Martinez v. State

tion, compliance determining with section

42.08, to “set such terms and conditions may reasonably

any grant of relief required by the circumstances.” Tex. Tax 42.08(d). § The trial courts should Code instance, presented if

determine the first party, proper motion of whether be im- should terms and conditions posed of these under the circumstances

eases. reasons, hold that foregoing

For 42.08(b)(1), prong of section second right provides taxpayers forfeit timely pay judicial they do review if imposed against property in the taxes facially previous year, open violates provision of the Texas Constitution. courts modify judgments of the court of We appeals and remand these causes to trial proceedings

courts for further consistent opinion. with this J., BAKER, participate in the did not decision.

Johnny MARTINEZ, Appellant, Joe Texas, Appellee. STATE

No. 71818. Texas, Appeals Court Criminal En Banc. May Rehearing Denied June

Looking at light the evidence in the most verdict, to jury’s favorable the record following Appellant reveals the facts. took guilVinno- on his stand own behalf at the phase According appellant, cence trial. to Kingsville he and a friend left around 5:15 14, 1993, p.m. July headed toward Corpus They way stopped Christi. on the buy out of 12-paek town of beer and began drinking they it. After arrived Corpus, evening, and over the course stopped pair nightclubs at a number allegedly multiple consumed alcoholic They joined by drinks.2 were soon a third person. yet The trio was headed to another they club when met a man named Ernest engaged Wortmann and him in conversation. Jones, Christi, join Corpus Wortmann decided to trio at appellant. Grant the next However, nightclub. having Wortmann was Rosenkild, Atty., James D. Asst. Dist. Cor- trouble, appellant car so with him in rode Christi, pus Huttash, Atty., A. Robert State’s way. By case his car broke down along Austin, for the State. bar, group the time the closed the last down

appellant had allegedly twelve consumed thirteen alcoholic drinks. According appellant, group then de-

OPINION park to a go Ap- cided to on North Beach. MEYERS, pellant Judge. again rode with Wortmann and the two at a 7-11 stopped convenience store Appellant, Johnny Martinez, Joe was con- working early where the deceased capital January, victed of murder in 1994.1 July Upon morning arriv- shift 1993. 19.03(a)(2). § During TexPenal ANN. Code 7-11, ing at the Wortmann entered the store punishment phase, jury affirmatively telephone. and asked use the Wortmann special answered the issue set in Texas forth apparently went then back outside and told Code of Criminal 37.071 Procedure art. appellant that the car to cool needed down. 2(b) § negatively special answered the Appellant suggested go two that the to the 2(e). § issue set forth in Article 37.071 beach, entered but the store first use the judge trial sentenced as store, leaving appel- Before restroom. required by Texas Code of Criminal Proce- security lant and Wortmann are seen on the § dure 2(g). appeal art. 37.071 Direct videotape shoplifting items. several Back automatic. Tex.Code art. CrimPROCANN. outside, appellant engaged Wortmann 2(h). § 37.071 will affirm. We allegedly conversation Wortmann told Appellant points six He raises of error. recently prison that he was out of challenge sufficiency does not of the evi- robbing Appellant jokingly sug- stores. support jury’s finding

dence to verdict- gested standing that he rob the 7-11. While However, guilty capital car, him murder. easy the two how discussed does store, contend the evidence is insufficient would be to rob the so decid- that, affirmative to the Appellant answer it. ed to rob testified while knife, normally carry issue on We did not he had points they evening. will presented address the are with him that He stated small knife to us. that he entered the store with intent to July, Appellant any- 1. The crime was committed in testified that he had eaten thing prior trip and that he did not eat nightclubs. food at the Upon crime. arriv- only in the store money, to use convenience steal but intended hotel, lobby ing at the officer entered the knife to scare the clerk. on a couch appellant-sitting and observed appellant re- videotape depicted then security guards. Kures- presence of two ap- entering is shown store. very ka trial that testified something

parently asking the deceased for with- quiet and seemed somewhat calm and partially turned and when the deceased appellant coopera- Kureska said was drawn. away, grabbed the appellant him around appear to the tive did not be under and put Appel- knife neck and the to throat. employee and of alcohol. A hotel influence lant the around the then forced deceased security confirmed guards of the also register one counter and into the cash area. appear not to have the appellant appellant

video that had one arm that did revealed hotel a hold around the neck and on his breath. The choke deceased’s smell of alcohol pressing the the appellant’s his other hand knife into employee that further noted opened deceased the sandy During deceased’s throat. The appear not or wet. did clothes money. register appellant cash and took station, police appellant asked trip to Appellant approx- then stabbed the deceased Ilse, I guy “Is the stabbed dead?” Officer imately two or three times the de- before to police appellant At was taken station on the ceased fell facedown and motionless into a room he came contact with where into Appellant floor. then thrust the knife Sergeant R.L. Garcia stated that Garcia. be- deceased’s back several more times angry told that appellant was and the officer exiting fore the store. a man and wanted to talk to he had stabbed deceased, why When asked he stabbed Garcia that this was officer “now.” noted answered, appellant “I don’t know. That’s demanding said in an insistent and tone. question I will never able to answer.” He interview, However, appel- during the actual said that he did not intend kill the de- to understanding. cooperative lant was fact, jury he that ceased. told he did help to Appellant attempted even officers stabbing not even remember the deceased as locate he had used to stab the store the knife many did.3 times he appellant clerk. noted that did smell Garcia Appellant jury got further that told he alcohol, appellant but he did not believe stabbing just scared after the started was intoxicated. beach, running. He stated that he ran to the knees, got down on his hands and and start- trial, punishment stage At the State crying. ed sure He testified he presented Appellant, no additional evidence. knife, what he did with that he but friend, hand, time long on the other called shortly Appel- himself in turned thereafter. Rodriguez, testify appellant’s to to Verna jury lant also admitted that he had lied However, Rodriguez non-violent character. about several remarks he made his state- grew up in a also told the police.4 ments to neighborhood frequently got in violent disputes people argue would stabbing, A with which he short while after the Police According appellant’s younger Sandy verbally. dispatched Officer Kureska was Martinez, brother, appellant dropped David Shores Hotel reference an individual joined grade5 police saying who called the he was involved out school the 10th conflicting 3.According given testimony Appellant is have from the medical exam- shown to iner, to the exact statements different times as received two stab wounds deceased neck, of events after he exited the store. course one, both of which were fatal. Each wound driving slowly in order for pierced Wortmann artery causing the deceased to lose another, car, jump him to into the while great very period in a time. deal blood short Plus, went run- ap- Wortmann had taken off top wound to the of the shoulder one ning after him. peared irregular in that it could have somewhat by twisting been caused of the knife or more having prob- than Defensive cuts that he was not one blow to same area. testified school, skip just apparent preferred to school were the deceased’s lems in scratches Christi, died, Corpus eventually go down so he Before the deceased he was able hands. dropped call out. for an ambulance.

