*1 238 grounds a verdict in special persons complained
instruсtion would be or for re- plea hearing through under Tex.Code Crim.Proc.Ann. art. seven ten because each 37.07(l)(a). However, such an venireperson instruction unequivocally stated that was not instant warranted case be- capital punishment their views on would cause confession was admissi- prevent substantially impair per- their Therefore, appellant ble. was not entitled jurors. formance as to know whether the considered or comments, judg- I join With these disregarded the confession. ment of the Court. II.
In relation grounds for re- ten,
hearing through seven we should es- following bright
tablish the line The rule: judge refusing per-
trial does not err question venireperson
mit counsel to who
unequivocally regarding capi- states views punishment prevent tal that would or sub- MUNIZ, Appellant, Pedro Cruz stantially impair performance ju- her as a v.
ror. Texas, Appellee. STATE quarter century, For almost a of a we judge have held that a trial errs refus- No. 69602. ing permit question counsel to a venire- Texas, Appeals Court of Criminal person unequivocally has who stated that En Banc. her capital punishment pre- views on would vent or substantially impair perfor- her 6, Jan. 1993. juror. mance as a But the error has never Rehearing Denied Feb. risen to the level reversible error. Huff- State, (Tex.Cr. man v. 450 S.W.2d 860
App.1970); State, Ortega 462 v. S.W.2d (Tex.Cr.App.1970); 304 v. Burns
State, (Tex.Cr.App. 556 S.W.2d 278
1977); State, White v. 706 State,
(Tex.Cr.App.1981); Sawyers 724 v. 24, 29 (Tex.Cr.App.1986);
S.W.2d and Feld- State,
er v. (Tex.Cr.App. S.W.2d
1992). only way we can reconcile the fore-
going pertaining cases with the other cases improper limitation voir dire ex-
amination is to conclude the refusal is error. To hold otherwise contradicts holdings
our
Nunfio
(Tex.Cr.App.1981),
Woolridge
(Tex.Cr.App.1992)
examination.
nothing by declaring something error if we
habitually determine the error to harm- Consequently,
less. we should establish foregoing bright line rule and conclude judge refusing
that the trial did not err permit appellant question the venire- *5 Austin, Inglis, appellant.
Ian for Anderson, Atty., Georgetown, Ken Dist. Huttash, Austin, Atty., Robert State’s the State.
OPINION CAMPBELL, Judge. February
After a trial held in
County jury
appellant,
Williamson
found
Muniz, guilty
Pedro
of the December
Cruz
J_
20, 1976,1
female,
capital slaying of a
B_The
aggravating element of the mur-
J_
appellant’s aggravated rape
der was
B_2
of
punishment phase,
At the trial’s
the
indictment,
Appellant
originally
original
again
tried and convicted
1986 under the
for this offense in 1977. This Court affirmed
received a sentence of death.
judgment
the trial court’s
and sentence of death.
language
(Tex.Cr.App. 2.
the indictment
property, he: appellant’s interpretation, could the State (1) intentionally, knowingly, reck- pursue capital prosecution not a murder another; lessly injury bodily causes could prove because State never con- murder, satisfy requirements duct only Should the State’s evidence show separate from the conduct which constitut- a convenience store clerk was killed ed the offense of arson. Under this inter- single gun back, shot wound to the statute, pretation of the could State taken, property had been and that the de- pursue capital prosecution murder if shot, fendant had fired the fatal the State prove it totally could the murder occurred capital still not could obtain a murder con- independent from the arson. We cannot viction interpretation under Legislature believe intended to statute, absent surviving some witness capital prosecution insulate from a murder or videotape of the incident. The State a defendant who had committed arson and precluded would obtaining capi- be from murder manner. above-described tal murder conviction because it would be Interpreting yields thusly statute ab- impossible prove the elements of capital surd results in situations where robbery separate from the elements of is aggravated rape, murder combined with only bodily murder. The injury that robbery, Therefore, reject and arson. we prove State could be would the same interpretation of Tex.Penal wound killed the clerk. Under Instead, 19.03(a)(2). adopt Code lant’s interpretation, single act could interpretation of statute that allows the not constitute an element of both the rob- capital State to seek a murder conviction in bery murder, and the and the State would already cases similar to those we have elab- precluded prosecuting the defen- upon. fact orated capital dant under the murder statute. We J_ B_ aggravated rape murder and do not believe Legislature that the meant contemporaneously pre- occurred does ability restrict prosecute State’s prosecution under clude a mur- such a defendant for capital murder. der statute. A produced similar absurd result appellant’s position logical is taken to its In cases where the can State show end and arson and murder are combined. aggravated rape that an and a murder *8 At offense, the time of pertinent the the the person were committed same within language penal of the code’s arson section period, capital prose a short time a murder read: will cution barred because of the 28.02 Arson mere fact that the in
§ two offenses occurred proof such totally a manner that
(a)
two
person
A
an
commits
offense if he
separate
impossible.
crimes is
We con
explosion:
starts a fire or
an
causes
situations,
clude that in such
the elements
(1)
the
without
effective consent of
rape
aggravated
of the
and the murder
the
destroy
owner and
intent to
or
with
may overlap.
may
the
Since
elements
over
damage the
building
owner’s
or habi-
lap,
conduct
the
which serves as an element
tation; or
may
of the murder
also
serve as
ele
(2)
destroy
damage
with intent to
or
ment
the aggravated rape.
any building or habitation to collect
damage
insurance for the
interpretation
or destruc-
This
of the
is in
statute
tion.
accord with the decisions of this court is-
concluded,
Having
now
so
we
ad
analogous cases. In Barnard
sued in two
challenge.
