*1 rеasons, ney, agree v. 154 Tex.Cr.R. we must See Ellison obvious appeal attorney (1950). with on that the State’s Demouchette by State, “When the was cross-examined (Tex.Cr.App.1986), witness regarding charges the defense that this also that it was not error to Court held against Call], him he been filed similar, give very although [Me refuse to a explain the reasons there- entitled detailed, more as the one re- instruction fore on redirect examination ... The trial in quested by appellant this cause. court its discretion in allow- did not abuse Cuevas, supra, rejecting in This Court complained of examination no ... contention that the re- defendant’s is shown ...” reversible error quested instruction that he claimed should Appellant’s point of eleventh error is given, also held: “The trial have been overruled. charge 'distinctly court's forth the set[s] compliance applicable the case’ law attorneys Appellant’s appeal, 36.14, with Art. The trial court Y.A.C.C.P. error,
their of assert that twelfth refusing give appellant’s did not err overruling appel “The erred in trial court requested charge.” an request lant’s additional verdict parties.” again form of on the issue We point of er- Appellant’s and final twelfth disagree counsel. ror is overruled. reflects that re- record Having each of carefully reviewed given jury separ- quest that error, points finding of that none lant’s ate form to cover “law verdict error, court’s contain reversible the trial stage of the parties” guilt trial was sentence of judgment of conviction and judge. Appellant’s the trial denied are death affirmed. complaint punishment does not concern stage of his trial. Cuevas v. 1987), (Tex.Cr.App. Court held that the refusal the trial give special
court to instruction on the punishment stage of parties
law at the trial, wording light “In of the one, application
issue number of the parties law of to the facts of case at MARRAS, Appellant, Marlyn Edward guilt phase, argument and the coun- regarding sel for appellant and the State evidence, no law and the actual harm Texas, Appellee. The STATE of Accordingly, accrued to we hold 69141. No. error, refusing any, requested (Page Texas, error.” instruction was harmless Appeals of of Criminal Court Slip Opinion.) of the En Banc. instance, In this was instructed 28, 1987. Oct. trial, alia, guilt stage
at the inter capital it could convict or as murder if it found that he acted alone party. jury’s verdict reflects “guilty found capital
offense murder.” 37.07, V.A.C.C.P., provides that
Article every criminal action must be
the verdict
general, has held where and this Court charg- contains but one count indictment case, offense,
ing single as in the instant general “guilty” is sufficient. verdict *3 testified prosecution events
witness; the trial court’s refusal to voluntary manslaughter; trial permit court's refusal to to submit testimony additional from cross- response note; examination in to a jury note; trial court’s failure to answer a sufficiency jury’s finding affirmative is- two; and, finally, sue number the effective- ness pun- counsel at the *4 phase appel- ishment of the trial. Since argues lant that the evidence is insufficient findings guilt to both and future dangerousness, a detailed review of the facts necessary.
During guilt/innocence phase of the trial, Larry Flading testified that at about 1982, p.m. 4, September 10:00 on he and his Morrow, Seymour (Court-appointed Janet appellant brother met the and another man Houston, appeal only), appellant. on parking Blueberry in the outside the lot Holmes, Jr., Atty., John B. Dist. and J. nightclub, Hill located at the corner of Hudson, Atty., Harvey Asst. Dist. Hous- Westpark men and Gessner. The four left ton, Huttash, Atty., Austin, State’s Robert car, Flading parking lot in a with the for the State. seat, riding in the brothers back seat, and the other passenger lant in the they park- driving. man after left Soon lot, companion ing appellant his told OPINION to return later to rob some- that he wanted company CAMPBELL, Judge. parted with one. The brothers companion his at 10:30 appellant and conviction Appeal is taken from a parking lot. p.m., miles from the about five V.T.C.A., capital murder. Penal Code victim, Reed, and 19.03(a)(2). p.m., 11:30 appellant The was convicted About § Weaster, Joseph left the companiоn, intentionally causing the death of David his nightclub. Both men were committing Blueberry Hill L. Reed in the course of and The doorman at the aggra- extremely intoxicated. attempting to commit the offense of fight and between Weaster robbery. finding appellant After club observed vated the sidewalk outside the appellant on guilty, returned affirmative find- yelled at appellant The Weaster ings Article club. issues under names, called hit 37.071, not like to be was as- he did V.A.C.C.P. Punishment face, and knocked him in the pun- Weaster twice sessed at death. We will reform the lay on the ground. As Weaster life and affirm. ishment to appellant him in the ground, kicked points er- appellant raises twelve At boots. head with his western sufficiency challenges: He ror. Reed, coming to the aid point, apparently finding support the evidence to friend, in the air and kicked “jumped his place during the commission offense took adrenaline-type yell.” Reed made an and robbery; the trial court’s aggravated of an ap- up stand and helped then Weaster quash the indict- denial of his motion to up fight. trying to break peared to be ment; ju- prospective of one the exclusion Baum, thereafter, who Shortly Barbara exclude ror; refusal the trial court’s nearby, saw walking along a sidewalk into was potential juror; the admission another car in the approach their of Reed and Weaster videotaped re-enactment of a parking appellant stepped lot. off the him to officers. The tified Reed, gun and sidewalk hurried toward who arrested there with the in his still standing the driver’s side of the hand. on words; exchanged Reed car. two punishment phase trial, At the of the hands; point- then the raised Larry Flading “meeting” testified that his gun at chest fired one ed a Reed’s appellant, he had which described shot. guilt/innocence phase in veiled terms at the back, trial, front in fact jumped Reed ran around the had occurred side, Flad- passenger yelled, aggravated robbery car to the course of brother, John, enough.” Baum heard and his “I have also man, say, got.” is all another someone “That I have Clifford Zataraus. moments, a few Reed fell to the After p.m. Septem- approximately At 10:00 Weaster, pavement. who was then on Flading ber brothers drove car, pock- passenger side of the turned his Gessner, parking Westpark lot driver, passing inside out. A cab John ets Rockers, intending go night- another Bernardoni, attention whose was drawn Blueberry Hill club in the same area as the scene he heard when saw flash and car, *5 Larry parked