*1 DaRoyce MOSLEY, Appellant, Lamont
The STATE of Texas.
No. 72281 Texas, Appeals
Court Criminal
En Banc.
July *2 Attorney, Savage,
C. Patrice Asst. District Paul, Atty., Longview, State’s Aus- Matthew tin, for State.
OPINION ON COURT’S MOTION *3 FOR REHEARING* KELLER, Judge, opinion delivered the McCORMICK, P.J., Court, and in which WOMACK, MANSFIELD, and HOLLAND Jj. Joined. prior opinions Our are withdrawn. October 1995 of Appellant was convicted in capital Tex. Penal Code murder. 19.03(a)(2).1 jury’s § an- Pursuant special issues set forth in Texas swers to the Code of Criminal Procedure Article 37.071 2(b) 2(e), §§ judge the trial sentenced § appellant 2(g).2 to death. Article 37.071 appeal Direct to this Court is automatic. 2(h). § Article 37.071 raises points through of error numbered 176.3 We will affirm.
A. OF THE SUFFICIENCY EVIDENCE 1. Guilt point of error con legally tends that insufficient guilt per his the indictment: to establish in tentionally causing the death of Patricia Col- committing ter while in the course of robbery attempting to commit the of Sandra Specifically, appellant Cash. asserts that the prove State failed to his intent to cause the death of Patricia Colter. light in the most favorable to the
Viewed verdict, the evidence at trial established following: approximately p.m. At on 11:45 21, 1994, Cash, July night Sandra wait- Lounge Kilgore, ress at was clos- Katie’s ing up evening placing for night’s cash, receipts, including about into a $308 Orr, Cynthia Hujar Antonio, appel- money. San tackle box Katie’s used for Four lant. keeping customers and were her remained * opinion Editor’s Note: The was ordered to be 2. Unless otherwise indicated all future references published part. to Articles refer to Code of Criminal Procedure. 19.03(a)(2) provides person 1.§ that a commits capital murder when he commits murder under points of 3. There are no error numbered 75-77. 19.02(b)(1) § person intentionally and "the com- adopt appellant’s numbering for of ref- We ease committing mits the murder in attempting the course erence. robbery” (ellipsis to commit ... in- serted). company. Cash looked out evening police the window and arrested the next after the walking up saw men joked two that she received information from various sources. gave would have to make the men mad because Ricky police Wheat one of their first already everything up.” she had “closed Ricky leads. lived across street from Suddenly, open the door was kicked and two Lounge Katie's testified eve- they men in ski masks came in and stated 21, 1994, brothers, ning July he and his were rob there to them. Both men were Napoleon, guys Darrell and and some other brandishing guns. The man that burst sitting yard drinking in the front beer. said, through the door first “Give me the Don, friend, Ray up his walked stated you money, bitch.” slid the tack- white Cash money there was some in the and he area man, le box towards this first her shot Ray accompanied had to have it. Don was anyway. As Cash shielded her face with her by Marcus and a man identified as later *4 hands, hit the shot her the wrist and went Ricky appellant. Ray pistol noted Don a had through her hand. She was then shot stayed on him at the time. The three men fell to stomach and she the floor. Cash about five minutes and then walked off. gunfire, hearing remembered more but could Ricky eventually thirty went inside. About remember little else after she was shot. returned, later, Ray minutes Don and stated However, state, in this shock-induced Cash he had shot someone over at and Katie’s managed still call to refused, Ricky Napoleon needed a ride. but police emergency When the and medical agreed. appellant Marcus and then came (EMS) thereafter, shortly services arrived walking up from the direction an aban- they discovered the bodies of the four cus- building. Napoleon doned and Darrell then Colter, Patricia and Don, tomers: Duane Luva Marcus, gave Ray appellant and a ride. Cash, Congleton, Alvin Waller. Ricky box testified men had a tackle survivor, was removed EMS and taken to he had not noticed the first time the men had hospital. Cash had nine holes her by. come body approximately from to three four bul- stating appellant After first was in- lets, of which were her two recovered from at crime, Christopher with volved “Kaboo” police hospital; recovered a third Smith, appellant’s best friend and Marcus’s behind the bar bullet from where Cash was cousin, gave police. also information to the wrist, heel, shot. Cash had wounds to her 21, 1994, evening July appellant On the breast, right cavity. and abdominal Howev- a planned gank told Kaboo he to “make er, the most serious wound her went across night.4 move” Katie’s that Later body, upper perforating lungs going both evening, appellant gun. Kaboo saw with a thereby her through spinal leaving cord her Appellant got gun he stated from Ka- permanently paralyzed from the chest down. Rossum, neighbor, Stanley boo’s and was All three recovered bullets were fired from going recog- use it rob Katie’s. Kaboo gun. the same gun belonging Ap- nized the to Rossum. autopsies, At the the medical examiner left, pellant but when he returned later he determined Patricia and Duane Colter each stated, Ray “We it.” Don and Marcus did gunshot a single died from to the back wound shortly came into Kaboo’s room thereafter. of the head. Both bullets were recovered Congleton from the victims. also a died from Appellant hap- told Kaboo some of what head, gunshot wound to the back of the pened robbery Appel- during at Katie’s. the bullet exited and was not recovered at Ray lady lant stated that Don had shot the autopsy. gunshot Waller received three appellant behind the counter and had told to the head wounds —two and one to his pool get people from underneath the thigh. Any one the three wounds would Appellant complied, said he told the table. have been fatal. slow, they moving shot people were too Smith, he had been Appellant, Ray Appellant Marcus Don them. never stated uncle) robbery Mosley (appellant’s way. separately doing forced into "gank testified that a 4. Kaboo move” means to rob or steal. he did so. The began grandparents be there when brought box and
Appellant then in a grandparents his money Appellant police arranged divid- to have counting the inside. himself, Kaboo, money evenly between ed come in. Don, Marcus, receiving seven- Ray each arrived, appellant grandparents Once his had not Although Kaboo
