Matchett v. State

appellant, any tice of tax due to has made allegedly

effort to collect the tax owed appellant.

Accordingly, judgment I would vacate the appeals the court of would remand the following to resolve cause to that court two issues:

(1) sending of a tax Is the mere notice of due the Texas Controlled Substances “punishment” implicate so as

Tax Act jeopardy and thus bar double prosecution possession for of marihuana?

(2) by sending a cheek appellant, Was Comptrol- marked “tax” to the Office $100, equal ler to much than for less 1% due, “punished,” pending tax prosecution possession of marihuana thus Jeopardy

barred the Double Clause? I respectfully dissent. MATCHETT, Farley Appellant, Charles Texas, Appellee. The STATE of 71664. No. Texas, Appeals Court of Criminal En Banc. 6, 1996. Nov. Rehearing Denied Jan. Graber, Assist. District At-

Rikke Burke Houston, Paul, torney, Matthew State’s Austin, Atty., for State. court en banc.

Before the OPINION OVERSTREET, Judge. February appellant pled

and was convicted under Texas Penal Code 19.03(a)(2) robbery § commit- for a murder July jury affirmatively ted in 1991. The the two issues submitted answered 37.071(b).1 Appellant was sen- under Article death mandated tenced to 37.071(h) 37.071(e). provides Article direct thirty- appeal to this court. raises points affirm. seven of error. We appellant of error his first reversibly in alleges trial court erred Appel failing comply Article 26.13.2 to with State, 872 argues Morales v. lant trial (Tex.Crim.App.1994), the S.W.2d 753 reversibly failing to admonish court erred 26.13(a)(2-4). him in Article accordance with trial court sub counters that the The State 26.13(a) and stantially complied Article any harmless alternatively, that error was beyond doubt. a reasonable record, immediately prior According to the Newton, Morrow, Brent E. Robert A. trial, appellant pled

Houston, to the commencement appellant. for permit- agreement, the defendant shall Code such are to the Texas 1. All article references guilty unless otherwise indicated. or nolo Criminal Procedure withdraw his ted to contendere; and accepting requires prior 2. Article 26.13 (3) punishment assessed fact that if the judge guilty plea admonish the defen- the trial punishment recommended does not exceed the following instructions: dant with agreed by by prosecutor the defen- (1) range punishment attached give attorney, court must the trial dant and offense; may permission he to the defendant before its (2) the recommendation the fact that any prosecute appeal in the case matter attorney punishment prosecuting is not as by except written mo- those matters raised for binding that the court on the court. Provided trial; prior tions filed any plea inquire shall as to the existence (4) is not a citizen the fact that if the defendant bargaining agreements the state and between America, plea of of the United States and, that such an the defendant in the event charged for the offense or nolo contendere exists, agreement inform the the court shall may deportation, the exclusion from result in reject will such defendant whether it follow country, the denial of to this admission any open find- agreement court and before law. reject any under federal naturalization ing plea. the court on the Should guilty to legal the offense of plain murder fiction concocted “to avoid the 8-9). (S.F.XVI, party disputes Neither Legislature.” effect of laws enacted our appellant range was admonished about (Concurring of Morales 872 at 756 punishment in accordance Opinion). wholly failing appel- with Article to instruct 26.18(a)(1) 26.13(a)(2 4), or that the trial court failed to lant under Article the trial — erred; appellant according require- admonish compli- court it was not in substantial 26.13(a)(2 4). 26.13(c). Except ments of Article contemplated ance as in Article Id. — the failure of the trial court to admonish

appellant accordance with Article Appellant argues that Morales held 26.13(a)(2 4), allegation ap- there is no failure admonish a defendant — pellant’s guilty plea 26.13(a) anything was than less under Article is reversible error not knowing voluntary.3 subject analysis. ato harm Id. In Morales we held: argues The State that because the admon judge wholly The trial failed to admonish required ishments were in ap “immaterial” required under Article pellant’s given instructions substan 26.13(a)(4). prima Therefore a facie case 26.13(e) tially complied under Article with the compliance] [of substantial was not made 26.18(a)(2-4).4 requirements of Article This requirement and there is no understanding of compliance substantial McAtee, supra, show harm. See Morales, disavowed 872 S.W.2d at 755. c.f. Hughes, supra. (Tex.

Whitten v. Crim.App.l979)(here an admonishment was 872 S.W.2d at 755. given but the admonishment was immate 26.13(c) plea, compli rial to the states “substantial such as where failed ance the court to admonish on is sufficient unless the non-binding char prosecutorial affirmatively acter of defendant shows that he recommendations and prosecutorial consequences not aware of plea recommendation had been his made, by there is and that he compliance). substantial was misled or harmed the ad Quoting State, Hughes v. monishment of the S.W.2d court.” The above cited 140 (Tex.Crim.App.1992), language clearly we held in in Morales Morales stands for the that substantial compliance proposition “will not be narrow that when there is no found where the trial wholly compliance fails to substantial under Article admonish the 26.13(c), defendant.” holding Id. This comply court’s failure to with harmony is in 26.13(a) plain meaning5 both the subject Article is not to the harm compliance 26.13(c). substantial and with the analysis inter in contained Article This 26.13(c). nal By structure of Article language con preclude application does not of an trast, 81(b)(2) the State’s definition of analysis substantial harm to the error under compliance contradicts plain Tovar, both the mean review. See also Ex Parte Ruben ing 26.13(c); and structure of Article it is a (Tex.Crim.App.1995) S.W.2d 484 and Ex 3.Responding 26.13(c) judge's questions, ap- to the trial 4. Article states: pellant indicated that he understood he was admonishing pro- the defendant as herein waiving right prove his to have the State him vided, compliance by substantial the court is guilty beyond der, counsel, capital a reasonable doubt of mur- affirmatively sufficient unless the defendant options that he had discussed his with his shows that he was not aware conse- consequences that he understood the quences of his and that he was misled or plea, entering guilty plea his and that he was (S.F.XVI, 8-9). by voluntarily. harmed the admonishment of the court. The trial court in- guilty plea formed that his would elimi- offense, possibility (Tex.Crim. Boykin nate the of a lesser included 5. See v. 818 S.W.2d 782 only possible punishments and that the which the App.1991)(Plain meaning of statutes must be re could assess for murder were life spected). (S.F.XVI, imprisonment or the death sentence. 11). this, Acknowledging appellant indicated 9— guilty plea. that he still wished to a enter (S.F.XVI, 12). us, by Akhtab, exposed appellant’s it case as Mujahid before is Rashad 901 S.W.2d

Parte wrong. meaningful plainly A harmless error (Tex.Crim.App.1995) (Applying a harm according analysis possible though, court to is even analysis to the failure of cases). Marin, interpretation of broad comply 26.13 habeas with Article not be. should any interpretation of Ma alsoWe disavow (Tex. legislative That nature some -282

rin v. S.W.2d rights suggests a Rule mandates and fundamental will resist Crim.App.1993), which 81(b)(2) meaning a from which to analysis inappropriate harm is when creation of record violation, their legislative fully assess the effects of does absolute mandate like 26.13(a) justify precluding attempts by under the State is violated.6 Marin can be particu a stood, that a under the facts of appellant argues, to hold to establish that 81(b)(2) harmless analysis Rule is lar error was harm fact requirements beyond like a reasonable doubt. appropriate when absolute 26.13(a) are those of Article violated. required conduct a [to discrimination [T]he by types reasoning is certain of error analysis] tran- judgment is one of harm meaningful analysis nature harm their resist pre- scending confinement formula precluded categorically thus are from faculty ever cise rule. That cannot analysis Sodipo v. Quoting harm review.7 words, wholly imprisoned in much less (Tex.Crim.App.1990), 815 S.W.2d 551 only upon such criterion as what are Marin stated technical, rights; ... what substantial may for is substan- precedents proposition stand for the What be technical one [O]ur another; unimpor- “that it tial for what minor and that certain kinds of error are such they setting in one crucial in extremely to know tant another. difficult whether outcome, might have affected States, 750, 761, Kotteakos 328 U.S. United they have influenced likelihood that (1946)(dis- 1239, 1246, L.Ed. strong that it is not worth outcome so cussing analysis). of harm Rath nature necessary judicial expending the resources application of a harm er than foreclose partic to evaluate the effect of analysis categories of error whole Sodipo, cases.” at 551. ular theoretically impossible to grounds that it is be meaningful analysis, harm also conduct 281. See Warmowski case ease (Tex.Crim.App. lieve it wiser to allow 1993). that, meaning of whether fact suggests In so far as Marin determination case, presump particular analysis possible. The ful harm is regardless the facts of 81(b)(2) along with analy that all are harmful application a Rule harm tion errors pre to rebut the judicial accompanying in whole burden is a waste of resources sis rights of errors, sumption safeguard are categories presently such as sufficient those must independent and that no harm be implementation of the ac- viction will follow 6. Its is wishes; predicate and unwaiva- Morales cused’s it is unforfeitable to reversal. shown duty carry judge (Tex.Crim.App. has a out ble and trial S.W.2d appel- Article 26.13 whether admonishment of 1994). See, Marin, right or not. lant asserts Akhtab, And, Mujahid in Ex Rashad Parte (defining requirements not absolute S.W.2d subject (Tex.Crim.App.1995), the S.W.2d 489 n. preservation defaults or harmless majority in dicta: stated analysis). Morales, must that a conviction we held appellate appeal when the reversed on direct also, Tovar, S.W.2d See Ex Parte Ruben 7. admonish- record that there was no reflects (Tex.Crim.App.1995), ma- in which the 26.13(a)(4) required by before the ment as Art. jority stated in dicta: accepted, and there defendant’s appeal, where a On direct we have stated that requirement show the defendant is comply wholly with the trial court fails harm. requirements of Art. [sic] admonishments 26.13(a)(4), con- of the defendant’s a reversal truly unreviewable nature.8 appellant Where is a United States citizen. It particular of a suggested, Judge Meyers’ concurring effects error are in not diseema- Morales, opinion writing in in certainly, ble with reasonable article presump- 26.13(a)(4), will, Legislature did not fact, intend to tion of harm be unrebutted. require Warmowski, pleading guilty defendants or nolo Appellant’s at 578. litigate contendere to the issue of their citi- present case does such a situation. zenship judges at trial so that could present In the the trial court erred 26.13(a)(4) determine whether the article ad- failing appellant to admonish according to given. Therefore, monishment had to be 26.13(a)(2) (3), the dictates of Article but Legislature mandated that all such defen- wholly because these admonishments are in- Morales, dants receive admonishment. applicable to a murder ease in which interpretation legislative at 755. This in- sought, death sentence is this error had 26.13(a)(4) logical, tent is and the article ad- absolutely appellant’s no effect on conviction given every monishment must be case. punishment. We can thus conclude be- Boykin, we held that interpret when we yond a reasonable doubt that the failure to statute, we seek to effectuate the intent of 26.13(a)(2) (3) appellant admonish Legislature which legislation. enacted the was harmless. attempting ‘When to discern this collective We reach the same regarding conclusion legislative purpose, necessarily intent or the court’s failure to appellant admonish re- focus our attention on the literal text of the 26.13(a)(4). garding deportation under Article question statute in attempt to discern The record shows was born on fair, objective meaning of that text at the Houston, Texas; November 1962 in time of Boykin, its enactment.” at 785. therefore, evidencing is an is, course, legitimate There exception undeportable States; citizen of the United plain meaning to this applica- rule: where therefore, deportation provision im- tion of plain language a statute’s would material appellant’s guilty plea. The lead consequences to absurd Leg- provide court’s failure to appellant with the islature possibly could not have intended immaterial admonishment mandated under apply we should language literally. 26.13(a)(4) could not have effected or [Citation omitted.] When used in the contributed to his punishment.9 conviction or manner, proper exception narrow plain meaning rule does not intrude on (Tex. In Morales v. 872 S.W.2d 753 lawmaking powers legislative Crim.App.1994), we give held that failure to branch, but respect rather demonstrates 26.13(a)(4) the article admonishment was re branch, for that which we assume would error,