his club. As Clifford gunfire, fall knees. the saw Weaster to his appellant began walking and Zataraus the appeared give his Weaster to items from parking across the lot toward them. The pockets appellant begged to the the and appellant the side headed toward driver’s not appellant to hurt him. the car while Zataraus went toward the appellant Flading got and toward side. As out passenger The turned walked John said, car, nearby apartment building. Zataraus “This is a rob- the corner a At briefly bery. There he with man in the seat of the car.” met another Get back time, appellant put a small they together and walked the same the before turned warned, apartment began Larry’s and “You complex. pistol into the Baum to head Larry get in following through the men corri- him.” He instructed two the heard keys. him apartment building. give dors of the the seat and to the car She back Deputy and joined County Sheriff’s The moved into the back seat Harris brothers appellant keys to auto- working nightclub had been at another handed the the the who nearby shooting Baum when the occurred. mobile. deputy informed the that a had been man the appellant The then walked around to
shot, pointed appellant and she out the as passenger side of the car while Zataraus time, perpetrator. the At the same the the enter- moved into driver’s seat. After he appellant deрuty, saw Baum and the and side, passenger’s ing the car on the companion began to run. Baum and Flading gun at appellant pointed the men, deputy but and chased two said, going “This is to be a and brothers pursuit during appellant and his mur- to make it a robbery. We don’t want split deputy companion up. Baum and the safely they were out der.” Once up, split Baum continued to chase then lot, Zata- appellant turned to parking appellant in- appellant. ran When said, pretty “That worked out raus and enclosure, building Baum side a darkened do it go back and good. We’ll have enter, chose not to and she returned Gessner, the they As drove down again.” shooting. scene of the Flading Larry John and appellant ordered money. As the two out all of their to take police officers arrived When Houston pockets, John scene, began emptying their she men informed them that Baum out his wal- nearby cards slipped several credit appellant had chased the into in his officers, attempted he to conceal them let. As complex. Two accom- apartment boot, men in front watched the two Baum, John retraced the panied that him, they not notice hoping would walk- searching pavement path, them. keeping cards from the credit appellant lying be- he was ways. Baum saw mirror rear view looked into the iden- Zataraus in a flower hind some shrubs bed peaceable, looking being law-abiding appellant, “He’s tation and shouted to the officer, Man, looking police He’s A third Houston he’s at me. citizen. at me. Runnels, appellant Sergeant im- identify me.” The testified he had trying to Flad- appellant years, hit both of the for nine off mediately turned and known Larry on, appellant jail While sat custody. in the face. when the was in brothers mouth, urged Zataraus bleeding appellant given pass from the He said kill go ahead and both appellant jail during the time he work men. awaiting Although trial in this case. jail’s policy generally excluded that status handed over their the two brothers As murder, charged capital for inmates angry appellant money, the became exception for the had been made twenty they have more than about did appellant lant. Runnels said the had had them, Larry told “That’s all each. dollars barber, using straight job as an inmate got.” we’ve Zata- got. That’s all we’ve shaves, give given and had in fact razor to appellant, you “I said to the bet raus then him a shave. He stated he had never seen up money you with more he will come appellant fight jail. appellant friend’s head off.” blow his shouted, to Zataraus and then turned three, I’ll do what I tell me what to do. “Dоn’t the evidence is insufficient asserts that angry so became want.” killing occurred prove that he a moment that appeared it committing aggravated rob- course of might Zataraus. shoot argues that bery of Reed. on circumstantial the State relied they had taken Apparently satisfied that robbery, and that evi- establish the brothers, money they could from the all the inference oth- supports reasonable *6 dence stopped the car Zataraus and Specifically, appellant’s guilt. er than the complex. apartment of an a dark corner to it is reasonable appellant argues that and, car, appellant jumped out of the his motive for infer from the evidence the Flad- motioning gun, ordered with the anger, rage or from shooting Reed arose Larry and ing get out. John brothers to fight, rather course of a in the resentment their hands raised got of the car with out aggravated rob- commit than a desire to away. began slowly back When and to van, bery. parked John they close to drew pulled him behind grabbed Larry and sufficiency of reviewing the When complex, apartment into the They van. ran in ei support a conviction to the evidence sum- a resident who eventually found and evidence circumstantial a direct or ther police. moned evidenсe case, must review this Court robbery unadjudicated In addition to the jury’s favorable light in the most Flading kidnapping of the aggravated and any rational whether and consider verdict ap- that the brothers, the State established essential found the have of fact could trier of convicted previously pellant had been a reason beyond offense elements offenses, cases including three felony nine Virginia, 443 v. doubt. See Jackson able mari- possession of forgery, two cases 2781, L.Ed.2d 560 307, 61 99 S.Ct. U.S. assault, robbery juana, two cases S.W.2d 80 717 (1979); Duhamel building with escape, burglary of a and (Tex.Cr.App.1986). Given robbery and aggravated intent to commit hour before an approximately statement offenses, kidnapping. For these going to return shooting he was Department of to the Texas lant sent killing v/as occurred lot where parking four times. Corrections robbery, aggravated an to commit order of the rob by one uttered phrase and the extraneous Apart from the evidence got,” heard I have victims, is all “That bery convictions, follow- prior offenses and shooting, we contemporaneously punish- at ing was adduced sup overwhelmingly the evidence find that officers police Two Houston phase. ment killing theory that the State’s repu- ports bad appellant had a testified
401
place
eleven,
appel
point
took
in the course of
commission
In
error
robbery.
lant contends that
the trial court erred in
aggravated
of an
Point
sustaining
challenge
the State’s
for cause
three is overruled.
venireperson
Eugene
Lowell
Williams
error,
his tenth
Wither
such was
violation of
because
deny-
the trial
erred in
contends that
court
Illinois,
510,
spoon v.
U.S.
S.Ct.
supplemental
quash the
motion to
(1968);
Adams v.