job training program, but money. never had received the clerk Another tes- program. finished the also Martinez recalled victim tified trial had his hands that his in a brother was involved school raised when was shot. In Beltran fight. Finally, county jail coordinator (Tex.Crim.App.1987), 728 S.W.2d 382 jail any “signif- testified that did tortilleria, during robbery of a the defen- problems appellant. icant” The coordi- immediately dant shot the victim after she appellant’s jail nator in- stated record money him handed from the cash drawer. write-ups including cluded three minor instances, acknowledged each of these “disagreement” guard. with a killings that the were senseless and unneces- However, sary. we nevertheless held the error, In his point first circumstances offenses were not so contends that the to evidence was insufficient prove brutal as in of to themselves that support jury’s affirmative answer to the any posed of a the three defendants continu- dangerousness. issue on future In Dinkins, society. ing supra. threat See reviewing sufficiency the evidence punishment, well-settled that we is The in the circumstances instant ease are light in view the evidence most favorable distinguishable from these In each of cases. any to the verdict to determine ra whether cases, gun the above the defendant utilized a fact tional trier of could have made the find to commit murder —an which can instrument dangerousness beyond a future reason potentially be used from across a room or at State, able doubt. Barnes v. 876 S.W.2d very range a close often results — denied, (Tex.Crim.App.), 322 cert. shot, resulting single from a even if not —, (1994).6 S.Ct. 130 L.Ed.2d State, well-aimed. Warren v. 562 S.W.2d See may The of the circumstances offense alone (defendant (Tex.Crim.App.1978) entered be sufficient sustain the affirmative unarmed, unexpected- home but when owner dangerousness. answer to the issue on future defendant, home, ly pulled found a came State, (Tex.Crim.App.), Dinkins v. “just eyes gun, defendant shut his — denied, U.S.-, t. cer shot.”). case, present In the the other on (1995). may It S.Ct. 133 L.Ed.2d hand, appellant’s a weapon of choice was helpful in the instant ease to examine those which, by very weapon knife —a of its virtue cases which we have found the evidence nature, to be in such forces user close However, we that insufficient. note each proximity to his victim that he is often touch- ease must be resolved on its own facts. Id. ing him or contact him comes into on Furthermore, (Tex. each blow. the character Keeton weapon is such that several thrusts are Crim.App.1987), gro defendant entered and, in order to ensure death —each often utilized cery warning, shot store without a clerk indicating potentially additional thrust and fired at store owner. He then went juror personal that act re- rational such both behind the counter and stole of the disregard quires a Roney wanton callous purses. victims’ Dinkins, (evidence supra (Tex.Crim.App.1982), the human life. S.W.2d 598 defen Cf. dant, dangerousness found sufficient where provocation, grocery future without shot extremely during robbery, victim was shot close store clerk but after one twice permitted age personal jury to look at the defendant's circum- is several factors 5. 6. dangerousness including, offense; its review future at the time of the stances to: but limited acting whether the defendant was under 6. offense, capital 1. the circumstances duress or the domination of another at the including the state of mind and defendant’s offense; of the time working or with whether he was alone other evidence; psychiatric 7. parties; character evidence. 8. 2. the calculated nature of the defendant’s Barnes, Keeton, supra. supra.; These factors are acts; helpful evaluation of the in this Court's also forethought and deliberateness exhibit- dangerous- sufficiency evidence future execution; by ed the crime’s ness. record, prior the existence of criminal crimes; prior severity and the However, day. inexplicably held kneeling sitting). or range and she was either might jury have case, the inferences that present in the which was Also instant cases, and the defendant’s this behavior drawn from present in the aforementioned not sufficient comments were lying here was the fact the deceased to the issue jury’s affirmative answer floor most of the knife facedown on the when A could wounds were inflicted. rational showing this a wanton and cal-

perceive as decision, Notwithstanding Smith disregard for human life. lous ease is distin- in the instant series events scenario, guishable. In the current evidence A different conclusion could be drawn in the record that and Wort- exists (Sam by holding comparing herein our 7-11’s, different mann went two three mie) (Tex. Smith v. 779 S.W.2d 417 supposed ostensibly they were because case, Crim.App.1989). friends, their but were not reconnect with committed murder in the course of a sexual happen. quite this was While sure where assault. the case showed interpreted neutral this could been spraying several that the defendant had been jury, jury could a rational behavior time, point At apartments for insects. one they looking have inferred were also yardman hope confided to a “that Furthermore, robbery. commit a place to spraying apartments while he was there that he and Wortmann admitted in, maybe girls that one these live that easy it to how would be commit discussed get lucky he would of them would one obviously robbery they a dis- where were— lay him want to when he went inside the Then, illegal activity. with the cussion of gain apartment spray.” to Id. at 420. After using his knife intention to admitted ing entry apartment, to the deceased’s clerk, appellant threaten or scare the entered defendant tied the deceased to headboard robbery. upon committing intent the store sexually of her bed and assaulted Id. at her. jury Again, rational could have concluded then He untied her and stabbed her an an intent to use that this manifested fourteen times in chest and back. deadly weapon admittedly potentially confession, explained: written disregard a total for the sanc- could evidence her, raped “After I I to kill her decided tity of human life. crazy kind of went for a few minutes.” Id. Finally, testimony in was offered while pathologist presented A testimony forensic might why the Smith as to defendant attempting to account for this latter behav times, many victim so no such stabbed his explained jury ior. He to the that when a given present in explanation was case stabbed, person bleeding he starts inter appellant’s simple except for statement nally. oxygen- This then causes less blood why de- did not know he stabbed the poor go resulting to blood to the heart ceased. physical heart failure and other manifesta person making tions like the odd noises and above, to the the State also addition A foaming might at the mouth. defendant that, not have an showed while did engage “over-kill[ing]” then in a behavior of adjudicated history apparent of criminal be- attempt body stop anas to make the victim’s havior, intentionally habitually dis- reacting in this manner. obeyed such as his the law with behavior (and frequent) underage apparently blatant We noted in Smith that the defendant’s ly- drinking shoplifting. His actions “hot-blooded nature” and the fact that he police about the actual events with, looking for someone to have sex complete disre- the crime likewise show coupled presumption that the defen- authority.7 for spect the law offense, eventually sup- dant did commit stabbing it- ported an defendant the brutal facts inference Given self, majority including actually searching potential “victims” on the fact punish- Finally, psycho- such mine a affirmative answer to the while other evidence as Dinkins, logical presented, testimony was the absence ment issue (and therein). automatically cited of this evidence under- cases does the knife thrusts were into back (Tex.Crim.App.1995). Points of error two -victim; already conflicting fallen testimo- and three are overruled. why

ny as to decided commit a point four, appellant of error claims the robbery; number lies that he told the grant trial court refusing erred in police; apparent disregard and his for the request mitigation special submit the issue authority; law and we conclude a ration- only jury jury to the event the an- jury beyond al could have determined a rea- swered issue number one on future sonable doubt that would be a con- dangerousness in Dinkins, Appellant the affirmative. tinuing society. threat supra. claims that

