Mathis v. State

MATHIS, Appellant, Milton Wuzael

The STATE of Texas. 73,621.

No. Appeals

Court of Criminal of Texas.

Feb. Houston, Sidney Crowley, Appel-

J. lant. III, DA, Harrity, Asst. Rich-

John J. mond, Paul, Austin, Atty., Matthew State’s for State. room, and threatened Lester

OPINION Brown’s Lentsch, finally in Brown’s car. left MEYERS, J., opinion delivered the KELLER, P.J., appellant the Court which as the police identified PRICE, WOMACK, KEASLER, Upon being him. killer and went to arrest HERVEY, HOLCOMB, COCHRAN, arrested, appellant violent. Offi- became JJ., had told his joined. cers discovered persuaded him father to lie for and had mur- Appellant was convicted of alibi, him she girlfriend give an which September der Tex. Penal Code police. maintained until confronted 19.03(a). jury’s § Pursuant Ann. A fellow inmate testified forth in special answers to the issues set shootings for the showed no remorse article Texas Code of Criminal Procedure them stated that he wished he had killed 2(b) 37.071, 2(e), the trial sections all. judge appellant sentenced to death. Art. the and at first Appellant took stand appeal § 2(g).1 37.071 Direct to this Court that he although testified had been 2(h). § Art. 37.071 automatic. earlier, house he was not there on the 15, 1998, On December at approximately morning shootings. After defense a.m., 8:00 or 8:30 Esmerelda Lester and recess, appellant took requested counsel 15-year daughter her old Melanie Alma- in the stand and stated that he had lied his guer went to home. Chris Lentsch’s previous testimony. He then testified that Lentsch rented rooms to Travis Brown he was at the house at the time of shoot- appellant and Daniel Hibbard. Brown and all ings, and admitted that he had shot Lester, were in room. Al- Brown’s While Ap- car. people three and taken Brown’s maguer and in Hibbard sat Lentseh’s pellant claimed he shot Brown self- room, Lentsch went into the kitchen. had to defense after Brown threatened thereafter, Shortly gun- Lentsch heard shoot him.2 He claimed that he shot the shots from Brown’s room and turned to panicked shooting he after others because appellant exiting gun see the room with a Brown. hand. Appellant his claimed that phase, During punishment the State just Brown had shot himself. Lentsch told appellant’s prior crimi- put on evidence of down, appellant put gun appel- to but history, including an rob- aggravated nal lant ordered Lentsch and the other three thefts, and a bery, various assaults and back into calmly Lentsch’s room where he resisting charge for arrest. State up Almaguer walked to her in and shot presented appel- additional evidence that alive, head, leaving paralyzed from but repetitively belligerent and lant had been Appellant the neck down. then Hib- shot had disruptive gotten at school and that he head, causing Ap- bard his death. jailers fight into a with while incarcerated. Lester, pointed pellant finally gun at error, whereupon appel that out he discovered he was In his tenth of Appellant presented of bullets. thereafter rum- lant that the evidence at claims house, support to maged through legally set fire to trial was insufficient gun Appellant testified he knocked the out 1. Unless otherwise indicated all future refer- hand, Code Criminal ences to Articles refer to the and when Brown started walk- Brown’s him, Procedure. ing eyes toward closed trigger. pulled the Appellant gun claimed Brown held the appellant’s head and threatened to kill him. to two challenges for cause denying his that he would be a continu jury’s finding alleg on venirepersons. preserve To error society. Art. 37.071 threat See 2(b)(1). challenges for sufficiency edly erroneously denied reviewing § cause, that appellant must demonstrate punishment, this Court an the evidence specific challenge light in the most a clear