Stеphen Peter MORIN, Appellant, v. The STATE of Texas, Appellee.
No. 69028.
Court of Criminal Appeals of Texas, En Banc.
Sept. 14, 1983.
Rehearing Denied Jan. 9, 1985.
682 S.W.2d 265
MILLER, Judge.
Sam D. Millsap, Jr., Dist. Atty. & Susan D. Reed, Steve Vacek and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Robert Huttash, State‘s Atty. and Alfred Walker, Asst. State‘s Atty., Austin, for the State.
OPINION
MILLER, Judge.
Appellant was indicted in Bexar County for the offense of capital murder. He was chаrged with the murder of Carrie Scott while in the course of committing robbery. After appellant‘s request for a change of venue was granted, the cause was transferred to Jefferson County. Appellant pled
First, appellant contends that the trial court erred in overruling his motion to dismiss the indictment because: the grand jury failed tо inquire into all offenses liable to indictment, acting instead as a rubber-stamp for the District Attorney‘s office; appellant was denied an opportunity to appear before the grand jury; the indictment is vague and contradictory; and the indictment calls for a punishment that is contrary to the Eighth and Fourteenth Amendments to the United Stаtes Constitution because the punishment mandated is cruel and unusual.
Initially, appellant‘s ground of error is multifarious and presents nothing for review.
Appellant‘s claim that the grand jury failed to inquire into all offenses liablе but acted only as “a rubberstamp for the District Attorney‘s office” is without merit since the allegation is unsubstantiated by any reference to a transcription of the grand jury proceedings. Moreover, no evidence was offered at trial on the issue. We cannot accept as fact allegations in briefs or motions that are not supported by the record.
Appellant also complains that the court improperly denied him an opportunity to appear before the grand jury. An accused does not have the constitutional right to appear in person or by counsel before the grand jury. Moczygemba v. State, 532 S.W.2d 636, 638 (Tex.Cr.App.1976), and cases cited therein. Since аppellant has no right to appear before the grand jury, the trial judge did not err in denying his request.
Next, appellant challenges the indictment as being vague and contradictory. He contends that the indictment is duplicitous since it alleges that the murder occurred while appellant was “committing and attempting to commit robbery.” Faced with a similar indictment, we have previously resolved this issue adverse to appellant‘s claim. Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). Appellant also attacks the indictment because it fails to allege all of the elements of robbery. In Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977), we held that under the new Penal Code, an indictment charging one offense during the commission of another crime nеed not allege the elements of the latter offense. Id., 542 S.W.2d at 658, and cases cited therein.
Appellant‘s last attack on the indictment under his first ground of error is directed at the death penalty: he contends that the death penalty is cruel and unusual and is, therefore, contrary to the Eighth and Fourteenth Amendments to the United States Constitution. We rejected this contеntion in Burns, supra, and Livingston, supra, 542 S.W.2d at 662. The United States Supreme Court also rejected this contention in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reh. denied, 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). Accordingly, we overrule appellant‘s first ground of error.
In his second and third grounds of error, appellant alleges that the trial court erred in overruling his Motion to Suppress and in admitting the identification testimony of two witnesses because their testimo-
Second, in addition to the identification testimony given by the two witnesses challenged by appellant, a third witness also identified appellant and placed him at the scene of the offense. Her testimony was not challenged. Under our holding in Williams v. State, 477 S.W.2d 885 (Tex.Cr. App.1972), any error committed by admission of the identification evidence elicited from the two witnesses, objected to by appellant, was rendered harmless when the third witness identified appellant without objection. Accordingly, we overrule appellant‘s second and third grounds of error.
In his fourth and fifth grounds of error, appellant contends that the trial court erred in directing and instructing the jury to return a verdict of guilty, and in denying appellant‘s requested instructions to the jury at the guilt stage of trial. Appellant claims that a directed verdict is prohibited in capital cases for three reasons. First,
Appellant‘s initial contention that since a jury cannot be waived in a capital case,
Appellant‘s claims that the judge‘s instructing action in a verdict deprived appellant of trial by jury and that instructed verdicts are not provided for in capital cases are also without merit. In Crawford v. State, 617 S.W.2d 925 (Tex.Cr. App.1980), cert. denied 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 431 (1981), reh. denied 453 U.S. 923, 101 S.Ct. 3160, 69 L.Ed.2d 1005 (1981), the defendant pled guilty tо the offense of capital murder, the trial judge directed a verdict of guilt, and the jury subsequently assessed punishment at death. We noted no fundamental error in directing the verdict of guilt in the case, nor do we find such error now. A directed verdict, therefore, is permissible in capital cases where the defendant pleads guilty, and the рlea is properly accepted by the court. Furthermore, the defendant is not deprived of a trial by jury when a verdict is directed pursuant to a guilty plea since the jury receives evidence at the punishment stage and must determine whether the defendant is to receive life imprisonment or the death penalty. Accоrdingly, appellant‘s fourth and fifth grounds of error are overruled.
In his sixth ground of error, appellant contends that the trial court erred in permitting the introduction into evidence of extraneous offenses involving the killing of Janna Bruce, the attempted killing of another person, and an assault on a third person, where appellаnt had not been convicted of any of these offenses. Appellant claims that the accused in a capital murder case is treated differently than others accused of non-capital offenses since
In Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981), cert. denied 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982), we held that absent a showing of unfair surprise, proof of an unadjudicated, extraneous offense at the sentencing stage of a trial on a capital offense is аdmissible and does not deny a defendant due process and equal protection under the law. Since appellant has made no claim of unfair surprise, his sixth ground of error is overruled.