versible even showing without a way. not act in an absurd harm. The record in complete Morales was Boykin, [Emphasis original.] ly silent as to citizenship, howev er, possible distinguish Morales from Legislature in writing article present question 26.13(a)(4), case where expressed there is no its intent that a defen- (Tex. 8. See Arnold v. determine after its examination of the record that (Rule 81(b)(2) Crim.App.1990) is identical to fed beyond an error was harmless a reasonable places eral harmless error rule which the burden also, doubt); McAninch, See O'Neal v. 513 U.S. beneficiary prove beyond on of error to a reason 432, -, 992, 995, 947, 115 S.Ct. 130 L.Ed.2d harmless); able doubt that error was See also (1995)(suggesting speak it is best not to of Connecticut, 85, 229, Fahy v. 375 U.S. 84 S.Ct. proofs burdens of in context of harmless error (1963) Chapman 11 L.Ed.2d 171 and v. Califor analysis). nia, 386 U.S. 17 L.Ed.2d 705 (1967); State, Williams v. 851 S.W.2d Morales, 9. We hasten to add that if as in the (Tex.Crim.App.1993); compare also see and unknown, appellant’s status were he were in or if Mayes v. (Tex.Crim.App. 816 S.W.2d deportable, impossible fact it would be to deter 1991)(The proof” State has no "burden of error, mine the effects of the trial court's and the persuasion" “burden of in the sense that it would presumption of harm would be almost irrebutta responsibility if it bore the to come forth with Cervantes, arguments establishing ble. See Ex Parte 762 S.W.2d the harmlessness of an prevail, (Tex.Crim.App.1988)(deportation proceeding error in order to but it will indeed suffer ac appeal reviewing reversal on tually progress if the court appeal). cannot in at time of dant, entering plea guilty plea guilty open a in and Appellant’s before nolo of court contendere, record, possible jury, the be admonished as to on not the was the albeit to immigration consequences plea of such a satisfy sufficient to Article 27.13. Tutor v. add, applicable (consequences, we are that (Tex.Crim.App.1980), citizen). only if the a U.S. defendant not pled guilty during arraignment Tutor and correctly gave in Our decision Morales due jury empaneled when the was later by Legislature’s deference to the intent hold- in, sworn the read to them indictment was

ing give to is reversible error fail the them, trial and the court informed without the is silent admonishment where record as objection defense, from the that Tutor had citizenship to defendant’s status. pled guilty. appeal, Tutor asserted on as today, does trial was “ren his It would be an absurd result —a result the personally dered null” because he had not Legislature possibly have could intend- plea jury required by entered a before the ed—to allow a defendant’s conviction on pre Article 27.13. held that facts plea guilty or nolo contendere be re- no sented violation Article 27.13. Id. appeal give versed on for failure to the arti- Similarly, in Shields v. 26.13(a)(4) cle admonishment where the rec- (Tex.Crim.App.1980) 925-27 we held that shows, conclusively ord as it does in this spirit both letter Article 27.13 defendant a U.S. citizen and trial, were satisfied in a bench Shield’s when inapplicable thus legally the admonishment is him, attorney pled guilty for but the trial to him. facts of this We conclude personal court obtained assurance on Shield’s beyond case that the was harmless plea voluntary. record that Appellant’s was reasonable doubt. first bar, procedure ease at the court’s was an error is overruled. unnecessary prefera variation from what is ble, appellant’s personal plea open in point, alleges In his but second taking in his guilty the trial court erred court and the record was nevertheless plea jury. presence Appel outside the satisfy which seeks sufficient 27.13 lant argues plea that his was to the court and merely to that the accused establish volun jury not to the and as such violated that tarily plead guilty. desires plea guilty mandate of Article 27.13 that a open “in defendant in

made Moreover, nothing procedure in person.” Appellant argues his failure proscriptions against this case violates plead guilty jury before the violated both jury capital of a trial in a murder waiver explicit implicit statutory proscriptions sought. Ap trial Art. where death is 1.13. against jury the waiver of trial pellant acknowledges guilty plea that a does murder trials which death sentence is prohibitions against violate waiver 1.13,1.14, sought. Arts. and 37.071. jury sentence is trial when death plea sought, argues but he must be record, According to prior calling language has jury. made to the While our jury, arraigned appellant the trial court emphasized plea jury that a before in open court. The trial court asked the trial, have placed is not a waiver of a aloud, to read then State the indictment pres importance on whether the appellant’s plea, appellant pled asked for ent or absent when the defendant entered guilty. brought The then in and guilty. Holland sworn. State then read indictment denied, (Tex.Crim.App.1988), cert. jury, and the court informed the 1091, 1560, 103 L.Ed.2d 489 U.S. 109 S.Ct. jury, objection, appellant that had without (1989). State, 674 Williams v. S.W.2d voluntarily knowingly pled and to the 315, (Tex.Crim.App.1984). impor against pre- charges him. After the State determining appellant tant factor rested, whether the trial court sented its evidence jury capital has in a murder case jury finding had trial instructed the to return a verdict jury regarding appellant guilty. that returned verdict special issues under during guilt/innocence phase Article 37.071. “The of trial the sentencing Texas murder scheme re- State called the victim’s widow to the stand.

quires punishment, objection, that a determine Over she testified that she had regardless Holland, plea.” twenty-five 761 been married to the victim for 313; Williams, years, children, S.W.2d at they 674 S.W.2d at 319. that had five and that In night case the entered a verdict home victim was alone on the of his guilt as to his and answered the is- murder. also in a She identified her husband 37.071; appellant sues under Article photograph received of him with friends. She was not Appellant’s point trial. agree second cross examined. We with the State error is overruled. testimony that this did not constitute victim

impact evidence. See Lane v. Appellant 35, point avers in (Tex.Crim.App.1991), three that S.W.2d cert. de nied, 1968, the trial court denying erred in motion 504 U.S. S.Ct. (1992)(no investigate additional time to impact evidence L.Ed.2d 568 victim testimo unadjudicated ny

an Appel given regarding extraneous offense. where no evidence unfairly surprised by physical, lant asserts he was psychological, physical effect of testimony families.) victims, of the extraneous offense. Adan the crime on or their (Tex.Crim.App.1993), andus Appellant also asserts that the victim’s denied, t. 510 U.S. cer testimony widow’s is character evidence in (1994). 127 L.Ed.2d 686 Ac distinguishable from that which we held im record, cording Marin, to the employee permissible Armstrong County jail the Harris testified that on November (Tex.Crim.App.1985). We appellant while was incarcer disagree. Armstrong In the victim’s widow trial, awaiting ated appellant, he awoke who testified that peaceable the deceased was a sleeping rules, was in violation of the man. held that it was error for the State appellant verbally became assaultive and to introduce the issue of the victim’s charac pretrial discovery, abusive. the State in ter, stating, “It competent is never for the formed it would call Marin to testi prove State the first instance to that the fy about provided the incident and him with a person peaceable slain was and inoffensive.” copy of disciplinary report Marin’s written testimony Id. this case the widow’s can regarding Appellant the incident. does not not be described as character evidence within allege report intentionally mis meaning Armstrong. oí leading; Appellant complains that Marin’s testimony misleading because it was The trial overruling court did not err in much more detailed and incriminating than appellant’s objections. Appellant’s fourth report written incident he was point of error is overruled. unprepared effectively cross-examine Ma

rin. These facts do not establish unfair sur point contends in five that prise. contrary, To the provided the State excluding appellant’s the trial court erred in only with full notice in of its record, According Exhibit 9. appel to the tent to introduce evidence of the extraneous attempted lant to introduce into evidence the offense but also with the witness’s written report psychologist written of a clinical testi account of the incident. fying The trial court did objected, on his behalf. The State denying appel abuse its discretion in objection pages the court sustained the toas Appellant’s lant’s motion. third through report 7 of the but admitted the error is overruled. report remainder of the into evidence as facts, error,

