Moreno v. State

ONION, P.J., joins dissenting

opinion. TEAGUE, JJ., join

CLINTON and part opinion. of this

second MORENO, Appellant,

Eliseo Hernandez Texas, Appellee.

The STATE of

No. 69268. Texas, Appeals

Court of Criminal

En Banc.

May 1986.

Larry Urquhart (court appointed P. appeal), Brenham, appellant. for Keeshan, Atty., James H. Dist. Peter C. Speers, III, Atty., Conroe, Asst. Dist. Rob- Huttash, Austin, ert Atty., State’s for the State.

OPINION CAMPBELL, Judge.

Appeal is taken from a conviction capital V.T.C.A., Code, murder. Penal 19.03(a)(1). finding appellant After § guilty, jury returned affirmative find- ings 37.071, special issues under Art. V.A.C.C.P. Punishment was assessed at death. We affirm.

Appellant intentionally was convicted of knowingly causing and the death of De- partment Safety of Public officer Russell Boyd, Boyd while the lawful dis- charge duty peace of his official as a offi- Appellant grounds cer. raises nine of er- challenges pre-tri- ror. He of his denial quash; motion al the exclusion of four potential jurors; the admission into evi- dence, during guilt/innocence phase trial, offenses; of several extraneous the trial appellant’s court’s denial of re- quest charge in- jury for a on the lesser murder; sufficiency cluded offense of support jury’s the evidence to find- ing discharge Officer killed; duty finally of his official when sufficiency support jury’s finding special affirmative is- 37.071(b)(2), sue number two. See Art. appellant urges V.A.C.C.P.. Since finding insufficient for both guilt and the ultimate determina- dangerousness, tion of future a detailed necessary. of the facts is review Appellant capital was indicted for the Department murder of Texas of Public Safety Trooper Lynn alleged Boyd, Russell to have been committed on October 1983. The evidence showed that on the question, appellant, date from 5:30 probation officer for Randy is a p.m., killed a total of six indi- Smith p.m. to 8:00 He County knew the deceased. Waller College Hempstead Station viduals of the offense and at the scene arrived In ad- being captured Wharton. before Lynn Russell the DPS officer as identified murders, people six other dition to the six Boyd’s clip- testified that Boyd. He also in order to kidnapped and one robbed hat, book, ticket smashed board with escape. facilitate body trooper’s near the lying watch most favorable When viewed ground. on the verdict, the State’s evidence Boyd’s part- Trooper Albert Sneed 11, 1983, Depart- shows that October 11, 1983 ner. He testified that on October (hereinafter DPS) Safety ment of Public duty p.m. Trooper Boyd was on from 1:00 Boyd duty in Trooper Lynn Russell was on p.m. last saw at to 10:00 Sneed p.m. 10:00 Hempstead area from 1:00 time p.m., 4:30 and at that approximately duties the enforcement p.m. His involved duty, in his DPS Boyd was on dressed regulations highways. on state of traffic According wearing badge. his uniform and approximately p.m., At 6:30 William Sneed, Boyd carried a Smith and Wes- traveling Norris southbound on Janie were Ad- Magnum son .357 blue steel revolver. 6, north Highway approximately 10 miles Remington ditionally, Boyd carried a Hempstead. They a “black noticed DPS seat of the DPS ve- shotgun in the front parked vehicle on the shoulder white” hicle. immediately lane behind of the southbound incidents, offi- Shortly the above after also noticed a maroon Ford. Janie Norris bearing li- Ford cers discovered a maroon emergency lights red the blue and at the RPL 311 abandoned cense number flashing. William Norris testified Hempstead. On La Casita Restaurant him appeared that it that the DPS ve- officer found a “bank the front seat an stopped speeder. the Nor- hicle had a As bearing Elíseo paper” the name transaction vehicle, they a approached rises noticed seat an officer Under the driver’s Moreno. uniform, body, lying grass on the be- .25 automatic pistols found two caliber —a right and to the of the vehicles. As tween spent revolver. Several and a .22 caliber they got closer to the vehicles and slowed on the floorboard. Addi- shells were found down, appeared a man from behind ignition key to tionally, found the officers vehicle. The man at the Nor- DPS waved on the front seat. Trooper Boyd’s vehicle rises, immediately fled. The man then who 11:00 evening at about Later that same vehicle, a reached inside the DPS removed conducting a road block p.m., officers gave shotgun, and chase maroon Highway lanes of U.S. the southbound exceeding speeds Ford. The chase reached discovered just outside Wharton chase, During per 100 miles hour. a in the front seat of riding passenger as a description of the driv- Janie Norris noted a the Bron- The driver of Ford Bronco. blue vehicle, er of the the vehicle itself and appellant told him he had co testified plate number, license RPL 311. She was day. Appel- earlier that shot a DPS officer also able to recall the locations of relative and hand- removed from the car lant was body. two vehicles and the Bronco, a officers found Inside the cuffed. Upon entering Hempstead, the maroon Magnum steel .357 blue Smith and Wesson Norrises, pursuit of the Ford ceased its revolver, subsequently deter- which was County proceeded to the Waller who then revolver. Trooper Boyd’s DPS mined to be Office, they reported what Sheriff’s where a and Wes- discovered was Smith Also trial, revolver, happened. At William and had both steel Magnum stainless son .357 appel- weapon. identified the murder positively Norris to be the Janie later determined Boyd’s Trooper from person they saw next to recovered lant as the who Two bullets have determined to pursued proof them into vest were and who bullet the DPS vehicle steel revolver fired from the stainless been Hempstead in the maroon Ford. passenger green found on the person side Bronco 1974 Ford. A unknown to passenger. which had been him up gunpoint, drove beside them. At Further, spent cartridges recovered from Cibrian and his children ordered from proven the maroon Ford were to have been placed their pis- car. The assailant then fired same stainless steel revolver. car, shotgun tol and drove off in car, leaving Cibrian’s his own car behind. through competent State established person Cibrian Trooper Boyd medical identified suf- wounds, gunshot dying gunpoint. fered who car at five as a re- took his through sult of a bullet wound which went Through of Bill and Patri- his arm and entered his chest. Additional- cia Shirley, yet the State introduced anoth- ly, range one shot was fired from of 6 to Shirleys er extraneous offense. The both head, Boyd’s inches into under- appellant appeared testified that at their neck, through neath his ear and his as he Hempstead, evening home in on the of Oc- lying ground. tober p.m., about 6:30 7:00 addition, the State offered numerous driving green an model older Ford and extraneous offenses into All evidence. the Shirley gunpoint ordered Bill at to drive offenses extraneous were shown to have him Shirley to Houston. Patricia insisted prior shooting occurred both to the going result, with husband. As a her Trooper Boyd immediately and after the they both rode their Oldsmobile with shooting attempt apprehen- in an to avoid appellant During trip ap- Houston. the to sion. pellant taking shotgun admitted the and that, ap- The State’s evidence showed pistol during a Also “off of DPS officer”. the proximately minutes before Norrises shotgun trip, appellant out threw appellant Trooper Boyd discovered and on the Near the intersection of window. 