Point of this was a error one is violation of “the Due overruled. Process Clause of the United States Consti- Appellant complains in his second and right tution and the to effective assistance of points third of error that the trial court erred guaranteed by counsel as [sic] Article refusing charge submit a United Appellant States Constitution.” cites person guilty capital that a found murder authority no proposal. for his holdWe and assessed a life sentence must thir serve point inadequately be multifarious and (35) ty-five years becoming calendar before briefed, presenting nothing thus for review. eligible parole. alleges He that this was 74(f). Tex.R.App.Proc. Point of error four is Eighth in violation of the and Fourteenth overruled. Amendments to the United States Constitu Appellant tion. primarily relies on Simmons point avers five that Carolina, v. South 114 S.Ct. refusing the trial court erred in to define the (1994), 129 L.Ed.2d 133 authori word charge. “militates”

ty- disagree. We Words are not statutori (Robert) State, Smith v. 898 S.W.2d 838 ly given defined to be are their usual mean — denied, (Tex.Crim.App.), U.S.-, cert. ings and specific required. no instructions are 131, (1995), 116 S.Ct. 133 L.Ed.2d 80 similar State, (Tex.Crim.App.1994), 846, v. Garcia 887 859 S.W.2d presented issues were to this Court. Pursu — denied, U.S. —, t. cer presentation issues, ant to the we those (1995). 1317, 131 115 S.Ct. 198 “Mi L.Ed.2d engaged in a comprehensive discussion given litate” is such word that can be its Simmons as it in relates the law Texas. ordinary meaning. Point of error five is parole

We reiterated that traditionally is not overruled. jury a matter for consideration in a Texas trial, thus,

capital murder it is not error for trial court to testimony refuse to admit con six, point related con cerning parole. See Jones v. 843 denying that trial tends the court erred in 487, (Tex.Crim.App.1992), 495 cert. request to word substitute the “militates” for denied, 1035, 1858, 507 U.S. 123 S.Ct. “mitigates” paragraph the term four of the (1993). Further, “absolutely L.Ed.2d 479 punishment charge.8 argues that rejectfed]” premise the has Simmons word, statutorily used, the as it is communi parole eligible been extended to defendants. message opposite cates that.intended. Smith, such, S.W.2d at As we hold appellant phrases As it: requested the instruction which is the “mitigates” word with Use subject points of these was appropriately re phrase “against imposition of the death Smith, by supra. Ap fused trial court. penalty” negative creates a double

pellant given has us no reason to revisit our analysis tells the with provided of Smith or us consider softening tendency why reason Smith not a view toward their not should control give case. See Broxton v. penalty 909 S.W.2d 912 the death rather than a Paragraph mitigates four reads as follows: offense militates or against imposition penalty. You shall consider all evidence submitted to the death you during the trial whole as to defendant’s [Emphasis added.] background or character the circumstances by high “cru- give service rendered lessening desire to ... The view toward their punishment clause of and unusual” penalty. el the death require legisla- is to Eighth Amendment original.] [Emphasis are even- penal laws that to write tures brief that Appellant concedes nonarbitrary, nonselective, handed, essentially tracks the trial court’s instruction to it that require judges to see of Crimi statutory language of Texas Code se- sparsely, not applied are general laws 2(d)(1). § 37.071 Fol nal Procedure article groups. unpopular lectively, spottily n n n Texas n is set out lowing law ‡ * Legislature deemed error on the will discretionary statutes are unconstitu- ... part judge. of a trial See Riddle They preg- are operation. in their tional 1, (Tex.Crim.App.1994), cert. de discrimination and discrimina- nant with —nied, -, U.S. S.Ct. ingredient compatible with tion is an (1995) (A jury charge L.Ed.2d 563 protection of laws equal the idea language particular statute is tracks the implicit the ban on “cruel issue). statutory Ap charge on proper punishments. unusual” point is overruled. pellant’s sixth of error Id., 256-257, 92 at 2735 S.Ct. error, Finding no we affirm the reversible J., concurring). (Douglas, judgment of trial court. Texas, 262, 96 S.Ct. In Jurek v. 428 U.S. (1976), the 49 L.Ed.2d 929 United CLINTON, J., dissents. the constitu- Supreme States Court reviewed capital sentencing tionality of the Texas BAIRD, Judge, concurring part Texas, following Branch scheme enacted dissenting in part. L.Ed.2d 346 S.Ct. guilt/innocence I agree that no error (1972). holding passed our consti- scheme phase trial was sufficient to warrant rever- muster, Supreme Court stated: tutional However, I appellant’s sal of conviction. dis- By judicial providing prompt review appellant’s agree with the resolution of first state- decision in a court with punish- point of error which relates to the jurisdiction, provided Texas has wide Accordingly, I phase ment of his trial. would evenhanded, ration- promote means to conviction, appellant’s affirm but reform his al, sen- imposition death and consistent imprisonment. punishment from death to life system this Because tences under law.

of death serves to assure that sentences

I. “wantonly” “freakishly” im- or will not be posed, it does not violate the Constitution. A. U.S., 310, 92 Georgia, 408 at Furman v. (Stewart, J., S.Ct., concurring).1 2762 at punishment The “cruel and unusual” clause Eighth prohibits death of the Amendment Jurek, 276, 96 at 2958 428 U.S. at S.Ct. juries by whose discre- sentences assessed Furman, 310, 92 at (citing 408 at S.Ct. U.S. by guided legislatively tion defined is 2762). Georgia, v. 408 standards. Furman U.S. B. (1972). 238, 2726, 33 L.Ed.2d 346 92 S.Ct. punishment responsibility of this Court It is the Douglas explained

Justice death verdict to ensure the regulate guide nor review statutes which neither arbitrarily capriciously or penalty was not punishment are determination doing, In so imposed.2 unconstitutional. unlesg Arbitrary is as: emphasis supplied indi- 2. defined

1. is otherwise All cated. Depending and not on individual discretion Every penalty directly case reviewed death is law; by resulting by from marked fixed See, 5; and, V, by § Court. Tex. Const. art. tyrannical exercise unrestrained and often 2; 4.04, § art. art. Tex.Code Crim.Proc.Ann. coming seemingly at power; existing or about 2, 37.071, (h). § ... 701, we must remember that “death (Tex.Cr.App.1992). is If the evidence punishment different from all other sanc persuade insufficient a rational fact tions in kind than degree.” finder, rather Wood the fact finder necessarily acted arbi- Carolina, 280, son v. North 428 U.S. 303- trarily capriciously. 304, 2978, 2991, 96 S.Ct. 49 L.Ed.2d 944 Generally, challenges to sufficiency (1976). Because uniqueness of the of the support the evidence to penalty the death are death penalty, respect fundamental hu challenges punishment couched in is- manity underlying Eighth Amendment asking sue whether there is a probability requires consideration of the character the defendant would commit criminal and record of the individual offender and acts violence that would constitute a con- particular circumstances of the offense tinuing society.3 threat In Keeton v. constitutionally as a indispensable part of 58, (Tex.Cr.App.1987), 724 S.W.2d process inflicting penalty of adopted a non-exclusive list of factors to Id., 304, death. U.S. S.Ct. challenges consider when the defendant 2991. constitutionality our capital sufficiency of the sentencing depends upon scheme the sen- dangerous- affirmative answer to the “future ability tencer’s to consider aggra both the ness” issue. vating mitigating and the circumstances of capital 1. circumstances of- 302, Penry Lynaugh, a crime. v. 492 U.S. fense, including the defendant’s state of 316, 2934, 2945, 109 S.Ct. 106 L.Ed.2d 256 mind working and whether he was alone or (1989); Brown, 538, v. 479 U.S. California parties; with other 541, 837, 839, 107 S.Ct. 93 L.Ed.2d 934 (1987); Texas, 262, 271, Jurek 2. the calculated nature of the defen- (1976). 2950, 2956, acts; 96 S.Ct. L.Ed.2d dant’s 321, (Tex.

