challenge on Wither- for cause based State’s little, elongate opinion and add if jurors sarily un- prospective Each of these area unequivocal opposition anything, already in his to well-settled wavering and Although complained the there is no In penalty. to death of the seven the law. four prospective juror’s requirement stage, that a bias arguments guilt/innocence the proved clarity, unmistakable be judge defense counsel’s the trial sustained presented Appellant’s here. situation is objection instructed the timely and is point fourth of error overruled. remarks.9 We disregard prosecutor’s the light arguments have reviewed these error, point In his com- fifth is find that none so the entire record and allowing erred in the plains judge the trial cured the trial prejudicial that it was not improper prosecutor engage jury ar- judge’s prompt admonishments.10 How- gument during guilt/innocence stage the ever, judge the trial over- two instances trial, appel- sixth appellant’s objection to the State’s ruled lant the trial court erred in re- contends if determine arguments, and must fusing we grant his motion mistrial af- sustaining objections tо action was erroneous. ter the State’s arguments. Appellant presents these summarizing the State’s evi While points together argument with the same dence, prosecutor the stated as an aside and authorities. now that you that “I think that know for, provides pre The law everybody didn’t that could have State call sumes, trial, improper free from ar a fair called witness.” ob been as a gument by prosecuting attorney. Bor jected argument was outside the (Tex.Crim. State,

jan v. record, responded prosecutor and the App.1990). proper It is axiomatic that “Judge, I reflects that think the record argument falls one of four within distinct defense witnesses called certain categories: (1) evidence; summary of the sponte judge State didn’t.” The trial sua (2) evidence; reasonable deduction from the the evidence instructed to “recall (3) response argument of opposing say you lawyers heard it ... what counsel; (4) plea for law enforcement. Upon inquiry not evidence.” from defense Id. at error 55. Reversible results from counsel, stated overruled improper prosecutorial argument only objection. though Even “extreme, argument manifestly when the objection, his instruction to overruled improper, injects new and harmful facts jury was to cure error sufficient into mandatory case or violates a stat- [the] comment, prosecutor’s from the utory provision and is thus so inflammato- find no error on this record. reversible ry prejudicial effect its cannot reason- ably by judicial be cured instruction to dis- appel argument which another regard argument.” Hernandez v. record, complains lant outside the 1991). (Tex.Crim.App. science has often prosecutor stated “that cat in looking for a black independently been desсribed as

We do not address the prosecutor room.” The was refer pros- merits made a dark of each statement psychologist ring testimony ecutor contends was erro- only regarding appellant’s neous to do so would unneces- called defense because problems,” compared argument, prosecutor, him a where the had "mental another using analogy, implied appellant Bolding trapped dog.” an Adolf Hitler "mad See evil, judge sustained coun- the trial defense (Tex.Crim.App.1973). objection argument sel’s the but his to denied mistrial. Defense counsel failed to motion for arguments to which an In fact one the disregard argu- ask to for a instruction objection giv- an instruction sustained and objec- sustained ment after the trial proper plea enforcement. The en was a for law tion. While we believe an instruction to dis- regard argued you prosecutor come back with "when have cured error from this verdict, abiding you telling be the law will argument, light we hesitate to conclude in Borjan, county....” See citizens of prosecutor’s that the comment was record therein. S.W.2d at and cases cited improper counsel had where contended defense argument person," was a "sick Bay City in pany December be- and the inferences be mental disorders grudge against the man. when that evidence cause he held a drawn therefrom testimony using prelu- from light Appellant had been heroin and considered During psy- Appel- psychiatrist. regular at that time. the State’s din on a basis chologist’s testimony supervisor’s on cross-examination home and lant went psychologi- conceded that passed him out from intoxication and found certain, infallible, diagnoses cal were not dollars in the found several hundred find that absоlutely reliable. We Appellant states he victim’s billfold. argument he used a prosecutor’s jury fire, “snapped,” set the victim’s trailer metaphor summary in his of the evidence twenty dollars of the mon- and took all but case, which, under the facts of this at trial robbery. ey not look like a so it would jury argument. proper was a area of read Both confessions were before Thus, not did we conclude jury.12 appellant’s objection. overruling err in argument, counsel’s In defense points of error are over- fifth and sixth following occurred: ruled. I don’t know what counsel]: [Defense points of eighth In his seventh and Long’s mental state was in David Martin court erred in appellant contends the trial Bernadino, I California. San improper allowing engage the State state was in what his mental don’t know argument during punishment I there Bay City, 1983 in Texas. wasn’t grant mistrial phase refusing and in there, and we have not and we weren’t objections to sustaining appellant’s after you have had for had the benefit of what Appellant presents the arguments. days. the last 8 these argument and authorities for same all of the details You haven’t heard sixth points as he did for his fifth and two about San Bernadino— stage to set the points of error. order [prosecutor]: Excuse MR. WHITTIER contentions, must review evi- for these object to me, going to Judge. We’re dence from the record. about evidence counsel’s remark following extrane- Evidence of the two They had a fair brought in this trial. during pun- ous offenses was admitted punish- opportunity at the time appel- phase Shortly of trial. after ishment anything they hearing present ment transported to Lan- lant was arrested and unfair illegal I it is to. think wanted 24, 1986, appellant con- caster on October to be allowed to the State for counsel mur- of two other fessed to the commission record, argue the facts outside about in 1978 in San ders. The first occurred Your Honor. driving Bernardino, While California. (sic): argued I haven’t THE COURT intoxicated, jumped a medi- while record. outside the one fact an, Ac- causing flat tires on his car. two objec- I’ll overrule the THE COURT: confession, appellant had the cording to his tion. gas station felt repaired at a but flat tires coun- MR. CUNNINGHAM [defense overcharged by the at- that he been that before you I think realize sel]: tendant, angered him.11 Saturday, you on lawyers talked with gas attendant to station

therefore beat testimony. days heard or you had “then took a tire iron and death with a of San Bernadino That true wasn’t it down the handle of and stuffed broom Bay City. sure he was dead.” his throat to be said, [appel- I don’t know what confession, As I appellant admitted kill- another I time. at that mental state was corn- ing supervisor at a cable television lant’s] during punish- testimony already 12. Other witnesses’ Appellant’s he was confession notes confes- anger been facts in these feeling time because he had at that ment corroborated smoking wedding reception for to leave a asked sions. marihuana.