1770,
A: I that one A: do not believe uphill very, very hard battle to gives adequate be in a person’s life of a you have is the one judgment convince me all person make a for а basis question yes. offense to answer call on that.... [*] [*] [*] [*] [*] [*] When asked again by the court, Williams heart, my “in again responded [I] my rephrase your question me A: Let question.” to that *8 to answer no would have like I am you if feel own words and see pro- counsel attempt by final defense One understanding of getting proper solely making a “just response, duced question. your that conduct on the criminal decision based you provide if me You want to know time, no, at that is involved before single of a snapshot picture a definitely, no.” most or in life whether event an individual’s judgment as to he could repeatedly not I can then make a said that Williams or dis- issue probability of either similar second yes not answer least, but, capi a snapshots upon similar evidence of solely based then, fu- occurring in the Clearly, nature Williams criminal tal offense. I cannot upon I do that. which against ture. And cannot the law biased snapshot 35.- single Article predict upon rely. a See based entitled State was State, v. see also Hawkins matter what 16(b)(3), supra; individual no of an Mun 65, (Tex.Cr.App.1983; picture is of. 82 660 S.W.2d (Tex.Cr . State, 792, 795 iz v. And the Q: DEFENSE COUNSEL] [BY Furthermore, his beliefs would App.1978). or not is whether in a nutshell question 403 substantially impaired perform- difficulty hearing attorney have that when juror as in accordance spoke, ance of his duties him if he and could not hear at all with his instructions and his oath. See attorney spoke looking while down Adams, Witt, supra; supra. The trial reading. juror while stated that on the sustaining court did not err in the State’s day sitting he first when had been at the venireperson challenge for cause back of the courtroom he had missed some Appellant’s point of er- Williams. eleventh panel. However, of what said to the ror overruled. is case, Dean diffi- the instant evinced no culty hearing questions put to him twelve, during simply dire. He informed the voir alleges that the trial court its dis- abused spoke quietly court that if someone too he refusing challenge his for cause cretion difficulty hearing him. venireperson physical Lee would have V. Dean for 35.16(a)(4), incapacity under Article V.A.C. responsi The trial court has the provision challenge C.P.1 This allows a for bility determining qualifications for cause either the state or the defense if prospective juror challenge when juror organs “has such defect in the Villarreal v. made. S.W.2d feeling hearing, bodily or such or mental 35.21, (Tex.Cr.App.1978); Article V.A.C. him for defect or disease to render unfit certainly C.P. It was within the court’s Id. jury service....” challenge discretion to overrule the examination, During voir dire Dean was hearing problem in cause based on a any asked if there was reason that would Chappell instance. See 519 S.W. рrevent sitting juror him from as a (Tex.Cr.App.1975). 2d 453 answered, “Nothing He than case. other got unless I sick.” Dean informed the trial possibility As for that Dean veteran, court that he disabled during proceedings, ill could become lung partially stopped up, he had one testimony, the likelihood based on all the lung collapse he had had one any appeared to about the same as prone he was to colds because he had had Certainly juror becoming other ill. Dean tuberculosis, caught cold it when he concerned; simply greatly he stat was not very require hospital- could be serious and ed that he wanted to let court know ization, years got and that some he sick might happen. ques advance that it When years get and some he did not sick. Dean court, that he tioned the trial Dean said also informed the trial court that he had jury. that he could sit on the was satisfied difficulty hearing some did not someone of the situations in quite This is the reverse speak up they spoke or if in low tones. He State, (Tex. Hernandez v. hearing tested stated that he had had his State, Villarreal Cr.App.1982) and past year and was told within ju (Tex.Cr.App.1978), where the problem doctor that his was not serious. ability to about their expressed rors doubt him, you The trial court asked “Are satis- jury. Under the facts on the serve jury and not be you fied could sit on this case, trial court did not abuse instant subject illness as troubled to the same overruling its discretion everybody subject to?” Dean an- else venireperson Dean. challenge for cause swered, “Yes.” The trial court overruled point of error is over Appellant’s twelfth *9 challenge based the for cause ruled. problems. on health fourth, fifth, points of In his and sixth State, v. Woolls appellant The relies on error, appellant complains that the ad- the (Tex.Cr.App.1983), which the videotape an abuse of Woolls, mission of a In distinguishable. find we (1) it was discretion because trial court’s during dire prospective juror voir admitted (2) duplication; preju- its not an accurate hearing he had not that due to his defect value; outweighed probative its attorneys, dicial effect the name of one heard 35.16(a)(5), V.A.C.C.P. codified in Article 1. Now
404 State, (3) in Lopez v. testimony reasoning
and
it bolstered the
of
651 S.W.2d
witness,
Baum.
(Tex.App.—Fort
1983),
State’s
Barbara
pub-
413
Worth
a
opinion
lished
which was later withdrawn.
complained
videotape
of
The
Lopez,
appeals
of
court
held that
by
herein
this Court and
has been reviewed
staged,
“any
re-enacted criminal acts or
video, i.e.,
portion, only
no audio
contains
involving
beings
defensive issues
human
pictures
just
pictures.
motion
Motion
are
a
impossible
duplicate
every
are
to
minute
рhotographs and the
collection of
rules sur
and are
inherently danger-
detail
therefore
rounding admission are the same as those
ous,
little
impact
offer
in substance and the
photographs. Housewright
v.
for
still
is too highly prejudicial
re-enactments
to
State,
101, 225
154 Tex.Cr.R.
insure the State or the defendant a fair
(1949).
pictures
Motion
are admissible
sound,
We
reasoning
trial.”
find this
but
authenticated,
they
properly
when
are
rele
to
instant
inapplicable
case. The video-
issue,
vant
an
and not violative
tape
merely
in this instance was
a series of
admissibility
rules of
pictures
appellant
by
of the route taken
State,
photographs. Lopez v.
630 S.W.2d
shooting
and Barbara Baum after the
(Tex.Cr.App.1982).
a
de
When
verbal
videotape
depict
The
does
any
Reed.
admissible,
scription
photo
scene
of a
is
a
staged, re-enacted criminal acts.
graph
recording of
or video
the scene
v.
would also be admissible. Wilkerson
appellant
argues
The
next
that the
State,
542,
(Tex.Cr.App.