and looks at the evidence he asserted cause, chal peremptory the verdict to determine used a favorable to that he venireperson, of fact could any complained-of rational trier lenge whether doubt beyond challenges have reasonable were peremptory believed all of his probably commit exhausted, would for additional request that his consti denied, acts of violence would objectiona criminal that an strikes was society. threat to Jack continuing tute juror jury. ble sat on the Green 307, 443 U.S. 99 S.Ct. Virginia, son v. (Tex.Crim.App.1996), (1979); Allridge v. L.Ed.2d 560 denied, 520 U.S. (Tex.Crim.App. (1997). The record L.Ed.2d 707 cert, 1991), 831, 114 S.Ct. only appellant used case shows that instant facts of peremptory chal of his fifteen thirteen sup alone can sufficient preserve the crime be Appellant has failed lenges. finding special port affirmative of error one points. Points error on these Addi Allridge, 850 S.W.2d issue. overruled. and two are consistently defined “so tionally, we have error, appel In his third of prison the ciety” encompassing both as in grant court erred lant claims the trial population. and the free See population cause to veni- challenge for ing the State’s 282, State, n. v. 9 983 S.W.2d Griffith views Villamayor on her reperson based denied, cert. 528 U.S. (Tex.Crim.App.), Under Wain against penalty. the death (1999). 77, 826, 145 L.Ed.2d 65 120 S.Ct. 844, Witt, 412, 105 S.Ct. 469 U.S. wright in the instant case demon- The facts (1985), venireperson may a 83 L.Ed.2d 841 culminated crime which strate a calculated consistent with excluded for cause be ev- execution-style killings. The State’s the United States Amendment to Sixth always appellant that was idence reflected capital his views when Constitution and showed no in control of his actions “pre they that would are such punishment facts, the In addition to these remorse. substantially impair perfor vent or litany a of that had showed State juror accor his duties as a mance of problems and had committed past behavior and his oath.” his instructions dance with Given the number of criminal violations. a (Tex. 5, State, 6-7 929 S.W.2d Clark the nature in the instant facts cert, denied, 520 U.S. Crim.App.1996), acts of other extraneous and number 1246, 1116, L.Ed.2d 328 117 S.Ct. shown, reasonably jury could a rational (1997); Vuong v. con- would have concluded denied, 506 U.S. (Tex.Crim.App.), cert. The evi- society. a threat tinue to be (1992); support legally sufficient dence is (Tex. Moody v. to the future jury’s affirmative answer Crim.App.), and All- issue. Jackson dangerousness 119,121 Prospec L.Ed.2d ten is ridge, supra. Point error both merely excused jurors may not be tive overruled. pen death about the their beliefs because decision-making error, influence alty might points two his first Clark, process. supra. trial court erred appellant claims the prior Villamayor’s explained mitigation question Two weeks individ- questioning, judge explained ual the trial venireperson questions asked the concern- panel to the entire of veniremembers the it, fohowing exchange occurred: procedural sequence penalty of a death you of such [PROSECUTOR:] [A]re judge panel case. The told the nature, ma’am, you wül almost al- jury upon is first called to decide whether ways [mitigation question] this answer murder defendant guilty. is yes you person because then know the that, judge explain jury continued to if the probably would receive Life Sentence? found the guilty, defendant be then you category, you Are in that or would phase trial continued into a second where at it go ahead and look and then answer punishment judge was determined. The appropriately? stressed to the that a Tex- veniremembers jury is never required to assess a sen- imprisonment. tence of death or life Rath- probably I would MS. VILLAMAYOR:

