*1 agreement This contains no terms which part
reflect an intention on the of the “Les- posses-
sor” to transfer an interest in and property
sion of the it describes. As we
stated in Brown: relationship
To create the of landlord and
tenant, particular no words are neces-
sary, indispensable but it is it should
appear to have been the intention of one
party dispossess prem- himself of the occupy
ises other to them. agree-
ment conferred Pioneer a
possess premises described therein. terms, agreement
the absence of such
does not constitute a lease. judgment appeals of the court of
reversed, and the cause is remanded to that
court for consideration of Pioneer’s other
points of error. MONTOYA, Appellant,
Ramon Texas, Appellee.
The STATE of
No. 69186. Texas, Appeals
Court of Criminal
En Banc. 18,
Feb. 1987. Rehearing
On Oct. *3 Pasco, weapon discharged who
according grabbed had arm, lant’s was shot in the head. He died a few hours later. Jerry that,
Officer Loudermilk testified patrol duty, while on a call received Officer to “cover” from Pasco him.1 When scene, Loudermilk arrived at the he saw Pasco shot. had been Several other police already Dallas officers were help trying scene: Pasco and interview- ing witnesses. Loudermilk was informed description yet there no Dallas, Hagler, appellant. John H. suspect. *4 Wade, Vance, Henry Atty., Dist. John patrol Loudermilk returned to his car Drew, Atty., Alyce Dist. and Kathi Asst. began to search the area. immediate Dallas, Huttash, Atty., Dist. Robert State’s searching, While he received information Austin, Atty., for the State. by describing suspect radio a short a panther
Latin male with a tatoo of on his chest. He until continued search 6:05 p.m. appellant when he saw the OPINION “just stopped to talk to him for informa- WHITE, Judge. time, tion.” At the Officer Loudermilk appellant “didn’t have idea” that the Appellant was convicted in Dallas Coun- suspect shooting. in the Offi- was When V.T.C.A., ty capital of murder. See Penal stepped cer Loudermilk out of his car and 19.03(a)(1). jury Code Sec. After the made spoke in Spanish appellant, twice to the finding special affirmative of the issues response, in nothing said but 37.071, V.A.C.C.P., in Art. the trial court away. turned and started to run Officer imposed penalty of death lethal in- pursued ap- Loudermilk and detained the jection. This is us case before on direct pellant. up ap- Loudermilk then lifted appeal. shirt, pellant’s pan- and saw the tatoo of a points The advances seventeen appellant’s He asked ther chest. of error. A review facts is neces- his name. After the sary. responded, placed him un- lant Loudermilk revealed that Officer John der arrest. of Department Pasco the Dallas Police subsequent appellant’s A search of home trying apprehend and killed shot while pistol. automatic uncovered .25 caliber 16, 1983, January appellant. approx- On weapon Ballistics determined it p.m., imately 4:00 and others that fired the fatal shot. drinking vicinity were beer of 1800 error, point appellant alleg- of City Park of Dallas. When Pasco In his first arrived, provi- appellant began ignored es away to move that the trial court during group people. from the Then Act Pasco sions the Code Construction ju- began pursue appellant individually, general prospective remarks to the and his capital special to run. Pasco rors issues started chased about remarks, the trial Appellant him. testified that while Pasco murder trial. In those him, panel chasing attempted jury they to remove a court advised the pistol give “deliberately” his its from waistband and throw it should the word usage. Appellant’s away meaning him so Pasco would not catch with it. common is a routine made Pasco was not for an but a call procedure assistance officers, Department. emergency type response other Dallas Police from proof. Appel- the same alle- State sustained its burden applies second prospective gation panel to a second lant contends that the standard for excus- points the two jurors. We will consider ing potential jurors “only juror when a together. own [sic] ‘regardless of his standards of reasonableness, would insist that the State that the word “de It is claim doubt, proof beyond all offer ... whether capital liberately”, as used in the murder properly reasonable or not’ can the court 37.071, statute, (b)(1), sentencing V.A. Art. him”, Woolls C.C.P., citing excuse acquired particu or has a technical Therefore, meaning. (Tex.Cr.App.1983). Ap- the Code Con lar S.W.2d at 465 Act, 311.011(b), requires Woolls, sec. pellant holding. struction our misinterprets “deliberately” with a be defined only supra, did not state that time a Appellant cites Hec meaning. particular juror can be excused. Woolls simply held kert (Tex.Cr.App. particular why juror that was State, 1981), Fearance v. excused and in that instance the excusal (Tex.Cr.App.1981), dissenting opin and the Woolls, proper. supra, See at 465. Clinton in Russell v. Judge ion (Tex.Cr.App.1983) sup S.W.2d 771 proper excusing standard port Appellant of his contention. claims prospective juror State’s motion for the failure of the trial court to define “de cause record is where the viewed as a liberately” during general remarks supports finding whole juror’s that the jury panels requires a reversal of prevent substantially views would im conviction. pair performance of his duties as a *5 juror point out that failed to accordance with instruction and We Witt, 412, object to the trial court’s instruction on the oath. Wainwright v. 469 U.S. “deliberately” either 422, 844, 851, 841, word 105 S.Ct. L.Ed.2d Appellant panels. did not that a (1985). standard, adopting this given panels. different instruction be Witherspoon’s dispensed Court with refer Appellant argue did not to the trial court making ence to automatic decision required the Code Act Construction requirement juror’s proved bias that a be “deliberately.” him to define the word clarity.2 Wainwright, with unmistakable supra. Appellant points raises these two of er- appeal. Nothing ror for the first time on Instead, the stated there would Court be preserved been has our review. Tex. situations trial court where the would be 52(a). errors, Cr.App.R. any, if are impression left with the definite that a waived. Points of error one and two are prospective juror be would unable faith- overruled. apply fully impartially the law. That Appellant’s point third error is that paid why be deference must the trial errors committed trial court in juror court who saw the heard and points imposition one and two rendered demeanor. Wain- juror’s observed that penalty death violative of State and wright, supra. adopted This Court had proscriptions against federal cruel and un- reviewing this standard for the voir dire of punishment. disposi- usual on our Based prospective juror successfully who was two, points tion one and we find Bird v. challenged for cause. point third lant’s of error unmeritorious. denied). (Tex.Cr.App.1985, S.W.2d 65 reh. is overruled. It four will re On we allege
