*1 (e) Opportunity party to Be Heard. A timely request opportu-
entitled to an McDUFF, Appellant, Kenneth Allen nity propriety heard as to be taking judicial notice and the tenor of the prior matter noticed. the absence of Texas, Appellee. STATE notification, request may be made after No. 71872.
judicial notice has been taken. Texas, Appeals of Court of Criminal court, case, present The trial took En Banc. proper judicial following notice of the undis puted proved facts which the limitations stat Jan. 1997. (1) . ute had been tolled: al the indictment face, leged, on its it was a reindictment of a Rehearing Denied Feb. (2) case;
pending original indictment 21, 1990, August had been returned on well applicable period. Ap within the limitations pellant objected taking never to the court’s judicial Furthermore, notice these facts. request opportunity did not an heard, time, 201(e), at which under Rule
he would have been entitled to contest the
appropriateness by pro of the court’s actions
ducing calling such actions into
question. object, effect, His failure to right waived his ap raise this matter on Furthermore, peal. objection because no made, appellant was not entitled to a 201(g) Rule judicially- instruction as to the noticed dispute facts as there was no
question validity presented as to their to be jury. Morin, parte to the supra. See Ex Accordingly, dispute because there was no as
to the statute of limitations to be submitted jury, the trial court did not err in not
giving charge jury. on limitations to the judgment
I would affirm the of the court of appeals and appellant’s peti- would dismiss improvidently tion granted. respectfully I opinion dissent to the of the Court. *4 Barbisch, Austin, appellant.
Bill for Nelson, Jr., Atty., Dist. Asst. Phillip A. Austin, Paul, Atty., Matthew State’s State.
OPINION
OVERSTREET, Judge. County grand A indictment Travis committing capital mur- appellant of accused der, causing intentionally death specifically attempting to committing course aggra- aggravated sexual assault commit have occurred kidnapping, alleged to vated December, day on the 29th or about venue, change resulting in the trial After a Guadalupe County, being conducted on February appellant was convicted by jury Thereafter trial murder. 1, 1994, jury’s on March based special of Article answers to the issues 37.071, V.A.C.C.P., was sentenced appellant something points breaking, to death.1 raises 23 of er- a tree limb or but did not think that it her neck. The accom- ror. broke
plice dropped testified that he was then off at complainant his house and never saw the I. again. way to He also testified that on the being dropped pock- off asked for a EVIDENCE SUFFICIENCY that “he was etknife shovel said error, points In four attacks going up.” to use her sufficiency support of the evidence to his Specifically, point conviction. num- hearing error Four witnesses testified about overruling ber one claims error in his motion wоman’s followed the sound of a scream slamming coming for directed verdict. Point number two av- car door or trunk from the legally ers that the insufficient to same Austin wash mentioned above conviction, support night of December and that a while three al- leges insufficiency. factual car then drove out of the car wash onto a Point number one-way wrong way. four street Some of claims the evidence is insufficient to previously those accomplice testimony. corroborate witnesses seen These same car in that same area with two men points revolve around claims that night inside a minutes few earlier driv- corpus the State has not demonstrated: wrong way nearby on another murder, one- delicti of his connection with such a way crime, street. One of the witnesses identified corpus aggravated nor the delicti of leaving as the driver of that car kidnapping aggravated sexual assault. *5 complainant’s unoccupied
car wash. The
soap-sudded ear
then
was
found at the other-
A. TRIAL TESTIMONY
keys
wise deserted car wash with her
and
trial,
At
accomplice
an
witness testified as
purse
perishable groceries
and some
inside.
appellant
in late December of 1991 abduct-
complainant’s boyfriend
The
testified that
ing
complainant
the
from an Austin car wash
29,1991,
night
on
spoke
the
of December
he
forcing
and
her into the car that he and the
phone
with her on the
and she said that she
accomplice
riding
were
around in. The ac-
go
night.
wanted to wash her car that
Her
complice
in
appel-
testified
some detail about
night,
sister testified that since that
sexually
lant
assaulting
complainant
the
in
activity
complainant’s
had
been no
the backseat while the
car was
driven
charge
bank and
accounts that could be at-
again
and
on the
they
hood of the car when
complainant.
tributed to the
The sister also
stopped the car. He testified that this even
indicated that there was no indication from
burning
included
cigarette
her with a lit
sev-
remaining
apartment
the items
in her
that
accomplice
eral
The
times.
admitted to
even
going
trip.
she was
on a
was unaware of
She
switching places
appellant
sexually
with
and
any problems
complainant might
that
assaulting
accomplice
her himself. The
also
going through
possibly
have been
that would
they
stopped
testified that after
had
disappear
just
cause her to
walk off and
out,
gotten
appellant continuing
with
his sex-
everything.
leave
assault, appellant slapped
ual
complain-
(DPS)
ant real hard and
something
Department
Safety
said
about kill-
A
of Public
ser-
her,
ing
car,
and that
slap
ologist
appellant’s
after the
she fell back
testified that
which he
ground;
and bounced on the
ap-
pushing
leaving
whereafter
had
been seen
into and
pellant picked
1, 1992,
up
put
her
parking
her
the Waco motel
lot on March
trunk of
accomplice thought
the car. The
and some items therein were found to con-
complainant
moaning,
that the
was
but when
tain small amounts of human blood. There
placed
testimony
she was
in the trunk
criminologist
and the lid closed was also
from a DPS
she did not
make
noise. He indicated
that five hairs recovered from
car
crack,
slap
something
up microscopically
that the
sounded
like a
matched
to the known
charged appellant
imprisonment
1. The indictment also
offenses and sentenced him to life
aggravated
aggravated
sexual assault and
kid-
each.
napping.
guilty
found him
of both
accomplice
hearsay from an
complainant,
points
hair of the
i.e. each
five
out that
trial
microscopic
accomplice’s
tes-
hairs had
same
characteris-
cannot corroborate
accomplice
timony,
tics as the hair
known
cannot corroborate
that was
to be the
i.e. an
complainant’s.
own
made
third
himself
statements
persons. Reynolds v.