er, required to answer a series category. be questions, and the answers those questions would dictate to the judge what you That would auto- [PROSECUTOR:] punishment Finally, should be assessed. maticaEy answer it? judge panel ques- described to the Yes, I think I MS. VILLAMAYOR: tions the would required be to an- would. swer. your—are your Are [PROSECUTOR:] During Villamayor’s question- individual feelings Penalty, Death about the is that

ing, prosecutor through first went sev- why you probably the reason would au- eral given answers she had ques- on her tomaticaUy always mitigating find cir- tionnaire indicating morally that she was cumstances? opposed to the death penalty. prose- The MS. VILLAMAYOR: Yes. cutor also responses noted in which Villa- mayor had that indicated she believed that

there were in circumstances which the your [PROSECUTOR:]—are behefs so However,

death penalty appropriate. was ..., strong, you prob- are to going have in response specific to questioning, Villa- setting lems them aside? mayor just commented that killing two Rather, individuals was not such a case. they I beheve are. MS. VILLAMAYOR: Villamayor stated that she felt the death youDo think—let me [PROSECUTOR:] penalty appropriate only was in such cases you regard ask last time in to—and one person a village.” when a whole “kill[ed] in a different fashion so that we are no Do clear and there is conflict here. prosecutor then reminded Vil- you—do you your personal that beheve lamayor judge’s of the instructions and opinions, your personal beliefs about the explanations pro two weeks earlier and it, Penalty, being opposed Death to expand upon procedure ceeded to fol going substantially you in affect in an- punishment phase lowed of a trial, asked, question the meanings questions swering regarding mitigat- this prosecutor and the law involved.3 As the ing circumstances? regardless properly

3. can that law of her Before veniremember can be she follow cause, Jones, challenged personal the law must be ex- views. See plained to her and she must be asked whether MS. VILLAMAYOR: Yes. racial proving ried his burden of discrimi nation. The trial court’s determination is prosecutor Villamayor then challenged great accorded deference and will not be judge passed for cause and the her appeal clearly overturned on unless it is questioning. During defense for defense erroneous. See Chamberlain Villamayor contin- questioning, counsel’s 230, (Tex.Crim.App.1999), S.W.2d that ued to state her beliefs would influ- U.S. judgment her not ence and she was sure (2000). L.Ed.2d 678 open-minded during that she could be process. During hearing in- Batson explained the prosecutor stant that dire, totality

Given of the voir venireperson he had struck Grooms be- was judge trial within his discretion in cause she had indicated that she inwas determining Villamayor’s views on penalty only favor of death those capital punishment they were such requested instances where the defendant prevented substantially would have or im- penalty the death and the crime was of the paired performance of her duties as a most violent also noted that nature. She juror in accordance with her instructions imposed felt the was penalty she death too Wainwright, supra; and her oath. see put often and Texas had lot of also Colburn prospec- people regard to death. With (Tex.Crim.App.1998). Point of error three juror Adams, prosecutor tive told the is overruled. that he judge had struck because she Appellant his fourth asserts proof had indicated needed that she be- points and fifth of error that the trial court doubt she yond any and because had two in overruling challenge erred his Batson children, appel- one of was about whom use of peremptory the State’s strikes on age. lant’s jurors prospective and M. J. Grooms (cid:127) gave The trial court then an Kentucky, Adams.4 See Batson v. opportunity prosecutor’s ex- rebut U.S. 90 L.Ed.2d 69 Appellant responded by planations. stat- Batson, Under a defendant must prosecutor used strikes initially prima showing establish a facie improper that this was the manner and racial discrimination in the State’s exercise process most blatant due he violation of peremptory of The burden its strikes. practic- years had seen in of twenty-three race- then shifts State to articulate ing law. The trial court overruled the explanations questioned neutral its for claim. Batson prosecutor articulat strikes. Once has explanations, facially were explanations ed race-neutral burden The State’s point not shifts back to the defendant to show that race-neutral did are of The trial explanations really pretext any pretext. a for evidence court that finding discrimination.5 trial court must then did not abuse its discretion car his of carry determine whether the defendant has failed to burden question appellant challenged purposeful of discrimina 4. At trial nine ultimate of strikes, complains tion, appeal State's but he preliminary on of issue whether only about the strikes Grooms and Adams. raising challenge party made a the Batson prima case moot. See Malone becomes facie responding party 5. Once the has offered a State, 410, (Tex.Crim.App. 412 v. 919 S.W.2d explanation peremptory a race-neutral 1996). challenge and the trial court has ruled on the