Points of error four and five prospective juror view the dire of Fer excusing voir prospective jurors, on the cause, guson properly if she to determine motion for because it State’s dire, During that prospective juror shown that excused for cause. voir either exchanges following not vote answers if occurred: could affirmative 1770, Illinois, Witherspoon 391 U.S. 88 S.Ct. L.Ed.2d 776. (State) “Q. you’re say- “Q. with ... essence what you Could share us ing you automatically be would personal feelings the death answer- your about no, ing question against the second vote you do feel? penalty? How imposition penalty the death re- Mon- I that down on “A. When wrote gardless of be whatever evidence would probably situa- day thought I there are adduced at the trial find I think the death which would tions way to some rationalize? acceptable. I’ve had about penalty was regardless say I can’t of. I can’t “A. days it and I have not two to think about I’ll picture even the situation is. what any I up situations in which come with say you’re probably right. have to guess, it. I I’m vote for would gut I purely on a reaction because don’t of the case. Just you
know facts “THE ... able COURT: would how the De- I’m sure —I don’t know old to render a true verdict take oath according young. I think to the law and the evidence fendant is. He looks so picture this case? myself I a situation in cannot probably I vote would I you “THE JUROR FERGUSON: tell penalty. guess guess I death how difficult this is. —I say through now that I’ve been can no, put position I don’t want to be in that “Q. gather you’re over- favor to do have that. penalty? proposition as a of the death all telling you “THE COURT: ... are us Right. “A. you be- would have to violate oath feelings your
cause of death about penalty? “Q. you: me ask Has there ever Let “THE Yes. JUROR FERGUSON: life, your you can been a time in when “Q. (Defense): you saying Are recollect, you in favor of have ever been you automatically would answer penalty? the death no, question despite the evidence? “A. No. saying automatically “A. I’m not “Q. mind or Are of such a ... *6 no, I’m there is a say saying would but strong your feelings against so are though possibility they proved even have penalty you you death feel could oath, things, my I have all three taken case, any regardless of the realistically say possibility going ... I’m there is verdict, facts, realistically, ever return a no.” in the going to result death of that’s degree Giving proper of deference to being you? can another human or prospective court’s trial observations say impossible me to I “A. It’s for juror Ferguson, conclude that she was we my say it reaction is to it would never do challenge for upon cause. properly excused it, unlikely me to do be for would her makes clear that views The record questions in a answer that would result substantially impair were such as would penalty. death juror performance her as duties and oath. with the instructions accordance error four is overruled. Point of “Q. strong feel- Right, because of ings you opposition to the death five, have necessary point On penalty? juror prospective voir review the dire if she was also Ballentine to determine saying it would be diffi- “A. I’m sec- cause. Pertinent properly excused for say going he is yes, cult for me to —it tions of that voir dire follow: yes impossible say me would be for (State) society “Q. you un- were asked he’s to be threat One overwhelming you you like reason proof question, do know less the so juror in you impartial be a saying I’m that what would not fair a confession. yes. box you checked the probably right. this case said was Ballentine, feelings you your share with us “THE COURT: Ms. I let Could regard question questions they or ask all the with to that would them want to you expand interrupting. on that? without You told us awhile ago under no circumstances to vote to Well, I don’t I “A. feel like that want impose penalty. the death Is that still responsible sending anybody to be your position? his death. Yes,
“THE BALLENTINE: if JUROR give I’m the one that would have to “Q. your feelings ... about the death penalty.” penalty? Giving proper degree of deference to Well, any particu- I “A. don’t know of determination, the trial court’s we conclude before, except lar reasons like I said prospective juror prop- Ballentine was just I responsible don’t want to erly upon challenge excused for cause. anybody’s death. The record indicates that her views would “Q. you way Have felt that most of prevent substantially impair per- your long you recollect, life or as can juror. formance of her duties as a Point of Ms. Ballentine? error five is overruled. I I “A. think have felt that I would six, appellant alleges impose penalty the death anybody that the trial improperly court erred my probably. all life excusing prospective juror Washington. Appellant complained that the record did “Q. gather you ... meant to check prospective juror Washing- not show that that, you agree box with I would ton automatically would answer a sentenc- not, it, you saying that is if were I would ing negative, regardless issue in the impose not vote to penalty the death evidence.
regardless of the facts. stated, already As we have has Court “A. That’s true. abandoned the reference to automatic deci- making requirement prove
sion and the juror’s clarity. bias with unmistakable “Q. gather you what said I think Bird, Wainwright, supra; supra. We will you yourself made crystal clear prospective juror review the voir dire of could never do that? Washington to determine if his views were No, “A. I could never do that. substantially impair per- such as would couldn’t, give I couldn’t him the death juror formance of his duties aas in accord- penalty. ance with the instructions he received and “Q. Regardless you’re of the facts During the oath he would have to take. being straightforward and honest with dire, following exchanges voir oc- *7 us. curred: Right. “A. “Q. (State): Furthermore, you
cheeked the box that said I am in favor penalty death certain cases? “Q. ... under no circumstances “A. I did. you would ever way vote in such a as would result penalty the death time,
anybody, any any place? “Q. you saying basically Are because “A. That’s correct. feelings you of these of conscience have Now, “Q. important it’s that strong you way a feel about the death your feelings, record be clear these are penalty you against that would vote words, your your words and not imposition against pen- or vote the death mine? alty regard without to the evidence? “A. That’s true. probably I “A. would. Washington, let saying “THE COURT: Mr.
“Q. you’re I think there what you you make may you evidence that would me ask this: ... Could take be somebody the death according feel should receive oath to render true verdict penalty? pen- in a the law and evidence death Right. alty you Could take that oath?