appellant’s sufficiency
In
State,
(Tex.Cr.App.1987), dress
A second Mike also appellant general Georgetown police saw the same area officer Her- Robert evening. investigated later that same 8:30 nandez where At about area p.m., objects. Maldonado had driven his son’s Williams After discovered appellant walking searching home where he area saw of the river unsuccess- through yard. fully, Maldonado circled two Hernandez resumed his search on house, 22, 1976, blocks and returned his son’s December another with officer again appellant. he Eventually where and saw Maldonado bloodhounds. the officers recognized appellant’s swimming pool face saw it and when searched an abandoned headlights illuminated his automobile’s bathhouse located near area of appellant approached bridge. because had once him buying Hurtado, about a Like car. Maldo- bathhouse, Within the Hernandez found
nado also noticed that was wear- disturbed, the dirt on the floor as if some- ing only a white extremely undershirt in thing dragged had across the floor. been Hurtado, however, cold Unlike weather. bathhouse, Outside the found Hernandez appellant’s Maldonado noticed that under- more marks which indicated that some- dirty. shirt was thing dragged ground. had over the Another appellant By marks, witness also following saw the trail of those Her- p.m. 8:30 around on December 1976. nandez and Officer Jessie Labit found J_ B_’s Jackson, appellant’s, blood, Herbert finally a friend of naked found Cafe, encountered him body, at Monroe’s pile buried drift- underneath general vicinity in the where the Additionally, crime wood. found Hernandez occurred. approached Jackson, pieces panty hose At blue belt. who talking trial, two piece other friends. belt was shown to match Jackson noticed that piece police had cut on a found belt forehead, wrist, a knot on his and blood area where had appellant. Maldonado seen on his undershirt and forehead. Addition- evening Late on the of December ally, portions appellant’s pants the lower 1976, highway patrolman Mahagan Victor legs were wet. went to Jarrell to conduct surveillance Jackson,
According to claimed home of re- brother. sponse men had accosted him two and that he radio to a communication escaped by running through Georgetown police, Mahagan the river. stopped car Jackson drove appellant to the home of had been to the home of car, sister thеn back Mahagan drove to brother. In that ap- found A appellant. pellant’s Monroe’s Cafe without short Paul Muniz brother later, appellant time returned to Monroe’s lant’s Mahagan sister-in-law. followed anyone Cafe and asked Jackson whether Muniz home entered house Muniz’s *10 for looking appellant. had been After permission. with Muniz’s Muniz said that rights, appellant present, he his but made no effort were would turn understood his Mahagan. brother over to to exercise them. home, appellant’s wife Inside Muniz’s noon, Shirley in- again Sometime around response a sitting to on sofa. appellant rights of his and then formed question appellant, appellant’s about wife question During proceeded to him. room. nodded toward door another interrogation, appellant wrote course room, immediately Muniz entered that went incriminating out an statement. The state- closet, appellant to to a and motioned for ment, on forms which contained the written Mahagan appellant come out. handcuffed warnings, as follows: Miranda read By him radio patrol and took car. Monday night girl I first seen this transmission, Mahagan informed bridge. my walking by the Me and Georgetown police appellant my cousin Uncle brother and were police Mahagan
custody. told jailhouse. got by the I Alvin Cruz house appel- for arrest had been issued warrant off and her toward the Sonic followed lant, his Mahagan appellant informed so wearing big inn. her Drive I remember rights. Miranda9 carrying purse. dark coat and a small appellant to Mahagan delivered Wallace grab to come with me. I her told Spillar, Department an officer with worry I don’t She said where. said (DPS). Safety Spillar appellant Public took Then she o.k. about that. said Hill, Magistrate arraigned before Bill who rights. him of his appellant and informed and went We walked across river Spillar appellant sign a document watched up the hill. I stretched the on side of Hill stating Magistrate had informed I then cross. fence. She went arcoss. rights. Spillar him- appellant of his After inter- So to the shed and we went appellant rights, ap- self read his Miranda course. granting signed his con- pellаnt a document way it really I can’t remember but police sent for the to conduct search. I her have knock must been was Appellant accompanied police back drag body down uncoious and her Jarrell where he retrieved an undershirt then throw next to the fence and fence jeans. pair of I logs her and then left. some on Jarrell, returning police After body, arcoss the I left the went back County appellant in placed the Williamson dam, up ridge and I seen went during early morn- Jail. At some Drake, Jackson, Larry Gilbert Herbert police ing hours December Gonzales, give I them to a ride and asked Shirley fingerprinted appel- officer William fight I I I had a home. told them taking lant. In addition to pay and would needed ride Jarrell shot,” “mug photo- took some Shirley they straight for took gas. and then body, graphs because hap- me what My home. wife asked scratches, marks, quite a lant “had few I fight. I her had Then pened. I told time, [including] him bruises on at the [and] my pants I change put Then clothes. his knuckles scratches over swollen I had the sink in the bathroom. under on eye, cheek and ...” At 11:00 a.m. put my my little my shirt bedroom appellant Shirley retrieved December change my I clothes then girl Then bed. jail police him to the from the and took take me to my told sister-in-law interrogation. Chief Tra- for Police station think had a Georgetown they would so ap- spoke vis Thomas fight. a while then I hour, around for We road during time he proximately an home, my wife back rights. told her take again informed me around, road Thomas stated that indicated with us when (1966). opinion, Miranda refers to Miranda Arizona, S.Ct. L.Ed.2d 384 U.S. *11 J_B_’s we a in my gave vagina. Jachimczyk saw friends who ride nal me fluid J_B_’s home.10 that testified the blows to head had inflicted a moments before or been few statement, obtaining police After rape. after the continued search area around the bridge. 