City,
A minister/supervisor
for a Kansas
(Tex.Cr.App.1972);
Brown
Missouri rescue mission shelter for homeless
(1959);
352, 320
Tex.Crim.
appellant
men testified that
had cheeked into
see
alsо Beathard
using
the shelter on
March
an alias
(Tex.Cr.App.1989).
There
name.
was
4,May
City,
was arrested on
1992 in Kansas
above,
trial
As noted
there was
testi
working
as he
using
Missouri
an alias
mony
nonaccomplice
from a
with alias
name
identification.
evening
of December
driving a car
of the car wash
was seen
out
B. ACCOMPLICE WITNESS
shortly
scream and the
after
woman’s
INSUFFICIENCY
slamming
door or trunk
had
sound of a car
CLAIM
Non-
coming from the car wash.
been heard
Point of
four
error number
avers that
that short
accomplice
also testified
witnesses
“the evidence is insufficient to corroborate
unoccupied
ly
complainant’s
thereafter
38.14,
accomplice
testimony.”
Article
at
soap-sudded
car was found abandoned
V.A.C.C.P., provides, “A
conviction cannot
keys
car
her
wash with
otherwise deserted
an
perishable groceries in
purse
and some
unless
other
tend
corroborated
Non-accomplice testimony also indicat
side.
connect
the defendant with the offense
ed that
the same
committed; and the corroboration is not suf
driving
the car wash after
identified as
out of
if merely
ficient
it
shows the commission of
had been
scream and door or trunk slam
the offense.”
for sufficient corrobo
The test
seen,
men, driving
by two
around
occupied
ration is
eliminate from consideration the
neighborhood shortly
the incident
before
accomplice testimony and then
examine
at the car wash.
*6
inculpatory
other
evidence to ascertain
appellant
employees testified about
Motel
remaining
the
evidence
to con
whether
tends
parking lot
pushing
car into
motel
his
the
the
nect
defendant with the offense. Burks
A DPS criminolo-
and that it was left there.
State,
877,
(Tex.Cr.App.1994),
v.
876
887
S.W.2d
gist
that five
recovered from
testified
hairs
denied,
1114,
rt.
513 U.S.
115 S.Ct.
ce
microscopically to
appellant’s
up
matched
909,
613 appeared appellant’s pulled up plice at her evidence does indeed tend to connect sufficiently accomplice appellant in Belton and that the left to the offense to corrob- home explanation accomplice wit- with the that he and orate the Accordingly, point four. going couple were to have a of drinks. She we overrule ness. accomplice further testified returned midnight night could
home after
but she
C. GENERAL INSUFFICIENCY
him
dropped
not describe the vehicle that
оff
CLAIMS
acquaintance
there. An
testi-
Point of error number three avers
riding
fied about
them
around
Austin
factually
that “the
insufficient to
evidence
Day
looking
particu-
of 1991
Christmas
conviction.”
support appellant’s
lar prostitute, whereupon appellant suggest-
points
generally discusses the evidence for
just taking
young girl
ed
who was outside
brief,
through
together but
one
four
his
roller-skating.
reviewing
propose
does not
a standard of
sufficiency
capital
specifi
in a
factual
case or
non-accomplice
The
evidence does
cally argue how the evidence is insufficient
directly link appellant
not have to
reviewing
factual suf
under
standard
crime, nor does it alone
his
have to establish
State,
See,
ficiency.
e.g., Clewis v.
rather,
doubt;
guilt beyond a reasonable
but
(Tex.Cr.App.1996);
v.
S.W.2d
White
non-accomplice
merely
has to
State,
(Tex.App
elements which from murder against great weight preponderance 775, ital murder. Gosch v. of the evidence and that his conviction should denied, (Tex.Cr.App.1991),
777 n. 2
cert.
be reversed and a new trial ordered.” We
U.S.
113 S.Ct.
614
Appellant
prose-
making
in
insists that there are no
such corroboration
such a determi-
1)
cutions for murder in the
of
a
absence
Accordingly,
resolving appellant’s
nation.
in
2)
remains,
3)
confession,
body or
a
and/or
legal
points
claiming
insufficiency
of error
of
non-accomplice
of
and
death
cause
delicti,
prove corpus
to
evidence
we shall
death;
body,
of
i.e. where there is no
no
evidence,
all
including
consider
of the
accom-
confession,
non-accomplice testimony
no
and
testimony.
plice witness
that
in
We note
death,
and cause of
there is
death
a
evaluating
legal sufficiency
of evidence of
proof
corpus
failure of
of
of
delicti
homi- guilt, we
all
must consider
of the evidence.
cide. He
insists that
has
also
the State
failed
307, 319,
v. Virginia,
Jackson
443
99
U.S.
murder,
corpus
to show
delicti
of either
2781, 2789,
560,
L.Ed.2d
S.Ct.
aggravated kidnapping,
aggrаvated
sexual
accomplice
This includes the
witness testimo-
assault.
evaluation,
ny.
making
we must
such
corpus
simply
The
delicti
a crime
of
light
of
in
view all
the evidence
most
question
consists of
that the
in
the fact
crime
prosecution
favorable to the
to determine
someone;
specifical
has been committed
any
trier of fact could have
whether
rational
ly,
corpus
of
delicti murder is established
found the
elements of the crime
essential
if the
evidence shows
death of a human
beyond
According-
a
doubt.
Id.
reasonable
another,
by the criminal act of
caused
insufficiency
ly,
appellant’s legal
we evaluate
required
produce
and the
is not
State
claims
all of the evidence
such
view of
identify
body
or remains of the decedent.
light.
requisite
(Tex.Cr.
Fisher v.