“A. case? ever “Q. But no that could evidence Ac- “THE WASHINGTON: JUROR give penalty, the death is you allow way I feel? cording to the right? that Yes, sir. “THE COURT: “A. That’s true. No.” “THE JUROR WASHINGTON: Regardless “Q. of the evidence? juror prospective We conclude right. That’s “A. Washington upon properly excused challenge makes for cause. record you telling ... are me “THE COURT: substantially his views would clear that you could take an oath to render impair performance of duties as according to the law and a true verdict juror accordance with the instructions penalty on a death case? is of six overruled. and oath. Point error “THE WASHINGTON: JUROR seven, appellant alleges point of don’t think can. peremptory of a retroactive use You could not take “THE COURT: challenge by the constituted error. State that oath. complains that this detrimen- “THE JUROR WASHINGTON: tally whereby the manner he used affected so. don't think challenges. peremptory own We will you say first of “THE COURT: ... did of pertinent to this review the facts you might all case criminal error. guilty but able to return a verdict thirty-one Prospective juror number return penalty you case could not death by the (Rogers) challenged for cause guilty? right? Is that verdict cited, attorney the State State. The Yes, “THE JUROR WASHINGTON: 35.16, challenge, Art. Sec- ground for their sir. 9,3 V.A.C.C.P., following ex- tion after change occurred: you saying Are “THE COURT: ... (the “Q. (State): opinion Your is stage you could not find him the first appellant) guilty this offense. might knowing it guilty lead my (Rogers): opinion, “A. That’s penalty on? death later yes.” Yeah, “THE JUROR WASHINGTON: if I did.
it be awful would appellant’s attorney then notified waived
trial court that challenge state.” “ground made Defense): (the respect “Q. With granted chal- The trial the State’s court 2, if question you heard evidence that Rogers. lenge juror of prospective you beyond any reasonable convinces question to that doubt that answer pro- Immediately prior to the voir dire yes you yes or would would answer fifty number nine4 the attor- spective juror pre- automatically answer it no that, ney requested “before for the State imposition penal- of the death serve *8 actually end dire of voir ty? retroactively selected”, permitted he be Rog- juror
“A. I’m not sure. peremptory challenge on use a oc- following argument then Washington. ers. The “Q. Thank Mr. I you, questions. further curred: have no sixty Prospective juror last was the prejudice number he has a or in favor or
3. "That
bias
jury.
venireperson
against
selected for
the defendant."
facts,
(the State)
supra, is
They
Grijalva,
are
On the
distin-
“THE COURT:
guishable
Grijal-
from the instant case.
challenge
going
peremptory
a
to exercise
va,
argued
appeal
on
a
the defendant
Rogers.
permit
I’ll
that.
on Samuel
So
prospective juror
erroneously
had been
ex-
(Defense)
Honor,
Your
“MR. PARKS:
challenge
cused
the trial court on
having
used
at this time
defense
brief,
response in
cause.
In its
its
peremptory challenge yester-
their last
argued
error
State
this was
harmless
15th,
respectfully
day, our
at this time
perempto-
used all of its
because it had not
grant
requests the
the defense
Court
ry challenges during jury selection. The
challenges
peremptory
at this
additional
have, during
asserted that it could
State
time for the reason we ask additional
trial,
challenges
of the unused
used one
challenges
granted.
peremptory
juror erroneously excused for cause.
on the
right.
“THE
All
What’s the
COURT:
case,
retroactively
In the
the State
instant
position on that?
State’s
peremptory
exercised one of its unused
(the State): I don’t see
“MR. CARDEN
challenges
voir dire concluded.
before
why they should. This wouldn’t have
appellant
object
The
failed to
they kept
or not
some-
affected whether
per
substitution of an unused
State’s
one.
challenge
emptory challenge
previous
for a
nothing
“THE
It had
to do
COURT:
preserved nothing
for cause. This
for re
get your
Rogers.
Mr.
I wanted to
with
Esquivel
view.
v.
595 S.W.2d
views before
ruled.
(Tex.Cr.App.1980),
appellant
The
at 527.
inappropri-
“MR. CARDEN: It seems
challenges
requested
peremptory
additional
having
doesn’t affect
ate. This
them
court,
and this
but failed
show
trial
they
take someone
wouldn’t have other- Court,
accept
juror
that he was forced to
wise had to take.
objectionable.
which he had found to be
anything
“THE COURT: Doesn’t have
preserved nothing for review.
This also
Rogers. They
to do with Samuel
are
(Tex.Cr.
State,
5. All
25 Ortega for your in Officer you put that “Q. Why didn’t Pasco. This was signature murder of Officer John that his to search so consent hearing that, after finding of the trial court saying a document would be over hearing. The pre-trial he said relying on what instead ruling an abuse of was not trial court’s understood? ruling not disturb that discretion. We will before, sir, I did not Like I said “A. eight over- is appeal. Point of English that we used translate form ruled. Spanish.”6 into nine, orally consented to ar- After the search, signed written then inad- statement was gues that his written search, Ortega conduct- consent to Officer denied counsel he was missible because residence. appellant’s interrogation. Appel- ed a search of during his custodial search, mur- Ortega found the During prod- the statement was lant contends in his confes- appellant, weapon der which after he re- interrogation conducted uct of sion, away. The mur- thrown said he had counsel, timely pro- was not quested next weapon was hidden in a bookcase der result, post-request re- As a vided. weapon This is the appellant’s bed. interrogation may not sponses further sought suppress at the retrospective doubt on used to cast be hearing. pre-trial request for counsel. clarity of his initial Illinois, 469 U.S. Appellant cites v. Smith hearing, the of that At the conclusion 490, (1984) in 83 L.Ed.2d 105 S.Ct. following finding on made the trial court support ground of error. suppress: appellant’s motion to Court, Smith, that, held “an accused’s in beyond a reason- “the also finds Court further interro- responses to post-request voluntarily that the defendant able doubt used to cast doubt gation may not be gave to search freely orally consent request coun- clarity his initial boundary goes beyond the set out sel.” I think document here.... the written oral to search that there was an consent brief, appellant alleged that In his documents goes beyond these written coun- distinct made a clear and expressly in the and that included magistrated, and before he was sel when of the murder of search for evidence Appellant claimed interrogated. he was go- Pasco and the Court is Officer John Magistrate R.L. Mid- testimony of that the ing to admit that evidence.” appellant made that dleton showed reviewing testimony, request. Before may A consent to search be oral appellant does fact that take note of the 400 we still valid. v. Garrett only magistrate English. The speak (Tex.Cr.App.1966);Marshburn S.W.2d 906 through inter- an (Tex.Cr.App.1973); spoke to the 491 S.W.2d own magistrate, preter because and see Jordan v. words, try to converse (Where found not want to (Tex.Cr.App.1974) this Court “would (Spanish).” Un- search socially oral consent to or business-wise that the defendant’s State, the valid, ques by the though questioning there were at trial even der search validity of a written as follows: magistrate tions about the testified pos police had in their which the warrant you able to determine “Q. Were session.) to search The extent of consent funds had not the Defendant whether or obtained limited the consent attorney? employ an State, May instance. particular go- he was know “A. I remember—I (Tex.Cr.App.1981). S.W.2d 333 I did appointed. attorney ing an to have attorney. Best of an case, if he wanted ask In the instant did. I cannot said he my recollection permitted a search oral consent to search into form English language search consent to Carolyn Hovey, who did Police Officer 6. Dallas Ortega. gave Officer Spanish. this to She then interrogation, part translated not take go- exactly Against recall because knew was Homicide section of the Crimes ing him. appoint *11 to one for Ortega Persons then division. advised the appellant, Spanish, rights