726 S.W.2d
videotape
prejudicial
out
effect
State,
1986);
see Burdine
719 S.W.2d
disagree.
probative value.
weighed its
We
The trial
(Tex.Cr.App.1986).
tape
accompanying testimony
and
admitting
vid
judge has broad discretion
attempted
clarify
the loca
will
recordings
eo
and his action
not be
Baum in relatiоn to the events she
tion of
discre
disturbed absent
abuse
“If a
about.
verbal
witnessed
testified
Burdine,
405 diagram or a on a ordinary blackboard. It did not son of temper, sufficient to render bolstering testimony. incapable constitute of Baum’s the mind of cool reflection.” V.T.C.A., 19.04(c). Penal Code § reasons, For these we find that the appellant The contends the rais- evidence trial court did not abuse its in discretion passion es issue of sudden because he admitting videotape. Points of error fight prior and Reed had been in a to the four, five, and six are overruled. shooting. evidence, The as recited earlier number two the opinion, in this appellant revealed that the lant asserts as revеrsible error the trial yelling was overheard at Weaster. He charge court’s failure to submit a on volun- punched twice, Weaster face knock- tary manslaughter. The appellant con- down, began him then kicking him in tends passion that the issue of sudden the head. by Reed jumping intervened in by and, therefore, raised the evidence air kicking and the appellant let- while voluntary manslaughter charge should ting out an “adrenaline-type yell.” Reed have been submitted. why then asked Weaster he called the began talking. names. The three If any evidence from source raises later, A short time the appellant and Reed the issue of a lesser included offense or talking loudly. were observed Reed then theory, it in defensive must be included raised his hands and the appellant shot him charge. State, Marquez court’s v. in the chest. The robbed Weast- 217, (Tex.Cr.App.1987). S.W.2d As this er, begging who was on knees his not to be State, court said Moore v. 574 S.W.2d hurt. Then the turned and 122, (Tex.Cr.App.1978): casually away, appearing “totally walked credibility The of evidence and whether it unconcerned.” is controverted or conflicts other only may by evidence in the evidence of actions case not be con- Reed prior shooting ap- determining kicking sidered were whether defen- pellant up fight charge breaking and sive between or instruction on a lesser appellant. Weaster conversa- given. included offense should be When appellant just tion between Reed and the any evidence from source raises a defen- prior shooting is not revealed or sive issue raises an issue that a lesser record. included offense may have been commit- ted ... issue must be submitted (Tex. State, Ojeda v. jury. duty, It is then the jury’s Cr.App.1986), the evidence revealed that instructions, proper under the to deter- girlfriend his the defendant and had been mine whether the evidence is credible deceased, by the after which the struck supports the defense lesser fight. defendant involved became included offense. showing There was no direct evidence acting under defendant was sudden voluntary A manslaugh on passion, at nor as his frame of mind only ter given should be when there time of incident. Whether the defend the defendant acted under defending ant was cool and collected passion the “immediate influence of sudden seeing enraged being himself or at hit arising adequate Marquez from cause.” girlfriend hit not shown State, 725 223-24. sudden This that in the ab court held evidence. passion directly caused sence evidence that the defendant had arising provocation out of deceased passion, the issue of volun acted sudden solely at the time of the offense. Passion tary manslaughter had not raised. been provocation the result of former is insuffi 712 S.W.2d at Ojeda, 744.
cient. Hobson v. V.T.C.A., voluntary (Tex.Cr.App.1983); Penal An instruction 19.04(b). manslaughter properly where Adequate is “cause refused Code cause § adequate cause. commonly degree is no evidence produce that would there resentment, anger, rage, per- McCartney in a or terror
(Tex.Cr.App.1976). viewing After jury response the evi- in to this note. The alleged provocation dence of the appendix is followed a sworn statement objectively, instant case we conclude that reporter from the court attesting that this adequate there is no evidence of cause to was indeed what jury. she read to the voluntary manslaugh- warrant a response, the State attached to its Hobson, 478; ter. 644 S.W.2d at Section brief a controverting affidavit in which the 19.04(c),supra. The trial court did not err reporter same court stated that the trial refusing the instruction. Point of error had occurred years more than two ago, and number two is overruled. she had no independent recollection of what point
In his first appel error the testimony was read back. merely She alleges lant that the trial court erred in looked at her stenographic tape for paper refusing request tо read back additional clip markers to determine testimony what cross-examination, testimony, elicited at in she had read to the jury. She found at response jury note. The least three sections which were so marked. contends that such refusal was an abuse of She then stated that it was never her inten- 36.28, discretion under Article Y.A.C.C.P. represent tion to that the transcribed testi- process and “a violation of due mony, attached to the affidavit she made rights.” appellant, only testimony read jury. back to the During jury deliberations the sent out a notes, number of one of which read as appellate “An may rely upon court not follows: supplement an invalid to a record decid- jury disagreement 1. The is in over the a defendant’s appeal; appellate phrasing exact of Barbara Baum’s tes- portions court is limited to those timony regard points: to two properly record which have ap- been proved.” Farris v. wording phrases a. of the three (Tex.Cr.App.1986). However, clearly. which she did hear reliance may on an invalid record if be harmless b. she phrase whether heard the appellate correctly supple- court could have got” “That’s all I’ve mented the record on its motion. own Id. i. coming from the driver’s side of 515; Armstead v. car; (Tex.Cr.App.1985). just ii. or while the two individuals standing case, were on the driver’s side of In the instant we are faced with the the car. situation where could not cure the error we reporter on our own motion. The court has appellant complains that the testimo- that she can- stated her second affidavit ny jury that was read back to the not testimony not recall she read back to what jury’s question, sufficient to answer the jury; only assumptions make she can testimony and that further from the cross- placed paper clips based on she on the examination of Baum should also have stenographic tape. Because we are unable jury. Unfortunately, been read to the from the record or the affida- to ascertain testimony record does not reflect what just testimony what was read to the vits response query. read to the to this note, error, any, response to their “(Re- merely says, The statement of facts preserved has not been for review. back)”. porter reads point first of error is overruled. objected neither error the eighth In his record, requested per- omission nor appellant complains the trial court re Ar- supplement mission to the record. See versibly failing to answer a writ 40.09(7), Instead, erred in ap- ticle V.A.C.C.P.2 ten, from the file-marked communication pellant appendix in his has included an 36.27, V.A.C.C. jury, in Article purports the two sec- violation of brief which to reveal Appellant does process.” “due testimony tions of that were read back to P. and Tex.R.App. 2. Now Pro. 55. see
407 allege wrongdoing part purposeful appellant on the written. The failed to make suggests complaint judge, that this at trial or his motion for trial but instead communication, failed, appellant trial. has some new The there- jury unex- fore, reason, this of any show Court violation plained judge. never reached Article and has failed to overcome 36.27 that there were six record shows presumption pro- regularity jury filed of record on notes from ceedings. eight is Point of error number stamp March 1983. The file on each overruled. an- reveals the time it was submitted and nine, These times swered. were follows: In asserts that the evidence is insufficient to RECEIVED: ANSWER TIME TIME RETURNED: jury’s answer to affirmative p.m. p.m. 2:50 1. 2:45 3:00 p.m. p.m. 2. 2:55 two, i.e., number that he issue will 3. 4:05p.m. p.m. 4:15 continuing society. a constitute threat p.m. 4. 4:50 5:00 p.m. 37.071(b)(2), p.m. orally appel Article Y.A.C.C.P. 5. 4:55 answered court 6. 4:56p.m. no of answer record requested counsel and was denied a lant’s It is number six com- note charge limiting consideration of extraneous plains of herein. appellant’s prior and the criminal offenses of, However, complained In the communication question record to number two. jury requested testimony ultimately gave charge judge “the Barbara trial a concerning following limiting Baum in and the cab driver words contained the which spoken by complainant or Joe Weast- struction: communications,
er.”
