Mitchell v. State

accused, “That to and dur- ...

ing making statement, know-

ingly, intentionally voluntarily [sic] rights

waived his set out in warn- ings ...”

For the reasons given opinion, this therefore, I join judgment of the Court. J.,

MILLER, joins. MITCHELL, Appellant, Andrew Lee Texas, Appellee. The STATE of No. 68915. Texas, Court of Appeals Criminal En Banc. April 1983. Rehearing Denied June Owen, Tyler, appellant.

Curtis L. for Brush, Atty. Hunter B. Dist. Ruth J. Blake, Atty. Tyler, Asst. Dist. Robert Hut- tash, Walker, and Alfred Atty. State’s Asst., Austin, Atty., State’s for State.

OPINION

ONION, Judge. Presiding This is a appeal an from conviction for V.T.C.A., Code, capital murder. Penal jury 19.03. After the an- affirmatively § pursu- swered the submitted special issues 37.071(b)(1) (b)(2), ant to Article V.A.C. C.P., punishment the court assessed Code, V.T.C.A., death. 12.31. Penal § At the outset the contends that the evidence is insufficient to corroborate witnesses, son, the two his An- Mitchell, and thony DeWayne Edward Earl Owens, Article V.A.C. required by C.P., and thus the conviction cannot stand. Omitting parts, the formal the indictment 26,1979, alleged that on or about December County, in Smith “did then intentionally knowingly and there by shooting cause the death of Keith Wills him with a the said Andrew Lee pistol; and there intentionally Mitchell did then and said Keith Wills in cause the death of the committing the offense felony the course of ” Keith . robbery upon the said Wills ... Wills, that Keith record shows man,1 a fireworks young operating Troup stand on December outside 1979. was to be used for money raised He Alva orphanage in India. relieved age appear 1. Wills’ does to be reflected man. not only young the record. He is described as a

Cunningham, a minister at the Faith Tem- exception With the of a few minor de- ple Church, at the p.m. tails, stand about 5 Wills their generally was left with change and some in a $150.00 same. These witnesses revealed appar- box to conduct business. He company in the ently planned operate night. the stand all appellant’s Tyler left residence in the early He was placed at the p.m. by stand about 8 evening hours of December Ap- other than the accomplice witnesses. pellant was his wife’s driving red Firebird They automobile. had with them “a Five a.m., About 8 27,1979,15-year- December arm pistol, Special,” Shot Charter old Steven Oaks went fireworks rifle, gauge .30-30 Winchester and a .12 stand. He saw a lying man on the floor of shotgun. riot the stand who had been shot. A television set was on. Oaks returned home and told Kenneth First went to Crawford’s father, his Later, who said it was a prank. Arp. appel- mobile home near While there stand, when he saw a crowd around the he lant asked if he someone Crawford knew stopped and talked to the deputy sheriff. (appellant) could rob as he “had