Exhibit 9-A. if Under these Appellant’s point alleges any, preserved fourth has not been for review. Tex. 52(a). admitting

the trial court R.App. objec erred victim im Proc. Rule Without an pact during guilt/innocence report, evidence tion to the redacted we must assume phase Appellant complains of his trial. objectionable appellant. it was not

Appellant’s point assigned lively constitutionally fifth is over- exercise its of error Armadillo powers. ruled. Bail Bonds v. Ap (Tex.Crim.App.1990). error, In his sixth of pellant presents these neither of situations. sepa alleges that the trial violated the lawmaking legislature is with the The vested powers ration of of the Texas Consti clause people “may power of the in that it alone tution, II, § 1. This contention arises prescribe penalties.” crimes and define pun four in the from instructions contained Blackwell, ex rel. Smith v. 500 S.W.2d State charge.10 challenging

ishment the Without Thus, it (Tex.Crim.App.1973). is given, appellant of the substance instructions legislature’s power the within exclusive extra-statutory argues giving the the elements murder and define judicial instructions amounted amendment guidelines deciding for when the establish argues Appellant of Article 37.071. penalty. appropriate sentence of death an legislative usurpation law-making pow of the Granviel, parte Ex See 561 S.W.2d separation powers principles. er violated But, every day (Tex.Crim.App.1978). ad is, justice, daily appli ministration of Separation powers principles facts, particular cation of the law to is at once government depart when are violated one duty power11 and an of the inherent “proper power ment assumes a is more judicial department: ly one attached” another branch or when unduly pow- power branch another Judicial said to be interferes often adjudicate protect so that the cannot effec- upon, branch other branch er Appellant complains following only determining instruc- the an- 10. of the consider same in issues, you. special they tions: swers to the if so aid complains you delib- also of the addition of a You are further instructed that when questions posed special mitigation special on the in the erate issue: issues, evidence, you relevant'mitigat- are to Taking consider all into consideration all of circumstances, ing any, supported offense, if including of the circumstances trial, presented phases evidence in both of the background, and the defendant’s character and presented by whether State or the defen- defendant, personal culpability do moral of the include, mitigating may dant. A circumstance mitigating you find that there is a sufficient to, any aspect but is not limited of the defen- or to warrant that circumstance circumstances character, background, record or cir- dant’s imprisonment than a sentence of life rather you believe cumstances crime which however, jury, imposed? The death sentence inappropriate could make a death sentence agree particular need not evidence on what you any this case. If there are miti- find that supports finding Special on this affirmative gating you in this must circumstances Issue. deserve, they any, weight how much if decide thereafter, give effect and consideration duties, By assigned its creation and from its assessing personal them in defendant’s cul- judiciary powers. derives The State inherent pability you special at the time answer the Gomez, Texas v. Bar of issues. (Tex.1994)(inherent power by any is not secured Issue, Special used in the the word As First legislative grant specific provi constitutional “deliberately,” meaning has a different sion, necessarily implied but is to enable "intentionally.” distinct from word imposed discharge constitutionally Court to duties). its “deliberately” word issue, as used in the first powers powers re Inherent are those doing charac- means a manner of an act perform quired judiciary its constitu for the resulting terized careful consider- from duties, pre preserve jurisdiction, and tional its is, involving ation: that conscious decision co-equal independence integrity serve thought process than which more embraces government. powers department Inherent Id. engage mere will to in the conduct. days judiciary concept is a extant since any there is You are further instructed that if English law of the Inns of Court in common testimony you regarding the before in this case jurisprudence under and is into and interwoven having other defendant’s committed offenses separation powers. Eichel lies the doctrine of alleged against in the than the offense him Eichelberger, berger 398-99 case, you indictment in this cannot consider (Tex.1979) pow (noting of inherent that doctrine you testimony any purpose find said unless separation from er is derived and underlies beyond and believe doubt that reasonable Wilson, offenses, principles); Tex. powers if Nevitt v. defendant committed other such committed, (1926). may any you were then 285 S.W. and even

933 1.; I, rights interests of See also Const. Art. Tex. individual citizens Tex. Sec. 1.27, apply Code.Crim. Proe. Articles 1.26 and Sec.

and to that end to construe and 1.05, Code; §§ laws; Corbin, Tex. 311.021 and Penal stated in v. or as Morrow 311.023, 311, Act, Chapter Code Construction 553, (1933), 122 62 Tex. S.W.2d 641 it is the legislature explicitly Government The Code. power pro- of the courts to decide recognizes importance duty of carry judgments nounce and to them into 36.14, judge Article which states "... persons parties effect between who shall, argument begins, before the deliver to bring before cases them decisions. jury, distinctly charge ... a written set- judicial power Under the determination is ting applicable forth law the case.” made what the law relation is in of Procedure, See also Rules of Texas Civil existing things some already hap- done or chapter D. pened. But, a trial does not while (Vernon’s Interpretive Commentary, Consti separation powers principles violate of mere tution of the State of Texas Ann. Art. ly instructions, by giving extra-statutory added). duty V.1993)(emphasis to dis may infringe do so if the in -fact instructions facts, applicable cern what law under the upon legislative power to define offenses power and the to instruct accordingly conflict legitimate legis are direct with daily jus is crucial to the administration of lative The trial instruc mandate.12 court’s integrity tice judicial and to the of the branch changed tions in case the instant neither government. duty of It is the of the trial capital by definition punishable of a murder court, through various rules of construction violated, spirit, any death nor in word or application, to ascertain how the entire procedure 37.071. mandated Article It body particular works under law facts given cannot be said the instructions Thus, of each case. must 37.071 not amounted to amendment of Article 37.071. appellant suggests,

be read in isolation as but We cannot hold that the trial court violated conjunction applicable with all other law separation powers principle. The court law, law, statutory whether it common be did nothing duty, more than its constitutional state or e.g. federal constitutional law. See assuring sentenced McPherson, 846, State v. death in accordance with the law—the com- denied, (Tex.Crim.App.1992), cert. 508 U.S. law, law, statutory mon and the state and 939, 2414, S.Ct. L.Ed.2d 637 Appellant’s federal constitutional law.13 (1993)(addressing powers of court to inter point sixth of error is overruled. pret Article 37.071 in relation United States requirement, require seven, Constitutional point 37.07). law, ments of the common argues capital punishment and Article that our scheme is recognize explicitly that the constitution 37.071 is unconstitutional because it lacks a vehi grants Legislature authority ultimate mitigating over cle for consideration evidence and "administration,” 5, judicial acceptable art. only remedy Tex. Const. Sec. is amendment 31; Bonds, Armadillo Bail 802 S.W.2d at 240 legislature. facially If Article were 37.071 246, citing flawed, v. Meshell appel agree we would forced to (Tex.Crim.App.1987). authority But this does argument; lant’s could trial court not permit Legislature infringe upon not through legal nullity instructions resuscitate a power department, substantive Texas, Judicial inception. void v. from its See Branch rendering separation powers doctrine Georgia, decided with 408 U.S. Furman meaningless guise establishing "under However, (1972). 92 S.Ct. 33 L.Ed.2d 346 Meshell, ‘rules of court.’" 739 S.W.2d at 255. scheme, punishment including the Texas legislature may The extent which the interfere facially Article 37.071 is unconstitutional. duty instructing judicial with the Texas, Jurek v. U.S. 96 S.Ct. facts, applicable complex the law is a (1976). only has L.Ed.2d 929 Article 37.071 issue, fortunately which we need not address. Penry applied. been held See unconstitutional as Lynaugh, U.S. 109 S.Ct. (1989); compare recognize though L.Ed.2d see John appellant's 13. We that instructions, also and 369-70, Texas, encompasses mitiga- son v. U.S. four the added 2658, 2670, (1993)(Article tion is the issue core of com- 125 L.Ed.2d 290 plaint. argument Appellant’s applied is that Article 37.071 was held unconstitutional similarly un Eighth situated shall be treated alike” violative and Fourteenth Doe, 202, 102 Plyler v. 457 Constitution. der the law. U.S. Amendments United States (1982). Texas, 2382, At 72 L.Ed.2d 786 argues that Jurek v. trial, 262, 2950, appellant’s two 96 49 L.Ed.2d 929 time of there were ver U.S. S.Ct.

(1976), Supreme applicable to of in which the sions of Article 37.071—one United States 1,1991, prior capital punishment September committed Court held that our fenses version, Eighth applicable and to of was not violative of the the amended scheme Amendments, 1, September longer is no con- fenses committed on or after Fourteenth committing trolling legislative 1991. Because those the same because amendments subject along day to the to Article 37.071 with the de offense the same are facto scheme, similarly by extra-statutory statutory they in- are amendments created same courts, by similarly trial situated and are treated. See Dob structions added have created Florida, 282, 302, capital mur- 432 97 patch-work quilt under which bert v. U.S. S.Ct. (1977). defendants, similarly 2290,2302-03, Appel 53 L.Ed.2d 344 der even those situated protection arbitrarily erratically presents equal are sub- lant no violation. treated point jected His is overruled. penalty. to the death See Branch v. seventh error Texas, Georgia, with Furman v. 408 decided point eight, appellant In raises the 2726, 238, 92 U.S. S.Ct. 33 L.Ed.2d 346 arguments raised in same which he (1972). I, Article 13 of Tex seven under Section Constitution, prohibiting cruel or unusual Regarding Eighth I, 3, punishment, guaran and Article Section (cruel and challenges Amendment unusual In teeing equal protection of law. addition to punishment), we note that the scheme under arguments under the con made federal appellant was is the which tried same scheme stitution, argues protec Jurek, therefore, in that was reviewed Jurek tions of the Texas are broader. Constitution directly controlling. Appellant lacks argument authority Appellant proffers no challenge subsequent standing to amend by the Texas protection as to the offered made to 37.071 not ments Article which were differs protection Constitution or how Moreover, dispa applicable to his case. guaranteed by from that federal Consti capital punish rate in our treatment created argument authority Without such tution. ment the amendments to Article scheme appellant’s point inadequately briefed. is of a than that 37.071 different nature (Tex.Crim.App.1992), Narvaiz v. 840 S.W.2d which was found unconstitutional Furman. denied, 975, U.S. t. cer California, Tuilaepa v. 512 U.S. (1993); 122 L.Ed.2d Robin S.Ct. (1994). Appel S.Ct. L.Ed.2d (Tex.Crim.App.1991), 222 n. 4 son v. presents Eighth lant Amendment viola denied, t. 512 U.S. cer tion. (1994); 129 L.Ed.2d 879 S.Ct. 577, 579 n. 1 Equal Four- Protection Clause Morehead Tex.R.App. (Tex.Crim.App.1991); Proc. 74 requires persons that “all