“Q. of his set appoint to one You were 436, Arizona, charged capital he out in because with Miranda v. 384 U.S. (1966). murder? The S.Ct. L.Ed.2d appellant Ortega told “that he did under- “A. That correct.” rights stand I had read to him.” Orte- However, officer, police Lawrence gave ga appellant then an additional Cadena, interpreted Magistrate who description rights: appellant of his that did Middleton, gave a different account of him, appellant not to have talk to that could appellant’s responses being apprised to lawyer present, a appellant have and that right his to counsel: any could terminate the interview at time. “Q. (State): problem you any Did have Ortega appellant say testified did that not communicating in Spanish? with him lawyer that he wanted or that he wanted “A. None whatsoever. Ortega stop the interview. then Officer “Q. any there Was conversation began interrogate appellant. After- about whether or not he could afford a wards, to, signed, appellant swore lawyer lawyer appointed? or wanted a voluntary statement form on he which attorney “A. him if he asked had an counsel, among right waived his others. point— he At and he said did not. that Lastly, appellant at when the testified “Q. Go ahead. trial, he was cross-examined the State Judge he “A. Middleton stated that interrogation by Ortega: his about Officer attorney appoint would an for him. “Q. you And never told Officer Orte- “Q. Judge Middleton said that ga him you did not want to talk to English. you? anymore, did “A. That’s correct. “A. No. “Q. you Spanish Did translate that “Q. lawyer. You never asked for a for the Defendant? “A. No.” Yes, I “A. did. “Q. you Judge says appel- Did tell him the Because the record indicates counsel, attorney request appoint he will an for him or lant did not v. Illi- Smith controlling. magistrate, The what did tell him? nois is not Middleton, Spanish and did not understand exactly “A. That’s what I said. required interpreter to the assistance of an Judge appoint attorney he’ll an says speak appellant. interpreter, with the you. Cadena, appellant only re- testified that Montoya respond “Q. Did Ramon magistrate’s sponded negative that? attorney. question of he had an whether anything. say “A. He did not magistrate that he decided stated “Q. there more conversation Was represent appoint appellant be- counsel to after that? charged capi- appellant with cause No, “A. sir.” murder, re- tal because Magistrate informed the After Middleton quested counsel. the assistance of charges against appellant of the him and interpret We do not 15.17(a), rights out in Art. V.A.C. his as set in negative magistrate’s response to the C.P., was taken to inter- quiry as a for the assistance Department. room the Dallas Police view appellant himself testified Ortega, counsel. The It was there that Officer Donald lawyer. We did not ask for trial that he bilingual, who is met with the also right his Spanish, hold did not assert appellant, in Ortega lant. told the hearing.7 Ap- police assigned at the Art. 15.17 that he officer to counsel (Tex.Cr.App. requested of counsel the assistance 7. Nehman v. fendant Nehman, hearing. 1986) magistrate distinguishable. at his Art. 15.17 the de from the written statement admissible. authorities written statement was pellant’s Considering the fact entirely nine correct. Point of error is overruled. freely voluntarily spoke error, tenth In his being arrested police officers after with cross-examination argues that the State’s warnings, he could given his Miranda regarding post-arrest silence him inform reasonably expected have been process. When a denial of due constituted signed the confession the officers before at trial appellant took the stand he made to them were that the statements defense, in his own he denied respects. in some not true Cisneros statement, gave Offi- the written *12 (Tex.Cr.App.1985), 78 Ortega, entirely Specifically, cer true. intentionally held that: that he not this Court he testified did Pasco. shoot Officer While to a prior silence of a “the witness cross-examined, following being testified, he has where such fact to which place: exchange took occurred under circumstances silence (the State): “Q. the first time This is out, expected speak he would be to anyone Judge told you that have impeach to may be used the witness entirely true? that statement is not that Cisneros, supra, at cross-examination.” Honor, (Defense): “MR. PARKS Your object to that vio- going to that because Ohio, Doyle cited 426 U.S. Appellant v. right this to remain lates Defendant’s 2240, (1976), 610, 49 96 S.Ct. L.Ed.2d 91 interrogation. after silent point of Because the support of this error. “THE COURT: Sustained. impeach- instant prosecutor in the case was jury PARKS: “MR. Ask that ing prior with a inconsistent disregard instructed to it. statement, In Doyle inapplicable. is you to dis- “THE COURT: I will ask 404, Charles, 100 v. 447 U.S. Anderson question. last regard the 2180, (1980), L.Ed.2d 222 the Su- S.Ct. Respectfully “MR. PARKS: move held that preme Court mistrial. Doyle apply does not to cross-ex- “... “THE COURT: Denied.” merely prior inquires into amination question never answered the question- inconsistent statements. Such objected which he to. ing no unfair use of silence be- makes apparent from It is the record voluntarily a defendant who cause not remain he was lant did silent after receiving warnings speaks after Miranda Instead, magistrated. arrested remain silent. has not been induced to Ortega the chose to discuss with Officer state- subject matter of his As to the At facts of the murder of Officer Pasco. ments, remained the defendant has not interrogation, he conclusion of this Doyle all. We conclude silent at admitting signed a written statement case. apply to the of this does not facts dif- he shot Officer Pasco. This confession descriptions of of two inconsistent Each greatly from the testimo- fered ‘silence’ may be said to include events ny at trial. in the as it omits facts included insofar re- But does not Doyle other version. attempt impeach to In its understanding any such formalistic sought point quire out appellant, the to State ‘silence’, reason and we find no through cross-examination that view case.” previous adopt inform such a this attempt not made a had Court, Nehman, right to counsel deciding of the defendant’s relied on Mi- waiver This 1404, Jackson, interrogation chigan is inval- police-initiated 475 U.S. 106 S.Ct. for that Jackson, (1986). Court supplied)." 89 L.Ed.2d (Emphasis id. held: right to appellant did not assert Because the police interrogation not hearing, "that if initiate 15.17 Nehman at the Art. counsel controlling after assertion, arraignment or at an point of error. defendant’s counsel, proceedings, right to similar No, case, appel “A. I did want to kill him.