269 doing know, any problem with you Anyone know have that he been do that? mental ... in and out of institutions may proceed, Mr. Whittier Okay. You Appellant complains first away from please stay [prosecutor], following prosecutor statements the that area. argument: his rebuttal to not heard” The “facts which were suggests you that Defense counsel to in his prosecutor referring which the was you that hear that there are facts didn’t argument concerned the extrane- rebuttal those are real critical. Who knows what con- appellant’s described in ous offenses provide Who could these law- facts are? fessions infra. yers means that compelling the with brief, argue that In the State does not its having brought it before evidence was remark a com- prosecutor’s the you? Long. David Martin appellant’s testify, but ment on failure to objected juncture, At this defense counsel rather, argument asserts the was the State argument ap- was on

that the a comment by defense proper it was invited because pellant’s punish- testify failure to in the State, Nethery v. argument. 692 counsel’s sus- phase ment of trial.13 The trial cert. (Tex.Crim.App.1985), 703 S.W.2d jury objection, the the tained admonished denied, S.Ct. 474 U.S. “disregard to at- reference State’s (no where L.Ed.2d 931 reversible error appellant’s torney”, and denied motion for prosecutor’s argument responds to defense prosecutor mistrial. continued: motive).14 regarding Neverthe- argument less, no there was the State contends gentlemen Jury, if Ladies and judge's error because the trial reversible something there there about was out any error jury cured instructions important, those offenses that out- was further, and, any that was harmless error side of those that of- statements reasonable beyond a doubt. evidence, you fered into would have heard them. You heard would have agree argument was We State’s 1. them. Issue No. invited, as even if it construed but could be comment, agree that an uninvited prose- then interrupted The trial Bower cured. error was objection cutor without from defense coun- also a (Tex.Crim.App.1989), S.W.2d jury following: sel and instructed the case, capital murder held this Court of the Jury, just Members in an over instruction cured judge’s caution, the defendant has abundance flowing prosecutor’s from the any harm punishment obligation portion no re- lack of comment on defendant’s bring you any of the trial to evidence one Bower, shame. morse and other, regardless way of the case objection judice, defense counsel’s case sub brought you regard to the the State sustained, instructed was killings. obligations, He had he other no comment, motion for disregard the and the obligations. is under no 906. denied. at mistrial was your you perceive mind if an And any in- “[o]rdinarily, noted that The Court obligation, you your are to move it out is obvi- improper jury argument jury from mind at this time. This is a burden that court instructs ated when only has. has a inflam- disregard, the State The defendant unless the is so remark portion prejudicial effect cannot right anything matory not to do in this its admon- removed reasonably be such the trial. appel- actually during guilt/inno- the State used the ishment when testified twice against spite cence in counsel’s advice Cf. name. Madden v. lant’s action, presented jury argument 1990) such during (Tex.Crim.App. (prosecutor’s ar- punishment phase. person only who gument "there is one on failure direct comment knows" constituted Indeed, disingenuous be it would rather testify). argument not a the State to assert testify pun- comment failure

270 State, v. 907, 265, (Tex.Crim.App.1972), McKay Id. citing ishment.” 475 S.W.2d 266-67 denied, ‍​​​​​​​‌‌​‌‌‌​​​​​​​‌​​‌‌‌​​‌​​​​​‌‌‌​‌​‌‌​‌‌‌​‌‍State, 1021, t. 409 (Tex.Crim.App.1985), 707 23 U.S. 93 cer State, 469, (1972), (Tex. 34 L.Ed.2d 312 Logan v. S.Ct. address- and 698 S.W.2d 680 ing points the merits of these of error. Crim.App.1985). Reviewing the record Martin This held in that: Court punishment hearing, from the conclude prosecutor’s preju- the comment was not so photograph competent, is material [I]f trial, dicial that it could not be cured the and relevant to the issue on it is not particularly thorough merely instructions from the rendered inadmissible because it gruesome might on the defendant’s tend to arouse the right testify. passions jury, of the unless is offered it solely jury. the to inflame minds of Appellant complains of the description body If a verbal of the and argument prosecutor’s which characterized admissible, photo- the scene would be person him as less human than graph depicting the same is admissible. which the will ever have contact. The (footnotes omitted). 475 S.W.2d at 267 appellant’s objection trial court sustained further held: This Court has disregard and instructed the photo- The admission in evidence of case, light In comment. of the facts of this graphs is within the discretion of the prejudicial not so as to comment was court, they who determines whether conviction, require a of the if it reversal proper purpose enlighten- serve a State, Easley v. was error at all. See 454 State, v. jury. ment of the 600 Brasfield (Tex.Crim.App.1970) (calling S.W.2d 758 (Tex.Cr.App.1980); Terry v. S.W.2d 288 McKay, “savage”); the defendant a 707 State, (Tex.Cr.App.1973) 491 S.W.2d 161 (reference S.W.2d at 37 to defendant as a “wolf” reasonable deduction from evidence determining whether the trial court killing). Appellant’s of cold-blooded sev admitting photographs erred in evi- points eighth enth and of error are over dence, controlling factor is whether ruled. probative photographs value points of error nine numbers greatly outweighed by preju- their thirteen, through appellant complains of prejudicial dicial effect. The effect of the admission into evidence of numerous photographs may be determined photographs. Appellant highly asserts offered, the number of exhibits their inflammatory prejudicial nature of detail, size, gruesomeness, their their photographs outweighs any probative val they or col- whether are black white photographs might ue that have and or, they close-up, are whether whether photographs “solely were offered clothed, body is naked or Appel jury.” to inflame the minds of the photo- unique factors to each situation presents argument lant this one for all five State, Martin v. graphed. generally See points counters im of error.15 State (Tex.Cr.App.1972); see 475 S.W.2d 265 plicitly photographs highly State, also Reimer v. 657 S.W.2d probative of fact and manner of the pet.). (Tex.App. Corpus no Christi — appellant’s culpable victims’ deaths and the 309, 316 Burdine 719 S.W.2d mental state. denied, (Tex.Crim.App.1986), cert. U.S. (1987). 107 S.Ct. 94 L.Ed.2d rely State both address- admissibility rule for Neither nor the State on the now axiomatic as stated in Martin v. admissibility photographs photographs es the of these objection comport point with the In his tenth com- his trial does not appeal, nothing preserved plains State’s exhibits Nos. issue raised on admission of trial, however, appellant objected our review. Johnson v. 28-34. At — denied, photographs only (Tex.Crim.App.1990), U.S. cert. the admission of these on the (1991). -, authenticating S.Ct. 115 L.Ed.2d basis that the testify witness could not photographs fairly accurately Appellant’s is therefore of error de- tenth they picted purport that which to show. Since overruled.

271 rules of as discuss the evidence light of the Texas Rules of Criminal Evi- We now admissibility photo- 1, they apply the of September which became effective dence noted, prior in a trial. As graphs we 1986, govern thereon trials conducted of rules of evidence this promulgation the Article IY of the Rules of or thereafter.16 Court utilized the Martin test in address- Evidence addresses relevant evidence and, in admissibility photographs of ing the admissibility, extensively issues dis- its two fact, recently pre- adhered this we have State, Montgomery v. cussed in 810 S.W.2d of evidence test Goodwin v. in rules (Opinion Re- (Tex.Crim.App.1991) 372 on cert. (Tex.Crim.App.1990), 719 799 S.W.2d Montgomery hearing). specifically dealt — denied, U.S. —, 111 S.Ct. 115 admissibility of of- with the extraneous post-dated the L.Ed.2d trial which 404(b), pro- fenses under Rule its but of rules of Re- effective date the evidence. 401, 402, regarding Rules nouncements Burdine, 316, (cited lying 719 at on S.W.2d applicable addressing the ad- 403 are when 270), supra p. at for the law on admission general.17 missibility of in evidence expressly con- photographs, of and without evidence, of sidering the new rules this applies rele only Rule 403 Court determined Goodwin in approach Rule vant evidence. The under admitting err court did not into evidence evidence unless