ty-seven dollars. confession, was made into gave an oral which he took helped robbery, he testified with confession, ap- a written statement. money “just [he] because a share of the planned been the offense had pellant stated then dis- Appellant and Kaboo wanted it.”5 days He further stated couple of before. buy a new car the appellant’s plans cussed crime, he time to commit the that once it was day proceeds of an insurance next and, although he participate; did not want check he had received. offense, he did not during the his car the next appellant purchased After borrowing a anyone. admit to shoot He did day, They went to he to see Kaboo. went Rossum, Mar- Stanley but claimed gun from seventy- spent appellant the mall where his they him once were inside cus took shoes, shirt, cologne, seven dollars them he had Appellant also told Katie’s. they to Taco Bell. shorts. Afterwards went during the offense wearing toboggan been taken his told Kaboo had it into the woods hear Nate and had thrown buy car. grandfather with him to When Wheat’s house. grandfather went out to eat and his *5 Agent Larry morning, Special next afterwards, grandfather told his he appellant Alcohol, Tobacco, and Smith of the Bureau crime, seeing in the but after was involved appellant if he Firearms6 asked face, grandfather’s the shocked look on his police he willing to show him and the where Also, just playing. him he appellant told was agreed toboggan. Appellant had thrown mall, returning appellant from the had an area next to an and directed Smith to brother, Franceosa, up and Mar- picked his building near Katie’s where abandoned police pulled cus. The them over and arrest- Ap- glove a were recovered. toboggan and police ed Marcus. The were unaware wearing the he had been pellant admitted appellant’s involvement at this time. Howev- robbery. advised glove during the Smith er, police occupants asked all the that could be him there were scientific tests they might voluntarily to the car if come if it had been glove run on the to determine questions. station to answer some Ev- police if firing gun. He then asked worn when eryone agreed. driving them to the While state- appellant anything to add to the had station, appellant seemed police Kaboo stated already given. point, At this ments he had it on his con- nervous and scared “like was people four at Ka- appellant stated he shot occupants agreed science.” The of the car girl Ray Don shot the behind tie’s and they say anything police. would not to the he had used a .380 bar. He further admitted day. changed Kaboo his mind the next from someone pistol automatic he borrowed station, police Once at the stated Stanley. Appellant agreed to make named robbery he had no involvement in the and day af- statement later that another written However, evening appel- later that murders. getting ter some rest. lant was arrested due to information received later gave his final confession Appellant informed he was under from Marcus. When day. Appellant stated that the idea arrest, out, that appellant cried “Oh what have I up because he committing the crime came my going life. I’m to done. I’ve ruined felt like Ray Don and Marcus that he told my jail.” Appellant life in spend the rest Appellant said “doing something devious.” people in stated he shot two of the Katie’s. anything before and he had never done bad agreed questions then to answer more He crime, something Ray Don doing his he felt like bad. requested about Investigation eventually of Alco- eral Bureau of and Bureau 5. Kaboo returned his share hol, Tobacco, money police. and Firearms also assisted in the investigation. Kilgore Department, Along Police Tex- with the Office, Rangers, County Sheriffs the Fed- suggested robbing lady, Katie’s. He further stat- I looked around and Marcus left had although July ed he told them on Katie’s. doing any- that he did not feel like it Police pistol recovered .380 automatic
more, along anyway he went with it Stanley which had been returned to Rossum. Stanley. Ray gun borrowed a from Don had gun Ballistic tests showed this was same gun. also obtained a then de- used to fire the bullets recovered from the scribed the crime: Colter, Colter, bodies of Patricia Duane Ray Don everybody went first and told Alvin Waller.7 bullets recovered from get They sitting up down. still were in Sandra Cash were fired from a different and I people chairs heard shot. The Bevel, weapon.8 Tom pattern blood-stain ex- looked at me and it scared me and I shot a reconstruetor, pert and crime also testified lady at the table. I was five about feet impact spatter due the location of from her and I shot her in the back evidence, other opinion his was that there lady got up Ray head. Another ran. weapons two used two different Don Ray told me kill them. Don told shooters, shooting one vic- four deceased get me to shoot them or shot. When I shooting one surviving tims and victim. Don, Ray
looked pointing was the He further stated that Patricia both gun He at me. said this after I had al- execution-style Duane Colter were shot in an ready lady. I shot first Then shot a manner. man sitting lady that was the first I In reviewing sufficiency question, shot. I don’t know where I shot the man light must view the in the most at. I about the same I distance was favorable the verdict and determine lady. By when I shot this time the whether rational trier of fact could have lady gotten pool that ran had under the found the essential elements the crime lady get table. I out told beyond a reasonable doubt. Jackson v. Vir said, pool Ray under table. Don *6 307, 319, ginia, 2781, 443 U.S. 61 99 S.Ct. that, “Fuck shoot Then shot her.” I the (1979); State, 560 L.Ed.2d v. Mason 905 lady pool the under table twice in the head. 570, (Tex.Crim.App.1995), 574 S.W.2d cert. pool I bent down next to and table shot denied, 1051, 717, 516 U.S. 116 S.Ct. 133 Ray her twice. Then Don was behind (1996). 670 The jury L.Ed.2d the exclu bar and had shot behind I there. came judge credibility sive of the of witnesses and pool around table and another weight given testimony. of the to be their by man was The got up bar. man State, (Tex.Crim.App.), 316, Barnes v. 876 S.W.2d 321 coming was me with pool towards a stick. 861, t. 513 U.S. 115 cer said, Ray boy, Don “Shoot him shoot him.” (1994). 174, Likewise, S.Ct. 130 110 L.Ed.2d just my away I turned head and shot three reconciliation of in conflicts the evidence times. The man fell after I had shot three province jury. within the exclusive gotten Ray money times. Don had State, 305, (Tex. Losada v. 721 S.W.2d 309 biga box from behind the bar. box Crim.App.1986). was dark colored. Then we out ran Ray light ran across street. Don started in the most Viewed favorable to the verdict, hollering asking me where Marcus was appellant shows kept telling planned at. I I didn’t robbery him know. Then brought with him up we saw deadly weapon, Marcus come behind us after pistol,9 .380 automatic Highway Ray accomplish we crossed 135. Don jury may asked order to the task. The Marcus where he had been infer and Marcus the intent to kill from the use aof trying deadly weapon told him had been to break in a unless would not be reason- Ray bodily car. Marcus went into Katie’s when able to infer that death or serious injury weap- Don and I went in. I After shot first could result from the of the use previously, weapon. As deadly 7. stated no bullets were recovered 9. A firearm is as a defined Tex- Congleton. body 1.07(a)(17)(A). from the of Luva § as Penal Code weapon This never second was recovered.
255
Cir.1992).
(3rd
(Tex.
870,
State,
Beyer,
F.2d 1215
See
873
v.
983
on. Ross v.
(5th
Whitley,
the evidence shows that Patricia
Supreme Court has
The United States
shot
the head from a distance
in the back of
particular
pattern
fact
never addressed the
probably
Applying
less than five feet.
leading Supreme Court
The two
before us.
case, we
Jacksoncviteria. to the facts of this
are Rose v.
in this area of the law
cases
find a
have found
rational trier
fact could
2993,
545,
Mitchell,
61
443 U.S.
99 S.Ct.
beyond
appellant
a reasonable doubt
(1979)
Hobby
United
L.Ed.2d
intentionally caused the death of the Patricia
3093,
339,
States,
104 S.Ct.
468 U.S.
Colter. Point
error 126 is overruled.