In the instant prior statement was inconsistent lant’s if “Q. Okay, get let see we can me impeach him. The State properly used right. going You’re to throw the these had omitted from properly used what been pistol away? appellant’s prior impeach statement to “A. Yes. Also, in the trial court did him trial. “Q. Trying away? it throw disregard prosecu struct getting “A. it out. question, potential tor’s which rendered “Q. away? To throw S.W. error harmless. Frison v. 1971) (Tex.Cr.App. and Hawkins 2d “A. Yes. (Tex.Cr.App.1974). “Q. running? Keep ten is overruled. Point “A. Yes. eleven, “Q. going And the officer catch argues the trial court erred when you anyway? include, jury, charge its did “A. Yes. offense instruction on the lesser included “Q. And think manslaughter. Appellant involuntary *13 you then? arrest the raised issue contends that evidence the “A. Yes. recklessness, the trial court of and that according- jury should have instructed the the
ly. responds that evidence State running taking I I it “A. was and was negli- only the issue of criminal raised my my I had undershirt out. shirt gence, properly trial court and that the my pants It didn’t have out. didn’t— criminally negligent jury the on instructed running, getting I it I was and was belt. homicide. grabbed my when he arm out. That’s police, the his the In written statement to my in got up, I I had it here. When appellant stated: hand.” policeman. running “I from the went In to determine if the trial through alley. He order He chased me the by jury the refusing to instruct catching up pistol to me I had a court erred was involuntary apply will my pistol manslaughter, I the all we right hand. had on chasing me. set out in during two-pronged he was test which was the time (Tex.Cr. catch policeman Royster was about to When First, my me and fell on back. included of pushed App.1981). me lesser pistol police- pointed proof and shot at the in the neces fense must be included pointing charged. at his chest when In sary man. I was to establish offense of policeman fired. The fell to one side voluntary manslaughter is a lesser included I got up murder, me. and ran.” 667 S.W. Lugo of offense capital mur (Tex.Cr.App.1984),and 2d 144 trial, gave a different At satisfy the instant case der. The facts of shooting. He testified version of the Royster. prong first of the test he did not tell Offi- direct examination that Ortega pistol at the pointed that he his cer Second, must some evidence there Instead, ap- policeman him. and shot guilty, the defendant that if the record that, away running pellant while testified the lesser offense. guilty only he is of officer, pistol of he took his out from the evidence at trial court concluded away. pants He also stated his to throw negligent criminally trial raised the issue the officer on direct examination that homicide, issue but did not raise the gun grabbed arm before his him manslaughter. must deter- involuntary We appellant emphasized that fired. The to indi- at trial if there mine was policeman. point pistol his did guilty, he if cate manslaugh- involuntary cross-examination, guilty only appellant testi- was On ter. fied as follows: conduct, and did not indicate crimi of reckless
The difference between guilty, he involuntary if the negligent homicide and nally manslaughter. involuntary culpable guilty only mental state manslaughter is the eleven is overruled. required prove each offense—criminal Point of error negligence former and recklessness for the twelve, State, 529 S.W.2d Lewis v. for the latter. erred when it failed to the trial court states (Tex.Cr.App.1975); Thomas v. charge jury on the lesser included of- (Tex.Cr.App.1985). Crimi argues that Appellant murder. fense of risk cre negligence nal involves inattentive the issue of the his at trial raised ation, is, ought aware the actor to be arrest Officer Pasco. lawfulness of his surrounding conduct or the of the risk his points no testi- out there was hand, the other reck results thereof. On for his mony that Pasco had a warrant cre involves conscious risk less conduct trial, appellant that he At denied arrest. ation, is, the risk the actor is aware of apartment shooting pistol his in the results surrounding his conduct or the point, At one complex prior to his arrest. thereof, consciously disregards that but pistol appellant denied that he had the heart of reckless conduct risk. At the possession the officers arrived. when disregard of the risk created conscious that his evidence Appellant concluded contrast, key the actor’s conduct. and, proved that his arrest was unlawful negligence criminal is found whether therefore, acting in Pasco was not Officer Lewis, perceive the risk. actor failed discharge duty. the lawful official Thomas, supra; supra. this, appellant that he Because of claims case,
In the instant
this Court
on the
was entitled to a
instruction
collectively
must examine
the circumstanc
lesser included offense of murder.
*14
appellant’s
the
mental state
es from which
State,
Appellant cites Broussard v.
inferred,
light
can
the
of the defini
(Tex.Cr.App.1982) support
of
Appellant’s
tion of reckless conduct.
testi
Broussard,
In
the de-
point
this
of error.
mony at trial raised the issue of criminal
charged
the commission
fendant was
with
gun
negligence. He was aware that the
during
capital
of a
murder which occurred
loaded,
being pursued
and that he was
was
robbery,
aggravated
of an
the course
chase,
by police
During
he
a
officer.
that
robbery.
eventually
of
he was
convicted
attempted
gun away.
to throw that
He did
argued that the trial court
The defendant
not,
him,
according to
intend to threaten or
instructing
jury
the lesser
erred
the
on
police
harm the
officer.
robbery. This
included offense of
Court
However, the evidence at trial did not upheld
actions of the trial court be-
the
explicitly
implicitly
the
or
establish that
cause,
(defendant’s)
indi-
statements
“the
risk to the
knew there was a
murder,
capital
guilty
of
cate
was
officer,
police
consciously dis
and then
all,
guilty
he was
but that if he was
at
regarded
that risk. His
at trial
is distin-
guilty
robbery.”