403 is to admit relevant its autopsy photographs of the victim because probative substantially outweighed value is the the Court conclude by danger prejudice, “[could not] the of unfair confu probative photographs was value of the issues, misleading jury, of the or sion the outweighed ef- greatly prejudicial their delay, or considerations of undue or reaching fect.” Id. at 739. this conclu- presentation needless of cumulative evi sion, following engaged Court the this 403. Montgom dence. Tex.R.Crim.Evid. analysis: ery, Crank citing 810 S.W.2d at case, 328, 342, In the the medical exam- (Tex.Crim. n. instant 5 autopsy photographs the iner used App.1988). admissibility The rule favors of testimony to explain illustrate and evidence, presumption relevant and the jury. testimony the The examiner’s as to proba that relevant evidence will be more of the victim and the cause identification Montgomery, prejudicial. than tive photo- of death was admissible. The evidence, admitting at 389. When S.W.2d depicted graphs accurately that testimo- sponte engage does not sua descriptions ny. Since verbal balancing probative against value body of the body, the identification prejudice, only upon but does so suffi admissible, the the cause of death were objection invoking cient Rule photographs were admissible unless their party opposing admission the evidence. substantially out- probative value was invoked, Id. at 388. rule “But once the weighed by prejudicial effect. Tex. their ‘the trial has no discretion as to R.Crim.Evid. engage balancing or not whether ” 389, citing Id. at process.’ Wright determining relevancy & Id.18 After Graham, engaged in photographs, Federal Practice and Procedure: the Court (1978), analysis: may be termed a Rule 403 Evidence 544-45. what § began dispense on discussion of whether 16. The trial the merits in cause February photographs were "relevant” to issue in assume, parties, do the that the cause and pre-trial objecting generally 17. In a motion to the admissi- photographs See Rules were relevant. bility photographs, Montgomery, asserted 402 and discussion trial, photographs to an were irrelevant issue at at 386-87. solely would be offered to inflame the minds of value, actually jurors, very slight probative paragraph Court address- if 18.In this great inflammatory relevancy photographs. any, aspects. The identi- and had At es the ty of the pho- appellant objected victim the manner and means to admission of the pre-trial certainly conse- tographs based are “fact[s] [are] on this motion and death quence appeal action” gruesomeness photographs, to the determination but on cause, thus, Goodwin, present relevancy objection; as in the he abandons the Only size, a limited photographs number of they their whether are black and color, offered and those offered related white whether they are close-up, directly to the medical examiner’s testi- body whether the is naked or clothed—are mony on identification and cause of appropriate factors for сonsideration in a death. photographs color, The were in analysis. Rule 403 We adhere to the use of but were of normal size body and the today, those factors and add that the avail- was clothed. The medical ability examiner at- proof of other means and the tempted explain damage what unique circumstances to each individual been gunshot caused wounds and However, case must also be considered. damage

identified the light caused animals of the instruction Rule 403 that decomposition. photo- Some of the relevant evidence is admissible unless its graphs close-ups probative showed the value “substantially is out- damage details of body. pho- weighed” effect, The prejudicial its we tographs gruesome were no more than must part abandon that of Martin which expected can be under the circumstances. held photograph that a “is not rendered nothing There is in the record or the merely gruesome inadmissible because it is photographs support appellant’s con- might or passions tend to arouse the of the tention portions of the body had jury, unless solely it offered inflame away been cut during autopsy. Consid- Martin, jury." minds ering factors, all we cannot conclude that S.W.2d requires at 267. Rule 403 that the the probative photographs value of the photograph probative have some value and was greatly outweighed by preju- their probative that its substantially value not be dicial effect. outweighed by inflammatory its nature. Therefore, cases, prior Martin, all such as (emphasis added). Id. allowing admissibility photographs un- Although the opinion Goodwin used photographs less the were offered into evi- “greatly outweighed” measuring as the dence solely inflammatory purposes no standard, prejudice we believe the analysis longer precedential have value under the light is sound in of Rule Montgom- 403 and present rules of evidence. ery, 810 at 389. As we noted on page supra, Court mind, Goodwin With principles these we prior caselaw, relied on most specifically may now address the merits of Burdine, in determining the prejudicial points ef- noted, of error. appellant object As autopsy photos. fect of the The factors ed to admissibility photographs cited in those cases—number of exhibits on the prejudicial basis of their nature.20 offered, gruesomeness, their detail, Initially their point out that each of the ob- capital murder. admissibility Tex.R.Crim.Evid. 401. The Rule 402 limits of relevant evi- dence, testimony regarding medical examiner’s these as does Rule discussed infra. two facts tends to make the existence of these probable they facts more than would be without 19. “When Rule 403 provides ‘may that evidence testimony the evidence. This meets the defini- probative substantially be excluded if its value is tion of “relevant” as stated in the rules of evi- outweighed by danger prejudice,’ of unfair it dence, specifically Rule 401. Since the testimo- simply means that trial courts should favor ad- ny ble, cases, must be relevant to the cause to be admissi- keeping pre- mission in close with the pictures photographs depicting then or sumption admissibility of relevant evidence.” facilitating testimony arguably are Montgomery, relevant 810 S.W.2d at 389. well, they "tendency as have a to make the consequence existence of fact that is of prejudice,” 20. The "unfair which is the focus of probable the determination of the action more 9-13, appellant’s points of error numbers "does ... than it would be without the evidence.” injures oppo- not ... mean that the evidence Thus, part Tex.R.Crim.Evid. 401. nent’s case ... cy refers to ‘an undue [but] tenden- Martin photo- test which deems admissible a basis, suggest improper decision graph description if a verbal of the same is commonly, though necessarily, an emotion- However, admissible remains viable. Goode, Sharlot, the mere al one.’” Wellborn and Texas testimony pho- fact that there Criminal, to which the Rules Evidence: Civil and 33 Texas tographs guarantee 403.2, photo- relate does not p. citing Advisory Practice § Commit-

graphs will be admitted as relevant evidence. tee’s Note to Federal Rule 403. at admitting these exhibits trial. ninth photo- 10 color jected-to exhibits an X point fully of error is overruled. graph are clothed. of the victims who error, appellant In the com- ninth eleven, twelve, points of error photo- of thirteen plains of the admission thirteen, appellant complains of the 6-12, 17-22) (State’s graphs exhibits nos. pho punishment phase at the admission at the crime depicting the victims’ bodies tographs depicting extraneous offenses.22 hearing jury’s pres- scene. In a outside supra pp. See discussion 268-269. ence, court reviewed exhibits are 8 black State’s exhibits 90-93 x questioned prosecutor as to from scene of photographs white the crime pictures, proffered necessity of certain who the murder. The exhibits San Bernardino “unique per- picture that each reflected depict he found partially the victim as was spective” of the crime scene discovered room; only in the service tool one station’s police. depict the 6-12 by State’s exhibits close-up of four is a view of the exhibits yard body lying Laura’s in the front of the face. the victim’s bloodied State’s exhibits house, at a photograрh each taken with 5, photo color and 102 are 3V2X angle body. closer 17-22 Exhibits graphs depict from the same offense which photographs leading and are taken into slightly bloody the broom stick the Dalpha within the back bedroom where tool door.23 Fi blood smears on the room prosecutor Donna murdered. The ad- were nally, State’s exhibit contains two 3½ mitted the court some of photographs of the from the victim X “gory” exhibits were but that was the na- Bay City The is shown in offense. victim prosecutor ture of this offense. The underwear and is covered in ashes. probably stated he had “eliminated quarters of the in photographs three taken Although depict of these exhibits several duplicate depict- order any not to evidence victim, none of exhibits is a murder the photographs.” agree ed the the We gruesome. photographs The color are prosecutor’s assessment that some these of depict very Each small and little blood. gory, exhibits are but this offense was appellant’s exhibit corroborates confessions horribly gruesome and that fact will alone the which wherein details manner probative not the of render value the exhib- exhibits, man killed. These each substantially outweighed by its any preju- only punishment, admitted at which were photographs dicial effect. The limited are propen- highly probative are in number and reflect the fact and the viciousness, facts sity for violence and manner ap- of the victims’ deaths and the directly impact jury’s answers to Moreover, pellant’s mental state. from re- judge did punishment issues. The trial viewing exhibits21, original we have exhibits; points admitting these not err in photographs found that some must through thirteen are over- of error eleven together accuratеly be viewed determine ruled. inflicted upon nature of wounds probative point