(1984).
Rose, the Court as-
In
L.Ed.2d
deciding that discrimination
sumed “without
B. GRAND JURY CHALLENGE
only the selection of
.fore-
regard
60,
point
of error
con
requires
subsequent
man
that a
conviction
Gregg County’s
tends that
method of select
aside, just
proved
if the discrimination
set
as
ing
grand juries
the foremen of its
violates
grand
the entire
had tainted the selection of
Equal
Protection Clause of the Four
551-552,
443 U.S. at
n.
venire.”
argues
teenth Amendment. He
that the sta
however,
Hobby,
S.Ct. 2993. In
the Court
significant disparity
tistical evidence shows a
assumption
to make such an
concern-
refused
proportion
persons
between
of black
grand jury
ing the selection of a federal
serving
grand jury
pro
foreman and
7. Judicial part: vides in relevant (a) points In and following of error 105 criminal investi- named Khoury Judge disqualified, gators contends that was be the United States shall not Constitution, officers, peace § 11 under Texas Article 5 deemed shall but have persuasive, authority. binding 13. Federal are circuit cases not issues arrest, 9. Evidence seizure as search and powers the laws of the under felony offenses through of error 22 points of Texas: State court im the trial appellant contends (1) Bureau Agents of the Federal Special testimo Kevon Johnson’s properly excluded Investigation; allegedly made ny concerning a statement all Mosley Ray Don had killed Ray Don Alcohol, (4) Tobacco and Agents of Special that ex Appellant contends of the victims. Firearms stat testimony violates various clusion of this as restrict- interprets this statute Howev provisions. utory and constitutional authority peace of federal officers ing the er, assuming deciding that exclusion without searches, arrests, acts of specific error, testimony we find of Johnson’s was that, interroga- because He claims seizures. be harmless.14 error to of the authorized tion is not listed as one jury’s pres- proof outside the On offer of acts, conduct peace officers cannot federal ence, as follows: Johnson testified investiga- in state criminal interrogations [Ray he indicate Q. Don] And did who tions. Lounge? shooting in Katie’s did the misreads the stat- Appellant’s argument A. Himself. the nature of in- ute and misunderstands Statutory terrogation. authorization DaRoyce Q. Okay. Did he indicate suspect, a and such required to detain any shooting in Katie’s Mosley did likely interrogation make detention will Lounge? But, “interrogation” is not much easier. didn’t, No, sir, just sir. He said A. he statutory legal requires act that autho- a just DaRoyce there. was Anyone, including private citi- rization. zens, suspect, criminal question can a Q. Ray he is the one And so Don said and, statutory prescriptions to the absent persons all in Katie’s who killed legally contrary, suspect a is not re- Lounge. quired questions, to answer whether private citizens or law enforcement say that he killed all A. He didn’t 2.13, personnel. listing Article the duties just shooting people. He said he did the officers, peace refers powers of state just DaRoyce was there. duty power of an officer to (Bracketed inserted). ellipsis material questioning arrest but does not refer testimony Similar was offered before power possessed by peace officer. jury by Kevin Williams: place exist that limits While statutes [Ray talking about how Don] A. He was ability to conduct an interro- police officer’s shooting. he in there and he started went (such 38.22), gation as Article Article 2.122 is saying how he did it and And then he was interroga- No reference to not one of them. all this stuff. in Article 2.122. tion is made While “only” after the statute contains the word arrest, powers “shall have the phrase Q. Okay. say about Da- What did offenses,” felony and seizure as to search say DaRoyce did? Royee? did he What clearly “felony of- “only” modifies
word go in. He A. He said he was seared fenses,” do indicating that federal officers in and stuff like go said he scared to arrest, search, and sei- powers of have the that. Hence, federal offi- zure for misdemeanors. *9 Q. Okay. interrogations in state in- may conduct cers go something or 39 are A. He had to make him Points of error 38 and vestigations. like that. overruled. Tex.R.App. statutory alleges and constitu- able doubt” standard found in P. Appellant both
14. 44.2(a). the error is We will assume tional violations. "beyond apply the a reason- constitutional 258
Q. Okay. say Did he appellant’s that the one tribute to punish- he’s or conviction shooting that did the Ray was? ment. Points through Don of error 22 29 are —that overruled. A. he’s He said the one did the that Jury arguments shooting. 78,
(Bracketed point In inserted). appellant of error con ellipses material and that tends State Moreover, improperly struck at appellant testimony offered of appellant over the of shoulders counsel. The four other reported witnesses who state- following during argument: occurred State’s by Ray ments Don that he killed all the Lounge. victims in Katie’s [PROSECUTOR]: There is one route traveling to the truth. It is on the main light other testimony Ray about your you road. That will to proper take admitting victims, killing Don’s to all of the you stay destination. But must on the likely an additional witness attempted main road. The defense has to that matter is small. have in the We held road, get you you. off the main to divert erroneous admission of evidence that context They stay you don’t want on the to main of other admission similar can they road because where that know will State, Livingston render error harmless. v. you. take 311, (Tex.Crim.App.1987), 739 334 S.W.2d 2858, cert. CQUNSEL]: Honor, [DEFENSE Your (1988). Although L.Ed.2d 895 the rule object I’ll to improper this comment on may always apply not in the to same fashion object counsel and testifying. to counsel evidence, the erroneous exclusion of we find COURT: Overruled. the admission of evidence similar to you They to take [PROSECUTOR]: want may, what the appellant wished to un offer road, roads, a a side series of rabbit side circumstances, der mitigate some against trails, and a you rabbit trail that will lead harm he have otherwise suffered. to a dead-end. The is not truth there. Here, testimony appear Johnson’s does not Appellant contends prosecutor’s that the ar- or powerful be different more than that of gument improper constituted an attack on actually other witnesses testified. We honesty. defense counsels’ find in present case that similar testimony mitigates from other witnesses “This Court maintains against harmfulness error. Fur for arguments concern final that result ther, the evidence that killed the uninvited and unsubstantiated accusation of very strong. four victims is improper admit conduct directed at defendant’s State, ted in police killing attorney.” his confession to the Orona v. 791 S.W.2d using four victims. He also (Tex.Crim.App.1990). judges admitted to Trial pistol .380 that was linked responsibility preventing to three should assume victims He made type argument. killed. similar statements Wilson concerning partic his friend Kaboo (Tex.Crim.App.1996). his S.W.2d In its ipation form, in the murder and gun. egregious argument his use of the most this kind It has been noted that a can may confession involve accusations of manufactured ev especially strong idence, Orona, guilt. evidence of Garcia or an S.W.2d at at tempt obligations to contrast the ethical (Tex.Crim.App.1994)(plurality opinion). attorneys, Wilson, prosecutors and defense only appellant’s State had not confession 58 - 60. The comments in personnel, law milder, enforcement also had merely case are indicat his guilt admission of to a ing attorneys friend. Given the defense would at strength of State’s case presence tempt argument jury’s and the use to divert testimony of other concerning Ray Don’s ad attention obscure the issues. We have missions as the guilt perpetrator, sole in the past indicated that such mild com beyond erroneous, find a reasonable doubt that the ex long ments not be so as testimony they clusion of interpreted Johnson’s did con- can be an attack on