of
Broussard
gun
or
did not show that the
was cocked
on these
guishable from the instant case
pointed
gun
the
at the officer or in
appellant’s testimony at trial
facts. The
general
the officer’s
direction. The evi
guilty, it
that if he was
did not establish
gun
dence did not show that he threw the
only
was
of murder.
officer. This is not a case like
(Tex.Cr.
mak
State,
Pasco was
Simpkins
pra.
prejudicial,
ment
inadmissible evidence
was
and, also,
argument
that the
was inadmissi
case,
prosecu
In the instant
hearsay.
ground
Because the
of error
ble
argument
improper
tor’s
was not
or errone
presented
appeal
comport
did not
with
appellant
any wit
ous. The
did not call
trial, nothing
raised
objection
at
nesses,
reputation witnesses,
including
dur
review.
presented for
Crocker v.
ing
punishment hearing.
guilt-
At the
(Tex.Cr.App.1978);
finding ignores
only
MR. PARKS:
the words
also,
prosecu-
but
mistrial.
actually
were
used
reviewing the record
tor’s conduct. After
denied.
THE COURT: That’s
agree
appellant’s assessment
we
with the
basic,
well-known, accepted,
It
prosecutor’s
of the
comment.
fail
fundamental
in this State that the
law
guilt-inno-
testified at the
testify may not
ure of an accused to
be
phase
trial
not at the
cence
of the
but
prosecution.
of
subject
comment
hearing.
punishment
During the State’s
(Tex.Cr.App.
Bird v.
891
527 S.W.2d
argument
punishment phase
closing
at the
1975).
in
Such
violation of the
comment
trial,
following
occurred:
against
con
privilege
self-incrimination
do
hear from
MR. BANKS: What
we
I,
10
in
Sec.
of the Texas
tained
Article
this
here that it couldn’t
man over
express
of
provisions
and the
Constitution
conduct, all
my prior
deliberately, all
V.A.C.C.P.,
38.08
which reads:
Article
actions,
I
man that
past
these
that the
Any defendant
in a criminal action
com-
am is
that I’m
not such
permitted
testify
in his own
shall be
I
in
mit
the future
acts of violence
therein,
any
but
failure
behalf
did it?
testify shall
taken
so
not be
defendant to
object
MR.
I
to a comment
PARKS:
him,
against
shall
nor
as
circumstance
in
testify
this
failure to
defendant’s
to or commented
the same be alluded
trial.
phase
the second
cause.
by counsel in the
THE COURT: Sustained.
violating
consti
In addition to
jury
MR.
Ask the
be instructed
PARKS:
Texas, a comment on the
and laws of
tution
disregard.
testify
defendant’s failure to
constitutes
hadn’t
the state-
MR.
I
finished
BANKS:
clause
violation
the self-incrimination
ment
time.
Amendment,
appli
Fifth
which is made
right.
Mr. Banks
THE
All
Let
COURT:
the Fourteenth
cable to
states
permit
I’ll
finish
statement
then
California,
v.
Amendment. See Griffin
objection.
your
to finish
609,
1229, 14
106
L.Ed.2d
380 U.S.
85 S.Ct.
fa-
man’s
MR. BANKS: We know this
California, 386 U.S.
(1965); Chapman v.
Dallas, Texas
were
ther and cousins
(1967);
18,
824,
that and we guilt-innocence portion of during the my That’s entire state- witnesses. limit or trial, way does not ment. this during the testify right to not restrict re- record to MR. want the PARKS: separate dignity hearing. punishment stating the Banks flect Mr. when bifurcated trial each half of the afforded has, what- effect that he words to the right not to to a were, relation defendant’s he was exact words ever those State, v. aptly stated in Dickinson Montoya directly at Mr. as pointing (Tex.Cr.App.1984): fin- S.W.2d he had and that said those words my when made ished statement in Brown Recently, stat- objection. (Tex.Crim.App.1981), Court self-incrimination right of Well, may re- ed that “the THE record COURT: finding the to- not end with [gestured] does jested flect that [sic] Judge for, Presiding guilty will defendant The record ward the Defendant. State, said in he fin- Onion or not speak for itself whether Brumfield ‘The (Tex.Crim.App.1969), abundance ished In an the statement. guilt does not terminate finding of objec- mere your I want to sustain of caution against self-incrimina- privilege already have. tion.
35
“it
obvious that
only when
The Court held that
privilege ceases
tion....
the
manifestly
intend-
prosecutor
the
was
longer exists
liability
punishment no
to
accused’s failure to
ing to comment on the
322.
Id. at
just as
testify.
prosecutor
could have
right
the
In order
violate
discussing the
of the
easily been
failure
Ar
against self-incrimination and therefore
testify
to call
witnesses to
accused
38.08,
language,
offending
supra, the
ticle
In
Id.
regarding
at
rehabilitation.”
standpoint,
jury’s
the
when viewed from
prosecutor’s
that the
the Court held
Davis
of such
manifestly intended or be
must be
a direct
argument
in that case was not
necessarily
jury
the
would
a character that
to testi-
reference to the defendant’s failure
on the
it as a comment
naturally
and
take
fy-
testify.
v.
failure to
Banks
accused’s
State,
the
supra,
v.
other case
In Jones
State,
(Tex.Cr.App.1982);
643
129
S.W.2d
State,
by the
court concluded that
cited
the
(Tex.Cr.
State,
v.
prosecutor’s
comments were directed
prosecutor may
nized that a
comment on a
attempts
appellant despite
subsequent
*20
evidence,
produce
to
defendant’s failure
redirect
to
the comments.
Gar
major
is limited in
respect.
this
one
State,
rett v.
(Tex.Cr.App.
632
350
S.W.2d
general
prosecutor may
As a
rule “[t]he
State, 507
1982);
Nowlin v.
S.W.2d 534
comment on
failure of the
to
the
defendant
(Tex.Cr.App.1974). Such a comment can
reputation any
call to attest to his
witness-
produce
concern
to
the failure
evidence
particular
es at all or some
known witness
only
of which
the defendant has knowl
competent
give
to
material testimo-
who
State,
edge. Angel
(Tex.
v.