victims. conclude the value We his fourteenth court’s ad appellant complains of exhibits 6-12 and 17-22 was not sub- 48-56, 39-46, outweighed stantially prejudice, of State’s exhibits mission 59-62, and, therefore, autopsy photographs of the did err in and trial court thirteen, exhibits, 102; Only point photostatic copies these of error State’s 21. depictions which the were sometimes indistin- exhibit guishable, included in the when record However, pursuant to submitted to this Court. depicts the blood smears on 23.State’s exhibit 97 51(d), Tex.R.App.Proc. the Clerk of this Court only depicts partially the victim’s door and original in- has obtained the spection. exhibits for our barely body State’s exhib- which is discernable. body his chest to the victim’s from it 90 shows pool laying approximately in a his knees point appellant complains of error eleven through 90-93; picture was blood. This taken exhibits admission State’s twelve, doorway room. of the tool of error State’s exhibits hearing three victims in this case.24 At autopsy photographs admitted into jury’s presence25, during outside the of- evidence the medical ‍​​​​​​​‌‌​‌‌‌​​​​​​​‌​​‌‌‌​​‌​​​​​‌‌‌​‌​‌‌​‌‌‌​‌‍State examiner’s tes- timony, autopsy photographs appellant’s plea fered the which followed for several guilty, depict the victims both prove punishment reasons: before and ap- body after their fluids were removed pellant’s behavior at the time of the of- the medical examiner and before and after fense was deliberate and calculated to re- the dried blood was cleaned from their death; sult in that the medical examiner wounds. These 8 photographs color X testify would as to the victims’ time of range very were taken at close graphi- proving death during murders occurred cally show thе wounds suffered each charged the same criminal transaction as In many woman. of the exhibits the vic- indictment; pictures and because the tims’ hair has been shaved to more accu- supplement the medical examiner’s rately display chopping wounds sus- testimony as to where the wounds were tained on their heads and some of the upon inflicted the victims and he deter- how wounds have been closed with sutures many mined how wounds had been inflict- which enabled the medical examiner to ac- ed. countered that these exhib- curately many chopping determine how its should not be admitted into evidence upon wounds were inflicted each woman.26 they “beyond gruesome” because were The medical examiner testified that each “gross” proba- were fact and that their multiple woman died as a of chop- result outweighed tive value “highly was ping wounds to the head. prejudicial inflammatory nature” of agree We pho- with the State that these photographs. ruling photo- tographs probative are relevant to and of graphs admissible, judge were the trial proffered each of its admitting reasons for stated: Indeed, these exhibits. the medical exam- Let the record reflect that the Court has testify iner was entitled to to the manner gone through photographs. each of the death, death, of the cause of the time of them, looking attempting And in to death, and the number wounds sustained duplication remove as well as some of victim; by each pho- issues to which these word, the more—for of a better I lack tographs However, were can- relevant. guess grotesque pictures, in that some of agree photographs not that all of the were pictures pictures reflect that are of display admissible. Three exhibits two of persons bleeding dirty oth- where as they appeared they the victims as when body ers show where the has been arrived at the medical examiner’s office. cleaned and marks cuts are more visi- photographs These are no different than grotesque. ble and not as The Court is the crime scene exhibits earlier admitted attempting to presented allow those to be except into evidence for the fact that the jury.... physically victims have been removed from judge’s ruling, jury After the trial en- remaining the crime scene. The exhibits appellant tered the courtroom and close-up photographs gaping chop- then are pled “guilty wounds, wounds, charges ping as hell” to the chopping sutured (see wounds; indictment supra). footnote and defensive the same wounds judge appellant's objec- attorneys fully 24. The trial sustained could discuss with consequences plea tion to State’s exhibit and State’s exhibit 50 and determine such record; therefore, intelligently making plea. was not included in the no this was lunch, presented parties error is as to the admission of either and after The then recessed for recess, photographs. of these See James v. returned from its this but before 84, 98, recess, (Tex.Crim.App.1989), judge S.W.2d n. 14 cert. lunch the trial conducted the hear- — denied, -, ing admissibility autopsy photo- U.S. 111 S.Ct. on the (1991). graphs L.Ed.2d 1078 ruled thereon. trial, During defense counsel informed wounds had crisscrossed each 26.Several change repeatedly wished in the same other or were area; thus, inflicted guilty plea guilty plea. his not to a The trial the sutures were used to better deter- then recessed the for lunch so he and mine the actual number of wounds. autopsy photographs dissipat- photographs ting the in the crime scene depicted 6-12, 17-22) and circumstances (State’s but after hav- ed facts exhibits bizarre photographs These are this other evidence. The ing been cleaned. of this cause and gruesome photo- entirely of less cumulative was therefore harmless. Point error were in graphs the State which available is error fourteen overruled. i.e., admitted, the crime scene exhibits. fact point ap In his fifteenth very little photographs The therefore have pellant the trial court erred and contends and, considering grue- probative their value refusing to its allow abused discretion someness, very prejudicial. After re- juror question prospective him to McIntosh viewing photographs, these we conclude After review range punishment. on the substantially probative out- their value record, is without ing the we find weighed prejudicial nature and cu- by their conclusion of McIntosh’s merit. At the Thus, we hold the trial mulative effect. examination, appel dire voir State admitting Tex. judge erred in the same. agreed prospective ju lant to excuse this R.Crim.Evid. ror, appellant nor the therefore neither question now remains expend peremptory chal State erroneous admission of these whether the venireperson from the lenge to remove pursu error State’s exhibits was reversible Thus, assuming panel. arguendo Tex.R.App.Proc. 81(b)(2). The cause ant question limiting appellant’s court erred 81(b)(2) under Rule will be reversed McIntosh, no ing of harm shown. Gar exposed merely because the (Tex. ner v. “gruesome” pictures. admittedly numerous (if prevented Crim.App.1987) defendant offense The manner commission of this asking proper question, pre harm from horribly cruel and and that is was violent intelligently he could not sumed because particular in onе factor we consider challenges). The peremptory exercise his 81(b)(2) Harris, analysis. point of is overruled. fifteenth error (appellate court reviews entire record analysis). Appellant’s in harmless error error, ap In sixteenth of properly pho confession and the admitted pellant materially court contends the trial tographs of the crime scene reflect restricting in voir dire examination erred offense, macabre nature an offense making prospective jurors. pre After entirely by unprovoked which was its vic general liminary conducting a remarks and confession, appellant in society.’ Something live this like that. appellant asked in county Turner what then, all, And I asked him if that was would his case be tried and who would be said, basically, and he ‘Yes.’ And I case, trying requested speak and to to opened the door and the detectives came prosecutor. Appellant that indicated that in. he would discuss the facts of this offense Sergeant Lancaster Detective Matt Hunt and if speak others he was first allowed to appel- then took the statements of which prosecutor.

with the complains. lant now city arrived at the Lancaster judge findings The trial made of fact and jail approximately at p.m. 6:30 He was conclusions of law on the record at the shower, change clothes, allowed to and use pre-trial hearing. conclusion The of the bathroom; given meal, he was a hot sug- court found no evidence to inter alia water to drink requested, ciga- as he and coerced, gest appellant way was “in police rettes. The Lancaster also filled a promised anything threatened or prescription appellant received promise.” fashion one thinks of a He fur- injury Austin for an ankle he sustained in a appellant voluntarily ther concluded re- scuffle police, appellant quested prom- with Austin and to talk to Kinne and that the prescription. took one seeking penalty tablet Par- ise of the death was not a 3A, hearing 27. The statements were State’s Exhibits Nos. 29.Kinne testified at the that he had 3, 2A, 2, 107, respectively. and 81 knowledge some of the facts of this offense and "a on those facts he determined this case was arguments hearing 28. The advanced at this good penalty death case.” objection served the basis for the to the admissi- bility of each of the six statements.