24, 1976, police On Appellant’s December defensive was limit- evidence sweater, brassiere, slip, testimony retrieved a and ed to that: the area at the north- pair underpants appear of river. bridge women’s from the ern end of the did not trial, garments struggle, At Garcia identified these the scene а have been of that J_B_had wearing hiding which Decem- a on was not in closet at his J_B_’s 20,1976. house, identi- appellant’s ber mother also brother’s that hand was Bible, poncho, shoes, fied the purse as because he it and swollen had broken well be- B_’s property. only appellant’s J— fore December that cut, forehead had sustained posi- that trial, At the State also introduced people’s tive identification of faces while testimony chemist/toxicologist, of DPS driving bridge impossible. across Smith, Joseph Jachimczyk, Charles and Dr. light Viewed in the most favorable to the J_ B_’s performed autopsy who an verdict, jury’s clearly sup- the evidence body. analyzed appellant’s Smith under- ported jury’s guilt finding beyond of J_B_'s jeans, shirt and appellant’s and Having reasonable doubt. concluded that types, blood and numerous from articles proper subject ease was a appel- the crime scene. stated that Smith prosecution capital punishment under the jeans lant’s undershirt and contained traces statute and that the is sufficient evidence of blood. While Smith could not determine conviction, his sustain we overrule type jeans, of blood on the the traces point first lant’s error. on the undershirt matched appellant’s type. blood in contends of er ror sixteen that the evidence is insufficient Smith analyzed also cotton that fibers an support punish answer to affirmative had been scraped from fingernails B_’s concerning ment issue two his future dan body. J— While Smith could gerousness. Again, assessing the suffi definitively that state these came fibers evidence, ciency of the must view the appellant’s jeans, from say they he did that light evidence most favorable to the could have jeans. come from those Smith J_B_’s finding, jury’s and then determine whether analyzed also strands of hair and beyond rational could have found hair found fragment on the of the blue a reasonable doubt an affirmative answer samples belt. two of hair had similar punishment to the second issue. Harris v. characteristics. (Tex.Cr. 225-226 The testimony Jachimczyk established App.1986). J_B_had been struck nine times J_B_’s punishment phase, At the the State intro- head. hands exhibited “de- witnesses, testimony duced the contusiоns,” five fense de- the doctor documentary evidence two trying scribed wounds sustained while prior cushion or misdemeanor convictions. The testi- oncoming avoid blow. Ja- J_ C_S_established B_’s chimczyk mony noted that brain had raped her seven months before he swollen concluded she died from a raped J_B_Georgetown fractured skull and murdered sustained association police rape. Jachimczyk with forced officer Welton testified based Watson J_ upon rape investigated conclusion of B_’s he had tearing the earlier J_B_’s C_ hymen, damage vagi- S_hysterical found and dishev- orifice, significant Magistrate nal blood flow eled. Hill and Williamson J_B_’s vagina, presence and the semi- County Sheriff Jim both testified Boutwell grammatical spelling All con- errors statement. appear tained herein handwritten
250
only
he at-
peaceable,
as
offenses
five months before
appellant’s reputation
that
J_B_Moreover,
law-abiding citizen
bad. Williamson
at-
tacked
J_B_.
brutal,
County
Ray
Attorney Billy
upon
as
Stubblefield tack
evidenced
per-
appellant
that
was the same
her
testified
inflicted to
skull. On
by the nine blows
pled
resisting
guilty
had
to
arrest
record,
son who
that
we conclude
a rational
this
just
to the
escape
prior
five months
beyond a
jury could have found
reasonable
J_B_Stubblefield
rape and murder of
continu-
appellant constituted a
doubt that
bearing ap-
also identified the documents
society and overrule
ing threat
to
signature
pled guilty
he
pellant’s
wherein
of
point
sixteenth
error.
lant’s
to
two offenses.
eleven, appel-
ten
points
of error
Appellant’s
punishment
evidence at
argues that his confession should have
lant
testimony
of six
phase consisted
prod-
it
suppressed
because was
pictures appel-
witnesses and a number
point
illegal
of an
arrest.
In his tenth
uct
jail. By
in
this evi-
lant had drawn while
error, appellant
contends that the admis-
dence,
sought
he
that
appellant
establish
violated the Fourth
sion
his confession
past
in
he
had not been violent
that
Amendment
the United States Constitu-
improved
had
himself. A number
wit-
1, 9 of
Consti-
tion and Article
the Texas
matured,
appellant
nesses stated that
probable
cause
tution because there
no
religious, and that he
had become more
him.
In his
to arrest
eleventh
Appellant
and relatives.
loved his children
error,
that
addition to
appellant contends
is
argues that the State’s evidence
insuffi- violating
and Texas con-
the United States
only conduct that
cient because it concerns
stitutions, his
was excludable
confession
murder,
at the time of the
where-
occurred
38.23, “in
there was no
under Article
that
good
behav-
pertains
as his evidence
escape
showing
appellant was about to
intervening
improvement
ior and
over
required by” Article 14.04.
as
years.
ten
arguments un-
The thrust of
proof
State’s burden of
points
of error is
der his tenth
eleventh
required
punishment question
the second
cause to
probable
had no
police
would,
prove
the State
was not
him. He contends that he
arrest
not,
crimi
likely
more
than
commit violent
escape”
that term found
“about
is
in the
as to constitute a
nal acts
future so
will, however, address
Article 14.04. We
society
continuing
whether in or
threat
by analyzing them
appellant’s points
State, 779
prison.
out of
v.
S.W.2d
Smith
14.03(a)(1),
states:
of Article
which
light
jury may
(Tex.Cr.App.1989).
421
arrest,
may
with-
(a) Any peace officer
during
presented
consider the evidence
warrant:
out
guilt/innocence
punishment
trial’s
(1)
suspicious places
persons
found
punish
answering
phases in
the second
reason-
and under circumstances
State,
v.
776
question.
ment
Valdez
persons have been
ably show that such
(Tex.Cr.App.1989).
166-167
S.W.2d
felony
some
or breach
guilty of
Moreover, the
and circumstances of
facts
threaten,
to com-
or are about
peace, or
being prosecuted may constitute
the case
laws;
against the
...
mit some offense
dangerous
of future
sufficient evidence
State,
S.W.2d
498
ness.
819
Farris v.
“the functional
this statute as
interpret
We
State,
v.
573
(Tex.Cr.App.1990); Muniz
probable cause.” Johnson
equivalent of
(Tex.Cr.App.1978).
795
S.W.2d
(Tex.Cr.App.
1986),
McKen
grounds,
other
overruled on
point of error
Appellant’s sixteenth
(Tex.Cr.
light
most
na
merit. Viewed
without
Therefore,
answer,
arrest
App.1989).
jury’s affirmative
favorable
14.03(a)(1),we
requirements of
appellant raped meets
shows
evidence
con
dispose
appellant’s contentions
before
can
seven months
another woman
need
cause and
cerning
probable
lack of
B—
raped and murdered J
sufficient
of whether
reach the issue
two misdemeanor not
pled guilty to
had also
place
render
grounds
support
may justifiably
suspicious
existed to
belief that
escape.
perspective.
was a threat to
officer’s
police
from a
case, Mahagan
ap-
knew before he
“when the
Probable cause exists
proached appellant’s
brother that
facts and circumstances
an officer’s
within
J_
suspect in the murder of
prime
was the
*13
knowledge
personal
and of which he has
Mahagan
B_Appellant’s
brother told
reasonably trustworthy information are
house, he
appellant
that
were in the
person
of
sufficient
warrant a
reason
Mahagan.
would be turned over to
that,
likely
caution in the
more
able
belief
not,” particular suspect
a
commit
than
has
house, though,
appellant’s
At the
after
State,
crime.