259 honesty counsel’s been held fense have never arguments by the defense counsel. made 188, In- to constitutional violation. 190 to amount v. 480 S.W.2d Gorman comments de have characterized such (Tex.Crim.App,1972)(Prosecutor said of stead we permissible areas of falling let him outside the fense counsel: “Don’t smokescreen Wilson, you enough”). 59. We you, has 938 S.W.2d at argument. smoke-screened However, brought holding that has “other been such comments constitute find that 44.2(b). precedent indi question by into more recent purview the Rule errors” within cating legitimate arguments by defense that 44.2(b) “Any other that: provides Rule permits counsel cannot serve as a basis for defect, error, that irregularity, variance ting prosecutorial comments “cast as rights must be does not affect substantial veracity.” persion on defense counsel’s directly rule is taken disregarded.” The (Tex.Crim.App.), 330, v. 357 Dinkins Criminal Procedure Federal Rule of from 832, denied, t. cer 52(a) change. See Notes without substantive (1995)(Prosecutor S.Ct. L.Ed.2d 59 Hence, Comments, P. Tex.R.App. stated that counsel to mis defense “wants 44.2(b), federal construing the of Rule impact you by saying_”). lead a little bit provide especially to appear caselaw it Although impossible to articulate is rule guidance. applying the federal useful argu- precise regarding rule these kinds of cases, federal courts improper argument to ment, say prosecutor runs it is fair to that a (1) severity look three factors: generally striking of improperly a risk at a defendant (the magnitude prej of the of the misconduct argu- over the shoulder of counsel when the (2) remarks), prosecutor’s effect the udicial ment is made in terms of counsel defense adopted to cure the misconduct measures personally argument explicitly the when (the cautionary by efficacy instruction impugns counsel’s In the defense character. (3) certainty judge), and the of conviction case, present argument referred to coun- (the strength of the misconduct absent and, although saying so personally sel not conviction). United supporting explicitly, suggested that counsel wanted (2nd Millar, F.3d Cir. v. States will divert truth. We Palmer, 1996); 37 F.3d United States was argument assume inappropriate.15 (5th Cir.1994). 1080, 1085 those in the that the similar to found
Assuming trial court should Comments objection, by several appellant’s present have sustained we must case have been addressed Tenth the error rever circuit court decisions. The determine whether warrants federal a defense claim that sal. Error reversible if it harmless. addressed not Circuit on de past, improperly In the determined commented prosecutor the harmfulness stating that type by by counsel the defendant’s conducting of error a harm fense 81(b)(2) analysis attorney attempted “has ... under confuse Tex.R.App. former P. issue, your eyes.” asking United there is throw sand whether a “reasonable Texas, F.2d Oil Co.
possibility”
improper argument
Wilshire
States
(10th Cir.),
n. 15
cert.
might have contributed to
Wil
conviction.
(1970).
son,
However,
D. al PUNISHMENT victim about the about “that evidence through 1 points appellant In of error on the victim’s of the murder impact the that trial court erred in admit- contends the as to jury’s the decision family relevant to is concerning good the character ting evidence penalty should argues that or not the death of victims the offense. He whether un- evidence is (empha- victim character inadmissible Id. at S.Ct. 2597 111 imposed.” precedents. der United States Texas added). rule rejecting per se While sis argues the trial additional- He also that court impact evi- excluding victim character ly admitting evidence the charac- erred dence, recognize did the Supreme the Court Colter be- ter of victims other than Patricia “unduly prejudicial that evidence” possibility the victims were not named cause other held the Due be introduced and that could and were extrane- the indictment therefore provide a mechanism Clause would Process of- ous offense victims. The “extraneous Id. circumstances. at relief under those for the trial fense” contention was made to suggested S.Ct. 2597. Court 111 Hence, been argument court. that has not prejudice might exist when that undue P. preserved Tex.R.App. Former review. jury encourage designed is “a evidence 52(a)(now 33.1(a)(2)(A)). rule as- defendants whose victims were find that his argument concerning As for victim deserving community are more to their sets evidence, appellant character contends whose are than those victims punishment precedents States and Texas treat United worthy.” Id. 111 to be less at perceived “impact” “character” different^ evidence 2597. S.Ct. ly. generally recog- “Impact” evidence is concerning nized evidence the effect (Tex. In Ford others, death particular- victim’s will have on held admissible testimo Crim.App.1996), we ly family the victim’s members. “Character” crime ny from survivors of the and from generally recognized evidence as evidence concerning the of the father effect decedent’s concerning good possessed by qualities Id. at on their lives. 115-116. crime that, im- victim. contends while (Tex.Crim. Smith v. admissible, pact evidence is evi- character majority of this held that App.1996), a court dence is not.16 testimony concerning good char the victim’s However, Supreme never Court has Id. at (plurality acter is inadmissible. distinguished types between the two of evi- (Overstreet, Id. at 104 J. concur opinion); That importance dence. Court noted concurred in Smith ring). judges Three having the trier fact “of the evidence opinion. concurring opin And in a without specific harm caused the defendant.” ion, Judge opined that victim char Mansfield Tennessee, Payne 808, 825, Id. at evidence should be admissible. acter (1991). S.Ct. 115 L.Ed.2d testimony He 104-107. noted coworker’s noted vic- Court that information about the concerning the dedication her stu victim’s humanizing tim can be factor important an Id. He also noted victim’s dents. just decision-making essential for in a death- testimony concerning victim’s sister’s penalty “[Tjurning trial: into victim animals, degree in edu her love ‘faceless of a stranger penalty phase at the cation, membership in national and her capital trial’... full deprives the State of the Judge Id. at 106-107. Mansfield guard. moral force prevent of its evidence and that such evidence was relevant contended having infor- before it all the Birky was—that she was “who Miss show necessary mation proper to determine the (ci- just a name” than Id. punishment more [capital] for a murder.” omitted, ellipsis tation failed and bracketed materi- had show impact and character evidence of presuppose analysis
16. We
Victim
in our
defen-
others.
that the
contesting
dant
the admission
is aware at
time he com-
of victim
defendant
which a
unaware,
necessarily
and character evidence was
at the time
relevant to his fu-
the crime
mits
crime,
of the
of the victims’
character or
culpability.
dangerousness
moral
ture
impact that
the victims’
will have on
deaths
unfairly prejudicial under Texas Rule
admissibility
Crimi- Rule 403 limits
of such evi-
the.
nal of Evidence 403.
dence
predominantly
when the evidence
en-
courages comparisons
great-
based
If Smith were the final word on the sub-
er
morality
lesser worth or
of the victim.
ject,
argument
appellant’s
that all victim
When
focus of the evidence shifts from
character evidence is inadmissible would
humanizing
illustrating
the victim and
have some
But
recently,
force.
more
*13
by
harm caused
the defendant measuring
to
decided Johnson v.