6, Highway appellant his killed brother and Pasadena, Highway appel- and 225 in sister-in-law, Garza, Juan and Esther got lant out of Oldsmobile left on College positively Station. Two witnesses part Shirleys foot. The then of the drove appellant person they identified as the saw way Hempstead, stopping at a back to leaving apartment immediately the Garza’s stop report truck to incident witness, shooting. hearing after the One police. evening, Shirley Bill di- Later “popping noises” and the Garza children appel- to where rected officers the location screaming, apartment went to the Garza shotgun. shotgun lant This discarded actually appellant shooting and there saw proved by the one Russell to be carried Appellant Juan Garza. followed the wit- Lynn Boyd patrol in the DPS car. The pistol. ness and threatened him a The with offered evidence from a State further and, police witness called the after observ- appellant’s fingerprint expert showing that flee, ing apartment appellant entered the shotgun. prints Boyd’s had been found on the bodies of Juan and Esth- observed during proved, Finally, the State Appellant er Garza on the floor. was ob- trial, portion guilt/innocence one last leaving served the scene of these two kill- by appellant committed ings by in the same maroon Ford observed extraneous offense day. dropped the Norrises. Ballistics evidence showed off being on that same After from Juan the bullets removed Garza appellant Ron- by Shirleys, then asked by weapon the same as the fired Gangle airport. drive him ald Boyd. bullets removed from airport, Gangle agreed. way On the appellant pulled pistol out a and ordered extraneous offense Another introduced Gangle Highway him south on to drive aggravated robbery of Genaro Cibrian. south, During trip appel- Victoria. that, approximately Cibrian testified 6:30 Gangle that killed a DPS lant told he had p.m. p.m. evening of to 7:00 on the October trooper day now had up same he and his three children drove Hempstead trooper’s pistol. At a road block near to La Restaurant in in a Casita showed, through further appellant Wharton, Gangle stopped, and attempted jailer, a that he testimony of arrested. awaiting trial on this cause. suicide while phase of the tri- During punishment testimony offered al, Finally, appellant which tend- offered the State witnesses, coun- that, in to the fore- an alcoholism prove expert addition ed to two did, gist offenses, psychologist. on Octo- going a clinical selor and 11, 1983, elderly people. appellant suf- murder three was that ber of their Mrs. that a Mr. and and chronic alcoholism The evidence showed fered from severe by were killed the direct Benatt and Allie Wilkins that his violent conduct was p.m. Hemp- psycholo- young Mexican at about 7:00 his The clinical result of disease. green complete psychological An older model Ford was gist, stead. based on driveway shortly exiting appellant’s the Benatt’s actions work-up, seen testified expiring, heard. Prior to intoxi- after shots were consistent with to tell officers that the commission of this Mrs. Benatt was able cation at the time of door of- Mexican man had come to the the related extraneous young offense and driveway to leave his car further testified and asked fenses. Both witnesses not, reasons running prevented it hot. For if from because was would record, alcohol, continuing man not clear in the constitute a drinking made fire, opened society, engage and shot all three of the el- danger to and would people. Mrs. Benatt died of her derly conduct. violent several weeks later. The State wounds seven, appellant as ground of error established, through expert, a ballistics failing trial court erred serts that the copper jacket found offi- that a bullet quash the indictment. grant his motion to chair in the Benatt home had cers on a alleged he quash, appellant In his motion to by the stainless steel revolver been fired upon to the facts to notice as was entitled following appel- recovered in the Bronco rely prove its would which the State Thus, copper jack- lant’s arrest. bullet Trooper Boyd was allegation that in et found the Benatt’s home and discharge duties when killed. of his lawful trooper Boyd found in were found bullets State, 621 v. Appellant relies Thomas weapon. to have been fired from the same (Tex.Cr.App.1981); Kass v. 158 S.W.2d showing also State offered (Tex.Cr.App.1982); State, 463 642 S.W.2d weapon, that the murder the .357 stainless (Tex. State, 681 634 S.W.2d Gorman revolver, disappeared steel had from a acknowledges Appellant Cr.App.1982). sporting goods day store the of the of- rejected argument has been that a similar appel- fense. The State also showed that in Appeals Antonio Court by the San purchased pistols day two of the lant (Tex.App. State, 766 640 S.W.2d Aranda v. offense. 1982). —San Antonio An unrelated extraneous of- additional is, Aranda, in the context of the supra, by the fense was offered into evidence indistinguishable from the quash, motion The ex-husband of wife State. There the defendant was judice. case sub 1983, appellant, in June of testified peace capital of a charged murder with provocation, as- apparently any without here, appellant the de- Like the officer. peanuts. him with a can of saulted quash in filed a motion to fendant Aranda allege specific acts for failure to tri- During punishment phase of the acting constituted his peace officer which al, appellant offered discharge duties. Ar- in of his official They all friends and his brother. several anda, Appeals supra, at 770. The Court good person who appellant described as claims, holding rejected the defendant’s people, carry or fight, threaten did that it is the “settled Texas law that it was addition, appellant's ex-wife weapon. In victim’s, acts, not the which good husband was a testified defendant’s in specifically stated order children. must be good father to their three 300 may prepare defendant his defense.” fair impartial juror. Finally, as [em-