Thus,
cause,
App.1993).
in the instant
The indictment
in the instant
State must show the death of the named
alleging capital mur
cause included a count
complainant
caused
the criminal act of
committing
course
der via murder
of
appellant.
attempting
aggravated
commit
sexual
Appellant insists
the absence
aggravated kidnapping.
assault
confession,
body
of a
or remains or a
such
capital
jury charge
conviction of
authorized
mandatory
corpus
showing
must
delicti
appellant intentionally
murder if it
found
non-accomplice testimony
made via
of death
complainant
caused the
death
cause
He opines
of death.
that since
committing
attempting
to com
course
is
autopsy,
no
a definitive
aggravated
aggravated
assault or
mit
sexual
death and
of death
determination of
cause
is
general
kidnapping.2 The
returned
suggests
possible.
also
that if accom
He
of the offense of
“guilty
verdict
plice testimony can be utilized to establish
general
is re
murder.”
verdict
When
death,
the cause
such
must be corroborat
sup
is
turned and
sufficient
ed,
acknowledges
though
the stan
he
any
port
finding
guilt
under
accomplice
dard
corroboration of
testimo
submitted,
ny
prove
paragraph allegations
is
the verdict
corpus
delicti unknown.
upheld.
will be
Rabbani
do not find
asser
We
denied,
(Tex.Cr.App.1992),
cert.
persuasive.
tions
see
reason to ex
We
no
125 L.Ed.2d
U.S.
clude
in deter
(1993);
Fuller v.
mining
corpus
delicti has been
whether
denied,
(Tex.Cr.App.1992), cert.
to cite
established.
unable
*8
(1993).
3035,
murder is established the evidence shows at appellant, difference in stature between being by the the death of a human caused tall, complainant, ap- over six-feet and the criminal act of another. As also discussed An exhib- pearing good to be a foot shorter. above, the witness testified about evidence, announcing a flier it admitted into being present in of 1991 when late December disappearance, complainant’s the described forcibly complainant appellant abducted the weigh- her three-inches tall and as five-foot wash, sexually car then from an Austin and pounds. A forensic one-hundred fifteen her, complainant’s unoc assaulted while the a the pathologist testified that blow from cupied soap-sudded car was found abandoned person hand of a of some size delivered to at the otherwise deserted car wash with her person five-foot three-inches the head of a keys purse perishable grocer and and some pounds weighing tall and one-hundred fifteen shortly ies inside after witnesses testified breaking, which sounded like a tree limb they that had heard a woman’s scream and a recipient in the of the blow which resulted slamming coming car door or trunk sound bouncing off the being knocked back and from the car wash and a witness had seen a being limp legs ground and carried and man, subsequently appellant, identified as major dangling, something feet indicates that driving Viewing out of the car the wash. indicating limpness has the broken with requisite light, evidence in the favorable we spinal damage as probably there was cord corpus that such conclude establishes the well; appropriately responding to aggravated kidnapping. and not delicti V.T.C.A. Code, § cigarette
Penal 20.04. bums thereafter further indicates We also note jury charge, pursuant possi- neurological pathway damage to the indictment and without Code, 19.03(a)(2), § V.T.C.A. Penal autho recovery going that life is to be lost ble such rized conviction of murder for murder very quickly. committing attempting in the course of “or earlier, complainant’s sis- As discussed aggravated kidnapping. commit” complainant had ter indicated that since the above, corpus As discussed de- disappeared, had not seen or heard from she licti of murder is established if the evidence no activ- complainant and there had been of a human caused shows death ity charge accounts that her bank and another, the criminal act of and the State her, nor could be attributed to the required produce identify remaining in from the items indication body or remains of the The ac decedent. trip. apartment going her that she was on a complice appellant witness testified as to any problems that was unaware of The sister striking complainant with such force that might going complainant have been ground
it bounced her on the and sounded- through possibly that would cause her to crack, something like tree limb or some just every- disappear or walk off and leave body thing breaking, placed limp her that she and thing. The sister also indicated car; striking the trunk of his and that after phone talk on complainant tried to her two or three blow burned leave mes- once or twice a week or at least cigarette got response no times with a but answering sages other’s machines. on each moaning. indi perhaps other than He also previously Viewing evidence and the this killing сated that mentioned her of blood and hairs found discussed evidence using up, pocket her asked for a light, requisite we testified knife and shovel. Another witness that there is sufficient evidence conclude riding point that while around murder, corpus delicti of i.e. evidence bridge places, ed out like around a or tree or being caused well, showing the death of a human good bury gully or oil that would be conclude criminal act of another. We somebody dump get rid of *9 have found that a rational trier of fact could somebody, though it was understood he 616 early during morning motel beyond of crime a lot of the
the essential elements 1, 1992, and that as a result Accordingly, points one hours of March reasonable doubt. days being left there for several are two overruled. it, moving the motel and no one owners property. off wanted it moved II. EVIDENCE ADMISSIBILITY A. SEARCH AND SEIZURE property of occurs Abandonment if intended to the defendant abandon ten, claim error Points eleven twelve property and his decision to abandon it was failing suppress evidence seized three police Brimage misconduct. v. not due separate car. These searches State, 466, (Tex.Cr.App.1996), 918 S.W.2d 507 personal papers bearing ap- items included State, 29, 1996; filed, May v. 754 cert. Comer name, wallet, hairs, pellant’s clothing, and a 656, (Tex.Cr.App.1986). S.W.2d 659 When bloody spots carpeting. Point on the car’s possession property abandoned police take search; 12, March 1992 ten refers independent police misconduct there is no 2, April point eleven refers to the 1992 Amendment. seizure under the Fourth search; May twelve refers to the (Tex. State, 255, v. 758 257 Hawkins S.W.2d unsuccessfully search. Clapp v. Cr.App.1988); sought suppress items seized from various (Tex.Cr.App.1982). This Court has searches; pre- during his car the three language in spoken approvingly of U.S. suppression trial motions were overruled. (en (5th Cir.1973) Colbert, 474 F.2d suggests The State banc), abandonment is how which discussed the car and forsaken had abandoned primarily question of intent to be inferred expectation privacy therein. reasonable done, spoken, acts and other from words Appellant claims that since this abandonment circumstances, objective facts and relevant argument by the was not made State proper in the strict with the issue court, trial such should not now be heard. sense, ac ty-right rather whether