818
ted the
Castillo v.
bedroom, appel-
toward the
wife nodded
803, 805 n. 4
In
(Tex.Cr.App.1991).
S.W.2d
in
directly
lant’s
went
brother
closet
determining
probable
exist
whether
cause
room, opened
door,
mo-
that
closet
and
arrest,
cumula
ed for
we examine the
Mahagan
tioned
to come out.
appellant
information
officers
tive
known to all the
appellant
hiding
testified that
was
in
cooperated in the
who
arrest. Woodward closet, a
inference on these
reasonable
State,
(Tex.Cr.App.
668 S.W.2d
344
record,
on this
facts. Based
we conclude
1982).
appellant
upon probable
that
was arrested
suspicious place,
Mahagan
appel
Before
cause in a
under circum-
arrested
lant,
reasonably
com-
the authorities had
infor
stances that
show he had
substantial
implicating appellant
perpe
felony.
mation
mitted some
We overrule
already
police
points
trator of
crime. The
had
and eleventh
lant’s tenth
of error.
J_B_and
body
found the
of
known
had
points
eight, appel-
error
seven and
Monday,
that she had been missing as of
that
argues
lant
the admission in evidence
police
20. The
December
that Hurta-
knew
right against
of his
violated his
confession
J_B_’s
young
do
seen a
lady fitting
had
self incrimination as contained in the Fifth
description walking
p.m.
at about 7:00
to
to the United States
Amendment
Constitu-
northern
ward the
end of
Gabriel
the San
tion and Article
10 of the Texas Consti-
bridge, being
appellant,
River
by
followed
appellant’s complaint
tution. The basis of
wearing only
who was
an undershirt and
point
in
error
police
seven is that the
jeans
freezing
police
in
weather. The
had
ignored
repeated requests
his
for an attor-
already
including
found
objects,
numerous
ney.
eight,
ar-
point
appellant
of error
J_ B_’s
deposit slip
with
name on it
involuntary
gues
his confession
that
bridge.
near the northern end of
The
promises
on the
threats and
made
basis
police had
struggle
reason to believe
police.
bridge
had occurred at that end of the
of the
objects
because
scattered
and the
addressing
the substance
Before
hedge.
nearby
broken limbs of the
eighth
points
seventh
also
police
knew that
had
Maldonado
error,
ad
we conclude
we need not
past
p.m.
driven
his son’s
8:30
home around
dress
Texas
constitutional
appellant
20
December
and observed
argu
proffered
claims.
has
no
crossing
yard.
happened
This
near the
authority concerning
protec
ment or
appellant
bridge,
San Gabriel River
provided by
tion
the Texas
Constitution
was still dressed in
an
undershirt
protection
protec
how that
differs from the
jeans
spite
conditions.
weather
provided
tion
the United States Consti
Finally,
police
appellant
knew that
tution. State
federal constitutional
out on bond for a
he had committed
argued
separate
claims should be
only seven months earlier.
grounds,
analy
separate
substantive
appellant
argument provided
ground.
We next consider whether
sis or
for each
suspicious
place. Rarely
found in
is
Heitman
690-691
place suspicious per
Johnson,
se.
722 n.
(Tex.Cr.App.1991);
23
Morehead v.
(Tex.Cr.
at 421.
S.W.2d
Additional facts
rea-
n. 1
579
however,
therefrom,
inferences
App.1991);
sonable
Tex.R.App.Proc. 74 and
(Tex.Cr.App.1988). If
not
constitu- 770 S.W.2d
We will makе
state
arguments for him.
court’s resolution of
controvert-
tional
trial
record,
supported by
a re-
ed issue
error,
Concerning
seventh
trial
viewing court should
disturb the
emphasizes
shows
that the record
Dunn,
decision.
At
available
determine
further
confession,
any
himself initiated
the accused
the State
voluntariness
Minnick,
151-
assertions,
498 U.S. at
communication.
need
rebut
but
not
This rule seeks to
721
253
already
it.
having
sel even after
invoked
statements after
re-
lant's
he withdrew his
154-56,
quest
product
Id. at
111
S.Ct. at
counsel were not
pressures.
applying
coercive
After
waiver,
To establish a
the State
Zerbst, supra,
out in
test set
Johnson v.
must demonstrate that the accused inten
appellant knowingly
conclude that
relin-
tionally relinquished
right
of which he
right to
quished his
consult with an attor-
Zerbst,
was aware.
U.S.
Johnson v.