phasis original] in Id. venireman, last object did However, the excusal. clear- agree We with the San Antonio ly showed that the venireman’s views Court of Appeals precedents that our re penalty “prevent death would or sub- quire given that a adequate defendant be stantially impair performance of his notice of alleged the acts is he to have juror duties as a in accordance with his Gorman, committed.1 supra. We can find Witt, instructions and supra; his oath.” precedent no in supporting appel this state Adams, supra. Grounds of error three position. lant’s The basis for this court’s through six are overruled. prior granting decisions in a motion to quash firmly are upon based the notion Appellant challenges next sufficiency that a defendant is entitled to know what of the evidence prove acts he committed which constituted a acting discharge the lawful of his criminal Finally, offense. an indictment official 'at duty the time he was killed. which statutory language tracks the of the Appellant challenge does not the sufficien- offense is generally sufficient the face cy of the evidence insofar as the evidence quash. a motion to See American shows that did in fact intentional- State, (Tex. Plant Food v. 508 S.W.2d 598 ly knowingly kill Trooper Boyd on Oc- Cr.App.1974). No error is committed if the 11, tober 1983. requested information quash in a motion to that, This previously Court has held essentially evidentiary in nature rather reviewing sufficiency of the evidence to being required than purposes for of notice support a conviction either a direct or Thomas, supra. and bar. Phillips v. case, circumstantial evidence we must re State, 929, 597 S.W.2d (Tex.Cr.App. 931 view the most favor 1980). Ground of error seven is overruled. able to the verdict and consider grounds through of error three whether any rational trier of fact could appellant challenges six the dismissal have found the essential elements of the cause of four beyond veniremen offense being “Wither- a reasonable doubt. See spoon jurors. 307, excludable” Virginia, See Jackson v. 443 U.S. Wain S.Ct. Witt, 412, (1979); 469 U.S. wright S.Ct. L.Ed.2d 560 Hudson v. (1985); Texas, L.Ed.2d 841 (Tex.Cr.App.1984); Adams v. 38, 2521, State, 448 (Tex.Cr. U.S. 100 S.Ct. 65 L.Ed.2d 581 Burks v. (1980); Witherspoon Illinois, App.1985). though v. 391 Even this U.S. Court now 510, 1770, (1968). 88 S.Ct. judging 20 L.Ed.2d 776 utilizes the same standard for sufficiency We have reviewed the voir dire of the four of the evidence in both circum cases, question in and find stantial and direct evidence we have veniremen contention wholly “outstanding to be without merit. nonetheless held that the rea hypothesis” analysis sonable is still useful instances, In two the veniremen’s testi- applying “any for rational trier of fact mony clearly so they showed that could have found the essential elements of unequivocally opposed to penalty the death the offense” standard of review in circum would, circumstances, under all vote stantial State, evidence cases. v. Carlsen against imposition of the same under 444, 654 S.W.2d (Tex.Cr.App.1983) 449 any circumstances, and all that defense (Opinion on Rehearing); State’s Motion for attempt counsel did not even to rehabilitate State, (Tex. v. Wilson 654 S.W.2d 471 fact, In veniremen. there was no Cr.App.1983)(Opinionon State’s Motion for cross-examination whatsoever. Rehearing). As to venireman Bowens there was no objection juror to his dismissal as a and his foregoing principles With the in mind, testimony clearly showed he concluding could not be a we no have trouble that emphasis supplied by opinion 1. All the writer of this unless otherwise indicated.