1997 WL
—
-
compared
the worth of the victim
to other
(Tex.Crim.App.1997).
In
Johnson,
society
then the
four
members
State exceeds
members of
Court
this
held
permissible testimony.
the bounds of
impact
victim
We
evidence was admissible
recognize
but victim character evidence
that this standard
not
was not. Id. at
does
draw a
-
*4,
bright
But,
easy
at
(plurality opinion).
for determining
in a
line
when
concurring opinion joined by
concerning
three other
evidence
the victim is admissible
judges (Keller, Price,
Holland, JJ.),
Pre-
judges
and when it is not. Trial
should
siding Judge
opined
McCormick
that no dis-
exercise their sound
permitting
discretion in
tinction
impact
existed between
and charac-
some evidence about the victim’s character
ter evidence and that all such evidence was
impact
the
on others’
limiting
lives while
statutory
admissible as relevant to the
miti-
scope
the amount
testimony.
of such
-
gation
*16,
special issue.
at
Id.
at
determining
Considerations in
whether testi-
(McCormick,
concurring).
P.J.
a separate
In
mony should be excluded under Rule 403
concurring opinion, Judge Mansfield con-
testimony,
should include the nature of the
tended that both victim character and victim the relationship between the witness and the
impact
long
evidence were
so
admissible
as
victim,
testimony
the
to
amount of
be intro-
only
family
(parents,
close
grand-
members
duced,
availability
testimony
and the
of other
parents, spouses, siblings)
permitted
relating
impact
to victim
and character.
-
testify.
*18,
(Mansfield,
Id.
at
at
J. And,
mitigating evidence introduced
concurring).
Judge Mansfield contended
may
defendant
also be considered
evaluat-
that such evidence would be relevant and
ing
may subsequently
whether the State
of-
subject
would not be
to exclusion under Rule
fer
testimony.
victim-related
however,
403. Id.
opinion,
Earlier
his
opined that Rule
might play
a role in
Judge
We find
Mansfield’s concern
limiting admission
impact
of victim
and vic-
placed
upon
Johnson that limits be
who
tim
general.
character evidence in
Id. at
one,
may testify to
a
we
be
valid
do not
*17, at-.
limiting
believe that an absolute rule
testimo
ny
family
degree
members within certain
Hence, majority
Court
distantly
of relationship is viable. More
re
approved
has
the introduction of victim char
members,
friends,
family
lated
close
co
(as
acter
qualification
evidence—four without
case,
issue)
may,
provide legiti
given
workers
in a
mitigation special
relates to the
testimony.
depend
mate
only
if
That will
family
one
close
testify.
members
relationship
personal
closeness
in
jurisprudence
Our
in this area has been
volved,
testimony,
and the
nature of
confusing
somewhat
inconsistent and
availability
provide
vic
opportunity
times. We take this
other witnesses
to announce
consistent,
always
testimony.
if not
tim-related
do note that vic
We
clear-cut rule
impact
testimony
followed in
tim
impact
future cases: Both victim
and character
admissible,
strangers,
including
victim character evidence
those
learned about
are
who
mitigation
issue,
in the
context of
case in the media and those who did so as
victim,
uniqueness
participants
investigation,
to show
in a criminal
will
defendant,
ever,
rarely,
harm caused
and as rebut
if
Rule 403.
be admissible under
Janecka,
mitigating
tal to
defendant’s
evidence.17 See
At the same
we caution that
issue,
dangerousness.
mitigation
on the
impact
become
and character evidence
hand,
whether,
considering
other
after
asks
unfairly prejudicial
through sheer volume.
evidence,
mitigating cir-
all
cumulative,
technically
if
an undue
Even
sufficient
imposing a life
cumstances exist to warrant
type
amount of this
of evidence can result
penalty.
of the death
See
sentence instead
Hence,
prejudice
unfair
under Rule 403.
added).
2(e)(emphasis
§
Miti-
Article 37.071
encourage
place appropriate
courts to
trial
gating
is defined as that which “a
evidence
amount, kind,
limits
and source of
juror may regard
reducing
the defen-
impact
victim
and character evidence.
blameworthiness.”
Article
dant’s moral
2(f)(4).
Finally,
§
that victim
we observe
37.071
Victim-related evidence is
mitigating
and character
is relevant
circum-
relevant
show
mitigation
im-
insofar as it relates to the
stances are not “sufficient” to warrant
*14
irrelevant,
patently
posing
issue. Such evidence is
a life sentence.18 Such evidence
State,
case,
Relying upon Eldridge
pose”
penalty.
present
v.
940 S.W.2d
the death
how-
646,
1996),
ever,
(Tex.Crim.App.
aggravating
v.
involves
circumstances used to
653-654
McFarland
State,
482,
jury
(Tex.Crim.App.1996),
928 S.W.2d
518
determine whether the
should "decline to
ce
1119,
966,
impose”
penalty,
language
rt.
519 U.S.
117 S.Ct.
136
the death
and Wolfe’s
State,
(1997),
L.Ed.2d 851
and Lawton v.
913
about “limits” is not directed to that situation.
542,
(Tex.Crim.App.1995),
S.W.2d
557
de ni
The difference between the two situations is
cert.
88,
ed,
826,
by
Supreme
519 U.S.
S.Ct.
Such a waiver
be affirmative
very
was
special person
Duane
a
to me.
I
express.
already
was
grown.
sixteen.
I was
But
my
when
mother met him and introduced
mind,
With these considerations in
us,
everything,
I was kind of
shocked
we turn to the
case. Appellant com
him,
but
the more I was around
more
testimony
plains about the
of three witnesses
you
help
just you just
just
but
couldn’t
who
—
were related to the victims. Helen
just
love
to
so sweet.
him death. He
niece,
Wrag,
Congleton’s
Luva
testified that
kid,
big
He
He was
you
was like a
know.
her aunt
just great.
...
happy person.
was a
people.