teenth Amendment law, Penry require applicable case did not additional the flaw in because facts of se, instructions). per court’s mitigation finding Article 37.071 but in In Supreme States Constitu- applied, the failure to discern that United 37.071 unconstitutional as required instruction under the particular facts tion an additional Court held that under required Penry an addi- facts of the case and ensure the federal constitution short, accordingly. the trial court could consider instructed tional vehicle which evidence, duty application of to ensure the mitigating which Article erred in its vehicle Thus, law, law, facts. provide. all of the to the alone did not Because Article 37.071 particular application of Article preclude error in the does not additional instructions 37.071 judiciary’s power duly to cor- was within the is the trial court's and within 37.071 because it powers jury regarding all of the rect. its instruct the Appellant’s eighth point given tra-statutory mitigation of er- 210.14 issue ror is overruled. his case. mitigating held that a have instruction ten, eleven, points nine, of error assign proof. need burden Barnes appellant complains and twelve that the trial (Tex.Crim.App. failing charge court erred 1994). Citing Supreme the United States provocation special issue under Article issue, Court’s have re discussion 37.071(b)(3). Appellant alleges this violated jected argument the that an and undefined 37.071, the mandate of Article and violated unassigned proof burden of creates constitu punishment, pro

the and unusual due cruel infirmity: tional cess, post ex the clauses of United facto 37.071(b)(3) States Constitution. Article plurality opinion, the States United states Supreme in Walton v. affir Court Arizona matively “adopt declined to as a constitu (3) evidence, by raised the whether the if imperative require tional rule would killing conduct of the defendant the mitigating the court to cir consider response deceased was unreasonable in to by a cumstances claimed defendant unless any, provocation, if the deceased. negated preponder State them clearly The instruction is conditional rather 639, ance of the 497 at evidence.” U.S. Moreover, mandatory. than appellant since 650, 3047, 3055, 110 S.Ct. at 111 L.Ed.2d specifically informed the trial he (1990) 511, (plurality opinion). at 526 The did not desire provocation submission plurality in Walton further held that it is issue, estopped by ishe the doctrine of invit place not unconstitutional to on burden raising ed error from complaint ap this the defendant to sufficient miti establish peal. 523, Tucker v. 771 S.W.2d gating by a preponderance circumstances (Tex.Crim.App.1988), denied, cert. 492 U.S. 649-651, Id. [497] evidence. U.S. at 912, 3230, (1989). S.Ct. 106 L.Ed.2d 578 3055-56, at [110] S.Ct. [111] L.Ed.2d nine, ten, Points eleven and twelve are legislation 525-27. Because neither nor overruled. places upon proof constitution a burden of negate to miti State the existence of points of error thirteen and four evidence, gating we to refuse fault the teen avers the amendment failing give court for such adding mitigation special issue Article instruction. constitution, 37.071 violated the federal points sixteen, fifteen and raises Appellant presents nothing Id. which would identical claims under the state constitution. controlling remove from prece- his case Appellant asserts assign that the failure to Furthermore, nothing dent. in the Texas proof regarding mitigation burden Ap- requires Constitution a different result. state, unconstitutionally the bur shifted pellant’s through thirteenth sixteenth proof den of to him. points of error are overruled. seventeen, was not tried eighteen, under the version Points of error contentions, challenges;

of Article 37.071 which he nineteen re- voice therefore, standing spectively, he lacks make these that the evidence was insufficient However, challenges. mitigation jury’s support since the answer the second special jury, (dangerousness) (mitigation) spe- issue submitted to in fact and third legislative mimics the one in the cial amendment issues and that we are unable to mean- not assign proof, ingfully and does a burden of we the evidence it can- review because apply appellant’s arguments will upon to the ex- not be what determined evidence Moreover, E.g. to the extent have we ad- v. Fourteenth Amendment. Rucker I, rejected dressed Article Section (1961). have Tex.Crim. arguments protection that it offers broader than impossible reviewing the suffi task of its answers to the issues. based betray ciency jury’s

Appellant’s arguments supporting some misun- of the evidence derstandings sufficiency regarding reviews. no evidence exists which determination the

imposition

mitigates against the of the death penalty in case. United States Su has the common

Texas followed has held such a review is preme Court factfinding function ex assigning law Eighth I, required under the and Four juries. § clusively to Tex. Art. Const. 1984). (Vernon’s to the United Commentary teenth Amendments States

interp. Harris, “jurors Pulley v. 465 U.S. repeatedly had held that are Constitution. (1984); judges Hughes of the facts”. Abdnor 79 L.Ed.2d 29 exclusive 104 S.Ct. (Tex.Crim.App. (Tex.Crim.App.1994), — 1994). conflicting denied, U.S. -, That was intro evidence rt. ce insufficient; (1995). Moreover, duced does not render evidence L.Ed.2d indeed, reviewing court must assume that review, first have to conduct such we would in the evi the factfinder resolved conflicts a evidence is as mat determine certain favor the Turro dence in of verdict reached. mitigating, have to of and we would ter law 43, (Tex.Crim.App. 47 v. 867 S.W.2d presented presume that the evidence 1993). required reviewing A court is not to credible, is, it, jury believed and it the evi determine whether believes that appellant’s to would have hold that “credi we guilt beyond a rea dence at established outweighed the mitigating ble evidence” Although faced doubt. Id. sonable mitigation. against We are State’s evidence inferences, conflicting reviewing a court must any mitigating disinclined to declare evidence any presume that trier of fact resolved the law, usurp jury’s of or to the role as matter prosecution, such in favor of the and conflict weight discerning credibility the Thus, a must to that resolution. Id. defer evidence; course the such a would violate reviewing sit as a court does not thirteenth governing long standing principle the factfin- credibility weight juror reweighing the respective func reviewing court’s der evidence, only the but asks whether evidence prior holdings that a tions. reiterate our support jury’s finding. E.g. the exists to mitigation to jury’s answer the review 307, 319, 99 Virginia, v. 443 U.S. Jackson v. 915 inappropriate. issue Colella 2781, 2789, 560; Chambers 61 L.Ed.2d S.Ct. (Tex.Crim.App.1995); S.W.2d 841 (Tex.Crim.App.1993), 15 Appellant’s at Hughes, denied, 1100, 114 t. 511 U.S. S.Ct. cer eighteenth point overruled. (1994). 1871, 128 491 This is what L.Ed.2d that evidence is means when courts assert sufficiency of Turning to the the light “in most favorable to reviewed jury’s finding that supporting the evidence Jackson, at verdict.” U.S. S.Ct. represents continuing threat to appellant Chambers, 2789; at at 15. S.W.2d society, find evidence sufficient. we at appellant’s contention we look all resolving Thus, argues appellant that we when light most favorable to evidence sufficiency evi- cannot review any to ration the verdict determine whether upon ascertain dence because we cannot verdict, find all of the elements trier of fact could jury its al reached what evidence 37.071(b)(2) beyond a reasonable presents grounds for It is of article he reversal. unnecessary upon specif- S.W.2d to determine what doubt. Flores denied, decisions; jury (Tex.Crim.App.1993), its we cert. U.S. ic evidence the based (1994). only support for evidence to look sufficient 130 L.Ed.2d S.Ct. point Appellant’s finding. nineteenth to consider all evi is entitled

is overruled. phases admitted of trial when at both dence

special issues. Id. We

deliberating on the the circum previously stated eighteenth have

Similarly, appellant’s offense, enough, may if unnecessary severe perform the stances of point urges us to nied, 1339, 113 support to an affirmative alone be sufficient U.S. (1991), spe special argues to but

answer the second issue. Id. We L.Ed.2d 271 necessary may support look for other cial became because also evidence verdict forms jury’s finding, such character evi- instructed the the trial offenses, dence, they extraneous or state of mind the extraneous offenses unless consider believed, doubt, beyond at time of a reasonable the offense. Id. appellant had committed the offense. We here The evidence established “a most instruction does disagree. The trial court’s Tucker, dangerous aberration character.” verdict form and necessitate support at 527. To cocaine distinguish Spence. does not this case from habit, appellant brutally kill willing twenty Point is overruled. relatives, friends, neighbors. Evidence twenty-one appellant trial established that in the course of contends Anderson,

robbing instructing distant relative that the trial court erred here, appellant ap- murder whose was tried that it could “convict” of unad- pellant brutally bludgeoned judicated and stabbed him extraneous offenses. During punishment phase death. find fails cite said instruction trial,

appellant’s nothing in jury charge the State also introduced which amounts equally confessions to the brutal to convict of extrane- instruction Josey, murder Melonee friend and ous The instruction to offenses. consider neighbor. Appellant juror bludgeoned only her extraneous if the believes offenses with a appellant death meat when re- tenderizer she committed the offense does give money fused to him pay but offered to to an appellant. amount instruction to convict unfounded; him if he mowed her lawn. Appellant’s factually The State also is contention appellant’s introduced overwrought interpretation of his as- it confession is based on an Williams, upon twenty-one sault with a hammer Mac Ola of Point of the record. error is person years, of advanced refused to overruled. who pay appellant per- for lawn work he had not Appellant

formed. committed these crimes points twenty-two twenty- In and days the course of a few and each case three, urges appellant well- us to overrule he entered victim’s home as an invited precedent and unadjudicat settled hold that guest. volatility These facts reveal a and ed dur extraneous offenses are inadmissible brutality evincing dangerous of aberration punishment phase ing capital murder juror character from which a reasonable twenty-four, appellant In point trials. con appellant possesses could conclude that tends the court’s failure follow continuing Appellant’s society.15 threat 3(c) § dictates Article 37.07 violated the point seventeenth of error are overruled. separation provision powers of the Texas