Potsy money.”2 to have the three Sanders and her son went to the some When Crawford, fireworks stand about 9 a.m. on they supermarket December left drove to a 27,1979, and found a man dead on the floor. Arp. They robbery plans in abandoned He had been They reported shot. it to the in people there because of the number of police. the follow two leav- They people store. did car, ing the store in a but abandoned that The body was identified as that of Keith apparent they being when it became were Wills. Dr. V.V. performed Gonzales an au- observed from the other car. topsy at 2:30 p.m. on December He found a wound behind the ear in the his son and then drove Appellant, Owens upper part of the neck. the course Tracing to and to a store there. Troup proceeded bullet, he stated he found a .32 They robbery plans abandoned there when caliber bullet inside the brain. Another was in the appeared possible someone wound was the above nose and between the watching events in the store. back eyes. penetrating There was a wound into Kity The three drove to the Korner store cavity. fragmented the cranial A bullet Troup. Appellant and Owens entered was removed. The doctor could not identi- operator appel- and the store. The store’s fy fragment. the caliber of this There were trading engaged lant in conversation about powder burns around both wounds indicat- The three place. firearms. No trade took ing range. shots at close The cause of the fireworks stand near then drove to pistol gunshot death was to wounds worked. Troup Appel- where the deceased brain, either of which would have been fa- some fireworks and asked purchased lant tal. open would be in case he how late the stand Twenty-four-year-old Edward Earl Ow- the fireworks. He was had to return ens lived at house in with Tyler (cid:127) night. all open told the stand would be wife, appellant, his and appellant’s 18-year- then drove to According they to Owens son, Anthony DeWayne old Mitchell. Ow- they encountered Carl Whitehouse where ens and the son testified for the State. Prentiss, to Martin’s who led them Sam granted immunity had been and the Owens to see if Martin house. Owens wanted younger promised Mitchell had been car, he wanted in his which still interested years’ punishment, probated. From their Owens, talking According to after to sell. testimony, it was clear were ac- Martin, the fireworks a matter law. returned to complice witnesses as collection, against but decided it because 2. Owens related the discussion was between coin college holi- for the and The son testified all their son was home from Crawford. elderly days. robbing couple an with a four discussed Troup.3 express stand near The purpose Jack Harless testified he was operating all three men was opera- to rob the store in Kity Troup stand’s Korner on Decem- 26,1979. tor. The ap- witnesses related ber Between 7:30 or two p.m. 8:30 pellant operator store, stated the be killed one a large had to men entered one him keep from identifying description appel- them. smaller man. His fit the big lant The man discussed a and Owens. Appellant and his approached trade of with Harless and showed firearms stand and asked the operator for bottle him a cal. No .30-.30 Winchester rifle. car, Owens stayed rockets. near appar- The asked big man trade was consummated. ently as a lookout. Appellant was armed repair if often pistol Harless could which .38 pistol with the cal. a towel or covered misfired, Harless requested to see operator, cloth. As the later identified as pistol, weapon. big get man left to Wills, to get turned fire- requested he had say forgotten returned had he works, appellant shot the in the operator As were left it at home. the two men range neck at close over the jumped store, leaving the David entered and Sutton His son counter. followed. mis- pistol spoke larger man. fired, which was a problem common the weapon. Appellant the de- finally shot Sutton identified ceased a second evening time. store on They Kity took Korner box with bills and change, the deceased’s On ad- December 26. cross-examination he keys. wallet and car When asked if not recall he mitted he could the exact date dead, the was “guy” appellant replied the had in appellant Troup, seen but it that he should be as he been shot during holiday had the season. eyes.

between the They along then drove Hammonds, old, years Jeff he testified the Mixon Road. Appellant took the brother, James, and his to gone older had that was in cigar $100.00 the and the box 26, Troup p.m. about 7:45 on December change placed in the car’s console. a red 1979. Jeff noticed Firebird because They stopped and Owens buried the two .38 because of his in was loud and interest cal. hulls appellant’s disposed bullet sports way cars. On the home the brothers of the box and keys, They dis- etc. stopped at the fireworks stand outside committing cussed a robbery a Bullard at with Troup and saw the red Firebird there stand, upon fireworks they arrival three in it. people stand found the closed. They returned to Jeff described men and identified appellant’s house in Tyler appellant where photo- of the and a photograph washed his clothes to remove blood and the son as two he saw graph of his of the men accomplice two witnesses cleaned interi- stand. at the fireworks or of the car. appel- a photograph James identified appellant’s son went his generally corroborated lant’s son and Tyler in Savoy Club and later went to the testimony. The Hammonds brother’s nearby room had at the Alfreda alive brothers that Wills was established Motel. had heroin purchased on the in p.m. night question. around 8 money with some the rob- taken in He, Owens, bery. were testified that he saw Owens several others Carl Prentiss “shooting” the heroin. It on December appears appellant in Whitehouse men, identify. bought gun also for his son whom he could not for two other $40.00 Walker, at to Martin’s residence from a Don who was at motel He led them Sam request. room. Owens’ testimony many Appellant’s son testified went to ens’ as to how times that killing. going Whitehouse to fireworks stand before the visited the fireworks stand the first time and also with Ow- differed day weapon. particular type Sam Martin testified on that Arm Charter Owens came to see him between 7:30 to ammunition was not available “in a .32 p.m. 8:30 selling caliber,” and discussed a car. He easy but it would be for someone car, observed Owens was in a red but he type to mistake the as that of lower could not identify appellant caliber than a .38 caliber.4 Jones was un- car. make association of positive able to removed from the deceased fragments Jr., Lyles, Hiawatha testified around hulls cartridge and the two .38 cal. found Christmas time 1979 he was in a room at direction. along the Mixon Road Owens’ appellant, the Alfreda Motel with the accomplice persons. two witnesses and other contention, Turning appellant’s now to He revealed heroin was available in the 38.14, Y.A.C.C.P., we observe that Article appellant’s room and that son looked at a provides:

gun being sold by Don Walker. upon “A cannot be had conviction unless corrob- of an