925 recognized that at 558. We have showing purposeful discrimination. See S.W.2d Pondexter, State, 577, v. 581-82 offense manslaughter S.W.2d is a lesser-included (Tex.Crim.App.1996)(defendant’s State, a of murder. See Cardenas rebutt explana l insufficient to establish State’s 384, (Tex.Crim.App. 392-93 30 S.W.3d State, pretext); tions were Chambers v. 2000). Hence, prong of the test is first 9, (Tex.Crim.App.l993)(“ab 866 S.W.2d satisfied. some other evidence which rebuts the

sent explanation, State’s race-neutral we will step Agui second finding not disturb the trial court’s that requires test an evaluation of lar/Rousseau explanation legitimate”). State’s is the evidence to determine whether there is Appellant’s points fourth fifth of error permit jury some evidence that would are overruled. rationally to find the defendant error, In appel his sixth guilty only of the lesser offense. Moore v. refusing lant claims the trial court erred in State, 4, (Tex.Crim.App. S.W.2d to instruct the on the lesser-included Rousseau, 1998); at 672. manslaughter offense of the death of words, other there must be some evidence Hibbard, Daniel the second victim named rationally acquit from which a could in the indictment. He asserts that find greater the defendant of the offense while guilty degree that he was of a lesser him convicting of the lesser-included of criminal homicide in Hibbard’s case would Moore, 969 The evi fense. S.W.2d necessarily negate one of the elements re must dence establish the lesser-included quired to him capital convict mui'der. offense as a valid rational alternative He raising contends the evidence State, charged offense. Wesbrook v. issue of guilty whether he was of the lesser (Tex.Crim.App. 113-14 S.W.3d degree of criminal homicide came from his 2000), U.S. own testimony. Specifically, appellant re (2001); 149 L.Ed.2d 349 Arevalo v. peatedly during testimony denied (Tex.Crim.App. S.W.2d anyone. he had intended kill He 1997). claimed that he killed Brown self-de just pulled fense and then in a trigger Contrary appellant’s claim that he panic around, when Hibbard turned but self-defense, shot Brown the medical insisted he was acting recklessly and not examiner testified that Brown had suffered intentionally. head, two bullet wounds to the one of which entered from the back. The evi-

To charge determine whether a appellant’s following dence of actions given, a lesser-included offense should be shooting Brown’s reflected that he was implemented two-step this Court has calculated, pan- calm and not that he was Aguilar test. See frightened. Almaguer icked or He shot State, (Tex.Crim.App.1985); v. Royster 558 eyes between the and Hibbard the head. (Tex.Crim.App.1981) 622 444 S.W.2d appellant he acted “reck- Although claimed (plurality opinion). step is to de first lessly” gun with the and did not intend cide whether the offense is a lesser-includ testimony kill the anyone, his about shoot- charged. ed offense of the offense See ings was with inconsistencies. For 37.09; also, fraught e.g., Article see Rousseau v. State, (Tex.Crim. he example, insisting he vacillated between 855 S.W.2d gun shooting had the when and App.), cert. not aimed U.S. (1993); Aguilar, stating 126 L.Ed.2d 260 that he had indeed aimed and shot: victim, highly first vulner- chest of the know at the time actually I did not body. untnessing I [Almaguer], part able shooting I was—I was After his ac- pull trigger, damage and the but that resulted gun did aim the the from just tions, shot. I I meaned continued to the appellant [sic] never —I fire just It hit anything. aimed or again range, never it at close into four weapon, I didn’t aim the individuals, her.... I never said choosing target, as his more I pull trigger. the have been gun head, chest, and abdomen. their or either that I did aim telling you the whole time and from the scene Physical evidence .... after pull trigger and gun suggest that the condition of the bodies screaming, hollering and they started attempted shot as he one victim was I and that’s when then I went there and another apartment from the escape pulled gun pulled aimed and only while his knees. was shot pointed gun I I trigger.... said —I that this was not an contrary evidence I it—I aimed—I didn’t pointed said knowing appel- act intentional or just pointed I just point mean to it.... that he did not lant’s own assertion just pointed gun I it and shot.... kill. Given the state intend to just really I wasn’t even look- and shot. record, was not evidence entire this I did gun, ... when I shot the but rationally con- jury which a could from there. I wasn’t never even aim over guilty only appellant was clude that just pulled trigger.... ... I looking assault. aggravated just my eyes [sic]. I closed and shoot Wesbrook, (emphasis at 113-14 not in- Appellant’s testimony that he did added); see also Jackson kill does not amount anyone tend to (not (Tex.Crim.App.1999) S.W.2d rational- upon which a could evidence on the lesser-includ- entitled to instruction recklessly with only acted ly find assault when evi- aggravated ed offense of Hibbard, and not inten- respect killing least, guilty at appellant, dence showed Appellant already had shot tionally. homicide). Apart appellant’s from own head. with two shots to the killed Brown to kill testimony that he did not intend gun. aiming firing He admitted to other evidence anyone, there was no shots, people and he killed two four With theory, and in fact the support of such eyes. Those hit the third between testimony. We hold evidence refuted him his actions were who saw testified supply not evi- appellant’s testimony does case, In a similar calm and collected. rationally upon could dence which (Tex. Wesbrook toward Hibbard appellant’s actions find killed five Crim.App.2000), the defendant were not least merely reckless and were on a sought an instruction people. He Hence, failed to appellant has knowing. aggravated as- offense of lesser-included Agui- prong of satisfy the second trial court’s refusal upheld the sault. We sixth Appellant’s lar/Rousseautest. of the instruction: of error is overruled. the lesser- must establish The evidence error, point of In his seventh as a valid alternative included offense prosecutor appellant complains “[t]he instant charged offense. he re reversible error when committed record shows the trial in final [a]ppellant argument least, ferred know- intentionally, or at acted Ap human trash.’” piece of ‘despicable apartment an he walked into ingly, when prose trial to the object to at pellant failed rifle. He high-powered armed with however, and therefore arguments, into the cutor’s range at close single fired a shot