Constitution; he asserts that Article 37.07 3(c) point In twenty, appellant unadjudicated § of error ex forbids admission of argues that the trial court erred in to traneous offenses. As acknowl failing charge special-verdict edges, directly contrary precedent forms this is listing unadjudicated holding 37.071, of elements and not Article alleged by 37.07, punishment phase fenses the State. ac of a controls the knowledges State, normally Gentry is no 770 there such murder trial. v. State, 780,

requirement, Spence (Tex.Crim.App.1988), v. 795 792 cert. S.W.2d S.W.2d 743, denied, 1102, 2458, (Tex.Crim.App.1990), 758-59 cert. de 490 104 U.S. 109 S.Ct. State, chest,

15. See also Joiner v. 701, forty-one 704 force stab wounds her blunt denied, 925, head, head, and, (Tex.Crim.App.1992), cert. 509 U.S. trauma to her to the lacerations 3044, (1993)(one State, slashed); 676 125 L.Ed.2d 729 vic her throat had been Cass v. (Tex.Crim.App.1984)(shocking tim was found to have been four times in stabbed S.W.2d 593 the chest and further received series of lacera the offense continu circumstances of established ing danger society). on her victim tions neck. other suffered 938 State, (1989); twenty-eight appellant In Rumbaugh point v. of error

L.Ed.2d 1013 “probabili that the use of the term maintains (Tex.Crim.App.1979). ty” special unconstitution in the second issue argument, Finding compelling novel or ally that issue on allows the to answer holding precedent that Article reaffirm our beyond than a reasonable evidence less governs phase capi- punishment 37.071 rejected in doubt. This contention was Sosa trials, permits tal murder and evidence (Tex.Crim. 916-17 v. S.W.2d unadjudicated extraneous offenses. Points argu App.1989). held in Sosa that this twenty-two, twenty-three, of error language ignores of Article ment twenty-four are overruled. 37.071(e), requires jury to answer which “beyond a reason each of issues twenty-five appel point In of error twenty- Appellant’s able doubt”. complains of lant the trial court’s instructions eight is overruled. regarding voluntary intoxication under Sec. error, twenty-ninth point appel 8.04 of the Texas Penal Code. The record 37.071(b)(1) facially is lant claims that Article given reflects that instruction culpable is a invalid because deliberate lesser request, failed to have re mental state then intentional. We object given. to the instructions Because held, instructed peatedly objection, we there was no must assume that something more that deliberate satisfactory appellant. the instruction was e.g., than See intentional. Farris error, appellant Under the doctrine of invited (Tex.Crim.App.1990), S.W.2d estopped complaining grounds from denied, 911, 112 1278, 117 cert. 503 U.S. S.Ct. gave an instruction which he (1992); L.Ed.2d 504 Fearance Tucker, 771

requested. S.W.2d at 534. (Tex.Crim.App.1981), cert. S.W.2d twenty-five Point is overruled. denied, 400, 70 U.S. S.Ct. (1981); Heckert v. L.Ed.2d twenty- points twenty-six (Tex.Crim.App.1981). Point seven, sen appellant alleges that the death twenty-nine is overruled. punishment is a cruel and unusual tence federal and con violative of both the state In of error his thirtieth cogent Appellant “adopts stitutions. operative of Article that terms asserts arguments Harry Blackmum” in of Justice to the unconstitu vague 37.071 are lead Collins, 1141, tionally arbitrary application of death v. 510 114 S.Ct. Callins U.S. 238, Georgia, (1994). v. 408 U.S. sentence. Furman 1127, Regarding 127 435 L.Ed.2d (1972). 2726, L.Ed.2d 346 92 S.Ct. claims, hold that Ju appellant’s federal thirty-two appellant argues point of error 276, Texas, 262, 428 U.S. 96 S.Ct. rek denying his that court erred in the trial (1976) 2950, 2958, 49 L.Ed.2d 929 is con to set the indictment on pretrial motion aside constitutionality trolling; upholds vague and grounds special that issues are Moreover, our scheme. Justice by jurors. Appellant’s cannot be understood dissenting opinion in Blackmun’s Callins arguments on the consti amount an attack sufficiently provisions address does tutionality grounds of Article 37.071 adequately of the Texas Constitution confusing vague for the its are too terms appellant’s arguments that our consti brief ignores He average to understand. citizen than provides protections tution broader 2950, Jurek, 262, 96 S.Ct. U.S. constitution; arguments federal distinct (1976), Supreme in which the L.Ed.2d required to such are raise and authorities against rejected arguments Court these 415; Narvaiz, challenges. applied in his Article 37.071 same version of

Robinson, 4; at 222 n. More thirty- Appellant’s thirtieth case. Id. 1; head, Tex.R.App. at 579 n. points error are overruled. second twenty- Appellant’s Proc. and 210. twenty-seventh ap points thirty-first point of error of error sixth and his argues trial court erred pellant are overruled.

refusing appoint expert study an Through complex, analysis appel- backward jury’s ability to special jury understand the issues. lant parole insists that the considered Oklahoma, deliberations; argues under Ake v. its he asserts since soci- 68, 1087, ety employed U.S. 105 S.Ct. L.Ed.2d 53 in the second issue (1985). “prison society” includes both and “free soci- ety”, must have considered the Supreme In Alee the explained Court society” posed by threat to “free appellant. “purchase while the State need not for an Appellant appellant’s asserts that to assess indigent defendant all the assistance society,” jurors threat to “free had to counterparts,” provide wealthier it must him appellant’s consider inevitable release into present the basic tools to his defense. Id. at society. Appellant then asserts that to con- Among 105 S.Ct. at 1093. the factors society, sider his release into free which Ake court set forth as relevant to had to paroled. assume that he would be determining appointed expert when an is Appellant’s argument logic is flawed in its necessary provide indigent defendant and, importantly, more refuted the evi- integral the raw materials to the build dence. ing of an effective probable defense was the expert value of sought, assistance jurors questioned and the All of hearing at the expert risk of an error if trial, assistance were on the motion for a new testified that provided. 82-83, 86, 105 470 U.S. at they S.Ct. parole per- had not considered in their 1091-92, 1095-96, Supreme 1097-98. The sonal deliberations and that the had not placed Court the burden on the defendant to parole ju- discussed in its deliberation. The compelling show a need. Caldwell v. apparently Mississ rors were satisfied with consider- ippi, 472 U.S. ing 323-24 n. poses society, threat (1985). 2637 n. Ap L.Ed.2d distinguishing without between “free” pellant must offer undeveloped “prison” more than society developing and without requested assertions “parole” assistance appellant might scenario which would be beneficial. Id. society.” become a threat to “free Put sim- jurors ply, the figure did not bother to out record, Reviewing the we conclude that appellant might danger how become a appellant failed to establish the threshold society; they just posed concluded that he showing of required need to invoke the due danger. such a With clear evidence contra- process also, concerns reviewed Ake. See dicting assertions, we cannot hold Rey (Tex.Cr.App. S.W.2d 333 the trial court abused its discretion in over- 1995). Appellant failed to establish that the ruling appellant’s thirty- motion. Point ability jury of the special to understand the three is overruled. issues would an be issue which could not be adequately during addressed his counsel Appellant complains thirty- in his Indeed, reject his trial. bald point fourth reversibly that court trial assertion expertise that scientific required refusing erred in to allow him to make an juror’s to a jury’s ability determine or the to proof during offer of hearing on his apply understand and Every lawyer the law. Appellant motion for new trial. mischarac questions able to ask expertise has the re reality, appellant terizes the issue. In com quired juror to determine whether a under plains that ques the trial court limited his Appellant’s thirty-first stands the law. tioning jurors. of the point of error is overruled. record,

According appellant request- to the point In thirty-three appel of error granted hearing ed and was on his motion alleges lant that the trial court in hearing erred for new trial. The was intended to failing grant to his motion for specifically appellant’s allegations new trial on address grounds jury improperly that the Appellant alleged considered misconduct. operation parole in their deliberations. had in parole to have considered its (1992). not, court under the special second The trial did

deliberation issues. Appellant argu- Ap- proposed the same flawed of this abuse its discretion. facts point thirty- pellant questions he in to ment that raises of error was allowed ask various three, supra. attempt In query. to establish that to his he not re- critical When did parole, improperly sought, appel- had considered the answers which he ceive Ellwanger appellant questioned re- Juror questions repetitious, became harass- lant’s garding determining in argumentative. whether threat ing, right The to enter posed society by appellant, Ellwanger had to exception bill of into the record is not appellant’s eventual release from considered party may vehicle which a circumvent juror answered, prison? “No.” The Over harassing limit on trial court’s reasonable objection, appellant repeated State’s questions. trial did not abuse its question again negative received a an- allowing in contin- appellant discretion not to Appellant’s swer. counsel then asked “Did improper questioning ue his line you [appellant] consider that he could be guise exception. of a bill of paroled?” respond- To which the venireman subsequent Prior to the examination ed, Ell- “no.” then asked whether clear, jurors, appellant large part made it wanger appellant had considered that could in the that his intent was reflected ensure society.” Ellwanger be a threat to “free record, proposed question that he all added, responded “no” he had jurors in same manner he had “prison” distinguished between “free” questioned juror Ellwanger. The trial court society, stating just it as thought “I soci- appellant that it not allow informed would ety.” Appellant attempted then convince questioning pursue him to the same line of he questions, Ellwanger, through a series attempted Ellwanger. Appellant had answering he must have second rights. that this was a denial of his asserts special appellant issue could considered But, appellant remaining passed each of the paroled. Asserting had them; jurors attempting question without already Ellwanger established had therefore, we, cannot discern from the record parole answering considered Thus, appel- the trial court erred. whether issue, objected grounds the State on that this preserve any error our lant has for failed redundant, questioning confusing, line of 52(a).16 Appel- Tex.RApp. review. Proc. improper, and harassment of the witness. thirty-fourth point of error is over- lant’s objec- The trial court sustained the State’s ruled. tion, pursue and when asked exception questioning

line of in a bill of thirty-five, ap In of error right trial court denied him the to further avers that the trial court pellant erred juror question the in this vein. dismissing veniremember Bolden. re ' viewing a court’s decision to dismiss may place