the but However, “may reviewing properly court discarded, behind, voluntarily left cused ground trial court’s denial on the sustain the interest in the relinquished his or otherwise standing failed to establish that the evidence longer property could no retain so that he law, though a matter of even the record privacy with re expectation of reasonable not reflect that the issue was ever con does Sullivan gard to it at the time of the search. parties sidered or the trial court.” (Tex.Cr.App.1978) (Tex.Cr. Wilson v. State, 530 S.W.2d (op. reh’g); Smith v. reh’g). a lack of App.1984) (op. on There is (Tex.Cr.App.1975). standing to contest the reasonableness of the into the motel Appellant pushed the car property. search of abandoned evidence that parking lot. There is no pretrial hearing, there was testimo- At the doing in his any police at all was involvement ny employees had first noticed the motel appel- whether so. Thus we must determine early morning of March car in the hours leaving it for pushing car there and lant’s subsequently 1992 and contacted the sheriffs intent to abandon days evidences an several wanting because it department it removed it. blocking parking truck partially their TEX.REV.CIV.STAT.ANN. parked out in the middle of the note that area —it was We 5.01(2) (Vernon direction, 4477-9a, Supp.1992), § police it towed from art. lot. At 1, 1995, September repealed effective parking the motel lot on March Code, Transp. replaced it had there unattended for V.A.T.C. Thus been 683.002, vehi- § motor supporting April 2 defines “Abandoned days. An affidavit that has warrant, to include “a motor vehicle was offered and ad- cle” search which private property without purposes remained on mitted into evidence for person control consent of the owner hearing, indicated that had been using property hours[.]” more than 48 positively as the man seen identified park- applies specifically definition pushing another car in this ear into the Such *10 617 minimum sentence that he would have Motor Vehicles Act and is Texas Abandoned aggravated for kid- serve on a life sentence dispositive general not on search and' thus issues, years, opposed to the manda- napping, in our 15 seizure but can be instructive capital for leaving tory minimum on a life sentence appellant’s intent in determination of murder, necessary years, was in order his car. favorably testify inquire into his incentive to above, appellant had left the As discussed against appellant. for the State days, parking the motel lot for several voluntarily any police apparently and without exposing a witness’s moti While days, nearly Leaving it for six involvement. testify against is a vation to a defendant 6, through from March 1 March week the consti proper important function of some evidence of intent to not retrieve the tutionally protected right to cross-examina appellant driving another car to car. Also tion, great and the defendant is allowed lati push parking car into the lot is some this any tude to show fact which would tend to appellant possession of an- indicia that had bias, motive, feeling, ill and animus establish operable sup- other vehicle. The affidavit testifying against part of the witness on May porting the 18 search warrant indicated him, right prevent does not a trial court this did not return to his school imposing from some limits on the cross-ex classes on March 1992 and subse- was amination into the bias of a witness. Miller quently living found under alias names in (Tex.Cr.App.1987), City, May Kansas Missouri on 1992. The denied, rt. ce pro-
Abandoned Motor
Act
Vehicles
includes
course,
2835,
complice asked about whether he missing heard about the woman from error in re- Point number fourteen avers saying appellant and that Austin wash represent him- fusing appellant’s request to it, had done but that he was afraid to tell begin- punishment phase. At the self at the killed, anybody being for fear of and that phase, prior to the ning punishment of the coming trunk of a there were noises from the reading of presentation of evidence and the car that inconsistent with a new car. were allegations, appellant the enhancement stated testimony Point nine deals with from Officer punish- represent to himself at wanted Steglich accomplice having told him as to the of a ment. The stated reason was because having about been with when he strategy dispute trial counsel over with wash, girl spent took the from the car time cross-examining presenting and witnesses. area, appel- in a and with secluded and consider- After extensive discussions having dropped lant him off at his trailer ation, appellant’s the trial court denied re- park. self-representation. quest for objected-to testimony was elicit right self-repre An to accused’s ed after the witness testified. timely in a man sentation must be asserted suggests The State that such was admissible ner, namely, jury impaneled. before the is 801(e)(1)(B) pursuant to Tex.R.Crim.Evid. (Tex. Winton, parte Ex 837 S.W.2d prior consistent statements. re State, Cr.App.1992); Blankenship v. sponds proffered that since such was at trial (Tex.Cr.App.1984). Since S.W.2d 803(24) under the Tex.R.Crim.Evid. state request long jury after the against hearsay exception ment interest impaneled, request such not had been bring should not be to State allowed forth timely. point four therefore overrule We theory admissibility appeal. new for on teen. However, it is well-settled that a trial court’s admitting claims error in vic- Point fifteen if decision will be it is correct on sustained impact punishment. Upon tim evidence at case, any theory applicable of law to the announcing complainant’s that the the State regard especially with to the admission of next for victim sister would be the State, evidence. Romero v. evidence, impact presence outside the (Tex.Cr.App.1990). jury proffer it made such 801(e)(1)(B)provides that Rule a statement objected to introduction of such evidence. made a declarant who testifies at trial and going to The trial court stated that it was subject concerning to cross-examination in, approved ap- allow the hearsay the statement is not if it is consistent object pellant having again not and is to rebut an offered presence jury testimony was if the express implied charge against him of substantially the same. improper influence or recent fabrication requires complainant’s prior It also that a consis Before the motive. of alleged the effects of this
tent statement be made before the sister testified about sisters, includ Haugh and her improper influence or motive arose. fense her children (Tex.Cr. marriage up recent had broken ton v. how her S.W.2d complainant disappeared. App.1990). supple shortly after the Appellant’s brief and fears, a lot of argue requirements of She described how she now had ments do Ford, inAs of the decedent. night alone. also the character especially go out at She within trial court was she missed most about we conclude that the described what her, being admitting to talk to evidence as complainant able such its discretion —not acceptance punishment special and love. She also stated issues. and her relevant very important to her and her fif- Accordingly, it was number we overrule family get complainant’s remains back teen. bury her in proper funeral and have sixteen, seventeen, eigh Points family plot. ground on their sacred allege Eighth and Fourteenth Amend teen recently discussed the We have for failure ment constitutional violations impact” admissibility of so-called “victim evi suggests that “society.” Appellant define 107, 112-16 dence. Ford v. instruction jury charge included an since the ( Tex.Cr.App.1996); Smith a life assessed person on the fact that a (Tex.Cr.App.1996), cert. 97-103 have to would sentence for murder