927 838, 364, right complain forfeited his to about this 506 U.S. 113 S.Ct. Tex.R.App. (1993). 33.1; words, appellant appeal.

issue on P. Ladd 180 In other State, 547, (Tex.Crim.App.1999), by preponderance 3 of the evi v. S.W.3d 569 must show denied, 1070, 120 representation rt. 529 trial U.S. S.Ct. dence that counsel’s ce (2000). 1680, Appellant of reason objective 146 L.Ed.2d 487 fell below an standard State, urges prevailing professional us to overrule Cockrell v. 933 ableness under (Tex.Crim.App.1996), performance 73 in which that this 5.W.2d norms and deficient un pursue proceeding we held that a defendant must to rendered the result of the Strickland, ruling objections supra; an adverse his reliable. McFarland (Tex.Crim.App.1992), State, 824, Appellant in argument. argues such 845 S.W.2d 843 denied, 963, flammatory, prejudicial cannot statements t. 508 U.S. cer 2937, 124 by disregard, be cured an instruction to L.Ed.2d 686 object pointless and thus it would be Appellant prove no effort to made order to secure an ineffective instruction. prejudice Ladd prong under Strickland. But if an even the error was such that State, 547, (Tex.Crim.App. instruction, ap could not be cured an 1999); State, 747, Mitchell v. pellant required object would be Point of error (Tex.Crim.App.1999). Nonetheless, request a mistrial. we de eight is overruled. Cockrell, cline to overrule perfectly a case error, appel ninth his In Appellate line with Rule of Procedure erroneously lant claims the trial court policies underlying preserva 33.1 and the objection impact” his overruled “victim tion of error. Point of error seven is testimony concerning victim Al surviving overruled. maguer. Appellant relies on Cantu v. error, In eighth point appel his (Tex.Crim.App. S.W.2d lant claims his trial counsel failed to ren 1997), U.S. 118 S.Ct. der effective by neglecting assistance (1997) support L.Ed.2d object prosecutor’s dur comments his claim.6 argument final concerning his non-tes Cantu, in- supra, the defendant was timonial courtroom demeanor. kidnaping, rape volved in the and murder girls episode. To show an ineffective of two in the same criminal assistance claim, During punishment phase of counsel an must of his trial first perfor rape demonstrate that his trial murder of one kidnaping, counsel’s for the girls, presented testimony mance was deficient. Strickland v. Wash the State ington, re- 466 U.S. 104 S.Ct. 80 from the mother of the second victim character, the (1984)(adopted by garding daughter’s good L.Ed.2d 674 this Court (Tex. her, family’s impact Hernandez v. 726 S.W.2d 53 search for and the Second, Crim.App.1986)). family. he must The defendant also the crime impact” perfor objected show that his counsel’s deficient that this “victim evidence indict- prejudiced regarding mance was so serious that it a victim not named defense, special is- rendering the trial unfair and the ment was not relevant to the Strickland, sues, prejudicial verdict that it was more than suspect. 2052; Fretwett, probative. agreed at 636. Lockhart v. Id. We Cantu, Although appellant discusses he does the admission of evidence. regarding actually develop argument not an character, concerning good qualities pos activi- as evidence good to her evidence as victim.” Id. by her sessed the enjoyed, impact and the of ties she was not relevant as family death on her fall here does not testimony The at issue not on trial for her murder appellant was evi- category of victim-related under either other purpose and such evidence served no Cantu, in in which the evi- dence. Unlike jury. held such than to inflame the We testimony regarding both dence involved highly preju- evidence to be irrelevant and the effect good qualities victim’s the Id. at 637. dicial. members, the family had on that her death in- present in case did not testimony the present testimony at issue the persons testimony about how third volve however, distinguishable from crime, there by the nor was were affected was at issue in Cantu. evidence which the character of the discussion about any phase appel- of During punishment the sole- Manning’s testimony focused victim. trial, the called Janelle Man- lant’s State procedures involved ly on the medical caring who had been ning, nurse Appellant’s charac- Almaguer. care of the months, approximately four Almaguer for as victim Manning’s testimony terization of objected, testify. Appellant arguing to of er- is incorrect. Point impact evidence Manning of although testimony the ror nine is overruled. relevant, prejudicial he felt was affirmed. Appellant’s conviction is its testimony far exceeded effect response to probative value. JOHNSON, J., joined majority that it would appellant’s objection, argued nine and filed a except point as to Manning testify to about only asking be opinion. concurring Almaguer on provided the medical care COCHRAN, J., concurring filed things that were done daily basis and the WOMACK, HERVEY, opinion joined keep Almaguer alive. The trial in order to HOLCOMB, JJ. testify, Manning allow agreed court however, testimony JOHNSON, J., concurring limited the filed a day- procedures required opinion. technical Almaguer, expressly while