ney. Having
concluded that
1019, 1023,
58 S.Ct.
coerced. disposition point credibility, original our of this judge of witness acted from exclusive disbelieving ap- authority its in of error. See Jordan 576 S.W.2d well within (Tex.Cr.App.1978). over- pellant’s Gentry, 770 S.W.2d 827-828 We assertions.' promises appellant’s eighteenth point of error. 790. The issue of as an induce- rule at confession, however, requires ment for error, appellant con- In his ninth analysis. further refusing tends that the trial court erred question jury about to submit promise render a con Before a will voluntarily or whether he had confessed inadmissible, it must shown that fession be prom- only as the result of coercion and/or promise induced confession. Ja testify before Appellant ises. did (Tex.Cr. cobs did cross-examine jury. Appellant to induce confes App.1990). order concerning witnesses arrest and State’s sion, (1) (2) positive, must promise interrogation. Appellant argues that the made or sanctioned someone authori jury that he showed evidence before (3) an influential nature ty, such night, gotten had been arrested late had untruthfully speak would defendant ignored had when he re- sleep, little been response thereto. food, attorney, had quested an denied been Concerning the le discussion about exposed theory to the State’s niency, Shirley the record shows stat J_ case, including photographs of leniency ed that was sometimes shown B_’s body. This a defendant confessed. when When source evidence simply of fact. has a statement issue, the defendant raises a defensive party au failed to demonstrate that charge properly requests on that prom thority unequivocally positively *16 issue, the issue the trial court must submit leniency a ised in return for confession. State, 574 S.W.2d jury. the Moore v. to fails leniency The conversation about to The evidence (Tex.Cr.App.1978). 124 to promise. rise the level of a may issue either which raises the Regarding pro the of discussion weak, contradicted, strong, unimpeached, viding family, Shirley appellant’s aid to did State, v. 707 or unbelievable. Sanders proper promise to contact the charitable limited (Tex.Cr.App.1986), 80 on S.W.2d Also, Shirley, peace authorities. offi State, grounds, S.W.2d other Willis v. 790 cer, person position in a constitutes a of 307, (Tex.Cr.App.1990). 314 When the evi fails, argument authority. Appellant’s fails, however, to raise defensive dence however, requirement on third listed the issue, trial commits error in the court no promise above. We fail to see how refusing requested instruction. Kunkle proper contact the charitable authorities State, (Tex.Cr.App. 444 771 S.W.2d v. person untruthfully could influence a 1986). confess to heinous crime involved here. State, 562 Hughes In v. anyone, appellant’s family, own Since even authorities, (Tex.Cr.App.1978),which also in 863 could have contacted those we charge Shirley’s in volved a trial court’s refusal cannot conclude that offer jury appellant’s on the of overrule voluntariness appellant’s duced confession. We confession, eighth “Appellant this Court wrote did point of error. and did not call testify jury before eighteenth error, point appellant In his of any witnesses on the issue voluntari complains systematic exclusion of There was no evidence before the ness. grand jury Mexican-Americans from the Thus, jury issue. which raised original opinion, that indicted him. our refusing charge.” not err in court did appellant this Court concluded thаt case, preserve any concerning failed to error in this did not Likewise Muniz, array grand any jury. testify or call on the issue of witnesses majority appel- S.W.2d at 796. In accord “law of voluntariness. The vast in his “deliberately,” appellant definition leading ques- consisted of lant’s “evidence” contends points of error officers, and fifth ques- fourth peace propounded tions pro- sentence violates appellant was that his death implied that tions which pun- against cruel and unusual scriptions an- confessing. Each witness coerced into ex- in the United States negative, contained questions these ishment swered refuting implication of coercion. Texas constitutions. pressly Appellant’s only through affirmative evidence points of error two Appellant’s he the facts that these issues concerned depart merit. We refuse six lack night, did not eat until was arrested late need not holding the trial court our confessed, exposed and had been after “deliberately.” Russell the term define case, including theory to the State’s (Tex.Cr.App. J_B_’s witnesses, body. The pictures of Moreover, error was 1983). even however, disputed appellant’s assertions committed, nothing for appellant presents food, denied an attor- that he was denied pun- concerning jury charge on review record, sleep. ney, or denied On requested no Appellant’s counsel ishment. jury that no evidence before conclude the term “deliberate- regarding instruction the issue of the voluntariness raised objection to the court’s ly” lodged no Therefore, the tri- appellant’s confession.12 object can charge. A failure to punishment refusing no error in al court committed involving an error constitution- waive even requested instruction. We rights. al at 777. We overrule point ninth of error. overrule through two six. points or error lant’s through Appellant’s second sixth error, appel point his twelfth In his points of error are interrelated. complains of the trial court’s admis lant error, complains second evidence, during punish the trial’s sion in of the trial court’s refusal to instruct pertaining to phase, of the documents ment differing about the definitions of prior misdemeanor convictions. his two “intentionally,” “deliberately” terms “prior his convic Appellant argues that punishment which are contained the first they reflect that because tions were void” acknowledging trial issue. While that the represented counsel appellant was not required normally court is not to define “know indicate that and do not “deliberately,” See Morin right ingly intelligently waived *17 (Tex.Cr.App.1983),appel 270 S.W.2d Accordingly, appellant contends counsel.” presents lant asserts that his case a situa sup been that the convictions should have previ tion different in nature from those pressed. ously Appellant addressed this Court. claims that his trial counsel made com appellant Both documents in which jury effectively ments which informed the pled guilty right his to trial and waived “deliberately” “intentionally” to “I do not wish contain the statement synonyms. were hearing lawyer represent me at this have a Despite appel misinformation, represent myself.” and will
Based this contrary, his con argues points error lant’s contentions to the in his third and sixth of and his waiver of counsel that he convicted in violation of the victions are valid enough. prior convictions process of law and due of law is clear Valid due course punishment phase may Texas admitted at the provisions of the United States and Also, State, constitutions, v. 660 respectively. capital based of a trial. Hawkins 65, (Tex.Cr.App.1983). Appel- upon alleged regarding confusion 82 S.W.2d tions, expressly deny the im- not be as a and the witnesses 12. This conclusion should construed requirement testify plications questions direct- before contained in the that an accused must coercion, any jury any ly negate no evi- of inferences of or call witnesses before the issue presented of dence is which raises the issue the voluntariness of a confession will be raised this, however, that the trial court is re- the evidence. In cases such as voluntariness such jury pertaining overwhelming majority appel- quired to to submit a instruction where the leading ques- lant’s evidence is in the form of that issue. 256 by failing this, From is enti- plied.
lant further waived error Id. a defendant State, an if the object to their admission. Bacon v. tled to additional instruction is case in a manner (Tex.Cr.App.1973). 500 S.W.2d evidence relevant to the 515 beyond special appellant’s point scope is of We overrule twelfth issues. Id. error. error,
In his fifteenth
capital
punishment
The
statute
argues
failing
in
that the trial court erred
applied
appel
not unconstitutional as
punishment
instruct
the jury
Except
per
at
lant’s ease.
for the evidence
phase
jury
“that
in
deliberations
taining
appellant’s development
its
of his
faculties,
mitigating
consider all
all
appellant’s
should
evidence of
artistic
evidence
presented
special
circumstances
to it.” At
fell
the ambit of the second
within
phase,
had
punishment
appellant introduced ev-
issue.
evidence that
(1)
family man,
poverty by
good
had treated his
idence that he was raised in
alone,
siblings well,
part in
(2)
(3)
mother and
had taken
religious,
his mother
youth,
church activities as a
had been
generous
loving
family
and rela-
to his
violent,
poverty,
raised in
had not been
tives, (4)
good
was a
son and had been a
pertain
pro
character and
(5)
all
good sibling,
had been involved
danger
pensity
constituting
a future
(6)
youth,
church activities
Goss,
166;
society.