five
Unlike
other
You
further
that if there
are
instructed
signed by
jury
this
was not
fore-
note
any testimony
you
in this case
before
man. The record does
reflect
not
whether
having
regarding the
commit-
defendant
judge
received,
upon
the trial
ever
acted
or
ted
other than the offense al-
offenses
request. Appellant simply
answered the
indictment,
leged against
you
him in the
argues
“something
pre-
intervened”
testimony
any
cannot consider said
judge
complying
vent
trial
from
you
purpose unless
find and believe be-
Article 36.27.
yond a reasonable doubt that
defend-
offenses,
other
if
ant committed such
(Tex.Cr.
808
Pete v.
committed,
you
then
any were
and even
App.1976),this
a similar situa
court faced
in deter-
may only consider the same
Pete,
jury
tion.
had submitted
if
mining
defendant,
the intent of
request
testimony
to have the
written
any,
offense,
with the
in connection
The record
three witnesses read
them.
any,
against him in the indict-
alleged
did
reflect whether
court ever
the trial
ment,
purpose.
no other
and for
upon
request.
acted
This
answered the
added).
procedural require
(emphasis
court held
“where
appear in the
affirmatively
ments do not
objection
no
the State
There was
violated, presumption
record to have been
presume
must
instruction. We
this
Pete,
regularity
prevail.”
as directed
itself
conducted
is on the de
S.W.2d at 811. The burden
State, 642
O’Pry v.
trial court. See
Ex
presumption.
fendant to
this
overcome
portion
(Tex.Cr.App.1982). When
(Tex.Cr.
parte Stacey,
unnecessarily
charge
increases
App.1986).
proof, he should
prosecutor’s burden
correctly
which
request
specially
his failure to
contends that
him law.
placed on
the burden
allocates
point of
object
dispositive
cannot
(Tex.Cr.
S.W.2d 701
Ortega v.
notify
did not
the trial court
error because
Rehearing). Ar
(On Motion for
App.1984)
it
jury’s
request when
him of the
written
pertinent
36.15,
states
Y.A.C.C.P.
ticle
mer-
This contention is without
was made.
part:
Pete,
812. As
533 S.W.2d at
it. See
charge to
court reads
Before the
Pete,
the instant
communication
supra,
shall have
on both sides
day
jury,
it
counsel
on the
file with the others
was on
present
reasonable time to
in-
written
witness testified that on the afternoon of
*13
they
given
structions
and ask
day
the next
suggested
defendant
jury.
everyone watch the television news and
report
when the defendant saw the
of the
(emphasis added).
provides
This article
story,
laughed.
he
Still another witness
State with the vehicle to make such a re-
testified that the defendant told her that
quest.
police
“if
Regina’a
came to
[the
sufficiency
of the evidence must be
house, they better have their in-
friend’s]
given.
measured
that was
policy paid
surance
up or he would kill
State,
(Tex.Cr.
Boozer v.
them
gun
same
that he killed the
App.1984);
State,
see Benson v.
661 S.W.
with.” Id. at 602.
[victim]
Therefore,
2d 708 (Tex.Cr.App.1982).
even
though
permissible, generally,
it is
for a
case,
In the
appellant
instant
prior
to consider
criminal conduct and
apparently “rolling
Zataraus were
drunks”
deciding
pun
criminal record in
the second
nightclubs.
at
shooting,
After the
the ap-
issue,
State,
ishment
see Keeton v.
724
armed,
pellant, who was
ran when followed
(not
(Tex.Cr.App.1987)
yet
S.W.2d 58
re
Although given
an unarmed woman.
case,
ported),
in the instant
ample opportunity,
appellant
made no
instructed not to consider such evidence for
attempt
pursuer.
to shoot at his unarmed
any purpose other than the intent of the Later,
caught
when
near
in connection with the offense
bushes,
hiding
again
the scene
he
some
alleged
Accordingly,
in the indictment.
we
attempt
pursuers.
made no
to shoot at his
sufficiency
evaluate the
of the evi
evidence,
light
find the
viewed in the
We
support
dence to
the affirmative answer
most favorable to the verdict
directed
excluding
after
the evidеnce of the extrane
jury,
by the
instruction to the
insuf-
court’s
past
ous offenses and
convictions.
support
jury’s
ficient to
affirmative
Excluding from consideration the extra-
special
Appellant’s
answer to
issue two.
convictions,
prior
neous offenses
point
ninth
of error is sustained.
remaining evidence consists of the facts of
seven,
ap-
point
In
of error number
guilt/innocence
the case revealed at the
pellant alleges that because his trial coun-
trial,
phase
testimony
of two
punishment
sel failed to call five
witnesses
police
appel-
Houston
officers who said the
of coun-
he was denied effective assistance
bad,
reputation
lant’s
the testimo-
punishment phase of trial. Be-
sel at the
ny
police
one
officer
who said
disposition
point
cause of our
peaceable
inmate.
lant was a
and trusted
nine,
not address this
we need
number
murder,
“Although
this was
senseless
point of error.
every
that fact is true of
murder
ap
sustained the
Because we have
Staie,
robbery.” Roney
course of
v.
632
error,
the evi
pellant’s ninth
However,
(Tex.Cr.App.1982).
S.W.2d 598
support
jury’s
insufficient to
dence was
“yes”
answer to the second
two,
reform the
issue
we
answer
issue,
punishment
must show
imprisonment.
life
from death to
sentence
is a
beyond a
doubt that there
reasonable
(Tex.