She liked
Q. Did she
a stranger?
ever meet
added).19
(Emphasis
also com-
Appellant
A.
sir.
emphasized portion
No
of the
plains about the
did,
contrary,
culpability,
does not hold to the
but if it
a
concerns
defendant’s moral
Wolfe
it
Supreme
extent,
would be
with
inconsistent
Court
good
character is
limited
victim’s
precedent.
culpability
relevant
determination. Arm
Finally, Judge Meyers
Armstrong
contends that
course,
was,
applica
strong
decided before
(Tex.Crim.App.
mitigation
capital
tion
of the
issue
cases
1985) precludes the introduction of a victim’s
Moreover,
Texas.
con
the extent
good character to rebut
of the
defen
admissibility
flict
dence,
of victim-related evi
with
good
Armstrong,
dant’s
character. But in
Armstrong was
sub silentio
overruled
support
evidence was introduced in
of the future
Johnson.
dangerousness special issue. See Id. That there
logical
types
is no
evi
link between
two
brief,
that,
appellant quotes
19. We
his
note
danger
dence within
the framework
the future
emphasized portion
passage.
of this
issue
not
the same
ousness
does
mean
holds true
mitigation
mitigation
for
issue.
issue
humanizing the vic-
concerning
to serve the function
testimony
following
from Trida
com-
drawing unwarranted
tims rather than
Patricia Colter:
other members
them and
parisons between
my
supporter. She
My mother was
sole
just three
society.
introduced
The State
through so
had been
much
her life
concerning
testimony
give
witnesses to
going to
anything
I felt
that she was
like
entire,
incident, and the
four victims
going to be
go through,
have to
that I was
testimony
takes
of these witnesses
combined
go through it
there
her and I could
with
reporter’s
pages in the court
up a mere 34
times, you
her. There was some
with
of this testi-
find that admission
record. We
know,
my
away and
when we would move
Rule 403.
mony
not violate
did
Grandmother,
stay
brother would
afraid,
always
it.
I was
I couldn’t stand
that the State
argues
also
know,
her
you
something might happen to
judgment
comparative
made a
improperly
strong enough
pull
or she wouldn’t be
closing argument. How
the victims in
about
think,
through something. And so I would
argu
ever,
object to the
appellant did not
kid,
just
but I
you know —I was
error with
preserve
trial. He cannot
ment at
think,
know,
there, I could—I
you
if I was
by objecting to evidence
argument
respect
it,
know,
through
you
I
help
could
her
argument
simply because the evidence
could,
through.
you
pull
know
her
And
Tex.R.App.
subject matter.
address similar
married,
got
like I
then whenever I
it was
52(a)(now
33.1(a)(2)(A));
rule
Anderson
P.
just
prove
wanted to
to her that I was a State,
(Tex.Crim.App.
big
myself and
girl and I could take care of
— U.S. -,
1996),
S.Ct.
cert.
know,
you
need not
need not
she
think —
(1997)(argument er
138 L.Ed.2d
money
spend all of her
on me. She was
parole
preserved
regard to
ror with
everybody.
always buying things
And
for
issue).
charge
parole
requesting
know,
kept you
just
I
I would
think if
—
through 4 are overruled.
of error 1
Points
else,
buy
everybody
she wouldn’t
stuff
*16
point
of error
know,
you
buy
she could
it for herself
in exclud
that the trial court erred
contends
bp
always thought
But I
there to
I would
testimony
expert
defense
Dr. Jedli
ing
from
take care of her and she would be there to
In an
regarding
dangerousness.
future
ka
my right
take care of me. And she was
the follow
proof, appellant proffered
offer of
my
arm. She was
backbone.
testimony he
admitted:
ing
wanted
added).20
(Emphasis
(1)
do
percent of convicted murderers
98
Finally, appellant contends that
the trial
any
crimes within
commit
more violent
permitted
court
Robert Waller to read a
years
after release.
poem
provides
about the victims. He
no
(2)
eligible
parole
An inmate becomes
in
poem
record references and we find no
years.
after 40
capital
on a
life sentence
testimony.
portion
do find a
of testimo-
We
(3)
crimes over
Very
people
few
commit
ny in which Robert read an earlier “victim
60;
statistical differ-
age
no measurable
impact” statement that he had made concern-
crime rates for 60-
ence exists between
father,
mother,
ing the effects that his
60-year-olds
year-old
convicts and
murder
stepfather had on his life.
previous
not committed a
who have
argument
appellant’s
find
that
We
crime.21
above evidence should have been excluded to
(4)
likely
prison
are less
to kill
Murderers
unpersuasive.
be
While the evidence relates
burglars are.
guards than
degree
to some
to the character of the vic-
(5)
danger-
guard is not a
Being
prison
tims,
heavily
impact
it is
intertwined with the
occupation.
ous
family
of the victims’ loss on
members.
(6)
Moreover,
penalty
is not cost effective.
appears
the evidence
in this case
death
that,
brief,
testimony
appellant quotes
that
was admitted
note
in his
21. We do note
We
Jeanty,
psychia-
passage,
expert
emphasized portions of
defense
Louis-Victor
trist,
age.
decrease with
placing
ellipsis
violence tends to
an
between them.
(7)
punishment
There is no evidence that
the death
phase
capital
aof
murder trial.
penalty
Court,
has
Supreme
Tennessee,
an additional deterrent effect The
Payne v.
imprisonment.
2597, 115
over
111 S.Ct.
L.Ed.2d 720
(1991), held
(8)
Eighth
Amendment is not a
There is a difference as far as future
per
bar
se
to the admission of evidence of the
dangerousness is concerned between serial
personal
victim’s
characteristics or the im
single
multiple
killers and
transaction
mur-
pact of his death on his loved ones.
derers.
any testimony
Dr. Jedlika did not offer
con
testimony
quite poignant-
[T]he
illustrated
cerning
peculiar
appel
characteristics
ly
Payne’s killing
some of the
harm
(7)
(5), (6),
lant.
merely
Items
constitute
caused;
nothing
had
there is
unfair about
validity
penalty
attacks on the
of the death
allowing
jury to
bear
mind
are,
reason,
scheme and
for that
irrelevant to
harm the same time as it considers the
jury’s factfinding
task. Rachal v.
mitigating
evidence introduced
defen-
(Tex.Crim.App.),
S.W.2d
cert.
dant
...
legitimately
[A] state
con-
—
-,
U.S.
clude that evidence about the victim and
(1996).
(2)
given
L.Ed.2d 639
Item
about
murder on the
point
in its instructions. See
family
jury’s
victim’s-
is
relevant
(1),
(8)
(3), (4),
error 103 below.