Ray High January that on testified con- tending orated other evidence happened appellant’s he to be at house nect the defendant with the offense com- Tyler night and observed on a stand in mitted; is not suf- gun bedroom a blue steel which and the corroboration January merely he believed to be “a .38.” About ficient if it shows commission 1979, appellant went with him and Owens of the offense.” Upon trip to Jacksonville. their return In Edwards Tyler stopped he the truck to relieve him- (Tex.Cr.App.1968), this court wrote: self, so, doing and while he heard and saw sufficiency as to the “The test gun fire a shot from a and heard is to eliminate from consid corroboration appellant discussing Owens and the fact the eration the evidence gun’s hull of the bullet had stuck in the evi witness and then the examine the chamber. the view to dence of other witnesses with Woodhull, County deputy Walter Smith evidence, inculpatory if there be ascertain sheriff, related he obtained a statement incriminating charac that is evidence 10, January from Owens on 1980. Owens the defendant ter which tends to connect took him to two different locations to re- If of the offense. with the commission physical cover evidence. Two .38 cal. car- evidence, the corroboration there is such hulls, tridge personal box and sufficient; otherwise, Dal it is not. belonging items to the deceased were recov- State, 366 S.W.2d rymple Tex.Cr.App., v. ered. 576; State, v. 170 Tex.Cr.R. Bradford 530, (Emphasis sup 319.” 342 S.W.2d autopsy Woodhull had attended the on performed plied.) the deceased Dr. Gonzales “a testified he received from the doctor State, 912 v. 438 also Odom S.W.2d See copper jacket, slug number .38 caliber State, 472 (Tex.Cr.App.1969); Cherb v. lead slug

the lead from the .38 caliber and v. (Tex.Cr.App.1971); Reynolds 273 S.W.2d from the fragments,” which were recovered State, (Tex.Cr.App.1972); 866 489 S.W.2d body. custody deceased’s The chain of State, (Tex.Cr. 414 538 James v. S.W.2d Jones, a such items was traced to Allan State, v. 542 Etheredge S.W.2d App.1976); expert firearm at Dallas Forensic County State, 542 Nelson v. (Tex.Cr.App.1976); 148 Laboratories. Loa v. (Tex.Cr .App.1976); 175 S.W.2d State, (Tex.Cr.App.1977); 545 837 S.W.2d

Jones testified the items taken from State, (Tex.Cr.App. 550 45 Dillard v. S.W.2d deceased’s had been fired a .38 body 1977). Ruger or an R G or a gun, caliber either a testimony earlier noted.