State,
Roney
632 S.W.2d
v.
probability
would commit
punish
judgment, with
Cr.App.1982). The
would consti
criminal acts of violence that
life,
is affirmed.
ment reformed
society. Article
continuing
tute a
threat to
37.071(b)(2),supra.
ONION, P.J., dissents.
less
The facts of this case are much
CLINTON,
concurring.
Judge,
supra.
egregious
Roney,
than the facts
(Tex.
State,
717 S.W.2d
Boozer
Roney,
several witnesses testified
1986), dissenting to denial of
Cr.App.1984,
shortly
made
the defendant
statements
to file motion
motion for leave
heard the State’s
offense. One witness
after the
Judge
wrote an
rehearing, Presiding
Onion
say, “I
to kill the m-
defendant
f_before
Judges joined.
three other
opinion in which
him kill me.” Another
I let
opined
right
(Tex.Cr.App.1981)],
At the end he
that “the
result
original
as reached
submis-
panel
Benson
the Court
held that “under Sec. 36.-
...Boozer,
621, n. 3. The
supra,
sion
06(a),supra, the term
“one
‘witness’means
panel
original
decision on
“result”
proceeding,”
who has testified
an official
submission Benson
‘prospective
and does
include a
mere
”
(Tex.Cr.App.1982):
judgment
“The
Id.,
(original empha-
witness.’
at 710-711
entry
a judgment
and we order
reversed
Odom).
by Judge
sis
Id.,
us
acquittal.”
at 711. Let
then
Then, the
concluded:
Court
*14
revisit Benson.
“Therefore,
we
sustain
burglary
“in-
alleged
The offense
is
lant’s
that
adduced
contention
evidence
felony
the
offense of retali-
tent to commit
at trial
insufficient to show accused
ation;”
jury
per-
that a
was instructed
possessed
requisite
‘in
intent to act
of
“if
son commits
offense
retaliation
the ser-
for or on account of
retaliation
intentionally
knowingly
harms or
he
(Empha-
of
vices
another as witness.’
by
harm
an
another
unlawful
threatens
added.)
complainant, Mary
sis
The
Ben-
act in retaliation
or on account
for
of
son,
not,
facts of
simply was
under the
another
On
service
as a WITNESS.”
of
official
this case a witness before an
presented
appeal
ground
direct
sole
The
proceeding,
omitted]
[footnote
by
panel
sufficiency
decided
the Court
is
of
only
clearly
record
indicates that she was
of guilty.
a verdict
evidence
against
prospective
witness
her ex-hus-
agreed
facts
parties
on essential
charge.”
pending
in a
assault
band
matter, viz:
only
the only
“The
evidence and
con-
Id., at 711.
by
tention
the State as to the intent of
original
on
Thus the decision
submission
the Defendant is that he intended at the
in
that
solely
turned
on
circumstance
ex-wife,
entry to
Mary
time of
coerce his
charge
beyond indict-
its
the court went
Benson, private citizen,
drop
assault
jury
in
allegations
ment
and instructed
charges against him in which she was
service
on account of
terms
retaliation
complainant.”
by the
Measuring it
as “a witness.”
Writing
panel, Judge
for a unanimous
found
to be
charge, the Court
evidence
problem,
framed the
viz:
Odom
insufficient.2
“Hence the
before us is whether
issue
original
on
submis-
result
ultimate
private
intends
coerce ... a
one who
‘to
by
acquittal
sion Benson is
ordered
drop
charges pending
citizen
assault
for
there
no
panel,
basis
Court
possesses
required
him’
against
in-
judicial
ordering
than a
determina-
it other
felony
tent to commit
offense
re-
finding by
implicit
requisite
that
tion
narrowly,
taliation. Stated more
is this
com-
was to
intent
accused
that
‘private
complainant,’
citizen
who
not
has
Mary
on ac-
against
Benson
mit retaliation
any
proceeding,
testified
official
a ‘wit-
not
as
count of her service
witness
that
ness’ as
term is used
Retalia-
by
evidence. When
supported
sufficient
statute, Y.T.C.A.,
Code,
Penal
tion
Sec.
noted
the alternate
panel opinion
that
36.06?”
theory
as
informant”
of “service
Id., at 710.
only mean
it
“pursued,”
not been
could
has
de-
Noting
Legislature
that the
not
charge
had not instructed
that
“witness,”
ger-
upon analyzing
fined
regard.
in that
prior
and two
deci-
mane related statutes
opinion
unerringly for
stands
of the Court
sions
[Ulmer
sufficiency
of evidence
proposition that
(Tex.Cr.App.1976),
Jones
alleged
burglary as
in the indictment
throughout
ecuted
emphasis
other-
for
unless
1. All
mine
Mary
theory
Benson was
that service
noted.
on the
wise
witness," but
"an
rather than "a
as
informant"
2 the
observed
under
2.
In its note
Court
pursued
case.”
theory
in this
"was
pros-
appellant "possibly”
have
could
been
facts
here, primarily invoking
dissents
a en-
guilt
must be mea-
now
support a verdict
opinion
guilt
igmatic statement contained
authority to find
which
sured
charge
on an unauthorized State’s second motion
jury by a
is bestowed on the
Benson,
viz:
rehearing
rehearing by
motion for
State’s
court. On
on
majority the Court elaborated
a wide
charge
“We hold that when a
is correct
disposi-
conclude “the
proposition to
theory
presented
the case
we
original submis-
made on
tion of this cause
sufficiency
review
correct,” Benson, supra, at 712.3
light
sion was
most favorable to the verdict
comparing the
indictment
evidence to the
among
Judges who
Though
those
he is
incorporated
charge.”
into the
Presiding Judge
acknowl-
joined
Onion
S.W.2d,
(latter
reached in Ben-
emphasis
at 715
edging
right result was
Davis).4
submission,
Judge
Judge Davis
son
original
lodge any
"one who has testified in an official
noting
was that of
State failed to
After
3.
rather,
request
proceeding;”
accused
objection
or to
under the facts
the court’s
*15
charge
prosecuted
to em-
part
“possibly"
be amended
could have been
on the
critical
of the
party
theory
Mary
now
theory
"retaliation" that
Benson rendеred
as an
brace the
of
that
service
supported by
informant,
only
the
“the
one
contends was
evidence,”
but was not.