Wilkerson v. 881 S.W.2d forethought 3. and deliberateness ex- omitted.) Cr.App.1994). (Emphasis execution; by hibited the crime’s reviewing When sufficiency of the evi- prior 4. the existence of a criminal rec- penalty, dence sustain the death we em- ord, crimes; severity prior and the ploy the standard announced in Jackson age personal 5. defendant’s cir- Virginia, S.Ct. offense; cumstances at the time of the (1979); 61 L.Ed.2d 560 if we determine acting whether defendant was un- evidence, light when viewed in the most der duress or the domination of another at verdict, favorable to the persuade would offense; time of the commission of the rational punish- trier fact to answer evidence; and, psychiatric way impose in such a ment issues as to penalty. Joiner v. 8. character evidence. capricious guilty party random or chance or as a find the defendant as a under act 7.02], unreasonable will. §§ Code [Tex.Penal Ann. 7.01 and (10th 1993). Dictionary Merriam-Webster ed. 59 actually whether caused the Capricious is as: defined actually death of the deceased did not or cause sudden, impulsive, seemingly A unmoti- the but the deceased intended to kill action; unpredictable vated or a notion sudden anticipated or or the deceased another that a change disposition things condition a to do human would be life taken. impulsively. jury finding If the returns an affirmative to each Webster, at 169. (b) issue submitted under subsection shall an- 37.071, following the pro- § 3. swer issue: Tex.Code Crim.Proc.Ann. art. 2 Whether, taking vides: into consideration all of the evidence, (b) including the circumstances of the presentation On the conclusion of of the offense, evidence, following the court shall submit the the defendant’s character back- jury: ground, personal culpability issues to the and the moral (1) defendant, probability a whether there is that the mitigating the there is sufficient would commit acts criminal vio- or circumstance circumstances to warrant that defendant continuing lence that would constitute a threat imprisonment a sentence of life rather than a society; imposed. death sentence be (2) charge jury in cases in which the at the guilt stage permitted jury or the innocence

701 however, note, Keeton, State, 61; that Hawkins v. tims. We S.W.2d at Dinkins 724 and, State, 65, 330, (Tex.Cr.App. 82 (Tex.Cr.App.1995); 660 S.W.2d 358 v. S.W.2d 894 State, 929, 1983) 934-935 other evidence Vuong 830 S.W.2d was substantial v. there (Tex.Cr.App.1992). dangerousness. While the absence offuture might render aggravating factors certain Therefore, Smith, the act 779 S.W.2d at support an affir- insufficient to the evidence sup- must reconnoitering the store dangerousness” the mative answer to “future of fu- ported by other evidence “substantial issue, pres- overwhelming the Ibid. dangerousness.” ture may. Barley mitigating evidence v. ence Second, dis- majority appellant’s finds the State, (Tex.Cr.App.1995) 906 S.W.2d accomplice, robbery with the cussion the JJ., (Baird, Maloney, concur- Overstreet Wortmann, as indicative of future Ernest ring) v. S.W.2d (citing Wilkerson Smith, defendant, in dangerousness. (Baird, J., dissenting)). In other bystander, with a discussed conversation words, our which are review factors prior having apartment an resident sex with present in the ease under review and their Smith, rape and murder. S.W.2d mitigating/aggravating value determines jury at a rational need- 421. We determined jury arbitrarily capri- whether the acted just “hot- more than the discussion of a ciously. ed finding act to warrant of future blooded” II. dangerousness. Id. majority holds five of Keeton fac- Third, majority argues appellant’s en- finding “future support tors rational tering the the intention of commit- store with Ante, dangerousness.” finding robbery supports a of future ting First, jury majority holds a rational could However, majority does appellant reconnoitering have inferred was mur- argue appellant the store to entered looking place store for a convenience der the victim. The uncontroverted testimo- Second, robbery. commit a dis- ny appellant’s only intent established committing robbery cussed ac- victim; entering upon rob Third, complice. the con- entered store, no convenience had desire to robbery. commit venience store to harm the victim. As we stated Smith: Fourth, explain why appellant failed to repeatedly Finally, Moreover, victim was stabbed. forethought may whatever have majority argues appellant habitually and bla- evidently did not gone into offense tantly disobeyed law, is, therefore, murder, defendant’s] include since [the dangerous. only kill his confession shows he decided to completed, rape victim majority’s analysis directly Keeton after contrary the rec- there are no indicia in authority. our contradicted decisional ord. rational, First, majority argues could inferred the was recon- Smith, (citing S.W.2d Huffman commit noitering the convenience store to (Tex.Cr.App. in- the crime. We have held such evidence 1988)). finding of future dan- sufficient Fourth, pre- majority argues appellant gerousness. Smith explain multiple no sented (Tex.Cr.App.1989), we discussed majority argues stabbing of victim. The “looking around” relevance defendant’s very of circumstances this offense are the anticipation in a crime and its an area of gruesome a cold-blooded and indicative of effect on future Id. Smith, disregard human life. In we stat- for It [defendant's is true that hot-blooded ed: nature, coupled presumption [de- with the senseless, eventually killing was unneces- the instant ... That a did commit fendant] invariably offense, supports sary does not an inference that on the and cold-blooded second day justify answer the returned to the residence [defendant] affirmative potential vic- issue. reconnoitering he was Smith, Keeton, 421 (citing 779 S.W.2d at majority tors considered are contra- 63-64). at by controlling precedent. dicted Because the majority proper fails conduct a Keeton

In Roney v. 632 S.W.2d analysis, I shall. (Tex.Cr.App.1982), purpose we held the in stage capital murder cases As noted earlier we review evi- must provide is to a reasonable and controlled .light dence most favorable penalty decision whether the death should verdict to determine whether rational imposed, guard against capri- and to its affirmatively trier fact could have an- arbitrary cious imposition. and Ibid. dangerousness” punish- swered the “future offense, To hold the facts of this beyond ment issue a reasonable doubt. alone, standing would such a ver- Joiner, 825 S.W.2d at 703. We must review dict, virtually every would mean that each Keeton factor to ensure the sentence robbery murder in the course of a would arbitrary capricious.4 not To assist in penalty. warrant the death Such a con- determining whether the facts in the instant destroy purpose struction would may were case sufficient we also look to punishment stage in capital murder present other cases where the State failed cases, provide which is to a reasonable Keeton, sufficient evidence. S.W.2d at and controlled decision on whether death penalty imposed, should be guard against capricious arbitrary its Offense, A. Circumstances imposition. Acts Calculated (Emphasis original.) Ibid. Though the Forethought senseless,

instant murder was that fact is first, The second and third Keeton factors every true of murder the course of a require offense, consideration of the circumstances of robbery. standing The facts of this offense, alone, capital carry the calculated nature of do not marks of calculated crime, forethought the defendant’s acts and the and cold-blooded which are vital to imposition Jurek, penalty. 428 deliberateness exhibited in the crime’s execu- 2950; and, Roney, at 96 S.Ct. at tion. 603; O’Bryan 632 S.W.2d (Tex.Cr.App.1979). Conse- quently, majority’s upon reliance this fac- 15, 1993, July drinking On while misplaced. tor County several bars Nueces met Wort- Finally, majority argues appellant ha- mann, who drove convenience bitually blatantly disobeyed the law. nothing store. had to eat However, the State introduced no evening and consumed in of thir- had excess any prior appellant. criminal convictions beverages. teen alcoholic While at the store The habitual and blatant ma- violations the money, Wortmann discussed his need for

jority appellant’s underage refers to are drug prior addiction criminal record drinking shoplifting; such misdemeanor robbery. Both Wortmann and they nor offenses are violent nature do robbing easy discussed the victim and how constitute a trend toward violence on the be. After this conversation could Barley, part appellant. at 39 entered the store and committed rob- (Baird, JJ., Maloney, Overstreet and concur- bery. (Offenses ibid., ring) listed at n. were appellant pos- evidence shows indicative that defendant would constitute pocket sessed small knife with society.). danger to the victim into surrender- intended scare