Trial courts reasonable challenge venireperson upon a sustained limits on cross-examination based such cause, given deference is harassment, considerable prejudice, concerns as confusion Chambers, at 22. issues, trial court. safety, the witness’s or interro judge’s reviewing the trial decision to sustain gation repetitive only marginally is or that cause, the challenge ask whether for Moody relevant. testimony denied, supports totality of the voir dire (Tex.Crim.App.1992), cert. judge’s finding prospective trial “that

U.S. 121 L.Ed.2d S.Ct. appellant’s questioning appellant jurors properly limit passed to 16. While without intended safely say Ellwanger. questioning, We can also called each whether did with State asked as it any limiting appellant’s question- they parole if deliberations. that error ing had considered their beyond doubt jurors potential was a reasonable The all answered that of harmless jurors did parole that the not in either since the record establishes had been consideration parole, question appellant in- consider their individual their collective deliberations. to this court tended ask. could assume from that trial mitigating ob- juror requisite is unable to take oath and tence of evidence. jected permit the trial given by judge,” when court did not

follow the law as the trial questions. only if him to ask these a clear of is abuse discretion judge’s will the decision demonstrated trial already no held that there is We have be reversed. Id. regarding mitigating evi- proof burden of thirteen, supra. dence. See Point The trial The record of Bolden’s voir dire estab denying abuse its court did not discretion difficulty accepting that lishes she had death appellant’s request in- improperly legitimate penalty. suggests as a The record prohibiting appellant or in struct required extra-ordinary proof that Bolden to jurors misinforming from about the bur- guilty capital find defendant of murder. Appellant’s thirty-sixth proof. dens of originally challenged

The State Bolden on point of error is overruled. grounds. But, contrary these to

assertions, the trial court did not dismiss thirty-seventh grounds. attempt point on In his final Bolden these In its error, argues appellant of challenge evaluate the State’s that Bolden the trial court refusing to duty not fulfill erred in remind the in its juror, could her as a the trial Bolden, instructions that had questioned punishment asking, court “You cannot pled guilty. Appellant argues that he promise you beyond then that if even believe accep entitled to this instruction because guilty a reasonable doubt the defendant was responsibility mitigating tance of is evidence. you guilty?” would find him She re Appellant presents convincing argument “No, sponded: repeated I can’t.” Bolden supporting contentions; authority he assertion again. this when asked On this presents mitiga no error. The trial court’s record, we must conclude trial court provided tion instruction sufficient vehicle dismissing did not abuse its discretion in which the could consider evidence Bolden. Cooks trial mitigating; required court denied, (Tex.Crim.App.1992), 509 U.S. cert. argue appellant’s case for him. Point 125 L.Ed.2d thirty-seven is overruled. (1993)(juror who they states that are unable juror’s to take oath to do so because judgment of the trial court is affirmed. potentially place position would them in the having impose penalty of the death McCORMICK, P.J., concurs in the result. cause). subject challenge Appel to a thirty-fifth point lant’s of error over MEYERS, JJ., MALONEY concur ruled. points 1 the result and otherwise join opinion. point thirty-six appellant per asserts the trial court in not erred BAIRD, Judge, concurring. mitting appellant question the venire re garding proof regard the State’s burden disagree plurality’s I treatment ing mitigating According to evidence. the first of error.1 record, appellant requested the trial instruct the venire that the State has trial, Immediately prior pled proof mitiga the burden the issue the offense murder. The tion; naturally 26.13(a)(1) denied trial court judge complied with art.

request. Appellant propounded then series informing appellant range punish- questions asking jurors However, if parties could hold agree ment. the trial negate judge the to its burden the exis- to pursuant State did not admonish State, 610, disagree (Tex.Cr.App. 1. with I the treatment of 940 S.W.2d Morris J., 1996) (Baird, eighteenth dissenting). of error for the stated in reasons JJ., 26.13(a)(2-4). concurring) (citing Maloney Meyers, art. contends (Tex.Cr. Cervantes, error; parte was the State contends the Ex 762 S.W.2d reversible required by App.1988)). article admonishments

26.13(a)(2-4) inapplicable in instant were plea bargain Morales into a where entered case. by agreed plead guilty to one she offense 26.13(a)(2) requires ac prior agreed

Art. and the to dismiss remain State shall, cepting plea guilty, the inter ing admonishing In Morales of indictment.

alia, admonish the defendant of the non guilty plea, consequences of her the trial binding prosecutor’s effect of recommen judge to admonish under art. failed if punishment, 26.13(a)(4). such a recom dation as to showing there was no Because (3) Similarly, mendation exists. subsection was in the whether Morales or was record requires judge admonish the defen citizen, not United States Court rights judge appellate dant of his the trial (Tex. reversed, Appeals 838 S.W.2d if punishment prosecutor’s recom follows 1992), App. and we affirmed. 872 Paso — El McCravy v. mendation. opinions Both were reached S.W.2d 753. (Tex.Cr.App.1980), the trial S.W.2d 450 through statutory standard method (2). judge comply did not with subsection i.e., interpretation, relying on the literal text Nevertheless, held that in situations Boykin statute. S.W.2d by the where there was no recommendation (We give (Tex.Cr.App.1991) effect to prosecutor punishment, provisions as to statute.). plain meaning of the (2) apply. In other did not subsection 26.13(c) provides that Article substantial words, requirement a trial there is no compliance unless the defendant is sufficient judge the defendant to the non admonish not aware of the conse- shows that he was binding character of a non-existent recom.mendation. that he was quences plea of his mislead (Tex. , 642 S.W.2d 461-62 Id. by or the admonishment of the harmed Reh’g). Cr.App.1982)(Op’n This reason there can no court.2 In we held be Morales (3); if ing necessarily pertains to subsection no compliance substantial where there is punish is no recommendation as to there Therefore, compliance. logically followed (3) wholly ment, inapplicable. is subsection case, there no compliance” was “no Therefore, punishment because there harm.3 requirement that the defendant show in the instant the trial recommendation Moreover, provides 26.13 its own art. because judge required appel admonish analysis, (2) species Tex.R.App. P. (3). of harm lant subsection under either 81(b)(2), dealing inapplicable to cases remaining question is whether The admonishment error.4 subsection(4) required admonishment was However, provides exception an Boykin That must the instant case. admonishment namely interpretation, literal where given every entering plea text defendant plain language application of the statute’s guilty. Morales v. S.W.2d (Clinton, Overstreet, which the to an absurd result (Tex.Cr.App.1994) would lead Akhtab, Morales, plu 26.13(c) light provides: Tovar and 2. 4.In analysis very rality's apply admonishing pro- attempt a harm defendant as herein vided, compliance by analysis court is directly substantial disturbing con because such affirmatively unless the defendant sufficient Additionally, analysis flicts with those cases. was not aware conse- that he shows properly performed by plurality is not con quences and that he was misled apply the factors ducted because it does court. the admonishment of the harmed prescribed Harris v. (Tex.Cr.App.1989). 587-88 holding has rule announced in Morales Tovar, parte this Court in Ex been reaffirmed (Tex.Cr.App.1995),and Ex Akhtab, (Tex.Cr. parte n. 3 App.1995).

943 Legislature possibly could not have intended. should not be deemed immaterial or irrele- exception Ibid. I holding believe this comes into vant. Such a would reduce the trial here, play in the instant case because unlike judge’s responsibility giving the admon- Morales citizenship where the record as to technicality. rejected ishment a mere silent, the record State, shows that argument precise this in Whitten v. is, was bom Houston. there 156, (Tex.Cr.App.1979). 587 S.W.2d 158-59 fore, nondeportable citizen the United Instead, I believe we are confronted with a Obviously interpretation requir States. statutory interpretation clear ease of ing reversal of a conviction because de Boykin. my interpretation, Under the law fendant did not receive an admonishment relating appeal may to cases on direct totally inapplicable to him and could judge stated as follows: when a trial fails plea guilty not have affected his would pursuant admonish a defendant to art. lead to an absurd result.5 The Courts of 26.13(a)(4) required reversal is if the defen- Appeals recognized absurdity have citizen, dant is not a United States Cer- have single not reversed a case where the vantes, citizenship or if the defendant’s affirmatively record reflected the defendant unknown, Morales; but, an affirmance inis See, was an United States citizen. v. Foster if affirmatively order the record establishes State, 390, 817 S.W.2d 392 (Tex.App . —Beau the defendant is a United An- States citizen. 1991); State, mont Mitchell v. 848 S.W.2d other construction of art. 26.13 would either 917, (Tex.App. 1993); 919 Dom — Texarkana reject the text literal of the statute or lead State, inguez 13, (Tex. v. 889 S.W.2d an absurd result. 1994); App. State, Paso Dixon v. — El 1995); (Tex.App S.W.2d 783 Cain v. . —Austin In the instant the record affirmative- State, (Tex.App. S.W.2d — Ft. ly establishes the defendant is a United 1995); State, Worth Durst v. 900 S.W.2d Therefore, States citizen. I concur (Tex.App. 1995); Rodgers v. — Beaumont point decision to overrule the first of error. State, (Tex.App. S.W.2d 727-728 comments, join only With these I judg- 1995); —Ft. Fregia Worth 903 S.W.2d ment of the Court. (Tex.App. 1995); Arm — Beaumont (Tex. strong MANSFIELD, Judge, concurring. App. 1995); and, [1st Dist.] Thom — Houston as v. (Tex.App. join Court, I opinion but concur 1996). Cf., —SanAntonio Britton v. respect disposition point to the 1994) (Tex.App Worth . —Ft. error number one. (Evidence insufficient to establish citizen ship.). one, part As of his of error number failing avers the trial court erred in Generally, Appeals’ these Courts of deci- appellant regarding possible to admonish sions finding have resulted from a of sub- deportation consequences guilty plea. of a compliance 26.13(c), stantial under art. or a Procedure, Texas Code of Criminal article finding that the error was immaterial or 26.13(a) provides prior accepting However, agree irrelevant. I cannot plea guilty plea contendere, or a of nolo there has been compliance substantial be- the court shall admonish the defendant of: cause there has compliance. been no In- deed, (4) argument specifically this was the the fact that if re- the defendant is not a jected in Similarly, America, Morales. the trial citizen of the United States judge’s failure to admonish the defendant or nolo contendere for the Morales, possibility immigration the concurrence stated: difficulties when de- ciding plead guilty whether to to a criminal Clearly, subject American citizens are not offense. deportation as a Id., Overstreet, result of criminal conviction (Clinton, 872 S.W.2d at 755 Ma cannot, therefore, JJ., loney Meyers, concurring). be influenced statute, interpret may deportation, a we seek to effectuate charged