4. See Dr. Gonzales’

807 In applying the test of the sufficien be sufficient in itself to establish his cy of the corroboration, each case must be guilt. Otherwise, considered on its own facts and circum accomplice would be valueless. The cor- stances—on its own merit. Etheredge v. roborative evidence is sufficient if State, supra; State, O’Donaldv. 492 S.W.2d tends to connect accused with the State, 584 (Tex.Cr.App.1973); Barnett v. crime, weight and it is the cumulative 270, 163 Tex.Cr.R. (Tex.Cr. 290 234 S.W.2d such supplies evidence which the test.” App.1956); McCarty State, 144 Tex.Cr.R. See also Minor v. State Tex.Cr.R. [108 1] 408, 200, 163 S.W.2d 202 (Tex.Cr.App.1942). S.W. 422 Crim.Law, See also 23 812(6), C.J.S. p. § In the ease instant wit- 134; State, Forbes (Tex. nesses made out a complete against case Cr.App.1974), 910, cert. den. 420 U.S. appellant. requirements Without 830, S.Ct. 42 L.Ed.2d 840. Article supra, ques- there could be no tion as to the sufficiency of evidence to All the facts and circumstances in sustain jury’s verdict. Applying Article evidence may be looked to furnishing as 38.14, supra, do, as are required we corroboration necessary. Washburn v. the test of sufficiency the corroboration State, 125, Tex.Cr.R. State, Edwards v. discussed in we 634 (Tex.Cr.App.1958), cert. den. 359 U.S. must look to the non-accomplice witnesses’ 834; 79 S.Ct. 3 L.Ed.2d Brown v. testimony. State, 561 S.W.2d 484 (Tex.Cr.App.1978). The corroborative evidence may be circum 38.14, supra, expressly pro Article stantial or C.J.S., direct. Crim.Law, vides that evidence merely showing the 8.2(3), (note f. 107 § 51 with a host of Texas commission of an offense is not sufficient State, Brown v. cited); cases supra. The alone to corroborate an accomplice witness. combined cumulative weight of the incrimi Nelson v. (Tex.Cr. 542 S.W.2d 175 nating evidence furnished by the non-ac App.1976); Anders v. complice witnesses which tends to connect Reynolds v. (Tex.Cr.App.1973); su the accused with the commission of the Colunga pra; supra; 24 Tex. offense supplies the test. Perkins v. Jur.2d, Evidence, However, p. 326. § 855 (Tex.Cr.App.1970); Wind it is a factor to be along considered ham v. 479 S.W.2d 319 (Tex.Cr.App. other possible determining factors Colunga v. 1972); whether independent there is sufficient evi (Tex.Cr.App.1972). It is not necessary dence to corroborate the wit the corroboration directly link the accused independent ness. The this case the crime or be sufficient in itself to deceased, operated shows that the who State, establish guilt. Attwood v. 509 stand, fireworks was twice shot in the head S.W.2d 342 (Tex.Cr.App.1974); Reynolds v. State, while at night money 489 866 the stand at and in a S.W.2d (Tex.Cr.App.1972); State, Rainey v. personal 606 box and items were taken. (Tex.Cr. State, Washburn v. App.1966); supra. Such evidence shows a Ap by murder someone parently insignificant circumstances some apparently robbery. in the course of a times afford most satisfactory evidence of It has may been held that it be shown in guilt and corroboration of the accomplice accomplice corroboration that the witness State, witness’ testimony. Holmes v. and the accused were intimate associates. Tex.Cr.R. 157 S.W. 487 (Tex.Cr.App. State, Brunett v. 114 Tex.Cr.R. 1913). C.J.S., (Tex.Cr.App.1930). S.W.2d 208 In 23 State, In Reynolds v. it was said: Crim.Law, 119-120, 812(4)(g), pp. it was §

“The written, however, corroborative testimony need not that “... it has been directly link the accused to the crime or merely held not sufficient corroboration to generally