277 body in ex- tes- them to the deceased’s appellant induce lead promise that would State findings change conclu- for an assurance that tify. He stated in his and gave penalty his case. that “testified he seek the death sions would freely voluntarily and with attor- appellant spoke statements with the district The Thus, the knowledge intelligence.”30 “he seek the ney told him that would who ad- judge ruled statements that penalty if the evidence indicated death jury. counsel missible before the Defense appropriate capital murder was objected to trial court’s conclusions The analo- charge.” Id. at 399-400. Court law. Freeman, the case to 723 S.W.2d gized held the State’s where the Court law, promise our will Under charge “promise” not the defendant (1) “involuntary” if it: render a confession capital simply an assur- murder (2) positive; is of some benefit to facts no such ance under law and accused; (3) made or sanctioned charge made. The Court conclud- would be (4) person authority; is of such Jacobs, ed, attorney the district likely the ac character as would influence to seek an indictment that com- constrained speak untruthfully. v. cused Smith thus, case, ported with the facts of State, (Tex.Crim.App. 779 S.W.2d show a positive failed to 1989); State, Fisher v. 379 S.W.2d promise pen- to seek unequivocal the death (Tex.Crim.App.1964). reviewing a trial Jacobs, alty been made. 787 S.W.2d judge’s of a conclusion on voluntariness confession, employs Court an abuse The trial is the judge discretion standard. Appel- The same is true in this cause. credibility sole the witness willing lant was to confess commission pretrial hearing es in a and absent a show murder, capital but of this he wanted ing of an abuse of discretion attorney speak prosecuting with the before findings court’s will not be disturbed. Ja Kinne, prose- making any statements. 397, 400, cobs, citing 787 S.W.2d Freeman cutor, was aware of circumstances (Tex.Crim. v. prior going to the Lancaster this offense App.1986), and Nichols previ- jail to meet because he had (Tex.Crim.App.1988). progress investi- ously discussed the very This Court confronted this same gation of this with officers. offense Jacobs, issue and factual circumstance finding fact made a There, S.W.2d at 399-400. the Court Kinne, “having allega- apprised of the been recognized generally con- area of seems [appellant] advised that this tions^] fession law reflected fact situations where good penalty ease that the like a death soliciting the State was accused of confes- everything do could to that it State leniency in exchange promises sions for punishment.” particular go after that deals, special or rather than the where opin- his Kinne’s statement reflects learned approaches accused the for assur- State the the status of this case under ion of that ances certain conditions be met before law, to promise and the and was not a facts thus analyzed he confesses. The Court judge’s The penalty. seek the death appellant’s claim that his confession was on findings of fact and conclusions of law involuntary posi- in light bargaining of his appellant’s confessions the voluntariness of at tion. Id. case supported by the and are well record Court; thus, find no Jacobs, from this In offered to tell law any murder and or error in the police capital about the offense abuse of discretion statement, signed voluntarily he and that The record does not reflect that in his hearing although pre-trial response de- typewritten copy. testified at the defense In calling however, a wit- fense counsel considered him as he question, said counsel’s however, testify, regarding ness. did signed his statement if Kinne would not have during guilt/innocence phase his confession seek that the State would had not assured him rights, was trial. He stated he understood his penalty this case. the death police put anything forced Lancaster judge’s overruling appellant’s objection Long David Martin that the State of Tex- findings to these and conclusions. penalty as would seek the death in his eighteenth through points twenty-second persuaded case induced or him give error are overruled. statement, or a have reasonable thereof, you doubt then will not consider Appellant’s points next three of error are purpose. said any you statement for If interrelated allege jury charge find, do not so or a have reasonable regard voluntary error to his state- thereof, you doubt then will consider said point twenty-three, ments.31 In of error give weight, statement and it whatever if appellant argues judge materially any, you deem fit. overruling objections erred in to the charge guilt/innocence court’s concern- or, alternative,: ing voluntary statements. law, You are instructed that under our twenty-four, error he asserts the court a statement of a defendant made while committed fundamental error in the in jail place the defendant was or other charge by failing apply to the law custody or in confinement of an respect facts with his statements. officer shall if be admissible evidence twenty-fifth point, appellant avers the appears freely it that the same was overruling spe- trial court erred in his two voluntarily compulsion made without or requested jury charges concerning cial persuasion. voluntariness of his statements. So, case, you if find from the evidence, you or if a

Appellant requested, in have reasonable the alter native, thereof, prior giving doubt jury charges two voluntari statement, alleged defendant, statement of the if ness of his to-wit: Kinne, any, Norman First Assistant Dis- law, You are instructed under the Dallas, Texas, County, trict Attorney of a confession of a defendant made while told the defendant before made he/she custody peace of a statement, any, if that he would assure officer shall be admissible evidence if County the Dallas defendant appears it freely that the same was Attorney’s District Office would seek the voluntarily compulsion made without or penalty, death and that such statement persuasion. Kinne, by Norman Assistant Dis- First You are further instructed that unless Texas, County, Attorney trict of Dallas you beyond believe from the evidence an inducement to the defendant to alleged reasonable doubt that the confes- statement, sign you make and said then sion or statement introduced into evi- wholly disregard will said statement freely voluntarily dence was made you for will not consider it as evidence and was made the defendant without any any purpose and not consider evi- compulsion persuasion you if or have dence as a result thereof. obtained thereof, you a reasonable doubt shall not alleged consider such The trial overruled these instruc- statement or con- any purpose fession tions and instructed the as follows: nor evidence obtained as a result. law, You are instructed that under the you