offense result in we Legislature intent of the which enacted coun- from to this exclusion admission legislation. attempting to discern “When try, or of the denial naturalization legislative purpose, intent or this collective federal law. necessarily focus our on the we attention appellant that was bom The record shows question and literal text of the statute in Houston, in on Texas. November fair, objective mean- attempt to discern except life He has his entire in Texas lived time of ing of that text at the its enactment.” spent in period for a brief of time he the Boykin, at 785.

Army. beyond dispute appel- It is thus is, course, legitimate exception There a lant is a citizen and cannot be United States applica- plain meaning this rule: to where any deported for reason unless he renounces plain language a would tion of statute’s citizenship. Leg- consequences to absurd lead possibly intended islature could not have (Tex. Morales v. literally. apply language we should not give Crim.App.1994), held failure to we manner, proper used in the When 26.13(a)(4) re the article was admonishment plain meaning rule exception narrow to the error, showing a versible even without lawmaking powers on the does intrude complete in harm. The record Morales branch, legislative rather dem- but ly appellant’s citizenship, as howev silent branch, which respect onstrates er, possible distinguish so it is Morales way. in assume not act an absurd would is present from the case where there Boykin, at 785. question appellant is a States United Meyers’ It suggested, Judge citizen. is article Legislature, writing Morales, concurring opinion in writ 26.13(a)(4), a defen- expressed its intent that 26.13(a)(4), ing Legislature article did not dant, nolo entering plea guilty before guilty contendere, require pleading possible intend to defendants as to the be admonished litigate plea, immigration consequences the issue of of such a or nolo contendere only consequences applicable if the defendant judges so citizenship their at trial that trial in Mor- not a citizen. Our decision is U.S. could whether article determine Leg- correctly to the gave ales due deference 26.13(a)(4) given. had to be admonishment holding reversible it is islature’s intent Therefore, Legislature that all mandated where give to fail the admonishment such defendants receive the admonishment. citizen- the record is silent as defendant’s Morales, pos interpretation This at 755. ship status. logical, legislative is and the arti sible intent 26.13(a)(4) given must be cle admonishment result —a result It would be an absurd every is silent as to case where record have intend- Legislature possibly could as, citizenship, as well the defendant’s aon allow a defendant’s conviction ed—to course, the defendant is not a U.S. where re- nolo contendere to be plea of citizen. give the arti- for failure to appeal versed 26.13(a)(4) the rec- cle admonishment where Morales, submit, in- apply to I does not conclusively is a U.S. shows defendant ord stances, present where such as the legally citizen and thus the admonishment Unit- clearly the defendant is a record shows I Accordingly, would inapplicable to him. deportation As or other ed States citizen. for the trial hold that it not error impos- immigration consequences legal are 26.13(a)(4) give the article to fail to sibility respect with U.S. citi- —a citizen U.S. admonishment because —as guilty plea, of his article zen —as result by the record —the admonish- demonstrated 26.13(a)(4) inapplicable. legally inapplicable him. ment is (Tex.Crim. comments, join Boykin opinion 818 S.W.2d 782 I these With Court, to its respect for statuto concur App.1991) provides framework but one. of error number disposition analysis. Boykin, that when ry we held CLINTON, dissenting. guilty.” Judge, defendant entered his true, Op. only at 930. If it is this is because In order to affirm this murder con- far in our issue has not so caselaw the arisen. plurality today viction a of the Court is will- Certainly question there was no raised the ing procedure “jury though to call a a trial” by plurality guilty cases that the cited the plainly end, salutary it is not. To that same jury’s presence. plea was entered in the plurality the further threatens to dismantle (Tex. State, In Williams v. 674 S.W.2d 315 regarding applicabil- all of our recent caselaw Cr.App.1984), we addressed the contention ity governing of the rule harmless error on guilty jury plea capital that a in a before the appeal. I not affirming Because do believe a impermissible case an of amounts to waiver capital juris- is murder conviction worth the by jury. by pointing trial responded out We prudential havoc, I dissent. pleas jury guilty that of before have always been our law to consti considered Id., by jury. citing tute trial Miller v. at I. State, (Tex.Cr.App.1967). 412 S.W.2d 650 appellant In his second of com- There was no doubt Williams that plains reversibly that trial erred in plea guilty jury. was taken The before taking guilty plea presence his outside the guilty plea of taking claim was that a in the jury. procedure jury’s presence, proceeding straight He contends this and then punishment, trial, unitary to a right by jury violated his constituted unwaivable to trial contrary capital statutory sentencing to our any capital which case in the State will scheme, requires which bifurcation. 1.14(a) pursue penalty. the death Articles and in v. Williams Holland 1.13(b), plurality today V-A.C.C.P. The (Tex.Cr.App.1988), S.W.2d where a responds long jury that as as the returns a made, claim Court similar was held “that guilty verdict special and answers the plea guilty jury capital in a a before a case 37.071, pursuant Y.A.C.C.P., issues to Article by jury pro constitutes trial such a whether appellant trappings has received all the of a ceeding be denominated ‘bifurcated’ or ‘uni jury jury trial —never mind never heard tary’ in nature.” had no occasion in appellant plea. enough enter It his importance ... “plaee[ these cases to on ] judge jury the trial Op. told the he did. at jury present whether was absent when 930-931. I agree. cannot plea guilty.” the defendant It entered his jury was clear each of those cases that the plurality that, The casually observes while present. Holland not was Williams and do our emphasized plea caselaw “has that a support today.1 plurality’s conclusion guilty jury a a jury is not waiver of a before trial, placed importance we have jury did obtain a verdict in this cause, jury whether present guilt punishment. or absent as to when both as to plurality plurality Presiding Judge The also on Tutor v. relies at former Onion (Tex.Cr.App.1980),opinion pointed chapter a out that is in the Article 26.11 panel subjected decision that prescribing rehear- the Code of Criminal Procedure ing by majority opinion the En Banc The Court. arraignment, purpose requisites. its There Presiding Judge induced former Onion to declare fore, opined: he "[Article 26.11] does not control against “reach[ing] commend[ing] pro- out and a directly procedure guilty plea. in a Article deprive cedure a that would defendant of the Id., 27.13 That does.” at 927. Shields was a right guilty plea jury,” to enter his before the trial before the not detract from the court does to caution that the case "should not be used as a being taught, arraignment lesson is a An viz: procedure promoting vehicle for one for a defen- pretrial performing exercise discrete functions plea jury dant to enter his before the after the designed stage, speak, so to for an set the plea indictment is read when that ensuing arraignment completed, the trial. Once procedure nolo contendré and another when the officio; distinctly becomes a different set functus Id., plea guilty.” Perhaps is not at 820. his procedural requisites conduct dictate protest explains yet why Tutor has to be cited as follows, particularly including trial that authority by today, this Court—until is. accused must the factfinder— enter before Moreover, cause, jury. subsequently E.g., in this Williams and Hol in Shields land, (Tex.Cr.App.1980), supra. S.W.2d 924 also cited plurality holds, only by jury.” In the juxtaposition, if conducted “before trial enough fully satisfy right his vernacular of Marin this is (“In language might by jury appel- (Tex.Cr.App.1993), in a case. be jury identify as to feature of the lant’s case the entered verdict said fundamental guilt system, parties. At the special optional and answered the issues 37.071; very right under least it identifies deter- Article received 931.) special If Op. at Yet it to me mination of the issues. trial.” seems system, then neither verdict 37.071identifies a feature of circumstances anything meaningfully that can other than determination affords much intolerable, by simply his unwaivable constitu- issues is virtue said vindicate jury. language If it right by tional to trial of Article 37.071 itself. right, arguably it identifies a then cannot enough jury It it that is true that was a waived, at not when read in even be least guilty a in this cause. returned verdict of 1.14(a) 1.13(b), conjunction with Articles alternative, since, jury had no as is the provisions right “the under those of because jury, practice guilty pleas in before the the by only if jury” trial can waived the State be jury trial the that it court here instructed penalty. v. forsakes the death See Powell guilty must return a verdict. This instruc State, (Tex.Cr.App.1994) 318 product