826
S.W.2d
Earhart
developed
his artistic abilities.
(Tex.Cr.App.
823 S.W.2d
v.
claims that the “relevance of this evidence
1991);
Baldree,
Parte
Ex
spe-
beyond
scope
the second
went
(Tex.Cr.App.1991).
thought
jurors]
cial issue
who
[and
quali-
that someone
character
[these]
abilities,
Concerning appellant’s artistic
morally culpable
ties
was less
than
...
the evidence
we conclude
this case
simply
someone without
did not have a
...
indi-
adduced “is otherwise irrelevant to an
way
expressing
under
that distinction
assessment of the deathworthi-
vidualized
special
the two
in this
issues submitted
appellant.”
Lackey
ness
support
position,
case.”
of this
(Tex.Cr.App.1989).
Unlike
lant directs our attention to the case of
Penry’s evidence
child abuse and brain
Penry
Lynaugh,
109 S.Ct.
492 U.S.
damage, appellant’s
“does
evidence
(1989).
257 “deliberately,” brief.) effec- (Emphasis dant.” of the definition of appellant’s argu- impression that tively conveying The core contention of the false produces “intentionally” ment is evidence which “deliberately” that were by evoking sympathy can mitigating effect ef- synonyms. Appellant claims produce aggravating also effect when wholly “to fect of this misinformation was punish- viewed in the context second nullify issue a consideration for the one as ment issue.13 phase of the punishment at the trial.” Appellant’s argument is devoid of merit. his complains of attor- Appellant also The failed to offend Texas statute the Unit- challenge peremptorily ney’s failure in 1976. ed States Constitution Jurek allegedly three members of the venire who Texas, 262, 2950, 96 S.Ct. 49 428 U.S. of the State. exhibited clear bias favor (1976). Supreme L.Ed.2d 929 Court venirepersons Appellant complains that facially failed find the statute unconsti- Rhode, Sullivan, Berry Mary Donna tutional Lynaugh, in 1988. Franklin v. subject of his Harbin should have been 487 U.S. 108 S.Ct. 101 L.Ed.2d attorney’s remaining peremptory three Moreover, (1988). the statute complaint challenges. Appellant bases his to offend the Constitution found against upon Sullivan Sullivan’s comment petitioner. particular as it applied to fifty- to be to the effect that he would have Penry Lynaugh, U.S. 109 S.Ct. percent one or more before could certain (1989). 106 L.Ed.2d The Texas punish- return affirmative answers to statute facial invalidity. suffers from no his Appellant ment issues. bases com- We fourteenth of point overrule against upon her plaint Rhode statement error. against that she someone would be biased error, In his point appel- seventeenth charged with the combination lant prosecution contends that his under murder, capital opposed to someone as capital punishment statute in the in- charged robbery with the combination stant jeopardy case violated double Appellant murder. bases clauses of both the United States Tex- complaint against upon her Harbin knowl- argu- constitutions. substantive edge appellant’s past conviction for the ment underlying point this of error was statements, instant offense and her two disposed original advanced and of in our she could not one to effect that defi- opinion.14 Muniz, 573 at S.W.2d 794. knowledge nitely state would have that her doctrine, accord with the “law of the case” her and absolutely upon effect one to no original disposition we adhere to our pa- prison the effect that inmates obtained Jordan, point of error. See easily. role too 827-828. We therefore overrule point lant’s seventeenth error. claim of grounds As further for his inef- assistance, complains fective error, In his thirteenth interrogation of a his counsel’s witness at claims that he received ineffective assis- “opened punishment phase trial’s tance of counsel violation of the Sixth to introduce the door the State other- Amendment to the United States Constitu- Appellant wise inadmissible evidence tion and article 10 of the Texas Consti- his first had been on death row since trial.” Appellant tution. directs our attention to The record counsel reflects per- instances where his counsel numerous asked Sheriff if he had had Boutwell deficiently. formed first com- dire, plains during problems since After the individual voir *19 not, his trial that he had jurors counsel misinformed three Boutwell answered cáse, appellant example, appellant argues appeal 13. As 14. In the of this an that a defen- former argued jury that an answer youth sympathy returned may jury, dant’s evoke from the acquittal concerning operated implied as an may simply but be taken also punishment. rejected appel- capital This court mean "has more that defendant time to con- argument ground lant’s and we find no in 1978 tinue criminal career." his violent reconsidering now. the contention Rhode, Sullivan, and Harbin. appellant venirepersons prosecutor asked Boutwell where dire of reviewing Bout- the entire voir during most of that time. After had been individuals, agree “on with answered that these we cannot well “clearly in they death row Huntsville.” appellant’s assertion in of the State.” were biased favor example attor- Appellant’s final of his ney’s alleged deficiency concerns the ad- say that he would did Sullivan prior mission in evidence of two percent certain more fifty-one have be Appellant ar- misdemeanor convictions. answers he could return affirmative before error, gues, per point of as his twelfth interpret punishment issues. We inadmissible, void and the convictions were conception his internal this statement be from counsel could objection and that “an doubt” “beyond a reasonable what in evi- prevented their admission have agreed mean. Sullivan with would dence.” dire that the prosecutor’s comment at voir aforementioned upon Based all of the just tip than was “more State’s burden instances, his attor- аppellant contends that the scale.” Sullivan stated that ping of fell below the constitu- ney’s performance proof, hold the to its burden of would State set out tionally mandated standards to have no reservations that he have would 466 U.S. Washington, Strickland decision, and that he based about his (1984). Ap- 104 S.Ct. 80 L.Ed.2d independent analy upon his own decisions pellant contends that the combination of presented. the facts sis of in the these acts a “breakdown resulted Yenireperson Rhode did state call into process sufficient to adversarial immediate, tremendous an she would have question the fundamental fairness of the against charged with prejudice someone proceedings.” murder, opposed to capital upon a claim of inef- prevail In order to robbery charged with someone counsel, an fective assistance of however, stated, murder. She also two-prong requirements must meet the of a appel apply prejudice not she would 687, 693, test. Id. at S.Ct. at give appel asked if she could lant. When 2067; State, 726 Hernandez v. innocence, she an presumption of lant the (Tex.Cr.App.1986). An 56-57 “certainly.” also indicated She swered attorney’s must first demonstrate that his propositions legal agreed that she performance objective “fell an stan- below proof, that that the State had burden Strickland, 466 dard of reasonableness.” evidence, present not appellant need at at 2064. Additional- U.S. S.Ct. testify. duty Con and that he had no ly, appellant must demonstrate “a rea- Rhode stated cerning proposition, this final that, probability but for counsel’s sonable against appellant not hold it that she would errors, proceeding would the result of the testify. he did different.” 