301 admissibility for a had been met. the evidence in this case is sufficient standard admissibility extrane- trier of fact concluded The test for is that rational have Trooper may admissi- beyond a reasonable doubt that ous offense become of acting discharge showing in the is Boyd upon lawful both that the offense ble appellant the time killed duty his official at to a material issue in the case and relevant him. When most favor relevancy viewed value of the evidence verdict, undisputed inflammatory able to outweighs prejudicial or its Trooper Boyd was Williams, evidence showed that supra; effect. Robinson v. driving at uniform and his DPS Patrol car State, (Tex.Cr.App.1985). 701 S.W.2d fur the time of the offense. The evidence apply need it We test because Trooper ther showed that the area which long has been the rule this State Boyd part normal was killed was of his jury is to know the relevant entitled all patrol area. Norris Janie testified surrounding of the facts and circumstances appellant she next when viewed offense; charged an not tried in offense is Boyd’s vehicle, emergency Trooper State, 607 S.W.2d a vacuum. Archer lights flashing. Several witnesses “It (Tex.Cr.App.1981). is well settled the scene confirmed Janie Norris’s testimo that where one offense or transaction is ny regard. Trooper Boyd’s in this ticket or offense episode, one continuous another ground on the close to his book was found trial part transaction of the case on or is body. therewith, closely or interwoven or blended facts, Relying upon a ra- all the above all is proof proper.” of the facts Mitchell reasonably tional trier of could fact have (Tex.Cr.App. S.W.2d Boyd stopped Trooper concluded that had 1983). appellant in order to a traffic issue foregoing it principles, is Given the clearly citation. record reflects that apparent of Juan readily murders pri- issuance of traffic citations is a to show and Esther Garza were admissible mary duty Department official Public of of episode” to show “one continuous troopers. outstanding Safety There no “blended or “that the case on trial” was hypothesis reasonable other than killing of closely with the interwoven” Trooper engaged in lawful Archer, Mitchell, Boyd, supra, Trooper discharge of his official the time duty at in which the supra, to show the context him. shot and killed relating offense occurred. of error one is Ground overruled. extremely killings of the Garzas was ground eight, com of error possession placing relevant re plains admission of weapon one hour before the murder half of mur garding the extraneous offense of the Boyd. Ground the death half ders of the Garzas that occurred one eight is overruled. error trooper prior shooting an hour relating ground In his final error Appellant Boyd. contends that this evi trial, ap- phase the guilt/innocence the of “ex does fall within one of the dence not complains of the court’s failure pellant trial general to inadmissi ceptions” the rule of charge of on the lesser included offense to bility of extraneous offenses. He cites Al determining defend- In whether a murder. State, (Tex.Cr.App. v. 486 S.W.2d 97 brecht a charge is to a lesser ant entitled 1972) State, and 897 v. 606 S.W.2d McCann offense, all the included we will consider (Tex.Cr.App.1980). State, presented Lugo at trial. v. evidence State, v. 662 S.W.2d Williams In (Tex.Cr.App.1984). 144 667 S.W.2d that (Tex.Cr.App.1983),this held 344 Court State, Aguilar In 556 “exceptions” in Al- v. 682 S.W.2d the so called noted Court, banc, (Tex.Cr.App.1985) en brecht, supra, to be an this intended adopted prong a the test first enunciated exceptions list rather two exclusive of but State, panel Royster in examples opinion of in a good list to whether S.W.2d (Tex.Cr.App.1981). day first of this offense armed The requires prong that the lesser enough weapons included of- himself with and ammuni- fense must tion proof many be included to kill in people; within fact he killed necessary only people, to six. He not six charged. establish the killed he offense kid- Secondly, napped and robbed there must six others. be some evidence in the record that if the is guilty, defendant that, also evidence trial showed guilty he only is of the lesser offense. six earlier months he attacked wife’s his Aguilar, supra, at 558. apparent ex-husband for no reason. We clearly find sup- the evidence to sufficient Appellant’s argument premised is port jury’s spe- affirmative answer to upon the claim that evidence cial issue two. was cause insufficient to Troop show that judgment is affirmed. er acting was discharge lawful of duty. his official We can find no evi TEAGUE, Judge, concurring in result. dence the record that Trooper Boyd was time, In relatively period short of Elí- acting scope outside the of duty. his official Moreno, seo Hernandez hereinafter re- Thus, appellant to fails meet the second appellant, ferred to as the mounted a sav- prong of the Royster-Aguilar test in that age course of criminal conduct from Col- is there no the record from lege through Hempstead, Station Houston which a rational trier of fact could have Pasadena, capture and finally with his oc- concluded if guilty that of curring Wharton, during which time he any guilty only offense he of the less persons, kidnapped killed six persons, six er offense of murder. Ground of error two and, using pistol, person. robbed another is overruled. The record before permit any us will not ground error, In appel his last of justi- inference reasonable that would have challenges lant of sufficiency the evi short, fied such conduct. In Elíseo Her- to support dence affirmative person nandez is is in Moreno a bad special finding issue In two. determin punishment need committing of severe ing of sufficiency sup the criminal acts he committed. two, port special may issue we take into beauty justice sys- One of our criminal during account the facts adduced tem, however, regardless is how of guilt/innocence phase of the trial. Haw might be, person or person bad mean State, (Tex.Cr.App. kins v. 660 S.W.2d 65 given nevertheless to be a fair entitled 1983); State, Mitchell v. 650 S.W.2d 801 put impartial trial for the offense is he (Tex.Cr.App.1983), cert. den. U.S. committing this instance trial for —in 104 S.Ct. 79 L.Ed.2d 221. The calcu Department Safety murder of Public lated nature of the defendant’s act the Trooper Lynn Boyd, which murder Russell forethought coldly planned with which he Hempstead, occurred after outside probative and executed his crime is of his College the appellant had fled from Station propensity to commit future acts vio recently where he had murdered his broth- State, O’Bryan lence. 