show the accused an associate was Jeff Hammonds identified appellant and accomplice of the at a antecedent to time his son as two of the three men he saw in a crime, the commission of the or that red Firebird and at the fireworks stand together shortly shortly Troup were or outside of at 8 p.m. before af on December ter the commission 26th. He heard (Empha appellant asking of the crime.” the the supplied.) State, operating sis man the long See also v. su stand how the busi- Cherb pra; State, open Moore v. ness would be (Tex. night. that James Cr.App.1975); Lyman Hammonds testified to the essentially v. same This facts. corroborated (Tex.Cr.App.1976). testimony also the Ayala See accomplice the witnesses as what oc- S.W.2d 284 on their curred first the presence trip The stand. the with the accused ac complice witness, however, may when cou accomplice The appellant witnesses stated pled with the other be circumstances suffi shot the deceased with the Charter Arm .38 cient corroborate testimony pistol. cal. The son related the mis- pistol accomplice witness. Nelson v. 542 fired and before after the second shot. The 175 (Tex.Cr.App.1976); Dillard v. slug fragments bullet and from the taken State, 550 (Tex.Cr.App.1977); S.W.2d 45 body independent deceased’s were shown Moore v. supra; Cherb su to have evidence been .38 cal. ammunition pra. that have a .38 could been fired cal. weapon. Charter Arm saw a .38 Ray High Evidence goes which to show merely weapon night appellant’s cal. on a stand in or motive opportunity of the accused to in early January, bedroom and later commit the crime is insufficient to corrobo trip appellant gun on a saw shoot a and witness, rate accomplice although it complain sticking about the shell hull in the may be considered in with connection other gun chamber. tending evidence to connect the accused could not see after happened what with crime. Reynolds supra; first the neck appellant shot the deceased in C.J.S., 111; Crim.Law, 812(4), p. Rog § over the He later jumped and counter. ers v. (Tex.Cr.App. S.W.2d 399 leaving heard a second shot. Upon 1970). dead, scene, if Owens asked the man shot the appellant informed him he had The two young witnesses accomplice man testi- eyes. between Dr. Gonzales they lived appellant. testified with the older fied one of the two wounds between independent evidence showed eyes. close were associates with the be facts, we ob- detailing Without further and after alleged fore offense. jury the court on the charged serve that independent evidence the accom showed accomplice law of witnesses and that Owens plice witnesses together ap were wit- accomplice were pellant shortly shortly before and after the Viewing nesses matter of law. alleged offense. The of Harless light in the most favorable placed a store in Sutton above, and the rules discussed jury’s verdict on the Troup very question. evening independent we conclude the evidence Harless said him appellant showed a 30-30 to con- witnesses tends cal. Winchester rifle which the charged nect the with the crime witnesses said had with them on taken accom- and to corroborate the is sufficient December 26th. asked Appellant also Har testimony. plice witnesses’ misfiring repairing pistol, less about later claimed he left it The at home. ac erred in also the court Appellant urges the .38 complice witnesses revealed that cal. corrob- sufficiently charge on the failing to testimo- pistol night accomplice had that had habit of the witness’ oration of misfiring. ny.

The court charged on the law of accom- reversible Dillard presented. error is v. plice witnesses. 38.14, State, 51; See Article State, v. supra, p. Bilbrey V.A.C. C.P. The charge many is in respects similar (Tex.Cr.App.1980). Appel- S.W.2d charge found sufficient in Dillard v. lant’s contention is overruled. State, 550 (Tex.Cr.App.1977), S.W.2d 45 and the court Appellant contends revers further instructed that ibly right in his counsel the denying erred

witnesses could not corroborate each other.

of effective cross-examination of Edward Appellant’s requested charge (Arti Owens. 36.15, cle V.A.C.C.P.) in its first paragraph in limine prevent State’s motions was similar to language 38.14, of Article appellant from into Edward inquiring Ow- charge and to the actually given. ens’ prior criminal record and arrests were requested The second paragraph an instruc court, heard ruled by which that no act that presence

tion mere of a defendant in of misconduct would be mentioned until the company of the accomplice witnesses was admissibility of such misconduct could be in not itself sufficient corroboration of the absence. jury’s determined in the Never- testimony of the accomplice witnesses. The theless, appellant on cross-examination in- requested charge court, was denied quired jail if Owens had “some 34 been although the charge on accomplice witness jury times.” The was instructed to disre- testimony did not include “mere presence” gard the bill question. exception A of charge. The rule is mere presence that that perfected. It showed Owens had been the accused in the company of an accom arrested 34 times but no approximately evi- plice witness shortly before or after dence he had ever been convicted of not, itself, time the offense suffi offense. cient corroboration of the wit nothing There was to show that ness’ testimony. Moore v. impeach entitled to Owens under the However, S.W.2d provisions Ap- of Article V.A.C.C.P. presence with an accomplice accused pellant cites Simmons coupled witness when with other circum urges (Tex.Cr.App.1977), great lati- stances, may be sufficient corroboration. tude allowed him should have been to show Cherb 273 (Tex.Cr.App. will, bias, animosity by any ill motive and 1971). If the testimony raised the defen It against witness him. was shown that theory sive of mere presence, appellant was granted immunity had been requested charge. entitled his McShane offense, regard to the instant and there was 530 S.W.2d 307 (Tex.Cr.App.1975); any of the arrests nothing to show that Dillard v. supra. were related to the or instant argues charged State that the court possibili- offense in show the any way jury parties under the law of that mere will, bias, ty animosity, of ill motive and presence alone will not make a person etc. overruled. The contention is party offense, to an charge the contention the advances whole, is, be read as a should when it excluding from evidence a court erred in rights adequately protect were Troup offered as a defen- map city and there is no error. ed reversible Gon exhibit. sive zales v. 772 (Tex.Cr.App.