filed, July Admissibility is deter pa eligible years serve 35 before of the Rules of Criminal mined the terms role, in its deliberations guided in order to be Evidence, particularly such whether *13 to jury needed the dangerousness on future statutory special issues. is relevant to the only not society includes be informed questions left Such of relevance should be peniten in the also inmates free but citizens court, largely to trial to be reviewed the during deliber points out that tiary. He also an of discretion standard. under abuse explicitly note inquired a jury with ations the Ford, supra. have society. We of asking for a definition punish- jury required was to answer a in no error was repeatedly that there held appel- special issue which asked about ment Burks v. a term. refusing such to define Committing a mur- culpability. lant’s moral (Tex.Cr.App.1994), 877, 910-11 it disposing of the such that is der and denied, 115 S.Ct. rt. ce depriving surviving the not located and thus (1995); Camacho bury family ability to the decedent (Tex.Cr.App.1993), 524, 536 assessing in certainly to be a factor seems denied, U.S. cert. Also, of culpability. moral the effects one’s cause to no We find 127 L.Ed.2d causing to have murder the decedent’s sister Accordingly holdings. depart prior from our alone, fears, going night particularly out at seventeen, sixteen, eighteen are points appear legitimate to factor in would also be overruled. assessing culpability. moral These ef- one’s barring twenty error avers Point certain- arising from such a murder are fects mandatory minimum year evidence of the 35 such a murder ly foreseeable and to commit court did The trial parole eligibility statute. disregard these effects on survivors of stating, “A jury charge instruction include a culpa- moral go perpetrator’s seems to to the capital for a serving sentence prisoner a life testimony, bility for such acts. The other parole felony eligible for release is not mar- regarding hоw the decedent’s sister’s prisoner time until the actual calendar disappearance and riage up after the broke years.” Since equals 35 calendar has served being missing love and not the decedent’s informa same precisely such constituted her, tenu- talk to seems to be more able to than testimo rather legal instruction tion via culpability. ously appellant’s moral tied to trial evidence, in the find no error nial we after-effects seem to be less foreseeable Such evi proffered to exclude court’s decision questionable a murder and it is more of such instruc above-quoted include the dence but parameters of such fall within the whether hereby twenty overruled. tion. Point impact” evidence. admissible “victim complains point nineteen sister’s also note that the decedent’s We mitigating unduly restrictive definition go not testimony in this case did 37.071, He V.A.C.C.P. character, in Article did evidence i.e. the decedent’s unduly narrows insists that such definition appellant was more attempt not to show that into may taken range be of evidence he killed and deathworthy because of who capital murder statute. application of the determining account in whether to assess a challenges present constitutional Appellant does life or death sentence. 2(f)(4)’s 37.071, jurors statutory authority against murder provisions § Art. committing attempting to com- mitigating to be evi-
shall consider course capital juror might regard reducing kidnapping as mit “elevated” dence that a inadequately moral He murder. find such to the defendant’s blameworthiness. We may twenty-two. briefed and overruled insists that such definition limits what 210(b). 74(f) jury Tex.EApp.Pro. be considered to evidence that a juror might regard reducing the defen- twenty-three asserts that Point dant’s blameworthiness and “excluded from kidnapping prove both use of evidence of that the have to consideration defendant will raising aggravating murder and the element prison given if serve the balance of his life Eighth capital it murder violates However, a life sentence.” as noted failing to limit class of Amendment in instruction, above-quoted appellant would acknowledges eligible” offenders. He “death eligible parole been on a life sen- have 19.03(a)(2) Code, § that the V.T.C.A. Penal years being required tence in 35 rather than “perform “in the nec the course of’ offenses prison. of his serve balance life narrowing essary function of those class claim, merely Other than this capital conviction murders which can merit generally jury’s states that the consideration However, he insists that in sentence.” restricted, mitigating evidence was but he proved by present case murder is evi specify pre- dоes not what other evidence he return, kidnapping and no while dence mitigating sented which but the kidnaping proved again raise the is then unable to consider. We find offense, kidnapping to a murder *14 unpersuasive. claim Point is nineteen over- performing narrowing class of no of the ruled. offenses, resulting eligible thus in a death Eighth of the Amendment of the twenty-one violation
Point number
claims that
capital
The Texas
murder
U.S. Constitution.
his conviction and death sentence violate the
sufficiently
of
scheme
narrows the class
protections
jeopardy
double
of the U.S. and
Texas,
death-eligible defendants.
Jurek
Texas Constitutions because the facts of the
262,
2950,
the double are not error, points of his conviction and sen- lant’s previous cated and not violated because the hereby tence are affirmed. punishment charged was for the offense rath parte er than the extraneous Ex offense. BAIRD, Judge,* concurring. Broxton, 23, (Tex.Cr.App. 888 28 S.W.2d fully separately I write to more discuss — 1994), denied, U.S. -, 115 cert. S.Ct. sufficiency evidence to establish mur- of the Accordingly, body. of the victim’s der the absence point twenty-one is overruled. two, appellant con- points of one and error twenty-two legally insufficient to Point asserts that allow tends the evidence prove corpus of the murder since kidnapping prove evidence of both delicti aggravating body produced and there was neither murder and the element to raise no non-accomplice by appellant nor capital improper it to murder is an use of the a confession using testimony establishing the death. capital murder statute. He insists that twice, accomplice prove that if kidnapping evidence of once to further contends murder, corpus de- again i.e. is utilized establish murder and show licti, corroborated. kidnapping, improper of is an it must be double use * leaving opinion prepared by Judge ney prior the Court. Frank Malo- to his This
622 See, again. place, never to be seen Walter
I.
Kollman,
Steele,
The Cor
Jr. & Ruth A.
W.