"acquiesced
to the
at trial
theory
presented?
and thus
the case was
So what
legal
decided,
unnecessary
the
theo-
limitation of
court’s
ry
original
it was
and also
submission
On
issue,
by
law,
established
which was not
in
to one
evidence,”
rehearing
as a matter of
the
on
we held
holding
State
party’s
and
that
"may
present
theory upon which
did not
the
evidence
lapse
consequences
of its
follows,
not avoid the
jury.
It
trial court instructed
presented,” the Court
under the circumstances
therefore, contrary
opinion on second
to the
by
panel
applied
on
the Court
restated the rule
original
charge
rehearing,
was not
for
that
motion
submission,
viz:
theory
as it
of the case insofar
for the
correct
necessarily
'guilty’
“Because a verdict
Mary
Benson was a
to find
authorized the
witness,
of that on
has found evidence
means the
to convict her exhus-
and on that basis
convict, the evi-
it was authorized to
which
band.
per-
by
charge which
measured
dence is
stated,
together
charge
Judge
with
"The
Davis
allegations,
comprehends the indictment
force
reflects the State’s
proof
indictment
and the
that if it does
It follows
omitted].
[footnote
Benson, supra,
theоry
at 715.
the offense.”
charge,
as
it is insufficient
not conform to the
opined,
appeared to all intents
"It
But then he
only
support
verdict
law to
a matter of
theory of retalia-
State’s
purposes that the
and
authorized.”
However, any such
a 'witness’."
tion involved
Court).
emphasis by
We
(Original
Ibid.
of the evidence
appearance
in the face
flies
charge, “the
given the court’s
found that
also
by
account
taken into
should have been
law that
evidence
only
in view of the
verdict authorized
Indeed,
charge.
drafting
on
its
court in
the trial
nevertheless,
that,
guilty,’”
was ‘not
suggested
panel
original
Court
submission the
seeking
opportunity to cor-
"an
was now
State
theory
only
was
"possibly”
"correct”
charge
trial court’s
the omission in the
rect
upon
was an informant.
that she
however,
concluded,
We
a retrial.”
rehearing the State
motion for
In its first
rehearing
may
not do on motion
"the State
sought
suggestion
to make
on that
seized
that the
quate
this State
and laws of
the Constitution
what
contending
was ade-
theory,
evidence
doing upon
a ‘not
prohibit
the return of
it from
allegation of
support
indictment
guilty1 verdict." Ibid.
retaliation, so
the offense
to commit
intent
long
general
to the
is narrowed
term
(Tex.
as the
State,
Recently
4.
in Fain
theory
victim is an
the intended
alternative
uncertainty as to
Cr.App.1986),
to an
I confessed
thus,
"witness;”
it
than a
rather
"informant”
argued
language
on
relied
above
intendment of the
charge
and therefore
erroneous
Fain, id.,
been
It has not
majority
at 203.
in
ultimately
We
only
error.”
"trial
today.
constituted
Judge
dissent
Davis in his
clarified
error’ of which
“no ‘trial
there was
concluded
be
presented”
may "theory
case
How
process avail
point in the
may
at
the State
prosecution, as
in a criminal
identified? Issues
...,”
result
desirable
end of a more
itself
law,
those
are
any litigation
a court of
in
in
Benson, at 712.
by evidence.
by pleadings and raised
tendered
basing
premise”
The State’s “fundamental
any
Benson,
as to
is mute
the indictment
motion
in its second
contentions
witness,
identical
servant,
public
as a
“service of another
Court, Benson,
rejected
rehearing
714,
informant;”
requires a
statute
because the
charge
perspective that
from
albeit
service,
may
inferentially
said
it
kind of such
However,
"correct,” id.,
as demon-
at 715.
tendered
allegations in the indictment
that
issue
in one or
above,
was not. More-
fact it
in law and
strated
over,
Mary
service
rendered
Benson
of whether
Fain,
opinion
my
in
However,
pointed
out
as
capacity.
the other
"[Tjhe
aban-
appears
have since
supra,
Court
capacity
her
an issue that
did not raise
offense, (citations
opin-
join
I
the elements
With those observations
omitted)
has
sustaining point
and theft
several different
ion of the
Court
elements,
charge
possible
join
judgment
nine
sets
and otherwise
theft
must set out one of those sets of
Court.
elements,
omitted).
(citations
If the
DAVIS,
dissenting.
object
fails to
Judge,
State
W.C.
in terms
elements of
theft
defines
Today
majority incorrectly
relies
receiving
property
the evi-
stolen
(Tex.
State, 661
upon Benson v.
appropriation
an unlawful
dence shows
1982)
Cr.App.
and Boozer v.
owner,
from the
the convictionshould be
(Tex.Cr.App.1984)
determin
if a
for insufficient evidence
reversed
sufficiency
of evidence to
charge.
such a
jury convicts under
finding
issue
affirmative
possible interpretation of
indict-
only
Ortega
See also
Number Two.
charge is that the State’s theo-
ment and
(Tex.Cr.App.1983). With
burglary
intent to commit
ry is
analysis,
employed
the standard first
out
by receiving
property.
theft —theft
stolen
Benson,
today
supra, is
extended from use
Therefore,
viewing
the evidence
phase
guilt-innocence
of a lesser
proper charge incorporating
of a
terms
phase of
felony
punishment
case to the
indictment,
reviewing
court would
capita] murder.
find
the evidenceinsufficient
be bound
Benson, supra, majority
of this
(emphasis
origi-
a matter of law.
prove
found the State had failed to
Court
*16
nal)
theory
involving
its
of retaliation
a “wit-
present
to the
of interest
Two matters
Although
charging
the
instrument
ness.”
First,
from
gleaned
can
Benson.
case
Benson, supra,
alleged
simply
in
the de-
charge
the
must be a correct instruction.
the intent to commit the of-
fendant had
Second,
specifically
standard of review
the
retaliation,
charge properly,
the
fense of
phase.
In Ben-
applies to the initial trial
objection,
incompletely, and without
in-
charge
a
is
son, supra,
held that “when
we
is commit-
jury
formed the
that retaliation
theory
presented
case
correct for
the
the
knowingly
is
threat-
ted where a witness
in
sufficiency
we review the
words,
other
the trial
ened or harmed.