104 S.Ct. have been regard, probability is at 2068. In this venireperson Har respect to With only if it “sufficient to under- reasonable she bin, admitted that it is true that she outcome.” Id. mine confidence prior knowledge had some begin analysis appellant’s spe- We our easi parole was too conviction and felt that complaints by noting that we have cific positive could not ly obtainable. she While in our discussion of his already concluded knowledge past ly state that her the trial court point of error that twelfth absolutely no effect would have conviction admitting error in the evi- committed no case, made she also upon her in the instant prior misdemeanor dence of two that she comments to the effect would ad- convictions. As the documents were penal of the death hesitant to vote favor missible, attorney’s object failure to appel be difficult on ty because it would them constituted no error. knew. On nephew, lant’s whom she alone, the this final statement to basis of The same is true counsel’s failure been warranted peremptory challenges against State would have exercise his *20 conclude, however, might this belief that that conduct Harbin be biased We appellant’s require reversal of fails lant’s favor. only required A reversal is conviction. short, review entire voir our of the under- in the outcome is our confidence venireperson dire each no bias reveals Strickland, 694, 104 mined. 466 U.S. at against failure to appellant. Counsel’s consid- introduced at 2068. State S.Ct. challenge peremptorily three venire- these during phases both erable evidence persons no constitutes basis for a claim jury that had trial. The knew assistance of ineffective counsel. guilty pled another woman and had raped appellant’s complaints address We now offenses months before the to two defense remarks upon based counsel’s offense. The also knew that instant “deliberately” about the definitions of reputation law- appellant’s peaceable, as a “intentionally.” To venireperson Ronald abiding citizen was bad. Ballenger, counsel said “in most cases that strength case, Beyond the the State’s you of derive can sort the answer per- counsel the record also reflects that question hap- first from what [sic] duty in a and zeal- professional formed his pened guilt stage, ...” innocence vigorously cross-ex- ous manner. Counsel Tanya Pavliska, To venireperson counsel witnesses, repeatedly objected to amined you pretty find guilty, said that “if him it statement, appellant’s the introduction of follows that it To much was deliberate.” pun- presented evidence at the trial’s South, venireperson Jessie stated counsel phase appellant’s artis- concerning ishment question normally fairly that the “first past this rec- tic conduct. On abilities easily answered ... because if it wasn’t ord, cannot that counsel’s one we conclude deliberate, you probably con- wouldn’t have mistake obvious which allowed the State place.” victed him in the first introduce evidence of death row negated wholly incarceration an otherwise
Counsel’s comment to Ballen- performance. Appellant was commendable ger presented no error. In almost all denied effective assistance of counsel. not cases, constituting the evidence delibera thirteenth We overrule during tion will be adduced trial’s error. guilt/innocence phase. for the other As comments, appel
two disagree AF- judgment of the trial court is lant’s characterization of the effect of FIRMED. counsel’s remarks: statements counsel’s MEYERS, J.,
did necessarily participating. have in not the effect of forming jurors “deliberately” CLINTON, Judge, dissenting. synonym “intentionally.” Counsel in 1977 Appellant was first convicted did, however, discount the difference be course of the offense murder tween two terms. Given the facts of committing aggravated rape. See Y.T.C.A. case, appear this a strategy such does not Code, 19.03(a)(2), prior Penal as it read § to have been unreasonable. Leg., Acts amendment 68th ch.
Finally, p. September we address eff. concerning appeal contention defense counsel’s direct affirmed his On Court question “opened which the door” for conviction. Muniz v. testimony (Tex.Cr.App.1978). Subsequently, had how
State to elicit ever, approximately Appeals death row for ten the Fifth Circuit Court relief, years. Appellant’s “open corpus granted counsel did federal habeas by asking question implied Procunier, trial. door” ordered new Muniz v. (CA5 presented 1985). problems no F.2d 588 community over indictment in the course retried under same preceding again decade. convicted and sentenced to Cоunsel’s conduct death, again asking question and is once us on invited the Sheriff’s before direct 37.071(h), response. appeal. Article adverse V.A.C.C.P. *21 time, was, The water at appellant con- lost it. In his first of error deep higher.” little On knee murder “about tends his conviction police the improp- opposite the side of the river “constitutes an presented the facts recently been found fence that had capital murder statute.” a wire er use of the trial, apparently crossed over. down and presented at bent From the evidence from the fence was an Up the riverbank argues, apparent it is the State was bound swimming pool and a killing abandoned roofless rely upon very act of police Inside the bathhouse aggravating element bathhouse. to establish the victim had been scattered underlying felony to the found that “the debris raises the place had taken required for around ... like a scuffle aggravated as level of 19.03(a)(2), appeared police that the scat- supra.1 In there.” It conviction under § essence, tering of had been a recent event.3 although specifically not debris he does the bathhouse appellant thus at- There was an area within pray acquittal, for an laying somebody “like had been evi- that looked sufficiency tacks the State’s There was no evidence blood capital murder in this cause. dence to show down[.]” bathhouse, Drag marks in in the however. I. twigs grass and a trail of led broken ultimately body nude where Bickham’s light most favorable to the Viewed found, away, in di- fifty about feet verdict, shortly the evidence shows river, pile under a of drift- rection of the p.m. evening 7:00 on the of December after Along way police panty- found wood. 20,1976, following seen close appellant was portion They also hose and a of a belt. Bickham, a Southwest- behind Janis Carol testimony found “a lot of blood” co-ed, bridge crossing University on a ern spot feet in at a about three showed was George- the North San Gabriel River “roughly” twenty feet from diameter and temperature The at the time was town. into evi- body. diagram A admitted sub-freezing. the next morn- At 10:00a.m. apрellate appearing our dence but 21, 1976, ing, surveyor found December take reportedly described Bible, record what shoes, poncho open purse, Bickham’s spots this same area “blood greeting bearing and a card her handwrit- body[.]” approximately 15 feet to ground struggle, ing, apparently scattered about Also, drops of described as hedge “some blood” on the other side of a trimmed at the separate loca- at a bridge.2 hedg- “minor” were observed end “[S]everal Investigating over[,]” appar- body.4 near the officers es with limbs tion were broken about, observing along other blood ently could recall no strewn and “the dirt was evidentiary leading trail from the bath- up somebody scuffed like tuss- body body. After the ling.” day, The next December house to the removed, police piece found a of driftwood police brought dogs. dogs fol- by with a blood stain on it. stain lowed the scent obtained from Bickham’s close bottom, pattern that they showed a shoes down to the river where on the driftwood 1. Prior to the 1983 read: commits murder as defined under tempting murder in the course of robbery, aggravated rape, or arson[.]” 