“simply
corpus
The
delicti of
crime
Repeal Article
pus
Murder
Delicti
question
After
consists of the fact that the crime
(June
11
for the Defense
Voice
has been committed
someone.” Fisher v.
1991) (drafters apparently concluded “that
(Tex.Cr.App.1993).
fron
the vicissitudes of life on an enormous
essentially
all of
corpus
delicti
embraces
safeguards against
required particular
tier
except
partic
the elements of the crime
per
of innocent
the conviction
execution
ipation of the defendant:
safeguards was the
sons” and one of such
corpus delicti
embraces
[of
crime]
also, Puryear v.
body requirement).
See
somebody
...
the fact
did the re-
(1889)
73, 11
Tex.App.
S.W.
required
quired act or omission with the
(Texas
inspired by desire to avoid
provision
(if
fault,
any)
required
mental
under the
per
of innocent
punishment
conviction and
circumstances,
producing
attendant
sons,
cite hundreds
cases
stating “we could
(if
required
any)
consequence,
harmful
punished
have been
the innocent
which
(needed
embracing the further fact
without
rule,
require
did not
which
under the old
conviction)
that the defendant was the
found.”).
it, to
portion of
be
or a
one who did or omitted that act or was
responsible
otherwise
therefor.
adopted by
En-
was never
This view
Scott,
(quoting 1
A.
Sub-
Id.
W. LaFave &
Puryear,
e.g.,
glish
law. See
common
(2nd
§ 1.4 at 24
ed.
stantive Criminal Law
(a
law conviction for
at
common
S.W.
1986)).
may
carpus
Proof of the
delicti
murder could be sustained
extrajudicial
made
defendant’s
con-
be
body); Wheel-
production of
witness without
alone,
proof
corpus
fession
but
delicti
er,
Murder,
Tex.L.Rev. at
Invitation
30 S.
independent
need not be made
of the extra-
(circumstantial
to es-
evidеnce sufficient
judicial confession. If there is some evidence
law). And Texas
tablish death
common
confession,
corroborating
the confession
only state
have
appears
to have been
may
used to aid in the establishment
some states
provision. While
enacted such a
corpus
delicti.
rules, requiring “direct
adopted
Self
less radical
(Tex.Cr.App.1974).
On the other
death,
even
proof’
corpus delicti
hand,
may
upon an
a conviction
not be based
repealed.
long been
provisions
those
have
testimony unless corrob-
witness’
Murder, 30
*15
Wheeler,
S.Tex.
Invitation to
tending
connect
by
orated
other evidence
to
York,
(Montana,
North
New
L.Rev. at 276
with the offense committed.
the defendant
requir-
having statutes
Dakota identified as
art. 38.14.
Tex.Code Crim.Proc.Ann.
evidence, but
ing proof
by
of
direct
death
murder,
repealed).
provisions
In
of
the State was
those
now
the context
identify a
previously required
produce
repealed by the Texas
1204 was
Article
body
prove
corpus
or remains in order to
passage of the 1974
Legislature with the
1925 Penal Code
delicti. Article 1204 of the
Fisher,
at 303.
Penal
851 S.W.2d
Code.
provided:
times to
a number of
we have referred
While
person shall be convicted of
No
to know
purported
repeal,
its
we have never
body
grade
unless the
of the
of homicide
Id.,
v.
Streеtman
impetus
therefor.
it,
deceased,
portions of
are found and
(Tex.Cr.
132, 134-35,
State,
1n.
698 S.W.2d
sufficiently
the fact
identified
establish
742,
Easley v.
App.1985);
charged
person
of
to have
of the death
denied,
967,
(Tex.Cr.App.),
439 U.S.
747
rt.
ce
been killed.
(1978);
456,
425
Valore
58 L.Ed.2d
first
provision
This
can be traced
(Tex.Crim.
477,
1
479 n.
v.
of criminal and civil laws of the
codification
Nevertheless,
arti
the demise of
App.1977).
Texas,
upon a
Republic of
and was founded
legal
prevailing
1204 is consistent with
cle
poten-
of a
desire to avoid the swift execution
views.
particularly on the
tially
person,
innocent
careful and meticulous
alleged
The notion that the
deceased
rugged frontier where
punishment
de-
might escape
to another murderer
might
simply moved on
have
623
strictness
body
is less reason for
of his
...
stroying
concealing
or forever
corpus
than
now
proof
of
delicti
a distasteful one:
victim is
day,1
In Sir
Hale’s
times.
Matthew
earlier
may
that a
success-
The fact
murderer
beyond
possi-
might disappear
all
person
does
fully dispose
body
the victim
by going overseas
bility of communication
one
acquittal.
him to an
That is
not entitle
have
embarking
ship.
in a
It would
byor
society
has no
form of success
which
merely
dangerous to infer death
been most
reward.
com-
disappearance. Worldwide
from his
today
facile
and travel
are so
munication
Commonweаlth,
214, 294
v.
224 Va.
Epperly
may properly
into account
take
(1982)
that a
882,
People v.
(quoting
891
S.E.2d
person,
unlikelihood
an absent
275,
Manson,
1,
Cal.App.3d
Cal.Rptr.
71
139
health, habits,
disposition,
view of
found);
(1977),
see
body
victim’s
never
298
voluntarily
relationships would
personal
35,
also,
Zarinsky,
N.J.Super.
143
State
flee,
out of
underground,” and remain
“go
(conceal
611, 621 (App.Div.1976)
A.2d
362
unlike-
family and
touch with
friends.
body
destruction of
should
ment or
victim’s
disappearance is
voluntary
such a
lihood of
prosecution
proof
guilt
preclude
not
where
weight
circumstantial evidence entitled
doubt),
beyond
can be established
reasonable
and conceal-
equal to that
bloodstains
and,
101,
(1977);
aff'd, 75
who calculation or fortuitous events (Op’n rehearing). The (Tex.Cr.App.1981) destroys completely or conceals victim’s may prove its case direct or circum State addition, today’s body). likely it is less its long evidence so as it shoulders stantial technological society per- that a mobile proving all of burden of the elements might vanish and from son never be heard beyond doubt. charged offense a reasonable again. Virginia In a case Su- before See, Virginia, Jackson v. Court, (enunciad
preme
(1979)
defendant made a similar
2781, S.Ct.
presented
argument
by appellant.
to the one
assessing
ing single standard
review for
evidence).