Items
decision as to
or not the death
whether
may be
expert
relevant
in the context of
penalty
imposed.
should
There
no
testimony concerning the specific character
differently
reason to treat such evidence
background
istics and
of the defendant and
than other
evidence is
relevant
treated.
their effect on
dangerousness.
future
Mat
Payne,
App.1991);
at 817. But
I. Categories
Impact/Character
of Victim
testimony
none of Dr. Jedlika’s
related to
appellant’s
Evidence
background;
characteristics and
questions, hypothetical
no
or otherwise were
Payne
pre-
Supreme
Court
did not
regarding
person
asked
ap
whether a
cisely
im-
define what constitutes victim
pellant’s
pose
characteristics
future
Yet,
paei/charaeter
evidence.
order to
Hence,
danger.
general testimony
relat
question
answer the
to the extent such
ing to recidivism was not shown to be rele
necessary
evidence should be admissible it
appellant.
vant
Point
error 109 is
to do so.
overruled.
*17
judgment
of the
is
trial court
AF-
impact
Victim
evidence is
of the
évidence
FIRMED.
complainant
effect the
of
had
death
has
family
on
For
his
her
and friends.
exam
MANSFIELD,
concurring
J. filed a
ple,
Payne
grandmother
in
v. Tennessee the
opinion.
surviving
of the
child victim testified at the
punishment
to the effect on the
phase as
MEYERS, J.
a dissenting opinion
filed
in
younger
of
mother and
child
the loss
his
joined.
which BAIRD J.
sister. She
further as to how
testified
OVERSTREET,
dissenting
J. filed a
(who
severely
during the
child
was
wounded
opinion.
sister,
on
both of
attack
his mother and
died)
whom
often for his mother
cried
PRICE, J. concurs in the Court’s
baby
his
sis
happened
asked about
what
judgment.
ter.
on
We have not been consistent wheth
MANSFIELD, Judge,
on
concurring
er
is
See
impact
victim
evidence
admissible.
rehearing.
court’s own motion for
State,
v.
(Tex.Crim.App.
Ford
S.W.2d
1996) (Mansfield, J.,
Prior opinion
concurring);
For
withdrawn.
several
Smith v.
years
struggled
this Court has
(Tex.Crim.App.1996)
determine
stated: personal attrib- pertains evidence This pro- due of the In order to avoid violation victim, e.g., generous was utes of the she to mini- rights cess defendant activities, good awas involved in charitable irrelevant mize the risk admission mother, and well-liked or was successful (I impact duly note that victim evidence evi- of such community. purpose nature, highly emotional is its evidence the victim jury that is to inform dence on significant impact likely to have a name; she was he or just more than only close jury), my opinion is such. had worth as unique individual family (parents, grandparents, members Tennessee, at Payne See siblings) should be allowed spouses and into permitted put 2609. The defendant testify character as to the victim’s and/or punishment a at evidence before has had on them. effect the victim’s death of his nearly range of evidence unlimited case, the mothers of the present In the mitigating background as character as to the effect the loss victims testified under penalty of the death against imposition as what their sons has had on them well Procedure, Article Criminal Texas Code of they young men were. Such evi- kind of 2(e). 37.071, char- § Evidence of the victim’s members, dence, testimony family of close is, my opinion, background acter and 402, and is is relevant under Rules 401 and mitiga- of the in the context equally relevant under Rule prejudicial not excludable as impact victim special issue. As with tion evidence, admissibility of victim character — and 403. subject to Rules Johnson, slip op. at -. evidence supra, majori- case, agree I with the In the re- testimony of three witnesses ty majority allowing agree I with the good the victims’ victims as to lated to the family testify members to as to close deaths on the effect of their character and had on them effect the death victim impact/character relevant victim them was be, cases, overly restrictive. in certain and 402. Further- Rules 401 evidence under Certainly, the effect of the victim’s death more, needlessly cumu- was not the evidence friend, lifelong colleague, work or romantic outweigh lative, effect prejudicial did its nor partner may be more traumatic in some well value, requiring its exclusion probative its family instances than on a close member. Accordingly trial court Rule 403. under testify mere- allowing Not these individual to allowing its discretion not abuse did blood, they I ly because are not related testimony. admission convinced, unjust. am now would be There- comments, join opinion I these With fore, should be admis- victim the Court. the context of the issues sible within *18 evidence, trial, and, any capital a like other OVERSTREET, dissenting Judge, on subject of Criminal should be to Texas Rules rehearing. for court’s own motion vic- and 402. Under Rule 403 Evidence 401 rehearing on granted the Court needlessly cu- Because impact evidence which is tim motion, is with- my prior opinion mulative, is out- its own probative or whose value brief, the reading appellant’s After prejudice drawn. weighed by danger the of undue Court, concurring the of this majority opinion subject by the trial be to exclusion would dissenting opinions, I am court, review, and the opinions, subject, on to an abuse by raised the issues firm belief Certainly, long pa- the standard. discretion the briefing. As require additional impact testifying of witnesses as to the rade Texas for criminal resort could, of last court death on them in some of the victim’s disposition matters, not render should instances, prejudicial sobe cumulative and so majority by the suggested as of the issues implicate process the as to defendant’s due 268
opinion.1
Supreme
The United States
generally
Court
at punish
Evidence is
admissible
upheld
capital
in various decisions has
the
ment in
cases in
if it
constitu-
Texas
is “rele
tionality
“special
the Texas
vant” to
issues” for
capital
murder
the
consideration
laws.
by the
requirement
jury.
Tex.Code Crim.
Implicit is
Proc. art.
meaningful ap-
37.071;
State,
607,
939
pellate
S.W.2d
620
review
those cases wherein the
McDuff v.
(Tex.Crim.App.1997)(“[a]dmissibility
vic
[of
penalty
death
has been assessed.
It should
impact
tim
by
evidence] is determined
the
be
to all that appellant,
indigent
obvious
an
Evidence,
terms of the Rules of Criminal
inmate, working
death row
is
under unrea-
particularly whether such evidence is rele
imposed by
sonable inflexible time restraints
issues”);
statutory
vant
special
Bell v.
this Court in this case.
35,
(1996)(“[d]uring
the
justice
Even a strained sense of
demands
punishment
trial,
phase of a capital murder
briefing.
we reorder
such
Issues
as the
may
presented
any
evidence
be
on
matter
of the trial judge
appellant’s
actions
toward
the trial
answering
court deems relevant to
lawyers
African-American
the
creation
—
issues”),
denied,
special
the
cert.
U.S.
of a
and racially charged
hostile
courtroom -,
90,
(1997);
118 S.Ct.
pletely independent
special
of the
issue
narrow a sentencer’s
to
discretion
consider
2(e).
§
The capital jury
might
under
is told
relevant
that
evidence that
cause it to
it
special
cannot answer the
issue
impose
until it
decline
toit
the death sentence.”
unanimously
“yes,”
has
the
answered
first
302,
Lynaugh,
327,
Penry v.
492 U.S.
beyond a
At
point,
reasonable doubt.
2934,
S.Ct.
256....