Now if find that the statement a defendant made while confession of Kinne, custody peace Norman First Assistant District in the he/she was Texas, if Attorney County, in evidence of Dallas officer shall be admissible regarding appellant’s the ex- 31. There are six statements to which two statements referring. original Those statements are the statements offenses because those traneous po- handwritten confession taken lice, Lancaster phase. only punishment at the were admitted original typewritten the version of that remaining four statements are substan- confession, photostatic copies of each of those same, tially these and we therefore address the confessions, confessions to the referring "appel- points by generally of error two extraneous offenses. specifically ad- lant’s statements” rather than correctly The State asserts in its brief that no dressing each one. preserved points error is under these of error as to the facts of confessions freely on voluntariness the same was appears it that compulsion or harmless. Arizona case was voluntarily made without of this — U.S.-, Fulminante, persuasion. S.Ct. (1991) (admission of you that unless be- 113 L.Ed.2d are instructed You error). beyond may a reason- harmless from the evidence be

lieve coerced confession alleged сonfession or that the able doubt of error 23-25 are overruled. Points introduced into evidence statement complains next voluntarily and was

freely and made compul- punishment. In charge the defendant without jury made court’s if a rea- persuasion you have sion or con number point of error thereof, con- you shall not doubt sonable overruling his erred tends the trial court confes- alleged statement or sider such the charge court’s as to objections to the purpose any nor evidence any sion for tremens, deliberate, delirium definitions as a result. obtained insanity defined and ‘de term and “the comports substantially insanity.” instruction species This as a lirium tremens’ instruction, save appellant’s requested with argues the number he point of error apply on voluntariness its failure to law the overruling special his trial court erred specific facts sur- confessions to the respect to the requested instructions giving his state- rounding appellant’s deliberate, spe as a delirium tremens term ments. insanity in the sense insanity, and cies of Assuming appellant was enti- arguendo appellant did result of intoxication that as a requested tled to either of his instructions wrong. From his conduct was not know V.A.C.C.P.32, 38.22, Art. 6 and under §§ record, no error is reviewing the we find give request- the trial court’s failure to the as to either of error preserved under Prior to the ed instruction was harmless. though appellant deliberate even the term trial, ap- of these statements at admission a definition initially objected to the lack of changed guilty plea guilty pellant definition. and submitted a of the term jury jury. Appellant told before accept appellant later reflects The record the lives “knowingly intentionally took charge on the court’s “deliberate” ed triаl, those three women.” Later at objections. consequently abandoned again appellant testified and admitted com- Therefore, the insani only consider we will light mitting this offense. of these ad- issues. tremens ty and delirium guilt jury, we con- missions of before supra, in footnote 33 any failing apply the law As noted clude error 38.22, contrary. discus- After an off-the-record "all cases to the 32. Article Sec. addresses had, following transpired: question the voluntari- sion where a is raised as to ness of a statement of an accused." Section again. Okay. try Mr. Let’s it THE COURT: part provides pertinent that: counsel), (defense Cunningham other than you objections have made with that those finding by Upon as a matter of tremens, insanity regards and delirium was voluntar- law and fact that the statement any objections the defense other made, is there pertaining ily to such matter evidence charge? like to make to would may jury and it shall be be submitted to None, Your Honor. MR. CUNNINGHAM: beyond that unless the believes instructed correct, And so that the record doubt that the statement was a reasonable accepting are to reflect that we like the record made, voluntarily shall not consider pre- charge which the Court on deliberate any purpose nor evi- such statement for viously read. dence obtained as a result thereof. asking separately the Court are article, We to section 6 is section of Germane following phras- two charge that the provides: Court’s paragraphs be included evidence, is raised When the issue es— charge. appropriately instruct shall insanity herein is By as used the term pertaining jury, generally, to such on the law intoxication, as a result meant statement. was know that his conduct did not defendant wrong. suggests in its brief The State spеcies of insani- is a charge Delirium tremens "excepted" on "deliberate” to the court’s clearly ty.... "accepted” it. The record is than rather (1) requested two instructions34: the term insanity show that such by was caused “insanity” intoxication, means that as a result of intoxi- the court charge shall the cation, jury in provisions the defendant did not know that his accordance with the of (2) wrong; conduct this section. was “delirium tre- species insanity.

mens” is a of Instead of (d)For purposes of this section ‘intoxi- instructions, requested judge these the trial cation’ means ‍​​​​​​​‌‌​‌‌‌​​​​​​​‌​​‌‌‌​​‌​​​​​‌‌‌​‌​‌‌​‌‌‌​‌‍disturbance of mental or charged jury following: physical capacity resulting from the in- any troduction law, substance

You are into the instructed that under our body. temporary neither intoxication nor insani- ty by of mind caused intoxication shall charge proper The court’s light was in any constitute defense to the commission provisions 8.04. § of crime. Evidence temporary insani- punishment charge, however ty by caused may intoxication be con- adequate addressing concerns, 8.04 § mitigation penalty sidered at- fails to “insanity” provided define as for in tached to the offense. 8.01(a), Penal although charge Code § By the term “intoxication” as used “temporary refers to insanity as defined in herein is meant disturbance of mental or However, charge.” this failure to de physical capacity resulting from the in- insanity charge punishment fine in the troduction of substance into the 46.03, was harmless. Pursuant to Art. body. V.A.C.C.P., appellant properly filed notice you Now if from find the evidence that present of his intention to evidence of the defendant, Long, David Martin at the insanity guilt/innocence defense. At the time of the commission of offense for trial, phase judge properly the trial trial, you which he is on if find from the charged jury on the law and definition beyond evidence reasonable doubt insanity provided as 8.01. In his § offense, he did laboring commit such jury charge punishment, at temporary insanity under defined jury may instructed the that it take charge, produced by voluntary intox- into consideration the evidence admitted ication, you may tempo- then take such trial, during the full submitted to it law rary insanity mitiga- into consideration in punishment charge, and the law in penalty you

tion of the which attach to charge given you by “the heretofore penalty (sic), you and if it aids in Court,” i.e., charge guilt/innocence. at answering special the three issues sub- Thus, insanity the instructions on in the you mitted to herein. jury charge guilt/innocence at were incor porated charge reference into the Although differently, worded somewhat record, punishment. light of this charge the court’s is in accordance with the again define “insani court’s failure to provisions 8.04, Intoxication, entitled § ty” charge was harmless. Al provide: (Tex.Crim. manza v. 686 S.W.2d (a) Voluntary intoxication does not con- App.1984). stitute a defense to the commission of crime. tremens” is As to the “delirium (b) temporary insanity Evidence of sue, that the trial did we conclude may caused intoxication be appellant’s requested introduced denying not err in mitigation penalty the actor testimony at trial instruction. There attached to the offense for which he is psychologist forensic from and a being tried. use of regarding appellant’s extensive (c) temporary insanity drugs psychological When is relied and alcohol and upon problems. jury’s as a defense and the evidence tends To direct the considera- trial, 34. An accused is entitled to a instruction on The State did not contest at nor does it do every mitigating by 10, here, raising defensive or issue rаised so no these there was evidence evidence. Arnold v. (Tex.Crim.App. issues. 1987), and cases cited therein.

281 of- pellant Mississippi “fled” after the testimony on delirium tremens tion to the trial, objections how- improper on the evi- None of the at be an comment fense. Thus, judge correctly ever, upon de- not in evi- the trial “exhibits dence. was based requested appellant’s objection instruction. not nied the trial does dence.” Since 800, (Tex. State, 812 v. 582 S.W.2d complaint appeal, Bell on comport with the twenty-six Crim.App.1979). Points of error nothing preserved for our review. John is are twenty-seven overruled. (Tex.Crim.App.1990), 272, 292 v. 803 S.W.2d son — denied, U.S. —, t. cer 111 point in Appellant asserts of error 2914, (1991). In 115 L.Ed.2d S.Ct. trial erred in

twenty-eight that the point con- the thirtieth change overruling his motion for of venue. overruling in his ob- tends the court erred motion, supported filed his Appellant during guilt/innocence phase of jection affidavits, compliance in with Art. 31.- opinion ap- psychiatrist’s to the as V.A.C.C.P., 03(a)(1), filed a and the State dangerous- future pellant’s propensity for controverting affidavit, provided in Art. upon point in ness the same exhibits based 31.04, judge conduct V.A.C.C.P. The trial twenty-nine. Appellant failed to error hearing both ed a on motion which hypothetical question; object at trial to this presented sides evidence. The trial therefore, nothing preserved for our re- ruling until after delayed his on the motion twenty-nine and thir- view. Points of error conducting viewing but before the exhibits ty are overruled. the voir dire. We have reviewed the record hearing from the and the exhibits venue argues thirty-first in his germane hearing. light to that In of this court abused its point of error that Court’s earlier decisions35 Beets refusing prospec to excuse discretion (Tex.Crim.App.1987) S.W.2d he and the State jurors tive whom denied, (Opinion Rehearing), cert. num agreed point excuse. In of error L.Ed.2d U.S. 109 S.Ct. appellant specifically names thirty-two ber