Epperly, supra. Epperly
also,
was convicted
sufficiency
See
State
degree
though
Lerch,
first
murder even
the victim’s
Or.App.
P.2d
Epperly
(1983)
con-
(rejecting argument
higher
was never recovered.
stan
*16
only
proof
corpus
that
delicti is
evidence
applies
tended
when circumstantial
dard
(1)
delicti), aff'd,
eyewitness
upon
prove corpus
if
an
to
sufficient
was
relied
to
(2)
(1984);
377,
killing,
were
P.2d
identifiable remains
Or.
677
678
Geesa
296
(3)
154,
(Tex.Cr.App.
156-59
or
confesses to the
found
accused
1991) (since
direct evi
The
circumstantial and
Epperly,
crime.
S.E.2d at 890.
trial,
argu-
judged by same
at
Virginia Supreme
rejected
Court
dence
standard
subject
ment,
society
be
to same standard
expounding
in modem
should therefore
life
and,
exceedingly
person
appeal);
v. Rebetera
that a
of review on
State
where it is
rare
1984)
1265,
(Utah
no,
(recоg-
their
681 P.2d
can vanish of
own volition:
Kollman,
Corpus Delicti
Steele &
Hale is often credited with the notion
dead."
The
1. Matthew
11;
Wheeler,
Murder,
at
E.
Invita
body
produced
order to
Voice
Michael
that a
should
in
Delicti,
Corpus
Texas-Style,
quoted
support a murder
Hale is
tion to Murder?:
conviction.
267,
(1989); Epperly Com
writing,
any person of
would never
S.Tex.L.Rev.
"X
convict
monwealth,
manslaughter
224 Va.
294 S.E.2d
the fact were
murder or
unless
done,
(1982).
body
proved
found
to be
or at least the
jurisdictions
nizmg
uniformly
that
Appellant
charged
have
held
delicti.
with murder
production
body
necessary
prove
aggravated
not
to
committed in the
course
kid-
naping
attempted aggravated
murder and
can
or
by
kidnaping.2
death
be established
cir
evidence).
19.03(a)(2).
§
Tex. Penal Code Ann.
cumstantial
As one
state court
required
prove
State was
to
explained:
appellant
that
intentionally
knowingly
caused the death
evidence,
... circumstantial
like direct evi-
alleged
victim
course of inten-
dence,
guilt
must
indicate
to the extent
tionally
knowingly abducting
her.3
that there is no
reasonable doubt
Appellant’s accomplice,
Worley,
Hank
essence,
tes-
conclusion.
circumstantial and
appellant
they
tified
when
he was with
ab-
analyzed
direct evidence is to be
the same
evening
ducted
on the
in
the victim
Decem-
determining
sufficiency
its
to establish a
issue_
following
ber
1991. He testified
disputed
It would be inconsis-
abduction, appellant
repeatedly
tortured and
require
tent
to
more from circumstantial
Worley
sexually
the victim.
testi-
assaulted
corpus
establish the
delicti
country
they
appel-
fied
drove into the
required
guilt
than is
beyond
to establish
pulled
lant
from the car
her
the victim
reasonable doubt.
sexually
hair and
assault her.
continued
Smith,
State v.
Or.App.
570 P.2d
point appellant
At one
the victim.
struck
body
requirement
Retention of a
Worley stated
caused the victim to
the blow
holdings
would contradict our
that circum-
times,
couple of
ground”
“bounce off the
stantial evidence and direct evidence are of
and that
herself for
she could not brace
equal value.
fall as her hands were tied behind her back.
repeal
Whatever the reason for the
of arti-
victim,
In describing appellant’s
blow
longer required,
cle
the State is no
in Worley
“it
like a tree
sounded
testified
murder,
proving
produce body
and iden-
breaking.”
though
something
limb or
Even
Fisher,
tify
alleged
it as the
victim.
851 appellant
victim
or three
burned the
two
Rather, corpus
S.W.2d at 303.
delicti of
thereafter, Worley
times
testified the victim
murder is
if
proves
now shown
the evidence
protest
did
not
or scream as she
done
(1)
(2)
being;
the death of a human
caused
when
He stated
burned
earlier.
by the criminal act of аnother.
Id.
and,
limp”
the victim’s
when
“was
picked up by
legs
appellant, her feet and
put
in
dangling.” Appellant
“were
the victim
II.
Worley
the trunk.
stated the victim did
Appellant
further contends an
Worley
make
in the trunk.
noise while
witness’
must be corroborated
go,
appel-
told
to let the victim but
proving
corpus
delicti.
a convic-
While
Worley
appel-
lant refused.
further testified
may
upon accomplice
tion
not be had
pocketknife
lant asked him for a
and a shov-
corroborated,
unless
no such re-
el.
quirement applies
corpus
(except
delicti
Fillinger,
pathologist,
Forensic
Hubbard
extrajudicial
cases where the defendant’s
single
testified that a
to the head can
blow
only
confession is the
evidence offered to
delicti.).
explained:
cause death. He further
prove corpus
Self, supra. Since
extrajudicial
you
I
did not make an
con-
... The kind that
are most
case,
boxer-type punch
fession
this
there is no
need to
familiar with is the
require
proving
carpus
corroboration in
person
the head
sustains a con-
where
charged
charge
in the alternative with
3. "Abduct” was defined
as mean-
*17
aggravat-
murder committed in the course of an
ing
person
prevent
“to restrain a
with intent to
ed sexual assault. The
found
by secreting
holding
her liberation
or
her in a
guilty
capital
of
murder.