1971), and Dabbs v. Jones, called the de Leroyce (Tex.Cr.App.1974), are cited. fense, investigator been an stated he had defense Exhibit years.

Be for 20 He identified may, that as it did voir dire Troup. 4 as a On testify city map and the did not raise No. not he did not draw he testified theory presence. the defensive of mere No examination map did, and did not know who Appellant argues this testimony was was a copy, not an original, did not know equivalent expression an of Woodhull’s whether it was drawn to scale. He not did opinion guilt, of his and expression of opin live in Troup. The court sustained the ob- guilt ion of a defendant’s constitutes revers jection to the introduction of the map. Ap- ible Further, error. We cannot agree. pellant offered part it as excep- of a bill of objection there no grounds on the now tion. He does point not out what informa- urged, and because of the variance com tion he deprived of presenting to the plaint on appeal need not be considered. jury. He does not show how it would have 899, Seals v. (Tex.Cr. aided or clarified Jones’ testimony or how it App.1982); Bouchillon v. was relevant. He cites authority, no further, 319 (Tex.Cr.App.1976). Still argues any inaccuracies weight went to the general objections urged trial were not of the evidence rather than map’s ad- error, perserve sufficient to if any. missibility. As a general rule maps, plats Appellant’s ground of error is overruled. and diagrams must be properly authenticat- ed and shown to be accurate before pro in a supplemental se can be Popplewell admitted. City of brief contends the evidence is insufficient Missouri, 342 52 (Tex.Civ.App.1960). to sustain the allegation in the indictment We do not find the court abused its discre- that he killed “by shooting the deceased Appellant’s tion. contention is overruled. him with a pistol.” 2 Ray, Evidence, See Ed., Texas 3rd § appellant’s Owens and testified when pp. 144-145.5

they left home with appellant night on the ground another appel question error they had with them a .38 cal. In lant contends the court receiving erred in pistol, and that later shot prejudicial opinion testimony. Appellant deceased with pistol. testimony, This claims the State introduced evidence he was when coupled with that of Dr. Gonzales and a “suspect” prior to his arrest on January Jones, the firearm expert clearly shows that 10, 1980. appellant’s contention is without merit. Deputy sheriff Woody Woodhull testified Appellant argues the court erred in as to his investigation of the alleged offense admitting evidence of extraneous offenses. and the recovery of certain exhibits with The appellant lists four extraneous of- the aid of Owens. He was asked whether prior during testimony fenses admitted Owens’ January 1980 he had “any sus- pects.” objections General three extraneous offenses admitted as to testi- mony “suspects” during as to the testimony was overruled. The son. record then following reflects the direct ground This is multifarious and error examination: does not with Article comply § “Q Did the names Tony Mitchell and Nothing presented V.A.C.C.P. is for re Andrew Mitchell and Edward Owens (Tex. view. Sierra v. come up regarding this case State, 500 Cr.App.1971); Beam v. January, 1980? 802 (Tex.Cr.App.1973); Elizalde v. Yes,