L.Ed.2d
The fu-
whether,
it is instructed to determine
dangerousness special
ture
issue and oth-
spite
finding beyond
of its
a reasonable
issues,
non-Penry special
er
along with
doubt
represent
that
specifically
enumerated murder situa-
continuing
society,
threat
the circum-
capital murder,
tions which constitute
appellant’s
stances of
crime and life none-
jury’s
limit
ag-
discretion
consider
i.e.,
leniency,
theless call for
a life sen-
above,
gravating
As noted
it is
factors.
purpose
special
tence. The
of the second
appropriate
jury’s
to limit a
discretion
appellant’s
issue from
perspective is not to
concerning mitigating factors.
rebut
the affirmative
to the
answer
first
State,
(Tex.
Wolfe
Rather,
purpose
issue.
is to
Thus,
Crim.App.1996).
mitigation
if the
is
determine whether the individual circum-
sue
of aggravating
allows for consideration
appellant’s
stances of
background
case and
evidence,
unconstitutionally open-ended.
it is
life,
call
sparing
though
his
even
In McFarland v.
“In contrast
to the
language
opinions. They argue
defined
such
in these
standards that must
Supreme
precluded
narrow sentencer’s
“the
Court has never
sentence,
impose
discretion to
aggravating
the death
use
part
circumstances
ability
Constitution limits a
process
State’s
anof
individualized determina-
points
gar-
2. Two
supported by
judges.
of error in McFarland
ion on this
seven
issue
vote,
only plurality
opin-
nered
Court's
*21
work,
good
been a
day
had
“recognize missed
say
culpability”
tion of
and
“we”
father,
every-
nice to
had been
husband
jury may
aggravating
...
fac-
consider
races, and
including
of different
others
They
one
miss
tors in its selection decision.”
Armstrong, 718
enjoyed many friends.
had
point.
precedent
Court
does
Supreme
The State
reh’g).
(op. on
at 696-97
circum- S.W.2d
prohibit
aggravating
consideration
and elicited
issue;
family picture
also introduced
mitigation
stances in the context of the
said
children.
of the
We
rather,
ages
the names and
statute
language of the
plain
following
correctly stated the
the defendant
not allow for
passed by
legislature
does
rule;
to rewrite
legislature
option
it.
has the
The
statute;
not.3
this Court does
in the
the State
competent for
It is never
slain
person
that the
prove
first instance
disavowed,
caselaw, today
Apart from this
evi-
inoffensive. Such
peaceable
majority’s
disturbing aspect to the
the other
when
in rebuttal
dence becomes admissible
that it is a direct invitation
reasoning is
in behalf
testified to
opposite
has been
analysis. But
comparative worth
conduct a
defense,
the defendant
or when
of the
majority says
permissible.
this is not
ground
justify the homicide on the
seeks to
prob-
Majority op. at 262. This is also
made
the deceased.
of threats
majority’s holding that victim
lem with the
the defendant’s
evidence is relevant to rebut
submission).
original
(opinion
on
Id. at
mitigating
Id. at 262.
admission of
evidence.
testified
that defense witnesses
But the fact
majority suggests
by offering evi-
The
reputation
not raise an
did
to the defendant’s
circumstances,
character or
dence of his own
character of the
reputation
or
issue as to
places into issue the victim’s
the defendant
this
Id. at 696. We reaffirmed
deceased.
proper
circumstances. But
re-
character or
rehearing, emphasizing “the State
holding on
mitiga-
buttal evidence in the context
of the deceased’s
may not introduce evidence
go
should
to the defendant’s char-
tion issue
character has
unless that
good character
acter
circumstances not the victim’s. We
in issue
the defen-
placed
somehow been
Armstrong, su-
recognized
principle
(op.
reh’g)(emphasis
Id. at 697
dant.”4
There,
pra.
after defense witnesses testified
added).
punishment
good repu-
at
to the defendant’s
majority says
Finally, the
the defendant
being peaceful
law-abiding,
tation for
affirmatively waive “reliance and submis-
testify,
can
State called the deceased’s wife
issue,
rebuttal,
mitigation
thus avoid
peace-
sion” of the
that the deceased had been a
impact and character
presentation of victim
hardworking
ful and
man. She testified she
Majority
submis-
nearly
op. at 264. But
had been married
evidence.
deceased
jury is
mitigation issue to the
twenty-two years and
five children. She
sion of the
had
legislatively mandated:
further testified that the deceased had never
Armstrong
distinguishable
majority says
majority
authority
support
no
its
4. The
3. The
cites
dangerous-
holding.
authority which
involved the future
When faced with
that case
because
result,
issue,
compel
majority
mitigation
a different
issue:
ness
not the
predictably responds by overruling it.
Proc
Cf.
logical
two
link between the
there is no
That
State,
tor and Lemell v.
thus was Proc.
44.2. This case should be remanded for a hearing. I punishment
new dissent.
BAIRD, J., joins. *23 Merrill, Jr., Dallas,
Roy appellant. L. FLOYD, Appellant, Randall J. Berdanier, DA, Pamela Sullivan Assist. Dallas, Paul, Austin, Atty., Matthew State’s v. for the State. The STATE of Texas. 397-96, Nos. 398-96. Texas,
Court of Criminal Appeals of OPINION En Banc. McCORMICK, P.J., opinion delivered the 16, Dec. 1998. Court, MANSFIELD, joined by
KELLER, WOMACK, HOLLAND and JJ. separately indicted vio lating Floyd the Texas Securities Act.1 656, (Tex.App . -Texar 1996)(Cause 06-95-00069-CR); kana No. 06-95-00070-CR, Floyd slip No. op. 5, (Tex.App.-Texarkana, January delivered 1996)(not published). Appellant entered into plea bargain agreement in each case where pled charges nolo contendere to the agreed probation years to a term of for ten and a fine of The trial court found $300.00. appellant’s sufficient evidence to substantiate guilt, adjudication guilt deferred an placed appellant community supervision years for ten with a fine of in both $800.00 cases.
Appellant complained for the first time in his Amended Motion for New Trial that the support evidence was insufficient the trial finding guilt prosecu- court’s because the by tion was barred statute limitations. 1989, 733, 9, opinion Leg., 7. As this is a dissent rather than an 71st ch. section 1989 Tex. Court, opinion 3292, 23, for the I will not labor 1991, to set out by May Gen.Laws amended ofAct my analysis. harm nd 565, 9, Leg., ch. section 1991 Tex.Gen.Laws 2005, 15, 1995, May amended Acts of 74®* 581-29, May 1. art. Act of Tex.Rev.Civ.Stat.Ann. 16, Leg., ch. section 1995 Tex.Gen.Laws th 30, 1983, Leg., ch. section May Tex.Gen.Laws amended Act of