III. However, money. course robbery, eight majority’s analysis all the victim stabbed fails to consider Furthermore, knife; appellant’s four the Keeton factors. those fac- times non-fatal organization economy grouped 4. the interest of and I several of the Keeton factors. char- back, “aberration or evince an and the heinous in the

wounds were located “dangerous” as alone peculiarly so neck which acter” were fatal wounds located response to the justify an the victim bleed death. caused affirmative special issue. second appellant the murder tele- Soon after omitted.) Hotel police (Internal surrender. secu- phoned the such We held cites Ibid. appellant appeared “tired and rity testified the death insufficient to warrant evidence station, way police to the drunk.” On penalty. Ibid. pull so he appellant officers to over asked first, Smith, holding in light of our arresting vomit. The officer de- could militate and Keeton factors second third “very cooperative” as and appellant scribed dangerousness. against finding of future happened.” Officers “concerned about what “very appellant upset” and “re- described Criminal, Psychiatric B. Prior he fur- morseful” as confessed. Evidence and Character recover the police efforts to ther assisted fourth, eighth Keeton fac- The seventh weapon. murder appellant’s prior require tors consideration any severity, criminal record its 2. psychiatric or character evidence. the crime The evidence does not indicate one cause death of the calculated to demon- victim. The uncontroverted evidence appellant entered the store with the strated presented appellant trial Evidence show victim, kill him. intent to rob the not to Appel- prior convictions. no criminal had why ap- stabbed the victim When asked youthful testimony at trial indicates his lant’s expressed killing pellant remorse prior to the offense. drinking shoplifting question “I I don’t know. That’s a stated: appel- county jail coordinator testified The Additionally,

will never able to answer.” problems at significant lant caused no voluntarily himself to surrendered jail, minor infrac- though he did have three attempted to aid them authorities possession infraction was tions. first finding weapon; murder all of which cell, being in lighter in his the second for against finding danger- militates of future third for a location and the unauthorized ousness. guard. disagreement awith Smith, 779 S.W.2d at During punishment all the State re-offered apartment complex spray the entered an guilt/innoeence phase of from the evidence apartments with and in the course insecticide trial, presented no further evidence. attacked, doing repeatedly raped and so presented nor Neither State apartment. The stabbed the victim in her during the Addi- psychiatric trial. evidence I defendant confessed and admitted: “After any tionally, the to introduce State failed raped her I kill and kind of decided to her during punishment, nor character evidence crazy for a minutes.” The defen- went few evi- introduce character did the State brutally explain why dant was unable dining guilt/inno- dealing dence with violence The defendant stabbed the victim to death. introduced character cence. from bed she had untied victim where non-violent nature. The raped to stab her proceeded and then been cross-examination, did elicit during fleeing times before the scene. We fourteen appel- testimony physical confrontation multiple stabbings themselves are held during high No school. lant was involved dangerous- inadequate to demonstrate future regarding ap- evidence was introduced other Smith, stated: 779 S.W.2d at 419. We ness. pellant’s offense for shocking or otherwise convicted was not extraordinary respect even prior nor Appellant had no criminal record

multiple stabbing. cannot conclude We severity rise the level of so do the infractions circumstances of the offense are propensity to indicate a for violence.5 In had not eaten but had consumed thirteen State, (Tex.Cr. Beltran v. beverages 728 S.W.2d 382 alcoholic in the course the eve- App.1987), presented ning. the State Appellant evidence that vomited soon after his ar- reputation the defendant had a bad as a law- rest and several witnesses to his testified citizen, abiding mostly appearance he had series of intoxicated several hours after prior non-violent Additionally, offenses that he was on the appellant instant offense. probation at the time he committed the of testified he did not recall the events sur- Id., However, fense. at S.W.2d 389. rounding stabbing. the actual neither the nor State the defendant offered he testified was afraid of Wort- psychiatric testimony. In reforming the mann. Appellant very and Wortmann had sentence, we psy noted absence of money prior little Wortmann offense. presented by chiatric evidence the State. go appellant told if he wanted to to North Id., 728 at S.W.2d 390. rejoin they Beach to his friends needed mon- ey (Tex. gas. point appellant It was at

In Warren v. 562 S.W.2d robbery. Wortmann discussed Cr.App.1978), specifically noted: “There qualified psychiatric testimony nowas as to

appellant’s psychiatric makeup, which has 2. probative held been to have value as to the appellant’s age The at time of dangerousness” punishment “future issue. significant offense is a factor toward whether (Citations Id., omitted.) at 476. poses continuing society.6 threat to Collins, 461, Graham v. 506 U.S. 113 S.Ct. only character evidence established 892, (1993), 122 L.Ed.2d 260 Justice Souter reputation to be non-violent and his explained youth the dual nature of as a miti- good. Appellant’s non-violence be gating factor: family as to testified his non-violent and non- may ... mitigate Youth be understood to confrontational nature. Such evidence does by reducing culpability a defendant’s moral a conclusion will crime, for the for which emotional continuing society. be a threat to cognitive immaturity inexperience Considering prior the lack of criminal his- responsible life him render less evidence, tory, being psychiatric there no youthfulness may mitigat- also be seen as testimony appellant’s the uneontested non- ing just transitory, indicating because it is character, fourth, violent seventh and likely is less to be eighth against Keeton factors militate a find- dangerous in the future. dangerousness. ing of future Id., 518, 113 (Souter, S.Ct. at (Citation omitted.) J., also, dissenting). See C. Personal Circumstances and Duress 104, 115-116, Oklahoma, Eddings v. 455 U.S. Finally, the fifth and sixth Keeton factors (1982). 102 S.Ct. 71 L.Ed.2d 1 appellant’s require age consideration mitigating particularly Youth aas factor is circumstances, personal and whether important capital cases where sentence acting under duress. Texas, imposed. of death is Johnson Supreme approved Court of our inclusion 1. youth consideration our review of offense, supports At the time of the was whether the an affirmative old, twenty years grade finding dangerousness” punish had a 10th education of the “future Id., 371, 113 attempting graduate and was from tech- ment issue. S.Ct. at (citing school. The Ellason nical evidence shows majority argues appellant's danger- punished dant for this offense. There- future cannot drinking. fore underage it cannot indicate ousness is indicated condoned, underage drinking While not to be following should not be considered serious offense. I line cases in Wilk discussed Moreover, exclusively (Tex.Cr.App. a crime limited erson v. 1994) (Baird, youth twenty-one dissenting). upon reaching a defen- J. and, reforming youth his sen- (Tex.Cr.App.1991); mitigated towards Brasfield though twenty-two when (Tex.Cr.App.1980)). even he was 600 S.W.2d tence signifi- emphasized the Supreme Court In Beltran and committed offense. youth Warren, a fac- mitigating

cance of as relevant considered each defen- the Court tor: youth despite the fact that each was dant’s twenty-five were when the offenses commit- dispute is no that a