In a
murder
place
likely
where she
not
“Re-
is
to be found."
returned,
general
case where a
verdict is
the
"restricting]
person's
strain” was defined as
a
supports any
evidence is sufficient if it
consent,
movements without
so as to interfere
alternatively submitted theories. Cook v.
substantially
liberty, by moving her
with her
(Tex.Cr.App.1987), judg-
place
by confining
from one
to another or
her.”
grounds,
ment vacated and remanded on other
U.S.
one,
person
only
not
rendered in-
shaking
a
the
caus-
that
is
cussion that is
brain
it,
probably
very
capable
perceiving
but has
ing
rapidly
it to
inside
swell
the skull.
swells,
spine
so dam-
had the nerve tracks
the
person
it
the
loses
When
conscious-
they
it ....
if we
aged that
can’t even feel
extremely rapidly
fol-
ness
and death can
very
pain
a
sensitive
generate that much
period
very
low in a
short
of time thereaf-
anatomy
re-
part of the
and there’s no
ter.
us
the
sponse, that
leads
to believe that
Fillinger
hypothetical ques-
also answered a
neurological
that mes-
pathways that sent
facts
tracking
tion
the
of the instant case:
ouch,
up,
damaged
to the
sage
are
Fillinger, hypo-
Doctor
[Prosecutor]:
recovery.
possible
have
where we don’t
thetically
single
speaking, if a
blow was
is going
that’s
that
And
an indication
life
individual,
made to the head of an
from
very quickly.
he lost
person
a
one individual to another with
added.)
(Emphasis
standing
per-
some size and stature
a
over
Worley
they
the
testified
abducted
victim
feet,
approximately
son of
inches
five
three
from a carwash. Witnesses near the car-
height
pounds,
and 115
one
from
blow
the
a
at the time of
abduction heard
wash
open
it
hand to—whether
be
or closed
car
and
a
woman scream and
doors slam
saw
individual,
fist —to the had of that
on that
matching
description
appellant’s
car
the
5’3”,
knees,
person’s
115=pound
per-
[sic]
leaving
soaped
carwash.
victim’s
car
the
The
son,
knees,
person’s
on that
the other one
carwash,
found
her
car was
abandoned at
standing,
sounding
the blow
a tree
like
keys
purse
apart-
and
inside. The victim’s
break,
breaking,
pop
limb
like a
not a
and
evi-
ment was unlocked
there
no
sound,
description of the
individual
arrangements
or
packed
dence she had
made
having
that was hit
knocked
and
been
back
reappeared
trip.
victim
for a
The
never
two,
bouncing
ground
off the
a time or
part
despite
on the
of her
massive efforts
being
carried after that
and
head
family
Her
and friends
locate her.
bank
being
limp
legs
described as
with her
and
cards have remained in-
accounts
credit
dangling,
feet
could—could that
com-
active.
patible with life?
Well,
description
[Fillinger]:
that
Hair found in the
trunk
backseat
one,
you give
suggests,
to me
number
microscopic
appellant’s
character-
great
blow of a
deal of force that makes a
from
vic-
istics similar to hair recovered
cracking
snapping
or
sound. That tells me
clothing. Worley’s
that
tim’s
sister testified
something major
broken,
has
in all
evening
Worley
left
on an
with
bones,
probability.
Year’s,
Either
facial
neck
between Christmas
New
bone, jawbone
something....
or
driving
The loud
testified to
around
Another witness
noise,
cracking
person
days
fact that
four
before the
Austin
limp
case, looking
thereafter would be consistent with
for a
in this
certain
abduction
spinal
damage.
brain
prostitute. They stopped
cord
a 12
13-
to ask
or
and/or
snapping noise
make it
than
year-old girl
would
more
if
knew
woman. Ac-
she
witness,
likely that we have
facial fractures
cording
they
away
either
drove
to the
as
neck,
said,
damage
jaw
“Why
or
to the
or
young girl, appellant
should
from the
person
again,
limp,
just
render
unconscious
her?”
was ar-
don’t we
take
probably
4,1992,
responding
City May
it’s de-
where
rested Kansas
way
picked up. Hang-
she
living
scribed the
name.
under an assumed
he was
limp,
that would
indicate me
Keviewing
light
the record evidence
probably spinal
damage.
there’s
cord
verdict, any
rational
most favorable to
respond,
mini-
As
victim’s failure to
of fact
found the elements
trier
could have
resрonse,
burning
mal
after
beyond a
doubt. Wor-
the crime
reasonable
struck, Fillinger stated:
appellant’s
ley’s testimony as to
forcible ab-
victim,
beating,
apparent
appellant’s
... The
is no
duction of the
fact
victim,
assault,
very
response
response
minimal
after
and torture
sexual
me,
would not re-
struck
tell
number
statement
that he
blow was
would
*18
(2)
appellant’s request
lease her and
emphasized
for a knife
by
was not
the State at
shovel, together
closing argument;
the victim’s sudden
unexplained disappearance
established
(3) given
overwhelming
pre-
evidence
corpus
aggravated
delicti of murder and
supported
jury’s
sented that
an-
kidnaping.4
supports
The evidence
special
issues,
swers as to the
we
jury’s verdict.
impact/eharacter
concluded the victim
evidence made no
pun-
contribution to
comments,
join
With
I
these
the remainder
81(b)(2).
ishment. Tex.R.App.Proc.
majority opinion.
Smith, supra,
tion of the at punishment evidence made no contribution to and its ishment; and admission was therefore harmless. Harris Smith, Worley's testimony my my opin- was corroborated other 1. In concurrence in I stated ion, Tennessee, tending citing Payne to connect crime, sister, (1991), testimony Worley's such as the S.Ct. that victim trunk, appellant’s impact hair recovered from car and evidence is relevant within the context of Therefore, mitigation special and the witnesses who saw issue. such evi- admissible, always subject around the carwash at the time of the abduction. dence to an should See, art. 38.14. abuse of discretion standard. *19 (Tex.Crim. 587-588 Smith, supra. App.1989); comments, join opinion I
With these the Court. Anthony CANTU, Appellant,
Peter of Texas. STATE 71,857.
No. Texas, Appeals Court of Criminal En Banc. Jan.