591 S.W.2d 464 sister-in-law, er and the Garzas. (Tex.Cr.App.1979). The circumstances of error, ground appel- eighth his itself, enough, the offense if severe can be lant asserts the evidence that went an finding sufficient sustain affirmative killed, (the persons he first two special second issue. Andrade v. Garzas), during reign his of terror short (Tex.Cr.App.1985). should not have admitted evi- been into The of this facts offense alone majority opinion rejects dence. The this finding clearly support ap contention, that holding the of “that the murders pellant would commit acts of violence that Juan to and Esther Garza admissible continuing society. constitute a to and to show episode’ threat show ‘one continuous or affirmatively proved The that on ‘that the case on trial’ was ‘blended 303 State, closely killing (Tex.Cr.App.1973); interwoven’ with the of 492 561 S.W.2d State, (Tex. Boyd ... to show the in Arivette v. 513 S.W.2d 862 context many Also Cr.App.1974). many, which the offense occurred. The see the relating the killings to of the Garzas was cases collated under criminal law West 369.1, 369.2(1), 369.2(8), extremely placing appellant keys relevant to numbered weapon 372(1), 351(3). possession appellant of the murder one half and Had the been Garzas, Trooper Boyd.” killing flight hour before the death of on trial for the to escape consequences the immediate of agree I am to unable with either this those murders would have been the but holding reasoning Camp- Judge or unfolding, alpha omega, from to of what bell, of majority opinion, the author But, is not this thereafter occurred.- justify holding. to uses The on for case. was not trial closely relating facts to this case Garzas; killing the on for he was trial State, the facts in v. 679 resemble Wallace Thus, killing Trooper Boyd. the doctrine (Tex.Cr.App.1983), Judge 1 in which S.W.2d flight implicated of not become in this does original Campbell, submission, a wrote Trooper Boyd. until he cause after killed opinion reversing unanimous for this Court respect Judge Campbell In all due and finding the defendant’s conviction after and opinion, join simply those who his there is holding attempted capital in that of murder admitting legal justification no evi for into police officer case it that was reversible guilt stage appellant’s dence at the marihuana, error to admit into evidence trial the murders of the Garzas. cocaine, methamphetamine and that was . Although judge I believe that the trial discovered trunk of automobile go- erred when he admitted the driven the defendant. defendant ing to the murders of the Garzas into evi- attempting police was tried for to kill the dence, of fact four other officer him. In a who arrested contextual aggravated killings robbery one and sense, I believe in that evidence, into I properly admitted am un- closely cause was as or interwoven blended able to state that there is reasonable cause, yet this the evidence possibility that such contributed either cause was ruled inadmissible but finding guilt of or the affirmative find- Perhaps evidence here is ruled admissible. State, 60 ings. Maynard v. 685 S.W.2d Mr. I simply do under- Webster Thus, (Tex.Cr.App.1985). the error was meaning “context”, stand the the word of Furthermore, appellant. harmless to the in- being which Webster defined as “the 37.071, V.A.C.C.P., under Art. this evidence something terrelated conditions in which punish- at the would have been admissible exists or occurs.” 283 Ninth Webster’s stage the trial. ment (1985 edition). Collegiate Dictionary New agree opinion’s I hold majority with instance, absolutely no this there is judge err ing that the trial did not in over show a relation- evidence to connection or ruling quash. motion to ship between the murders of the Garzas However, I would base this decision on killing Trooper Boyd. pause I recent v. Court’s two decisions Adams point that the was not on trial out State, (Tex.Cr.App.1986), S.W.2d Garzas, committing the for murders State, (Tex. Opdahl v. but, instead, murdering was on trial for Cr.App.1986), should it which cases make Trooper Boyd. Had the been absolutely anyone clear to that at Garzas, killing trial then all of challenges a present time a defendant who subsequent criminal he acts that committed judge’s overrule motion trial decision to doc- would have been admissible under the quash an indictment or information flight, trine of and it matters little whether impossible. attempting to achieve the long it he fled 50 or 500 miles or however opin- majority I also take issue with the capture took him. Hunter holding at the (Tex.Cr.App.1973); ion’s facts adduced S.W.2d Solis guilt stage the of trial are sufficient to that this Court itself in O’Bryan created support jury’s finding affirmative to (Tex.Cr.App.1979), probability question. 37.071, believe, is, Art. plea Legislature See I to the to particular, compelled Y.A.C.C.P. In I provisions 37.071, am abolish the of Art. V.A. protest to giving And, continue to to knows, present this Court’s ag C.C.P. who legal conclusion, its court-created gressive that the majority assertive of the Su facts of the offense itself are to preme sufficient Court of just the United States sustain an finding proba- might affirmative to expressly overrule Furman v. Geor bility question, continuing viability. gia, supra. penalty