to-day care of except as to join majority, I any testimony regarding curtailing nine, point. concur in that error paraly- impact Almaguer’s psychological both a witness Almaguer was Melanie sis, testimony pertaining to any or be- charged in the indictment the offense feelings pain. of an offense jury and the victim fore the (Tex. testimony was in it. Her charged not Mosley v. during guilt/innocence appropriate Crim.App.1998), cert. punish- guilt during phase as to dangerousness. to future (1999), phase ment meaning of “vic we discussed physical condi- testimony and obvious evi Her impact” and “victim character” tim those two issues. probative of impact” tion were explained that “victim dence. We daily However, of her the intimate details rec “generally that is evidence is evidence through life, introduced which were concerning effect ognized as evidence no such others, Manning, had testimony of Janice victim’s death will have that such It to me value. seems probative members.” family particularly victim’s admissible, it is not because is not character” was defined evidence at 261. “Victim Id. testimony, but “victim-impact” recognized non-victim “generally that is as evidence in society custody. and while Given because it is irrelevant to the issue of free evidence, dangerousness and cumulative of punishment proba future it is the other testimony Almaguer. of Melanie in Manning’s testimony, while ble that irrelevant, slight flammatory and had but Almaguer appellant Ms. testified that jury’s effect on the decision. had fired a bullet into her head at close range passed and that the bullet had harm the question The rest of the mouth and had through her forehead and testimony Manning’s effect of the use of shoulder, in it lodged her where remains. statements, during which during closing testified, see, that She and the could prosecutor urged to remem- permanently paralyzed she is from the Almaguer’s the intimate details of Ms. ber juror A in- neck down. reasonable would the is- toileting needs when considered “permanently paralyzed fer that from the dangerousness. sue of future Such details neck down” means that she had lost con- dangerousness were irrelevant to future bodily trol of all functions in that area of appear to be intended to inflame the body. juror The reasonable would jurors. I hold that emotions of the would then conclude that those functions would argument Again, given such was error. have to be attended to another. The of the case and the evidence facts precise required details of what that care presented punishment, I would find the probative was not as to dangerous- future error harmless in this case. ness, but could be highly prejudicial. probative The facts which are of future J., COCHRAN, concurring filed a dangerousness appellant are that killed WOMACK, HERVEY, opinion in which Hibbard, Brown and then shot Alma- Ms. HOLCOMB, JJ., joined. guer at range, apparently close without provocation, and that he chose to shoot her join majority opinion every I in re- head, in high a wound which had a spect. I add this concurrence for two probability permanent of death or serious First, I respectfully disagree reasons. disability. He intended her death. Man- Judge with Johnson’s concurrence insofar ning’s testimony nothing added substan- Manning’s as she concludes that Ms. evi- tive to that discussion. I would hold erroneously dence was offered and admit- testimony admission of her was error. of “future punishment ted on the issue said, Second,