“A sir. They did.” S.W.2d 749 Evidence, Ray, Ed., 1465, pp. that, In 2 Beyond Texas 3rd § be relevant to some issue. 144-145, however, admissibility particular it is written: aids wisely left to the discretion of the trial practice map “The normal is for the or Roderiquez judge.” Cf. 32 Tex.Cr.R. model to be identified a witness verified (1893); Bullock v. State [73 22 S.W. 978 representation him as a correct (Tex.Cr.App. Tex.Cr.R. S.W. 419] thing question and then introduced in 1914). part evidence as a witness. Of course the visual aid used must We observe that evidence. Albrecht appellant contends Ow- ens permitted Tex.Cr.App. to testify appellant that [1972]” and Kenneth Crawford talked about rob- also contends the court Appellant bing collection, someone who had a coin and to that permitting testify erred in that he appellant and talked robbing with which the shot pistol killing at a fireworks stand in He Bullard. (Owens) acquired by deceased had been him son, also appellant’s Anthony contends Crawford, who obtained from Kenneth had Mitchell, permitted to relate that Ow- weapon burglary. in a ens and appellant talked possible about the revealed an extraneous offense committed coin collection robbery, and that which was not shown to party a third and Owens committing robbery discussed appellant. have involved the Kity at the Korner Troup. store in This contentions are overruled. Appellant’s testimony related not to offenses commit- ted only robber- possible discussions of further that Appellant urges ies which occurred after his son appellant, charge trial court’s on extraneous offenses 26,1979 and Owens left home on December gave limiting was insufficient. The court alleged occurred to and after charge Appel as to extraneous offenses. offense and before Tyler. their return to lant for time contends the now the first complains also that Owens and additionally charged court should have that the younger Mitchell were permitted to tes- witnesses testimony tify that soon after Tyler their return to he concerning such extraneous offenses had to used the fruits of the crime to purchase by independent corroborated evidence. be heroin shooting objection requested charge having and was No nor heroin in motel presented, room. been no reversible error is presented. is well settled that where one It that the evidence Appellant makes claim offense or transaction is one continuous epi the affirmative support insufficient sode or another offense or transaction is a stage of the trial as finding penalty at the

part of the case on trial or blended or probability Special Issue No. closely therewith, interwoven proof of all of future criminal acts of violence. the facts is proper. Taylor v. the guilt In addition to the evidence at Tinsley (Tex.Cr.App.1967); case, the stage capital murder State 605 (Tex.Cr.App.1970); appellant’s 1971 convic- offered evidence Jones v. (Tex.Cr.App. conspiracy pos- court for tion federal Johnson v. 1974); 510 S.W.2d sess a destructive device called a Molotov Freeman v. (Tex.Cr.App.1974); cocktail, and introduced 556 S.W.2d 287 (Tex.Cr.App.1977); Archer that law enforcement officers (Tex.Cr.App. and law- reputation peaceable for 1980). abiding Appellant’s citizen was bad. Archer, In this court wrote: He testified his father had was recalled. “Such an extraneous offense is admissi- years, or five job not had a last four ble to show the context in which the 1979he and his father April, and that about occurred; criminal act this has been a number of months because Tyler left for gestae,’ termed the ‘res under reason- indict- fear of some sealed of his father’s ing that events do not in a vacuum occur Texas and Okla- ments. travelled in They jury right and that the has to hear what homa, stealing himself supported and he occurred immediately prior robbing dope to and subse- dealers. motorcycles and in a quent to the commission of that act so was involved son related the were tak- drugs in which they may realistically robbery evaluate the in Dallas he„ en. On another occasion in Dallas Appellant acknowledges that this court his father stole a tractor-trailer rig. He has held that unadjudicated extraneous of- admitted that during this time fenses he would are admissible without the necessity government steal prior checks of a out of conviction mail boxes at the penalty stage of and cash them. explained capital He murder that his case fa- because such evidence ther is would not relevant punishment, allow him to participate and that these unadjudieated the robbery of dope extraneous dealers which offenses can be (ap- he proven pellant) by the uncorroborated testimony committed. of He told of sent an accomplice State, May witness. v. his father 618 to commit a robbery at a S.W.2d 333 (Tex.Cr.App.1981). Appellant beauty Athens, salon in but he panicked asks that we re-evaluate our prior decisions and ran. As punishment his father made including May. This we decline to do. him commit another robbery. The son also stated he get tried to his father quit his It is true that there psychiatric was no use illegal of drugs. testimony, but it is not essential to support an finding affirmative to the special second It is well established that issue in a capital murder case. Brooks v. circumstances of the offense itself can sus State, supra; State, Freeman v. 556 S.W.2d tain an affirmative answer to the second 287 (Tex.Cr.App.1977); State, Burns v. 556 special issue under 37.071, Article supra, if S.W.2d 270 they are severe enough. King State, v. 631 Appellant’s ground of error is overruled. S.W.2d 486 (Tex.Cr.App.1982); Brooks v. judgment The is affirmed. State, 599 S.W.2d 312 (Tex.Cr.App.1979); State, Muniz v. 573 (Tex.Cr.