“The of Notwithstanding stated, death differs from all what I have but punishment, other forms of criminal not in in of light the fact that the infliction of degree unique but in kind. It is its total death on a is convicted criminal not now irrevocability. unique rejection It is in its punishment, cruel and unusual I am con- find, of of excluding rehabilitation the convict a basic to as strained after the inad- purpose justice. evidence, of criminal And it is missible that is there sufficient unique, finally, in its absolute renunciation to jury’s sustain the affirmative of all that concept finding is embodied our probability there is a Stewart, J., humanity.” concurring opin- inwill the future commit criminal ion, S.Ct., Georgia, at 2760. Furman acts of violence that would constitute a many why continuing These are of the reasons our threat society. to Legislature capital enacted our murder law happened blames what itas did. “suffering the fact that he was then today,

The issue is before us how- combined effects of chronic alcoholism and ever, is not whether death is cruel and severe emotional an involun- distress over punishment, unusual tary separation spouse.” because from his He also present presented time this both Court and Su- evidence that he would be a preme Court, constituted, presently continuing if as have threat to he was society de- it is beverages. determined that not. The that is to issue nied access alcoholic How- us, however, ever, before mean- concerns what it is well known fact inmates in ing give provisions we must to the Department Art. of Corrections have access 37.071, to, among alcohol, things, V.A.C.C.P. other albeit it may grown variety. home be the by holding