McGee, DeBlanc, were not prospective jurors who the three judge did we conclude the trial judge pursuant to the by the trial excused denying appel not abuse his discretion in Appellant argues parties’ agreement. change lant’s for Point motion venue. that the points together and asserts these twenty-eight of error is overruled. pro to excuse these trial court’s failure point twenty-nine, In of error number impairment spective jurors “constituted complains judge erred in right peremptory in the use of his of [his] overruling objection hypo- State’s required to use challenges” as question, upon thetical based exhibits per challenge prevent these peremptory evidence, psychiatrist admitted into to a The record serving jury. on his from sons opinion as to his witness reflects, however, not exer appellant did alleged mental at the time status any of challenge on peremptory cise trial, prosecutor offense. At after the con- jurors. prospective designated these hypothetical question, cluded his defense Therefore, no harm appellant suffered objected counsel to certain facts included these refusal to excuse trial court’s objec- question. response to two thir jurors, points of error prospective tions, prosecutor objec- withdrew thirty-two are overruled. ty-one and hypothetical from his and the tionable facts thirty- points of error numbers informed the court he could dis- witness appellant com through thirty-five, three making analysis. regard those facts reversibly erred plains the trial court objection judge overruled a third The trial Prior tо the during trial.36 ap- shackling him prosecutor’s characterization that argument presented these three appli- adequately One discuss the 35. These decisions points points exact of error. The interrelated and to address this of error cable law argued are: nothing greater would do to add to detail court materi- No. The trial of Error 33: Point jurisprudence of this State. shack- its discretion in ally and abused erred 282 selected,

jury being object- defense counsel The harm a defendant suffers jury when the sees him in appellant ed to the use of shackles on handcuffs or dur- shackles is that his constitutional presump ing voir dire and trial in that it was inflam- tion infringed, Marquez of innocence is v. matory prejudicial. judge and The trial State, 725 (Tex.Crim.App. S.W.2d 227 objection overruled the and instructed the 1987), State, citing Moore v. 535 S.W.2d you bailiffs to “use in whatever feel (Tex.Crim.App.1976), and all ef safety required security.” interest for prevent forts should be maintained to After the was chosen and before the seeing shackles, from in defendant pre-trial hearing appellant’s on motion to except there showing where has been a confession, suppress his defense counsel exceptional circumstances or a manifest again objected appellant having to wear need for such restraint. Clark v. legs appellant shackles on his and noted (Tex.Crim.App.1986), S.W.2d obeyed deputies. judge had The trial and cases cited therein. It is within the again objection agreed overruled the but judge discretion of the trial as to whether a appellant with defense counsel that had defendant shall be tried in handcuffs or overruling been well-behaved.37 In the ob- Jacobs, 397, 407, shackles. cit jection in exercising and its discretion to ing Marquez, ap at 227. S.W.2d On appellant, shackle the сourt considered the peal, appellate court determines wheth charge against appel- seriousness of the er the trial by court abused its discretion lant, is,” type “the of trial this and the requiring appear the defendant to in res necessity security. He also stated for appellate traints.38 To assist the court in appellant the record wearing that had been determination, clearly the record must these shackles since voir dire. The trial affirmatively judge’s and reflect the trial judge they advised counsel that could block reasons therefor. Id. jury’s by plac- the shackles from the view Marquez, Court ing their briefcases in appellant’s front of judge’s findings held the trial the record by advising appellant feet and not to cross amply supported his decision to have legs, “previous- action which he had punishment during defendant shackled ly occasions,” causing done on his shackles case, phase of trial. the record Otherwise, to be visible. according to the reflected inter the defendant had al- alia record, layout of the courtroom was murder, ready capital been convicted of had such that feet were before a deadly weapons prison, carried choked jury’s table which blocked the inmates, view the and stabbed fellow attacked and cameramen, shackles. spit run and threatened to case, ling appellant during impression getting the trial of this "is disruptive ready something, when he had not been man- to do in addition to what he’s any way. charged judge ner or demonstrated in with.” The trial overruled this objection deputy Appellant’s right sher- Point of Error No. 34: to a because the bailiff was wearing guaranteed duty appropriate impartial iff on uni- fair and trial to him form, and the trial noted that the Sixth Amendment to the United States charged with "the most horrendous crime" Constitution and the Texas Constitution was penalty. and faced the death stated, however, The court also being during denied shackled the voir examination, had been "a (sic) guilt dire or innocent person” posed any prob- beautiful and had not punishment phase of the trial. far, lems in the trial thus but the Point of Error No. 35: The court materi- persons very peaceful known to act calm and ally permit- erred and abused its discretion in turn. then ting shackling appellant during examination, (sic) guilt voir dire or innocent principle applies 38. This to witnesses who phase punishment phase of the trial in required appear jail uni are restraints this case. Thompson forms. See 514 S.W.2d 275 objection, appellant’s 1974) (no 37. Prior to this (Tex.Crim.App. counsel abuse of discretion objected presence County prisoners of a bailiff where Dallas called as wit uniformed argued jail in the courtroom. Counsel the bailiffs uniforms nesses co-defendant testified handcuffs). presence prejudicial gave because it shackling appellant his discretion police to have to shoot abused and cause officers reasons, prior to trial. explicit and kill him. Given these by no of discretion the Court found abuse hold, however, that this We further Likewise, Jacobs, judge. the trial prejudice or of discretion did not abuse found the record was S.W.2d at we appellant. appellant While harm issue, and the trial developed on well trial, throughout even while shackled his requir- its discretion in court did not abuse testifying, he fails to direct our attention during trial. The trial ing leg restraints showing any place in the record that defen- from both the