There defendant’s Comparing appellant’s case to these youth mitigating a circumstance ted. is relevant cases, worthy appel- be reach a other it is of note that must within the effective of offense, capital sentencing jury lant, if a death sentence at time of the instant was Huffman, require- years younger is meet than and five [constitutional] two recognize “youth years younger ments. Our cases is than Beltran and Warren. It chronological more than fact. is a part also This Court considers person time of and condition life when consumption played appellant’s alcohol may susceptible most to influence and be Keeton, commission of the instant offense. A psychological damage” ... lack of matu- A rational could 724 S.W.2d at 61. rity underdeveloped and an of re- sense at appellant conclude was intoxicated sponsibility youth are found more often Appellant had of the offense. consumed time than in are adults and more understanda- beverag- types of thirteen different alcoholic among young. qualities ble These of- empty period es in a of time on an short in impetuous ten result and ill-considered has that a defen- stomach. This Court held A actions decisions. senteneer intoxication at the time of the offense dant’s capital ease must allowed to consider may mitigating regard abe factor youth mitigating qualities in the punishment. Tucker S.W.2d appro- its course of deliberations over the Wilkerson, (Tex.Cr.App.1988); priate sentence. at 324.

Johnson, 365-368, at 113 S.Ct. at omitted.) (Citations 2668-2669. Huffman, strangled the In Id., Ellason, robbing her. victim the course of acknowledged we that while at 216. defendant stated had age defendant’s “at the time of offense is drugs insufficient, using drinking and that he prevent been standing impos- alone suffered “blackout” and could not remem- penalty, youth by very the death its committing the crime. Ibid. The defen- mitigating nature ber factor be noted and Id., history drug had a of alcohol and abuse at dant considered.” 815 S.W.2d 663. alco- possible it was that the defendant’s above, twenty As noted was drug night on the hol and use the offense years when old he committed the instant the evidence caused the blackout. We held offense. The recklessness violence of dangerous- to prove was insufficient appellant’s undoubtedly actions are a deriva Id., ness. this, youth. glance, tive his While at first circumstance, appears aggravating to be an acting under Whether defendant may appellant’s reckless violence be aberra the influence or duress another at the time signature qualities tional “the because be con- offense is additional factor to transient; mature, youth are individuals Keeton, 724 S.W.2d at 61. sidered. impetuousness may and recklessness that case, appellant prior had no record instant Id., younger years dominate can subside.” acts, history any nor criminal 367-69, 113 U.S. at S.Ct. was informed Wort- Appellant violence. robbery. Addi- Appellant’s age history at the time mann of violence and he committed range tionally, falls it Wortmann told the instant offense within a we who See, robbery easy mitigating. have considered to be Bel how it was to commit the tran, and, Warren, discovery. Huffman, supra. all there was little chance Moreover, Finally, told we not limited our was Wortmann who consider youth rejoin teenage if would ation of a defendant’s he was to friends money gas. Huffman, up years. have to come with some held defendant’s being testified to afraid of Wort- IV. man. Eighth Because the Amendment forbids arbitrarily capri- assessed Oklahoma, In Thompson v. ciously, duty ensuring we have the 835, 2698, 108 S.Ct. 702 L.Ed.2d evenhanded, imposed sentences are in an (1988), Supreme Court endorsed the rational and consistent manner. We dis- principle that: charge duty by reviewing jury’s an- ... culpability to [L]ess should attach a punishment light swers issues of the juvenile by crime committed a than to a Keeton, adopted factors supra. Today, comparable by crime committed an adult majority responsibility shirks and education, ... Inexperience, less less and an opinion issues that insulates verdicts intelligence teenager make the less able meaningful from appellate The ma- review. the consequences evaluate of his or her jority opinion only encourage will serve to conduct at the while same time he or is she sparse, spotty application selective and of apt much by more to he motivated mere capital light Texas. In of the peer pressure emotion or than is an adult. majority opinion, longer any is no there as- why juveniles The reasons are not trusted penalty surance that not death will privileges responsibilities with the of wantonly imposed. freakishly why an explain also irresponsi- adult their comments, join portion these I With morally ble conduct is not reprehensible as judgment affirming of our appellant’s convic- that of adult. tion majority’s but dissent to the failure to Supreme recognized Court the combina- appellant’s punishment reform from death to youth, peer tion pressure of inexperience imprisonment. life

can heavily influence do a defendant MALONEY, Judge, concurring and

things normally which he would otherwise dissenting. not do. Ibid. majority holds evidence sufficient Appellant’s youth, his intoxication support jury’s affirmative answer to fear of Wortmann establish that special the second issue based on the facts of acting under the influence or duress opinion probably the offense alone. This will peer pressure Wortmann. While does ensuring precedent again set that never will excuse a culpability defendant’s for criminal there be facts that this Court will find insuffi- acts, blameworthy one so influenced less is support cient to an affirmative answer to the

than if had participated initiated and special second Because is con- issue. such Wilkerson, entirely this crime on own. trary to caselaw and flies the face of the (Baird, at dissenting). J. Jurek, principles underlying Furman I Consequently, the fifth sixth Keeton fac- point to majority’s dissent resolution of against finding tors a militate future dan- one, but in affirming appellant’s error concur gerousness. conviction. D. I. part II, majority’s always As noted in cognizant Keeton should remain We analysis incomplete. is flawed and reviewing Further- confines Furman and Jurek in more, majority sufficiency to follow hold- refuses our of the evidence. Heiselbetz v. Smith, which, State, directly point on (Tex.Crim.App. case 1995). decisis, Heiselbetz,