In
by
the verdict
light
a
most favorable to
charge unnecessarily restricted the
court’s
to the indictment
comparing the evidence
complainant’s
jury’s
consideration to
(em-
charge.”
incorporated
as
into
a
See and cf.
testifying
role as
witness.
original)
in
phasis
State,
(Tex.Cr.App.
“intent
I
Benson but
authored
opin-
of that
interpretation
Judge
authorizing
con-
Clinton’s
charge
jury
Since
Boozer,
Judge McCormick’s
joining
ion in
find
require
jury
all
viction
id.,
charge,”
measuring
at 204.
particular prerequisite to
doned
sufficiency
according
of the evidence
case,
Here,
especially
appellant’s
claim insufficiency
dissent
the latter
predicated upon
error,
jury charge
also
discussion of trial error and its ramifica-
apparent
error
both
the denial of
position
here.
tions. That
remains constant
requested charge
lant’s own similar
apparent willing-
disagree
I also
usage
from the usual and technical
to eliminate
plurality
ness of a
of the Court
charge
guilt-innocence phase
at the
of trial
allega-
of an indictment
consideration
punishment phase
rather than at the
analysis,
sufficiency
for it is
tion
appeared
trial as it
here. Under the stan-
charging
that the state’s “theo-
instrument
State,
dard enunciated in Almanza v.
su-
presented,
ry
is first
and it is
of the case”
pra, proper analysis
result in a
would
find-
only
incorporation
of the indictment
ing by
this Court that
was not
charge
allegations in the
that a Benson
Fain,
harmed. Just as we decided in
su-
analysis gains
sufficiency
credence.
pra,
jury
there “could not have
(Tex.Cr.
Fain v.
prior
the evidence of the
con-
both believed
App.1986)
majority
a case not cited
commission, and,
victions and their
at the
today,
presented
the issue
was much closer
time,
same
have found that
second of-
the instant case in that
Fain
fense
not committed after the first
complaining
in
evidence was
final,”
they
though
became
even
were so
finding
of “true”
sufficient
instructed,
here the
could not have
punishment
count at the
to an enhancement
appellant’s
both believed the evidence
phase.
appeals
court found that a
prior extraneous offense and found those
mechanical error had occurred which “did
appellant’s
probative
offenses
future
indictment,
comport
the evi
with the
simultaneously,
dangerousness, and
have
or common sense” and treated that
dence
merely proba-
found those offenses to be
insufficiency
appellant’s claim of
commit the
tive of
intent to
error. Fain v.
they
underlying
of which
had al-
offense
1984).
(Tex.App.
8th District
Be
guilty.
ready found him
Both instructions
object
did not
cause
juries
effectively
respective
to do
asked
*17
trial,
appeals
analyzed
court
charge at
the
being
impossible,
only
here
view
the
according
requirements
case
of
the
intent to
offenses to determine
extraneous
(Tex.Cr.
State,
157
Almanza v.
offense,
The fact that
any.”
commit an
“if
App.1984) (opinion on State’s motion
by appel-
had been committed
the offense
error did not
rehearing) and found that the
by the verdict of
already
lant
decided
was
reversal.
require
implied
incorrectly
guilt. The instruction
finding.
this
jury
was to re-examine
Fain,
here,
the instruction
as
evidence, brought and
undisputed
case
theory
incorrect “for
parties,
jury
both
discussed before
Benson,
first
presented.”
supra. We
See
long history of
appellant had a
showed that
443 U.S.
Virginia,
that in
v.
noted
Jackson
offenses,
more than
prior criminal
some
(1979),
61
560
S.Ct.
L.Ed.2d
appellant’s vio-
demonstrating
adequately
Supreme
that its “ra-
made clear
Court
jury
attitudes.
and
lent tendencies
of
trier оf
standard for review
tional
fact”
into considera-
taken
could not have both
first,
evidentiary sufficiency assumes
priors to
appellant’s
evidence of
tion the
properly instruct-
the trier of
has been
fact
response to
an affirmative
determine
second,
ed
whether the record
and
followed the
special issue and also
second
guilt
finding of
reasonably support
could
given,
the determina-
instruction as
since
Looking at the
beyond a
doubt.
reasonable
made. Given
guilt
already
been
tion of
Fain,
appellant’s
we said that
claim
shown, appellant
totality
of evidence
constitute val-
presented
claim as
did not
See
been harmed.
cannot be said to have
and con-
of insufficient evidence
id claim
State, supra.
Fain v.
Appeals did not
of
Court
cluded
alternative,
de-
the Court
predicate
In the
should
addressing instead the
err
State,
of the Benson
attempt application
cide to
charge
Fain v.
jury
error.
claim
to the indict-
a reference
standard without
supra, at 202.
capital offense,
committing the instant
in a
using
special
merit
instead
issues
and
by gauging
sense
incorporation
broader
submitted as the basis for
question
night
vis-a-vis his
intent on
determination
first
charge,
be
giv
propensity for future violence. It
charge.
the correctness of the
made
may
the circum
en that the
review
State, supra.
charge
If the
See Benson v.
capital
itself
de
stances of the
offense
restrictive,
unnecessarily
is correct
also
but
proper response
is
termining a
changing the
increasing or
State’s burden
State,
sue
Keeton v.
lent properly conduct evidence before jury. non-testimonial, This physical ev- admitted objection
idence without and dis- during closing argu-
cussed both sides purview was not
ments excluded from limiting instruction, although any testi-
mony relating packets could objection
considered. Since there was no
to the records themselves and because appellant, through attorney, acknowl- offenses, edged the we are not concerned
with how connected packets connecting or whether such testi-
mony through limiting was excluded
instruction.
Lastly, I disagree majority with the at-
tempting to turn appellant’s subsequent into “mitigating” sup-
conduct
port reformation of just sentence. The pur-
fact that an individual from his hides violently po-
suers or fails to confront attempted mitiga-
lice when arrest no already
tion perpe- heineous conduct Roney I also trated. believe that (Tex.Cr.App.1982) is distin-
guished appellant, on its facts and that perhaps demonstrating
while an attitudinal *19 offense, way
coarseness toward the in no
approaches the cold and calculated violent perpetrated by appellant
conduct Marras evening ques-
on several individuals that
tion. reasons, respectfully
For these I dissent. JJ., WHITE, join.
McCORMICK