I find that that an affirmative I, one, finding supported only can be facts am unable to that an believe case, majority involuntary separation spouse of the in this does from one’s cause, attempt Legislatively. is an to act sufficient reason or cause that would war- Furthermore, law, good person killing if that persons is a rule rant that six at three then, tell, cold, pray why Supreme separate calculating did the Court locations in a Texas, manner, person of the United States with each time Branch v. brutal nom, multiple sub Georgia, firing Furman v. 408 U.S. shots at his at obvi- victims (1972), ously range. 92 S.Ct. 33 L.Ed.2d 346 additional- close capital ly hold that Texas that the appellant the then statute on established threatened Eighth persons. murder violated and Fourteenth numerous other lives Amendments to the Federal Garzas Constitution Throw murders of the jury given gave powerful argument because untram- the State a Texas why to should decision jury meled discretion let an accused live or reach the Legisla- impose Why judge insist die? did would the trial to that he our cause time, managed go expense, penalty. Had ture and trouble death Wharton, capital up put thereafter into our murder stat- evade the roadblock set ute human that he restrictions decision destruction had committed, quickly To I penalty imposed? cause the death earlier and believe be probabili- of law that is at least a continue to adhere the above rule there reasonable he more ty that have caused much would misery.

human destruction and

Elíseo Hernandez has demon- Moreno

strated me that he can a mean and be Based

vicious member of human race. us,

upon the record that is and the before law,

present my judgment it state injection. must die Moreno lethal majority opinion right reaches

result, overruling albeit several

appellant’s grounds of error does so for it wrong reasons. LOSADA, Appellant,

Davis Texas, Appellee.

The STATE of

No. 69508. Texas, Appeals

Court of Criminal

En Banc.

Oct. 1986.

Case Details

Case Name: Moreno v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 28, 1986

Citation: 721 S.W.2d 295

Docket Number: 69268

Court Abbreviation: Tex. Crim. App.