tion is the of this Court’s observation (Clinton, J., concurring). long plea of of “the established rule that a felony right jury guilty charge jury way, to a before a admits Either the to a verdict incriminating special purely of all neces is a creature statute. existence facts issues cases, and, sary guilt right the There is under the United States to establish such no jury spe testimony by is to to a introduction of the State Constitution determination Bullock, jury intelligently v. to cial issues. Cabana U.S. enable exercise 385-86, 696-97, touch 88 L.Ed.2d discretion which the law vests them (1986). any right is ing penalty Reyna to assessed.” v. Nor there such be v. (Tex.Cr.App.1968). Texas Constitution. Bullard S.W.2d that, State, (Tex.Cr.App.1977). apparently It is law in thus Texas S.W.2d felony jury guilty a in a That the a decision on plea confronted with statute mandates punishment phase capital felony, jury legal special in the of a a a has no issues even option pleader guilty. capital to find Fair trial would not seem to vindi but murder any by jury.2 to trial (Tex.Cr.App. right cate constitutional v. field (Tex. 1981); Morin says fully en- plurality Yet the Cr.App.1983) joyed right jury his to a trial because and a jury jury guilty It true that a verdict verdict is also is the returned every- punishment If this is special punishment at on the issues. answers the issues to, thing appellant right then the phase capital prosecution Texas. This is entitled of a thing. jury by jury piddling a A so no than that Article to trial is is if for other reason 2(a) 37.071, expressly but to follow the trial § mandates that has alternative guilty to a verdict. capital punishment proceeding “shall” be court’s instruction return authority supra, we and Holland for It better than Williams is true in Morin today. deprived plurality But the Court’s “the is what the holds remarked that defendant not supporting pursu- to by jury is remark in Morin is sans citation a trial when a verdict directed plea authority, guilty jury evi- to be unmindful of ant receives and seems to a since holding punishment stage that the consti- must deter- Court's earlier Bullard dence at the by jury right does not embrace is life tutional to trial mine whether defendant to receive Id., punishment right jury imprisonment penalty." determination of at 269. the death Enjoyment jury a dur- signify the fact issues. determination This remark seems to a belief that guilty ing phase he is not constitu- jury a a of trial which instructed return satisfy tionally a adversely impact capital one criminal defen- entitled to cannot verdict does not a during phase right by jury right jury jury still to trial trial because the defendant’s dant's such, clearly at which he is. answers issues. As it stands capital have afforded the maintain that we jury punishment is not And determination of “jury” jury anything approaching a tri- any right to part of constitutional defendant even say actually pres- we possible If the need not sense could trial. al. what plea right assess- ent to hear the defendant’s his he has obtained (which all, identify just is, what the guilty, it is hard to after guilt/innocence ment jury function is constitutionally significant thing have said the constitutional only 1.03(b) 1.14(a) so assiduous- that Articles jury guarantees)? right ly protect. hear present Because the require- many regard a

There are who will cause, guilty in this him enter a jury actually guilty ment that the hear right to trial appellant was denied formality. guilty ver- plea as a mere But “inviolate,” under Article jury. right This upon thin air. a crim- dict cannot rest When Constitution, and, I, § in a of the Texas guilty felony pleads inal accused pursues the capital case in which the State offense, proof. puts he to its State affirmatively penalty, cannot even be death predicat- verdict must be event waived, by failing much forfeited to ob- less upon ed evidence that is sufficient to con- 1.14(a) 1.13(b), supra; ject. Articles convince) (and actually the vince does State, supra. should reverse Marin v. beyond a the factfinder reasonable doubt of conviction and remand the cause to the the guilt. plea guilty In a of in a defendant’s trial. Because the Court trial court for new court, felony trial “in no event before the not, does I dissent. person charged upon a convicted shall plea support without sufficient evidence to II. 1.15, in the same.” Article V.A.C.C.P. But a plea guilty jury, jury of before the the object plurality’s I of also to the treatment (indeed, apparently required) authorized Holding of first error. guilty find the defendant of his the basis failing the trial court erred in to admonish plea. presumption naked The of innocence 26.13(a), appellant in with Article accordance requirement and the evidence sufficient (2) (4), V.A.C.C.P., through subsections the beyond convince the factfinder a reasonable plurality under Tex. finds the error harmless pertain. doubt do not 81(b)(2). so, Fairfield In R.App.Pro., Rule order do supra, at 776 & n. 5. ad- Unless evidence recently-set- plurality plow must the jury’s duced to inform the discretion in as- applicability scope on the and tled easelaw sessing punishment should raise a substan- rule. the harmless error guilt,3 tive issue as to the defendant’s the face, any applies 26.13 On its Article essence,

jury only In can convict. Id. plea guilty, including guilty plea a to a guilty plea before the obviates odd, since capital murder indictment. This proof in State’s burden of and stands 26.13(a)(2) and in Article the admonishments place support of actual evidence adduced (3) capital clearly application in a have (in (in trial) judgment a of a verdict give I hold that to the admon- case. would trial). plea It is not bench clear whether language required by plain ishment operates guilt, thus as conclusive evidence 26.13(a)(2) (3) capital ease in a Article simply authorizes conviction in the ab- result, reap truly absurd viz: would way, sence of evidence. Either it seems to informing capital mandate defendant me, actually jury itself must hear it. If simply not accurate. certain “facts” that are plea, has not at we least heard absurd, may plain meaning is Because the credibly justify excusing it from its cannot function, legislative intent. indicia of factfinding traditional and still consult other 777-778, Tay- Fairfield, supra, quoting duty at of the trial cence. In this event it becomes guilty plea, enter a court to withdraw 227 S.W. lor v. 88 Tex.Cr.R. defendant, pro- (1918) rehearing). on behalf of the (Opinion on motion guilt of his or inno- ceed to trial on issue substantially comply Boykin v. 785 failure least See requirements the admonishment of Article (Tex.Cr.App.1991). imag- Because I cannot 26.13(a) as error of a “fundamental” nature. Legislature for the trial ine the intended (Tex.Cr. Cervantes, parte Ex capital court to “admonish” a defendant with McAtee, voluntary App.1988); parte Ex 599 S.W.2d 335 irrelevancies assure (Tex.Cr.App.1980). opinions None of the knowing guilty plea, I character of his would 81(b)(2) Morales mentions Rule because simply of Arti- hold that the admonishments 26.13(a)(2) (3) any apply harm did not occur to of us to apply taking cle do analysis, having applied been be none ever capital guilty plea. For that reason the give any fore to the total failure to failing trial court did not err to admonish 26.13(a) admonishments. provisions. under those essence, complete fail- we have treated deportation It is far less clear 26.13(a)(4) deportation give ure to admonishment does not admonishment of Article 26.13(a)(4) as that is im- under Article apply perhaps for in a case. It is analysis it is one of mune to a harm because plurality reason that the is content to call the “prophylactic procedure de- those rules give trial court’s failure to the admonishment Legislature, to signed, in most cases error, beyond a reasonable but harmless impose requirement a uniform where 81(b)(2). view, my doubt under Rule how- fairness of a flexible rule is too uncertain.” ever, apply plurality errs to that rule. State, supra, Marin v. at 281. statute 26.13(c), It is true that under Article sub plainly so as “to assure that trial written compliance stantial with the admonishment question of a judges litigate need never 26.13(a) requirements of Article will suffice citizenship in person’s order to determine unless a defendant can show he was unaware he should be admonished under sub- whether consequences of his and he was Morales, (Mey- supra, at 755 division four.” by misled or harmed the admonishment. ers, J., concurring). “Speculation about the Conversely, in v. S.W.2d Morales ignoring prophylactic proce- possible effect of (Tex.Cr.App.1994), failing we held that Marin, rules,” in “is al- dural we observed give deportation altogeth admonishment ways inappropriate applica- perverse er, because it did not amount to substantial tion of the harmless error doctrine.” compliance, subject was not to the Article plurality at 281. Nevertheless the 26.13(e)requirement that the defendant show failing today that error in to admon- decides expressly harm. Morales did not hold subject deportation possibility ish on the substantially comply failure to with one of 81(b)(2). analysis an for harm under Rule 26.13(a) subject the Article admonishments is By plurality only assures that this the 81(b)(2) analysis— to a Rule harmless error likely citizenship of a defendant is to be fact, in in Morales we did address that subject litigation every guilty plea pro- reason, says question at all. For this all, since, ceeding as in this failure after today, preclude plurality Morales “does not an will be to admonish American citizen 81(b)(2) application analysis to the of an er legislative in- deemed harmless. Thus the Op. ror review.” at 927. wholly tent is thwarted.

However, ap- 81(b)(2), course, we did affirm the court apply in order to Rule Of Morales, peals’ reversal of the conviction capital murder dispose pesky and thus of this result, though appeals even the court of had not affir- appeal viz: an with the desired analysis mance, a harm under Rule conducted “disavow” the plurality must first 81(b)(2). opinions that reversal without We affirmed of a number of considered rationale for, remanding remotely years, on full performing, or even in the last half dozen decided of, discretionary re- necessity analysis briefing, petitions for alluding to the on view, given up precise issue before surprising, harm. This is not which propriety application consistently was the to that time we had identified Court 81(b)(2). holding in only Rule Not is the jeopardy,

Part III now in but so of Marin opinions in v. are the Court’s Warmowski (Tex.Cr.App.1993), 853 S.W.2d 575 So dipo (Tex.Cr.App. 815 S.W.2d 551 1990) submission), (Opinion original (Tex.Cr.App. 808 S.W.2d 482 Nunfio 1991), and no doubt others as well. The analysis harm “case case” endorsed plurality today, Op. expressly Warmowski, rejected in Marin and It is disconcerting readily to see how the Court precedent will sacrifice its own settled public disapprobation order to avoid the inevitably follows reversal of a mur

der conviction. jurisprudential wavering,

To such I also dissent. CARMONA, Appellant,

Preciliano Texas, Appellee. STATE No. 1066-94. Texas, Appeals Court of Criminal En Banc. March

Case Details

Case Name: Matchett v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 6, 1996

Citation: 941 S.W.2d 922

Docket Number: 71664

Court Abbreviation: Tex. Crim. App.