under the doctrine stare mandates affirmative issue, appellant’s rested reformation sentence. When answer the second “virtually thorough analysis Keeton is on the that the was a conducted fact offense consulted, precedent our evi- murder mother child it clear the double of a J., strangulation.” (Maloney, dence con finding is insufficient to Id. at Therefore, penalty curring). I would a case the death where virtually, appellant’s point exclusively, sustain first error. is based if not alone, the instant between them and we must recall the contrast facts of offense giving case. circumstances rise our current penalty death statute: II. penalty death scheme was Texas 486, 504 King Legislature more nar- by the amended denied, (Tex.Crim.App.), cert. rowly identify implicating the offenses (1982), 74 L.Ed.2d S.Ct. jury’s decision- penalty and focus the death abducted defendant and co-defendant making process sentencing_ Ac- couple gunpoint young and forced them cordingly, every capital murder calls They their truck. drove to a secluded into imposition penalty; may young repeatedly man area and beat the only upon factfinding imposed a narrow causing shotgun, the with the butt of a head yes jury to two or by the who answers his The defendant and his cohort death. specific questions. three This Court em- spent night, the of the several remainder phasized in Keeton v. hours, assaulting sexually the taking turns (Tex.Crim.App.1987): if girl. They go, threatened death let her but by ... we the law to make are bound police. she went to the penalty is certain that the death not We said: freakishly” “wantonly imposed, or and Considering ... random the selection purposes jury’s that the the consider- victims, calculated, young his the remorse- special [ ] ation of the issues are brutality of manner in which he less accomplished. Every commit- murder obliterated another human life and lev- robbery ted in the course is in some ity exploited with which he terror he way cold-blooded and senseless. Each generated in the to this female witness not, however, such murder does merit atrocity, say this Court cannot pun- penalty, the death our most final unjustified in jury would have been re- ishment. “yes” turned their verdict of to the second against backdrop It is historical on special issue based alone the facts of sufficiency we should review of the evi- the offense. issues, special keeping dence Id. Legislature narrowly mind that has kidnaping and murder of three victims which a defined the circumstances under support was held sufficient alone deathworthy. defendant is For this rea- finding dangerousness in Cass v. son, automatically is not sen- defendant (Tex.Crim.App. upon capi- tenced to death a conviction of 1984). There, hostage were the victims held required murder. The tal State still days and for two while the defendant his prove special beyond issues reason- grave. accomplices prepared a common doubt, separate able and in addition to bound, gagged and sedated with victims were proving guilt. the defendant’s tranquilizers each shot seven between J., (Maloney,

Id. concurring) (empha- at 515 gun nine A caliber machine times. .45 added). sis If the facts of offense alone weapons According one of the used. was generally prove are sufficient to deathworthi- confession, when one of the defendant’s ness, special there would be no need for the escape grave, victims tried to from the issues. head, shot him in the back of the defendant recognized drug grave that the him back to and “threw him While this Court has can, shocking in.” facts of offense alone where shock- We said “the circumstances of enough, support appellant’s pri an affirmative answer to the offense established issue, surely special mary danger eases in role in it a ‘most the second which the evince ” support of character’ such that “we facts alone have been held such ous aberration unjustified in say [could] verdict stand stark contrast to the facts returning ‘yes’ sampling A these verdict of to the second the instant case. cases their below in order to illuminate issue based alone on the facts are described offense.” Id. supported Guerra held facts alone affirmative (Tex.Crim.App.1988), S.W.2d 453 cert. de finding on the second issue: nied, 109 S.Ct. only murdered Herbert Me- (1989), L.Ed.2d 606 the Court viewed him, gason in robbing the course of but he enough facts alone heinous brutally also murdered son Herbert’s affirmative answer to the second issue: Gary’s Gary. right foot and both hands The evidence shows that “hog-tied”, his were throat severed execu- companion pis- armed themselves with style, tion and his arms had numerous day tols on the of the offense. Without defensive wounds. Both were bodies dis- provocation, appellant cold-bloodedly shot posed of in carefully by a creek and hidden Officer Harris times in three the head and Although brush. there was no began shooting then bystanders, at various against Megasons violence including Herlinda Garcia Vera Flores. long contemplation planning orig- effecting escape, appellant While also inally by appellant [citations intended Armijo, Sr., innocently killed Jose who was omitted], the facts evidence a crime com- sitting in his car with his two small chil- mitted with a someone total lack of Clearly dren. the facts of this brutal life, regard for human [citations omitted] offense heinous are sufficient in and of We conclude without consideration the justify jury’s themselves the affirmative punishment presented by other special answer second issue. State, extremely the violent nature of Id. at 462. this offense was sufficient to sustain the State,

In 378, Willis v. jury’s 387 affirmative answer to the second denied, (Tex.Crim.App.1989), cert. 498 U.S. issue. 908, 279, (1990), 111 112 S.Ct. L.Ed.2d 234 Id. at 694. we held “the nature of offense is so- (Tex.Crim.App.1992), v. 842 Cantu S.W.2d 667 extreme that a trier rational of fact could denied, 926, t. U.S. 509 cer reasonably have special answered the second 3046, (1993), 125 L.Ed.2d 731 S.Ct. issue in the solely affirmative based on the ninety-four year defendant attacked a old

facts of the offense.” We described the of home, yard woman the front of her sexual fense as follows: ly assaulting her beating her head The facts of this crime demonstrate an against causing the concrete her death: life; indeed, disregard utter for human case, appellant dragged In this scream- they depict a man so mur- determined to 94-year-old patio victim across her very people der the whom he earlier four-foot-high then over a threw her effectively socialized off sealed Appellant sexually link chain fence. then escape by pouring their routes an acceler- vaginally assaulted the victim both jams ant on the door to their bedrooms anally. assault, During the course of the and on the front back doors to the penetrated -the victim with a immediately sending house before wire, piece causing large severe lacera- Appellant up house flames. succeeded vagina. raping her After the vic- tions women, in killing seriously two endan- tim, appellant against the victim bashed gering the life of his own cousin. When injuries the fatal causing the cement arrive, fighters began fire multiple victim’s head. There were also did not volunteer the information two neck, injuries trunk, impact to the victim’s trapped smoldering women were inside the and extremities. Instead, house. impassively smoked

cigarettes watching while fighters the fire Id. at 675-76. viewed facts as We these blaze. jury’s finding battle the sufficient Id. at Id. at 386-87. (Tex.Crim.App.1990), State, 929, Vuong v. Madden 799 S.W.2d 683 denied, denied, 997, (Tex.Crim.App.), t. cert. cer (1992), (1991), we 121 L.Ed.2d 533 we S.Ct. 113 L.Ed.2d S.Ct. jury’s where it was tossed affirmative answer the bathroom

stated corpse. supportable solely He was special atop issue was bathtub his mother’s second guilt/innocence. could ra- presented eight times. The on the evidence stabbed case, a pool appel- In that the defendant entered tionally from the results conclude and cafe armed with semi-automatic rage room of such rage that his lant’s isolated through proceeded rifle. defendant and extreme nature an uncontrollable firing weapon. Of eleven establishment society. continuing danger he is fired, patrons, killing he struck seven shots Id. taking He deliberate two. was described unarmed Id. at 933. aim victims. that I have found in which All of the cases recognized or held that the Court Although the State offered no evidence of sup- verdict on the second issue dangerousness defendant’s future other portable facts of the offense alone than facts the offense in Sonnier terrorizing of killing either or the (1995), involve upheld victim, threatening more than one the verdict: and/or persons endangering of the lives be- heinously Appellant murdered M. Flowers victim, planning calculated sides and/or two-year-old and her son. M. Flowers’ I am if I forethought.1 sure that murder vicious involved needless and bru- in which the facts were less missed a case stabbed, tality; strangled, blud- described, the than those above ma- heinous geoned her head with the claw of ham- jority have cited it. The instant case would mer, by stomping neck it. crushed her victims, multiple terrorizing involves neither apartment suggested condition others, threatening of the victim or or endan- Flowers, followed M. stab- gering of lives of others besides the bing beating throughout and her her victim, planning. nor considerable apartment apparently struggled as she for life her her and lives of children. The Flowers, murder of P. an still learn- infant III. wanton; speak, to was infant was