In his seventh ground of error, appellant contends that the trial court erred in admitting into evidence the photographs of Janna Bruce3 in thаt such photographs were prejudicial and inflammatory and served no purpose except to inflame the minds of the jurors thus depriving appellant of a fair trial.
As a general rule, if a verbal description of an item portrayed in a photograph would be admissible, then so would the photograph which reflects the verbal testimony. Kelly v. State, 621 S.W.2d 176 (Tex. Cr.App.1981); Heckert v. State, 612 S.W.2d 549 (Tex. Cr. App.1981); Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979); Harrington v. State, 547 S.W.2d 621 (Tex. Cr.App.1977); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). Only where the probative value of the photograph is very slight and the inflammatory aspects very great will it be an abuse of discretion to admit the photograph. Kelly, supra; Harrington, supra; Martin, supra.
In the case at bar, evidence relating to the death of Bruce was admissible during the punishment stage of the trial. See discussion, supra. Moreover, the police officer who investigated the scene of Ms. Bruce‘s death testified as to what he saw at the scene of her death. He also stated that the photographs accurately portrayed that which he observed. Since the
Appellant alleges in ground of error number eight that the trial court erred in оverruling his request for instruction to the jury at the punishment stage of the trial regarding the definition of the term “deliberate.”
In Heckert, supra, 612 S.W.2d at 552, we stated that since the term “deliberately” has not been specially defined by statute, it is to be taken and understood in its usual acceptation in common language. In King v. State, 553 S.W.2d 105 (Tex.Cr. App.1977), we held that the term “deliberately” need not be defined in the charge to the jury during the punishment stage of a capital murder trial. Given that the trial judge need not define the term, the trial court in the case at bar did not err in overruling appellant‘s request for the definition. Russell v. State, 665 S.W.2d 771 (Tex.Cr.App., 1983). Appellant‘s eighth ground of error is overruled.
In appellant‘s last ground of error, he contends that there was insufficient evidence to support the jury‘s finding that appellant would be a continuing threat to society because the finding was contrary to the evidence that appellant had undergone a Christian conversion.
At the punishment state of trial, the State introduced evidence regarding the offense at bar and prior felonies and acts of violence committed by aрpellant in order to prove that he would be a continuing threat to society. The State showed that appellant had murdered Janna Bruce, stolen her car, and fled to San Antonio with his accomplice, Sara Clark, and Pamela Jackson. On December 6, 1981, approximately five days before the murder of Carrie Sсott, appellant attempted to kill three persons. Evidence regarding the rape and sexual torture of a fourteen year old girl in California was introduced. The State also introduced final convictions held by appellant in three other states.
After the State presented its evidence, appellant called four witnesses. Each witness stated that appellant had undergone a Christian conversion.
The jury, as the trier of fact during the punishment stage of the trial, was entitled to assess the credibility of all witnesses. Minx v. State, 615 S.W.2d 748 (Tex.Cr.App.1981). We find that the evidence presented is sufficient to support the jury‘s determination that appellant would commit criminal acts of violence that would constitute a continuing threat to society. See Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1979), and cases cited at 65. Appellant‘s ninth ground of error is overruled.
Finding no reversible error, we affirm the judgment of the trial court.
CLINTON, J., dissents to ground of error # 8.
Before the court en banc.
OPINION DISSENTING TO DENIAL OF APPELLANT‘S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING WITHOUT WRITTEN OPINION
CLINTON, Judge.
The Court continues to compound the error of the decision in Russell v. State, 665 S.W.2d 771 (Tex. Cr.App.1983) by again refusing to reconsider the continued viability of King v. State, 553 S.W.2d 105 (Tex. Cr.App.1977) which held we need not provide instructional guidance to capital juries on the meaning and import of “deliberately” as employed in the first special punishment issue.
When written, the primary underpinning of King (that “deliberately” is a simple word of and by itself, and jurors know the common meaning of it) appeared to be sound; but developments over the intervening years have illuminated a need to recon-
While this statement from Heckert is absolutely сorrect and unquestionably compelled by logic, it is ironic indeed that in the same year King was written, the Court noted in Blansett v. State, 556 S.W.2d 322, 327, n. 6 (Tex. Cr.App.1977) that a finding the killing was intentional was irreconcilable with the jury‘s negative answer on the deliberateness question.
If in 1977 the members of this Court believed “deliberateness” was the same thing as “intentional,” all the collective legal training notwithstanding, how can we any longer seriously suggest that jurors, without the least bit of assistance, will, in every case not apply it the same way as Blansett—a way Heckert now acknowledges would be unconstitutional?
I can appreciate the fact that once a decision has been made, it is very difficult to reconsider it—particularly when to do so could invalidate a number of past convictions. But it seems to me that when we can clearly see a substantial error in past decisions which is rendering trials unfair and unconstitutional, that the alternative to correcting it ourselves is infinitely more disastrous to the finality and integrity of our capital convictions, as the consequences of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), should illustrate.
Rather than setting precedent which might invalidate some past capital convictions, the majority instead perpetuates precedent which risks invalidation of not only past convictions, but also every future capital conviction in which jury guidance on “deliberateness” is requested.
Many careful Texas trial judges and prosecutors protected the integrity of capital convictions in their сourts by refusing to apply the
For the reasons stated in the dissenting opinion in Russell, supra, I remain convinced that the Court‘s refusal to reconsider this matter in light of experience and clear indications of confusion is resulting in an unconstitutional application of
I dissent.
TEAGUE, J., joins.