That I I think we dangerousness.” believe the admission of Manning’s testimony was harmless this distinguish impact” should “victim evi- may case. The facts of the case be suffi dence which concerns emotional conse- dangerousness. cient to establish future upon the crime victim’s relatives quences (Tex. Allridge v. impact” from “victim evidence which con- Crim.App.19991), cert. physical psychological conse- cerns or quences upon of the defendant’s conduct Beside the mere facts of the the state crime victim himself. punishment phase called at the wit nine Nothing suggests the record nesses who testified that has a Manning’s testimony offered Ms. State history dating of violent behavior back phase capi- during punishment of this high school and to the time of continuing solely tal murder trial on the issue trial. testimony There was Clearly, future engaged appellant’s dangerousness. has violent behavior both Manning’s death. Almaguer’s] ar- her [Ms. also relevant1 under this evidence was 37.071(e)(1) militating Almaguer’s testimony [regarding ticle as evidence Melanie I question.2 against appellant’s mitigation substan- injuries nothing added care] para- permanent that the cannot conclude I agree. that cannot tive to discussion.”3 injuries fifteen-year-old that Mela- plegic consequences of the physical The actual suffered, im- including the Almaguer nie inflicted, as well as their injuries appellant injuries upon her pact physical of those impact upon one of his continuing physical life, are not relevant “circumstances daily victims, probative of his moral chosen are appel- the offense” with which to assess of the fact that he intended culpability, as is culpability moral for this crime. lant’s to MUher. culpability, assessing a defendant’s moral Moreover, important legal there is an child he highly probative that “victim im- and factual distinction between murder, in attempted by shooting her testimony that shows pact” testimony and will, range example, the head at close impair- physical the actual disabüities and to a wheelchair for the rest of be confined a result of person a as ments suffered life, just it is relevant that she will as conduct. The ex- the defendant’s criminal be lifted into required diapers, be to wear bathtub, impact” testimony chil- has be- pression and never be able to bear “victim a If, the defendant’s in murder assessing legal capital dren. a term of art come jury is entitled to culpability, Supreme moral According to the jurisprudence. child- consider the defendant’s difficult Court, may impact” “victim evidence be hood, then should it not be entitled to why prosecution murder admitted a the difficult adulthood that his consider a hu- “uniqueness as to show victim’s consequence will suffer as a direct victim Tennessee, 501 being.” Payne man U.S. criminal actions? of his 808, 825, (1991). at the is admissible Such evidence