fatally majority places great weight on the through lay as he The stabbed heart body dragged on his and to fact the murder was committed with a bed his was See, Willis, State, (Tex. car) e.g., supra (Tex.Crim.App. v. 107 in of Ford 919 S.W.2d trunk (mandate 19, 1996) Crim.App.1996) 1989) (murder arson); April by issued two of women Bower home, (terrorizing family State, entire (murder of their own of v. 769 887 four victims S.W.2d one); State, shooting killing and v. denied, three Dinkins range), by shooting cert. at close 1995) (double (Tex.Crim.App. S.W.2d 330 894 3266, (1989), 927, 109 S.Ct. 106 L.Ed.2d 611 murder, range they victims shot at close State, grounds, Heitman v. 815 overruled other floor, crouched one or kneeled on victim “hunted 681, Guerra, (1991); supra n. 6 S.W.2d (murder 685 witness), merely down” and killed to eliminate a by shooting police officer followed - denied, -, cert. 116 S.Ct. killing bystanders); Moreno v. and of innocent (1995); State, L.Ed.2d 59 v. Sonnier 913 S.W.2d State, (Tex.Crim.App.1988) S.W.2d 1995) (murder (Tex.Crim.App. of mother and (murder robbery kidnapping people, and six stabbed, two-year-old son where mother stran State, (Tex. others); v. 714 S.W.2d 1 six Santana hammer, gled bludgeoned stomped with (defendant needlessly jeopar Crim.App.1986) on, times); eight stabbed v. son Johnson than dized more lives that of deceased State, 1992) (Tex.Crim.App. 853 S.W.2d 527 likened "a terrorist attack” the offense was to (murder of two men in order to eliminate wit professional planned in its execu which robbery, pleading nesses to one killed while for Cass, tion); (kidnapping supra and murder of life), denied,-U.S.-, 114 S.Ct. cert. space days); King, of two three victims over (random (1993); Vuong, supra 126 L.Ed.2d 115 murder, (deceased’s supra com committed while cafe, shooting patrons pool room and of seven on, panion look was followed hours forced to Cantu, two); killing year supra (ninety-four old companion); of deceased’s sexual assault yard, sexually victim attacked in her assaulted State, (Tex.Crim.App. O’Bryan v. 591 S.W.2d Madden, concrete); against supra and head beat 1979) (murder by poisoning child son); State, of defendant’s (brutal v. Sosa murder father candy, planned for 1989) at least ten with Halloween (Tex.Crim.App. (planned 769 S.W.2d 909 weeks, out cold and carried calculation robbery months lives of bank em for threatened proceeds), cert. lay life insurance ployees during robbery, as he order to collect killed deceased knife.2 While the explanation use of knife is undoubt- offered no for stab- edly probative of a bing defendant’s dan- future clerk. These “distinctions” have gerousness, it should not be significance. the sole basis no evidence in The Smith also upon danger- which a supported determination future conclusion ousness is made. apartment Smith v. entered victim’s awith knife (Tex.Crim.App.1989), looking victim and that he day. victims assaulted, to sexually “explanation” was tied her bed and Smith’s for his actions was not pivotal she was then untied and stabbed fourteen so as to ease serve as the basis times, through once heart. distinguishing We held the the instant case. The as, facts of that sup- certainly offense alone insufficient to murder committed in Smith was port more, an affirmative if answer to the brutal second than the murder commit- said, issue. We ted in the instant case. Yet held support evidence insufficient to affirma- §

It has been said that 19.03 of the Penal tive answer to the second issue because Code “limits the circumstances under hold otherwise “would threaten to undermine may penal the State seek the death the function of Article 37.071 ... ty to further group narrowly to a small defined death-eligible narrow the class of offenders particularly brutal offenses.” Jurek to less than all who those have been found (Tex.Cr.App. 1975). guilty of an To offense as defined under hold the offense itself in this § 19.03.” Id. prove cause was sufficient to dan gerousness would threaten to undermine majority The seeks also its 37.071, the function of supra, Article by emphasizing holding “the number lies” death-eligible further narrow the class of only told police. The “lies” offenders to less all than those who have majority’s opinion described follow: guilty been found of an offense as defined given is shown conflict- Roney § under 19.03. See ing statements at different times as (Tex.Cr.App.1982). at 603 exact course of events after he exited

Id. at 420. one, driving store. Wortman was slow- car, ly jump in order for him majority’s attempt into distinguish another, while off Wortman had taken disingenuous. Smith majority differ- running went after him. by entiates the instant case from Smith pointing out that entered the store Majority opinion at n. 4. These state- with using the intention of the knife to necessarily ments are not inconsistent.

threaten the clerk. majority Moreover, The finds also they they even if “conflicting,” are significant testimony rap- Smith’s by any after do not measure amount to a “number victim, ing he “decided to kill her of lies.” The also fact Court stresses the crazy minutes,” went few majority”3 kind for a but that “the of the knife wounds denied, S.Ct. [the 64 L.Ed.2d in the she victim] shot first head as (1980). kneeling sitting or on floor after the inflic- tion the first wound to her Of abdomen.... greater significance for even our review the majority says 2. The of a use knife forces appellant spent indication that ef- considerable proximity user to in close victim hunting in [] fort down second deceased thrust, requires citing often more one Din- than killing [the before her. After kins, victim] second supra. Majority par- opinion at 696. In a room, adjacent locked herself enthetical, into majority describes Dinkins as attempted get shooting the doorknob. holding dangerousness the evidence of Appellant then cover- tore down wicker shelf "where sufficient one victim was shot twice at window, window, ing receptionist broke the range extremely close and she was either kneel- inside [the victim] reached and shot second as ing sitting." Id. Dinkins was a double mur- she crouched in a comer. significant der The case. Court found more than Dinkins, 894 S.W.2d at 359-60. shots, proximity the close the manner in sought out and killed offense, part, Court described as second victim: follows: twice; Appellant approxi- [the shot both then victim] first stabbed deceased extremely range mately shots were fired at two or close three times before the deceased Significantly, appellant Ap- both shots were fatal. on the fell facedown motionless floor.

7H in the after had were victim’s back fallen. “majority” the wounds

Can the fact that lay inflicted on the victim as he face- were meaningfully distinguished from a down be wounds were inflicted scenario where immediately following the victim’s ter- chest victim, rorizing of that which such as just Smith? Could it not be occurred so, telling, or faces his more defendant inflicting fatal victim while wounds? The Court’s contortion the facts transparent. case is This case involved the murder of a store course of a clerk robbery. clerk killed with knife. and, murders,

It was as with all senseless facts, these brutal. But on Court’s hold- Further, nullity. renders article 37.071 contrary light precedent the Court’s holding exemplifies im- wanton and freakish

position penalty. death I therefore

disagree appel- court’s resolution of punish- first point relating lant’s of error conviction, affirm ment would but from to life reform imprisonment.

OVERSTREET, J., joins. WATSON, Appellant,

Gloria Renee Texas, Appellee. STATE 1287-94, No. 1288-94. Texas, Appeals Court of Criminal En Banc. May three,” pellant concludes that amounts to thrust knife into the deceased’s Court then exiting back several more times before “majority.” store. Majority opinion Apparently at 694-695. assum- that since “several" is more than "two

Case Details

Case Name: Martinez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 22, 1996

Citation: 924 S.W.2d 693

Docket Number: 71818

Court Abbreviation: Tex. Crim. App.