judge heard evidence The trial jury actually saw the shackles. the defen- and thе State on whether dant expo- judge prevent measures to took jurors prejudiced potential dant was when shackles, jury sure of the to the wearing restraints. The trial saw him fact, trial, during jury was excused his judge found the defendant had crossed appellant took the stand each time witness expose the legs in such a manner as to only therefrom. The ref- and was excused members, jury restraints to some that visibility of the shackles came erence to the expo- aperture spectator rail allowed judge addressing de- from the trial when steps jury, the restraints to the that sure of during pre-trial hearing, to- fense counsel that were taken before voir dire to insure wit: and, fact, juror no no saw restraints layout of this courtroom in relation- during he had juror indicated voir dire that box, ship defendant’s feet them, history seen that the defendant had a a table which blocks the view are before escapes, expressed and that he had an they If to see his shackles. to die rather than be incarcerated for wish shackles, only it be were to see would life. This Court found no abuse of discre- put position them in a to be because prejudice tion and no suffered the de- seen, previously he has done on such as potential jurors pos- fendant as a result of occasions, legs, crossed his which caused sibly seeing him restrained. Id. the shackles to be visible. cause, present judge did Therefore, appellant we cannot conclude specific findings justify- not make of fact any respect by the use of was harmed shackles, ing the use of rather but stated Clark, the shackles. See general regarding the record concerns se- jurors defendant (although some saw curity appellant charged because courtroom, оutside no evidence handcuffed Indeed, capital murder. the facts of this jurors it or that it influenced discussed brutally violent, case are there is no but guilt punishment); their decisions on other evidence in the record of violence (Tex.Crim. Lucas v. by appellant during threatened violence (admission App.1989) jury of video before person The fact that a trial.39 tape where defendant is handcuffed charged with the most serious of felonies Tex.R.App.Proc. harmless error under person’s cannot override that constitutional 33, 34, 81(b)(2)). Points of error numbers Moreover, presumption of innocence. and 35 are overruled. judge noted that had been points of Finding no merit in during pre-trial proceedings. well-behaved error, judgment. trial court’s we affirm the judge’s securi- While the trial concern with admirable, ty during certainly trial is P.J., McCOMICK, and CLINTON and sufficiently find these reasons are not BENAVIDES, JJ., in the result. concur specific support judge’s decision to MALONEY, Judge, dissenting. appellant shackled from the com- have Thus, in the record that on the evidence mencement of trial. basis Absent record, defendant appellant was a contumacious of this we hold the trial trial, appellant At the time the later testified that he associated mental illnesses. 39. At security regarding again, prison, even in and that he did trial measures, made his decision would kill not have the benefit of this die but that there was no treatment he did not want to dependency testimony. cure his chemical which would during proceedings and that shackles and that the was influenced him, necessary to control like present fact order to refutes the majority, I shackling would hold that requirement of the harmless error doctrine majority, was error. Unlike the I that the beyond State establish reasonable compelling find thаt doubt that the error was harmless. during wear shackles the voir dire of the emphasized It is to be this is a during venire and the trial violates the capital murder trial where death was as- right impartial defendant’s to a fair and prerequisite sessed and that a of that as- guaranteed to him the Sixth and sessment was that the answer Fourteenth Amendments to the federal affirmative: constitution and is error. reversible whether probability there is a that the Allen, In the case of Illinois v. 397 U.S. defendant would commit criminal acts of 337, 1057, (1970), 90 S.Ct. 25 L.Ed.2d 353 violence that would constitute a continu- although the Court authorized the use of ing society. threat to shackles under the most severe of circum- What better evidence could there be to stances, the Court stated: dangerousness show than to have the de- But contemplate even to such a tech- being fendant shackled while tried? nique, it, feeling much less see arouses a person that no For the above reasons and I should be tried while because gagged except shackled and believe that this case as a last establishes an ex- only possible tremely precedent, resort. Not unfair I respectfully is it that the dis- sight gags might of shackles and have a sent.

significant feelings effect on jury’s defendant,

about the the use of this but

technique something is itself of an af- very dignity

front to the and decorum of

judicial proceedings

seeking uphold.

And, Brennan, concurring Mr. Justice 363,

page pointed out that “no action BOWER, parte Leroy Ex Lester Jr. against unruly permissible an defendant is except fully firmly after he has been No. 70995 to 70998. wrong informed that his conduct is possible Texas, intolerable and Appeals warned of the con- Court of Criminal sequences of continued misbehavior”. En Banc. Williams, In Estelle v. 425 U.S. Dec. (1976),

S.Ct. 48 L.Ed.2d 126 the Su- Rehearing Denied Jan. preme ‍​​​​​​​‌‌​‌‌‌​​​​​​​‌​​‌‌‌​​‌​​​​​‌‌‌​‌​‌‌​‌‌‌​‌‍recognized Court that even the

wearing prison garb by the defendant

during compelled trial should not be “be- possible

cause of impairment

presumption so basic to the [of innocence]

adversary system ... that the constant re- may

minder of the accused’s condition ... juror’s judgment

affect a ... [and that]

unacceptable presented impermis- risk is coming play.”

sible factors into Id. at 1693, citing

96 S.Ct. at Turner v. Louisi

ana, 466, 473, 546, 550,13 379 U.S. 85 S.Ct. (1965).

L.Ed.2d 424

Placing the burden on the defendant to

show that the could see the shackles tims. In his notes panel, judge gave dire of the voir pled Dalpha immediately for her life Jester juror question panel a each member of he Prior before struck her. to admission complete form and scheduled indi naire to autopsy photographs jury, before the venireperson. for each vidual voir dire appellant intentionally admitted he killed anticipated voir individual dire the three he have women and would shot per thirty forty-five last to minutes gun. Consequently, them if he had had a them accord venireperson and scheduled appellant’s guilt was uncontroverted dur no objection ingly. The record reflects ing although State was still scheduling appel has appellant to this nor required prove beyond to a reasonable anyplace in the record referred us lant allegations doubt the within indictment. limits im objected he to the time where Moreover, appellant also testified at therefore, dire; posed on individual voir guilt/innocence history to his extensive nothing our Tex. preserved review. problems, drug psychological and abuse 52(a). point of R.App.Proc. The sixteenth irreparable die, he and should that was error is overruled. he avoid trial. wanted to Other eigh points of error numbers witnesses, including appellant’s family com through twenty-one, appellant members, teen appellant’s mental testified to plains into of six of the admission evidence into problems and numerous admissions statements, original to-wit: halfway Any hospitals state houses. written Lancaster taken confession impact of the trial court’s error admit- handwritten police, original typewritten version of amedics also attended bandage to the on confession, photocopies each, Shortly his ankle. p.m., after 8:00 Norman Kinne, confessions to the two extraneous of- Chief Felony Prosecutor for Dallas punishment.27 Appel- fenses admitted аt County time, at that arrived jail at the lant contends the statements speak were inadmis- appellant. Kinne was briefed they sible because upon by police were made based officers that willing promise from a County prosecutor Dallas give a statement regarding the offense that the State would seek the penalty death but wanted to talk with Kinne first about in this cause. twenty-second point penalty. the death Kinne and error, appellant claims the trial proceeded court to the “interview room” where overruling erred in objections they spoke private for three or four findings court’s of fact and conclusions of minutes. hearing, At the defense counsel law the voluntariness of the questioned statements. Kinne meeting: about that brief Appellant presents argument one for these (defense Q. counsel) Now, Okay. can points therefore, we address you tell us what the conversation was together. them you between Long (appellant) and Mr. the room? What he said and you what hearing The trial held a on the said? confessions, voluntariness of appellant’s (Kinne) Long said, A. you Mr. 2A ‘How do specifically and 2.28 After feel penalty?’ about the death And I capital arrest Austin on the murder war- said, you ‘Do mean this case?’ And he rant from County Dallas on October said, said, I T ‘Yes.’ And think it’s a transported he to Lancaster good penalty death case.’!29! And police Lancaster officers Turner and Mer- said, ‘Good, I Turner, that’s what want.’ And I ritt. who sat the backseat with said, want, you ‘If that’s appellant, go- what we’re him rights warned of his at the ing try get you.’ our best to it for commencement approximately three trip, (even else, hour responded Q. Anything sir? though him) question Turner did not effect, something A. He said he did not just want talk about offense ‘That’s I I what deserve because can’t during Lancaster, then. Later the drive to

Case Details

Case Name: Long v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 4, 1991

Citation: 823 S.W.2d 259

Docket Number: 69781

Court Abbreviation: Tex. Crim. App.