S.W.2d 424
State,
Mosley
v.
ny on the matter.”
State,
Nickens v.
Cr.App.1982);
180,
(Tex.Cr.App.1985). The
For
in
(Tex.Cr.App.1980).
example,
State,
case,
in
contends
taken as a
State,
Myers
supra,
v.
an indirect comment
whole,
clearly
prosecutor’s argument
the
testify
failure to
on the defendant’s
was
the
respect
refers to the evidence with
to
prosecutor
error where the
drew
reversible
community,
in
reputation
defendant’s
the
explanation
to
that no
reference
the fact
flagrant
as a
to
direct and
reference
why
had
offered as to
the defendant
been
appellant’s
the
silence. This contention
possession
large quantity
in
a
was
of such
simply ignores
what
and how
both
was said
marihuana.
it.
he said
State,
supra,
v.
Cook
Similarly,
the
the
directing
jury’s
After
the
attention to
only real
issue
the
or lack
was
consent
him,
the
gesturing towards
aggrava-
complainant
thereof of the
an
pronoun
pos-
prosecutor used the
“I” or its
improp-
It was held
ted sexual abuse trial.
Cherry
v.
form
times.
In
sessive
four
prosecutor to refer
er for the
to the lack
State,
(Tex.Cr.App.1974),
Likewise, in Cook prosecutor State, Id., discussing possible Further, while at prosecutor’s contention alibi, said, “using be- defense alibi had objection that defense counsel’s trial else, cause, got my credulity. T I’ve interrupted was somewhere his statement strains alibi, playing poker with the separate because was statements bear absolute- The two ” that, Id. thought purpose. held guys.’ continuity 598. The Court ly at no inescapably reputation call prosecutor’s of T failure to “the use relationship to logical failure to bears no reference to and his witnesses question, rhetorical prosecutor’s Id. testify.” conclusions this man over do hear from Cherry just we Cook are the Court both “[w]hat de- regard acted to whether he here” with applicable present case where prosecutor’s argument a di liberately or whether he would commit fu- cause the flagrant acts of violence. rect and reference to the defend ture testify. Normally, fail ant’s failure to original opinion, noted in our after As disregard ure will a motion to prosecutor’s argument, de- objecting to the prejudicial if the effect of only waive error requested a to in- motion fense counsel prosecutor’s remarks could have been disregard the comment. struct by proper cured instruction. Johnson obtaining ruling request, on his Before Johnson, however, it was Id. given prosecutor opportunity an prohibition against recognized that statement, which he did. “finish” his direct comment on defendant’s failure Thereafter, seeking again rather than testify mandatory and the adverse disregard, defense counsel instruction effect of reference accused’s only requested a mistrial which was denied. *21 by testify generally failure to is not cured original opinion held the jury. an instruction to the See also: Owen request for to the waived error failure State, (Tex.Cr.App.1983); v. 656 458 S.W.2d on proper instruction. This was based the State, (Tex. v. Overstreet finding prosecutor’s the ar- erroneous Thus, given Cr.App.1971). a direct refer to, gument a was not direct allusion testify, ence to the accused’s failure to an manifestly ap- intended to comment on the disregard instruction to is of dubious value. pellant’s testify failure to and that it was inflammatory prejudicial not so that its ef- not be to Johnson should read fect could not have been alleviated an requesting in importance lessen the of an disregard. instruction to however, disregard. to does struction It recognize protection the tremendous which reference the to defendant’s fail A is extended to a defendant who exercises testify ure to is direct either or indirect. rights his State and Federal Constitutional importance requesting of a motion to case, testify. not to In the instant the disregard to jury depends instruct prosecutor a reference to the made direct whether the reference is classified as either testify regard to in to defendant’s failure prejudicial direct or indirect.1 The effect of special issues must an two which to direct reference the defendant’s failure punishment phase during the swered testify normally to cannot be cured an capital 37.071, murder trial. Article V.A.C. the jury disregard. instruction to For C.P. A for an instruction to dis motion an indirect comment to constitute reversi regard necessary preserve error was not error, ble it must for a denial of an call State, magnitude. v. su this Johnson or contradictory assertion of fact evidence mistrial, pra. By requesting a defense only in position the defendant is proper request counsel made a for relief in State, 721 offer. Losada v. S.W.2d 305 acknowledging dubi this instance. (Tex.Cr.App.1986); v. Short 671 requesting dis ous value of a motion to 888 (Tex.Cr.App.1984). Any S.W.2d other regard, request apparent only it is that the pre properly indirect comment must be yield relief possibly could effective which served review or it is waived. was a motion for mistrial. request The failure to an instruction to noted, disregard previously As v. the comment of the Cook prosecutor seeking State, supra, a mistrial was State’s Motion before Rehearing again before this Court v. 611 the Court concluded Johnson pronoun “I” Despite 649 use of the (Tex.Cr.App.1981). prosecutor’s inescapably defendant’s failure to an instruc- “was reference testify.” at 600. disregard, tion to the Court nonetheless and his failure to Id. prosecutor’s Despite reversed the defendant’s conviction be- its conclusion that 675, testify oblique failure to See v. 700 fn. allusion to an accused's Gardner (“More (Tex.Cr.App.1987) error.”) (emphasis 13 recent decisions may added). have cured be found to rare, while is it is have shown that unheard of that an instruction to indeed disregard description The appellant’s comment on the de- comment was a direct of events at significantly trial fendant’s re- differed from the version failure Court given police: in a written statement to the to determine viewed whether impermissible argument constituted running policeman. I from went through harmless error under the test set forth He alley. chased me He 18, catching up me Chapman California, pistol v. U.S. and I had a (1967). I Although my right pistol hand. all had the S.Ct. L.Ed.2d during chasing me. prosecutor’s the time approve do not bla- we policeman 38.08, When the was about to catch Article tant violation of V.A.C.C.P. me I pushed my me and fell on back. analysis feel that such an we nevertheless pointed pistol I police- and shot at the test, appropriate in this case. pointing man. his chest when adopted Chapman California, from policeman fired. The fell one side of supra, is that it must be determined be- got up me. ran. yond that the did a reasonable doubt not contribute to the verdict. Cook obviously rejected The jury State, supra. determine whether an To accepted lant’s latter prosecutorial argument improper is harm- version when it returned its verdict of argu- totality the facts and less guilty capital murder. parties ments of the must be examined. The appellant’s admitted desire to avoid State, supra. The Cannon v. issue possession apprehension of a while *22 from harm must be determined the facts of weapon well founded. Less than one was according each and resolved individual case prior shooting year killing his Offi- to and “probable argument] to the effect has [the Pasco, by appellant cer the arrested was State, jurors.” on the minds of Cook v. un- Officer Pasco and another officer for