Judge Johnson states punishment stage because: appellant “intended properly heard that Indeed, trial, nothing the defendant appellant's more than what counsel admit from 1. that the argued we cannot hold He has himself done ted the relevance of this evidence. merely court has abused its discretion should have excluded the trial that the trial court unfairly prejudicial rule it admitted the evidence. as under because evidence also, However, S.W.2d may not claim See a defendant Chamberlain consequences (Tex.Crim.App.1999), conduct were so that the of his or L.Ed.2d gruesome should not hear see consequences. this Court stated of those As (Tex. Sonnier v. 37.071(e)(1) Proc. art. sets Crim.App.1995): 2. Tex.Code Crim. mitigation question: out the defendant’s gruesome. is to photographs are That at, Whether, disagreeable talcing of say, they to look but into consideration all are evidence, reality nothing including of they depict more than the the circumstances photo- offense, character and the brutal crime committed. the defendant’s evidence, proba- culpa- powerful personal graphs background, are visual moral theory defendant, aspects bility the State's there is a sufficient tive of various including brutality mitigating or circumstances of the offense circumstance imprison- Appellant must heinousness of the offense. a sentence of life to warrant that precisely quality which sentence be im- that it is rather than death realize ment a gives "powerful” posed. as which rise we describe added). arguments photographs are (emphasis to his inflammatory. prejudicially But when the 3. Ante at 921. evidence emanates power of the visible ultimately deprive him spasticity may interest legitimate “the state has of a counteracting mitigating evidence even of the use wheelchair. in, put defendant is which the entitled at 894. This Court held by reminding just the sentencer that as physi- evidence of the extent of victim’s an the murderer should be considered as physical impairment injuries cal and future individual, so too the victim is an individ- of the of- is admissible as a circumstance represents unique ual death loss whose may a factfinder rational- long fense “so society particular and in to his fami- to the ac- ly culpability attribute moral ly....-”Id. 896; injury.” for the Id. at see also cused case, objected-to evidence in this 76, 78-9 Stavinoha v. however, type was not that of “victim im- (in sexual (Tex.Crim.App.1991) aggravated Instead, pact” it testimony. was testi- case, testimony psychological assault nurse, mony Almaguer’s of Ms. who ex- by physi- trauma child victim and suffered plained young girl’s physical how this cal manifestations of that trauma was drastically perma- abilities had been and admitted). Surely, properly this nently by appellant’s affected act of shoot- rationally culpability could attribute moral Almaguer her in the head. Ms. is permanent physical for the permanently paralyzed; she has lost most injuries upon Almaguer he inflicted Ms. of her normal bladder and bowel func- shooting her in the head. I fail to under- tions; every she must be catheterized few evidence, why stand one would hold this hours; special she must have “bladders” shooting physical impair- victim’s future positioned repositioned and on her chair ment, case, admissible non-capital in a but bedsores; throughout day to avoid punish- in a murder inadmissible variety and she must take a of medi- hearing theory ment under a that it either spasms, cations to control and to muscle any probative lacks value or that it is possible

ward off renal failure and neuro- substantially prejudicial proba- more than logical problems. tive. In Miller-El v. distinguish as civil courts between Just (Tex.Crim.App.1990), 894-95 non-capital subjective anguish” “pain “mental and case, this Court found that a doctor’s testi- hand, objective suffering” on the one mony, exactly which was analogous hand, “physical impairment” on the other testimony nurse’s in this was both too in criminal cases distin- judges so can punishment relevant and admissible at the (or family’s) a victim’s guish between Miller-El, stage. the doctor’s testimo- anguish physical mental and his or her ny was summarized as follows: former, they because are disabilities. Harrison outlined for the [Dr.] purely subjective incapable so of ob- “special spinal needs” that chord “[a] demonstration, jective are much more like- them, patient, as we call ... will [sic] ly unfairly prejudicial. to be injury have ... related to their for the impact” if rest their life.” He testified that as a Sometimes kinds of “victim both evidence, paralysis, subjective inju- result of his Hall will emotional never both disabilities, regain objective physical bladder and bowel control. Nor are ries and procrea- highly probative will he ever recover sexual and and admissible. At other times, appropriate for a court to exer- required tive functions. He will be vigilance prevent maintain a constant cise its discretion to exclude the emotional admitting the evi- Recurring impact infection and sores. evidence while bed comments, opinion join I repercussions. This trial With these physical dence of Court, latter, by admitting evidence judge did the injuries and Almaguer’s physical

of Ms. physical impairment, excluding but

future emo- subjective more evidence of her I fault him in the

tional trauma. do not

least.

Case Details

Case Name: Mathis v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 13, 2002

Citation: 67 S.W.3d 918

Docket Number: 73,621

Court Abbreviation: Tex. Crim. App.