App.1978). jury, at the penalty stage CLINTON, MILLER, JJ., TEAGUE and trial, may consider all of the evidence concur in the result. adduced guilt at stage of the trial. Before the court en banc. State, Russell v. (Tex. Cr.App.1980); O’Bryan State, 591 S.W.2d OPINION DISSENTING TO DENIAL OF (Tex.Cr.App.1979); Duffy v. APPELLANT’S MOTION FOR

S.W.2d 197 (Tex.Cr.App.1978); Felder v. LEAVE TO FILE A MOTION FOR S.W.2d 776 (Tex.Cr.App.1978); REHEARING Brock v. 556 S.W.2d 309 (Tex.Cr.App. 1977); Moore v. (Tex. S.W.2d 664 CLINTON, Judge.

Cr.App.1976). Indeed the circumstances of (Tex.Cr. In May v. the offense and the surrounding facts App.1981), according opinion to the may furnish greater probative evidence Court, majority rejected the assertion than other evidence regarding the 38.14, provisions “the of Art. [V.A.C. special second issue submitted penal at the applicable are to the extraneous of C.P.] ty stage of capital Duffy murder case. fenses offered in evidence at the punish cited; supra, and cases there Craw case, id., ment stage” capital murder ford v. (Tex.Cr. 341. The Court concluded: App.1980). prove “We hold that evidence offered to When the facts of the instant of 37.071, the special issues of Art. supra, fense are considered with the additional not included within the provisions Art. evidence adduced as appellant’s reputation, 38.14, Therefore, supra. ‘yes’ answers activities, criminal record and we con special issues of Art. clude the evidence is clearly sufficient are supportable on the relevant accom- support the jury’s finding “yes” as to the plice testimony concerning witnesses’ said special second issue. appellant’s prior criminal and the conduct court did not err in failing to an submit ‘accomplice witness’ charge punish- at the SHEFFIELD, Appellant, John Lee Id.,

ment stage of the trial.” at 343. [Emphasis added] Texas, Appellee. STATE However, the conclusion reached by the 262-83, Nos. 263-83. May opinion- does not rule out a constitu- tional attack on the use of such testimony Texas, Appeals Court of Criminal to show “a reasonable probability that En Banc. defendant would commit criminal acts of violence that would constitute a continuing 25, May 1983.

threat to society,” 37.071(b)(2), Article V.A.

C.C.P.

“An accomplice witness is a discredited witness;”1 practically from beginning the courts of this regarded State have so

such a witness.2 much So so that “the settled law in this state when evi- [is that]

dence of collateral crimes is introduced for one of the purposes various for which such admissible, becomes the jury

should be instructed cannot con- against

sider the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty there-

of,” Lankford v. 93 Tex.Cr.R. (1923), S.W. 389 quoted approvingly in

Wells v. 118 Tex.Cr.R. 42 S.W.2d 607, 608-609 (1931).

Now that we have the bifurcated trial procedure it would seem to follow that due

course of law would also demand that testi- mony of an otherwise discredited witness Schiesser, Austin, appel- Charles W. for purporting to report extraneous offenses on lant. part treated, accused be similarly Moore, Margaret Ken- County Atty., examined and capital evaluated. In a case Oden, Austin, neth question County Atty., is at R. Asst. important least enough to Huttash, Atty. look Robert and Alfred into. State’s Walker, Austin, Atty., Asst. for the State’s Accordingly, I grant would leave to file State. for that purpose. Because the majority do not, I respectfully dissent. MILLER, JJ.,

TEAGUE and join.

OPINION ON PETITION APPELLANT’S FOR REVIEW DISCRETIONARY PER CURIAM. possession was convicted for

less and for than ounces marihuana 1. Cast v. 164 Tex.Cr.R. 2. See cases annotated under Article n.

Case Details

Case Name: Mitchell v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 27, 1983

Citation: 650 S.W.2d 801

Docket Number: 68915

Court Abbreviation: Tex. Crim. App.