supra (citing Mayberry at 601 532 lawfully carrying weapon, ap- a after the (Tex.Cr.App.1975)). S.W.2d 80 pellant pointing pistol at an- was seen the appellant other For this the man. offense at the It well established that days was sentenced to ten in the Dallas trial, stage penalty jury may the the of County deported to subsequently and Jail the consider all of the evidence adduced at Mexico. stage. guilt Turner v. phase trial During punishment the of the (Tex.Cr.App.1985); Green v. thirteen who presented the State witnesses (Tex.Cr.App.1984). appel The appellant’s reputa- each testified that the guilt-innocence phase lant testified at the community he lives as a tion the where shooting trial of the the Officer law-abiding bad. peaceful and citizen was According Pasco was an accident. to the Understandably, the defense did not cross- appellant, he ran from Officer Pasco be any examine of the State’s witnesses. apprehended he did not to be cause want reputation In to the witnesses addition pistol possession. he with a in his As was testimony presented the additional State pistol away, trying to throw the Officer during stage trial. punishment of the the caught by him the arm. This caused Pasco Aguilar, lived example, For Robert who to appellant to fall and Officer Pasco the neighborhood appellant, the same the hap top on him. As was then fall him appellant stabbed testified that gun re discharged pening twice. sulting Appellant in Officer Pasco’s death. shooting testified that after also anoth- Several other witnesses described Shortly changed again home clothes. appellant went in which the er incident thereafter, began According appellant walk to a witness- wielded knife. to the a es, accompanied indi- was arrested. When another appellant local store when he why going get for by prosecutor attempt repayment was asked vidual to so, doing appellant store, alleged In appellant responded debt. several play. knife and later chased Maybe exhibited a were machines “[t]here police were called people it. The play some machines.” with was did hiding by in an D.L. defense while Officer Cannon. appellant was arrested punishment not call witnesses apartment. hearing. one that on Juanita Ramirez testified San beating totality introduced appellant of the evidence she
occasion found hearing during punishment established to call the roommate. The witness left her violence, and law- dialing pattern intimidation could finish a police. Before she appellant. This part on the nearby phone, appellant ar- lessness number at a contradicted, im- hands was neither beating her his began rived and with appellant. The or wearing peached he was rebutted and a cast which very made it clear that the Apparently, not satisfied with arm. for For ex- proclivity then lant has a violence. previous appellant attacks the two appellant carry known a gratuitously ample, another who beat woman using nearby telephone. and on at least two occasions was knife attempted to have to use the shown used Police of the Dallas Officer D.L. Cannon person. knife to stab another The evidence one Department than testified less appellant also showed that the after beat- prior shooting Pasco year Officer woman, ing one beat another woman who arrest the he had occasion to police, attempting to call the and then weapon. Ironically, unlawfully carrying a happened still another woman who beat accompanied as Cannon was Officer nearby. Pasco at the time. The sisted Officer pulling pistol appellant was observed addition, ap- on another occasion alley. another man in an attempting pellant was convicted police transported to the was arrested and also ar- evade arrest. The that the station. Officer Cannon testified police trying to strike officer rested spent staring journey the entire investigating another incident. who was Pasco, directly at Officer future victim. addition, hiding appellant was found noted, previously As even apart- of clothes in an underneath stack *23 jail tually days county in served ten the police ment after had been called to investi- deported to and was Mexico. stabbing. attempted Finally, the gate an admittedly ran from Officer Pas- appellant officer, police Sal- Another Dallas Officer attempted apprehend the co when cedo, in- incident described another violent consistently The has appellant. appellant volving tes- appellant. the Officer Salcedo in a of conduct engaged pattern violent working unrelated tified that while on an danger police officers posed has up the walked to him and appellant incident others. and re- began talking Spanish. The officer Spanish involved in plied ultimately led to pattern conduct This of appellant matter and that the another appellant the confrontation between the get and leave. should involved should Pasco had been Pasco. Officer Officer began leaving of the Instead being report of investigate shots called Spanish. cursing the The officer officer Pasco he saw fired. When Officer arrived leave, whereupon the again told him to gave gun and chase. appellant with a appellant attempted to strike Salce- Officer apprehend the tried to As Officer Pasco The was arrested. do. in the Imme- he was shot head. appellant, shooting Officer Pasco appellant’s pen packet diately after Finally, the changed his ran in 1975 the home introduced. It revealed that began walking to a store years He probation three clothes. then received way addition, play games. building. perhaps video On burglary of a for stopped appellant was punishment of for- to the store the appellant was assessed Despite appel- jail evading Loudermilk. days county arrest Officer ty 1982, appel- to flee he was subdued lant’s effort burglary on the offense. be- anything was said carrying a Before unlawfully arrested. lant was convicted and Officer Loudermilk weapon previously incident described tween officer, lant, “Fuck told the
You.” appellant’s conduct before and after shooting give no indication Officer of an accident.
Pasco’s death was result totality
An examination of the arguments parties
facts and the prosecutor’s comment on
indicates that the appellant’s failure to was harm- Although prosecutor’s comment
less. compel- less unnecessary and under a
ling set of facts would have caused rever- sen- appellant’s
sal conviction and
tence, beyond we find a reasonable doubt did not con- prosecutor’s comment spe- jury’s resolution
tribute Chap- were
cial issues which submitted. supra. v. California,
man Rehearing Motion judgment
denied and the conviction and are
affirmed.
ONION, P.J., participating. ANDREWS, Appellant,
Maurice Texas, Appellee. STATE
No. 69078. Texas, Appeals
Court of Criminal
En Banc.
Sept.