19.02(a)(1) "(a) (2) A [******] person person to commit of this Code commits intentionally amendment, kidnapping, burglary, and: committing an offense if he commits the 19.03(a)(2) Section or at- you fresh because house floor. testified that he considered much less a recent evidence copies is not police could apparent showing the inside of the photographs tell themselves made on they Judging solely that a scuffle took were one. way that were similar to the it was done.” He from the xeroxed the marks to be introduced into bathhouse, place dirty footprints bath- later all, it 4.Again, diagram because the is not in the diagram showing 2. A of the area the location of evidence, record, precise these items was admitted into but late we cannot be sure of the appellate drops not included in the record. location of these blood in relation to the body spot of the deceased or the where "a lot of testified, you 3. One officer “And could tell that blood” was found. thing freshly way done because of the *22 up the and went subsequently pat- to match the We walked across river found sweater, on side the hill. I the fence tern of Bickham’s later stretched turtleneck I across then cross so went from the Also she went recovered riverbed. found * * * I had the shed and we intercoarse. parts river were Bick- various the body drag knock her bra, her incocous7 and panties slip. ham’s and next fence and by down the fence to the p.m. night of About 8:30 on the Decem- I logs on and then left, some her throw .then 20, 1976, appellant acquaintance ber passim]” [sic T-shirt,5 bloody apparently him in a saw weapon he Appellant police that told the the coming from direction of scene of rock, used and that he had thrown had Appellant the offense.6 had a cut on his rock, clothing, along the with Bickham’s right and a his forehead knot on wrist. had into the He also that “he river. related appellant had happened, Asked what told something away he had thrown when his acquaintance jumped that he had been reached A the street.” witness saw they fought and had behind “[t]hat on a street river at lant residential near the bridge, put and he down there night killing. p.m. about 8:30 on of the you know, his put hand his hand in his in— portion at matching A of belt that found jaw pulled mouth and it his [assailant’s] killing, consis- the scene of the with a hair opined further that he loose.” buckle, caught tent with Bickham’s on the killed his The may have assailant. bottoms from the street. was‘recovered wet, pants and were he ex- Bickham suf- autopsy revealed that plained through that he had run river. head, fered one of which nine blows night reappeared appellant Later that eyes Her jaw. broke her had been blacked. acquaintance anyone asked his whether traumatized, vaginal Her orifice was looking had been for him. Informed that pathol- semen was discovered therein. had, appellant acquaintance nobody told his ogist testified: further anyone might inquire who tell that he “A. torso on ... The showed both night. had not seen side, back but more front and the side night he was When arrested on side, linear or pronounced on the front December had “fresh” surrounding con- line like abrasions up- bruises and abrasions on his arms and them bruising. refer to tusions and We per body, scrapes kneecaps. on They more as brush-burn abrasions. . day appellant gave The next a statement to suspect I as would commonly are known police In handwriting. in his own relevant dragged, for scrape body If a is marks. part the statement reads: example, you see those kinds will girl monday “I first seen night this body. on marks on the Those were walking by my bridge me and broth- torso anterior front of the and the side my were Alvin er cousin at uncle Cruz + extent, right also to lesser thigh and jail got I house house. off and they on the as pronounced not as back her followed toward Sonic Drive inn. front. were on the waring big I her dark remember coat and defense And there were so-called then purse. carring a small the dor- over type bruises contusions hands, sum, top side of the grab I her and to come with me she which is told worry I said forearms. said where don’t about that. "Q. Pete type
5. Show the direction from The blood the T-shirt later ... his, police Muniz came. surrendered to the de- way, (indicating).” way A. From this There is that this ceased’s. some intimation however, not, during the shirt he wore the of- spelling guess my at is best 7.This fense. handwriting is this His word. reading appel- practically indecipherable. although Again, jury, an aerial prosecutor this time there is inter- lant’s statement to record, photograph appellate con- preted witness's to be "unconscious.” the word text, utterly interpretation. ambiguous likely most cold record: allusion on a that seems Q. you explain Could best, to us again, what a de- A. The that I say can is at type fense wound is? or about the same time. They were re- A type injuries, A. defense cent type wound is which means that within a wound very that is characterized being prior short interval to death. result of something or striking someone Q. Very prior short interval to death? part body where the victim Yes, A. sir. *23 would either tend to—if he or she is Q. you And don’t great know with a blows, aware of a blow to either cush- specificity deal of what . interval ion the blow or ward it They off. can might have been? happen way.” either A. I specific can’t be more say than On one of Bickhаm’s breasts was a “semi- matter up of a few minutes or long to as circular linear mark ... is consistent [t]hat hours, as 12 but that would be the re- upper part with the of her bra[.]” mote likelihood. pathologist agreed that this would “tend to Q. So, Okay. guess I get- Iwhat am being indicate a being bra worn while ting at, and I quite don’t know how to dragged[.]” All of the head wounds were is, question ask the you’re saying type of a that their infliction would “tend eyes that the black occurred at one time splatter blood,” although “not necessari- striking of the head occurred at ly” in “a shower of blood” as with arterial a different time you just can't tell? or— bleeding. specifically As to when the vari- A. That’s correct.” inflicted, ous wounds were the autopsy was inconclusive. pathologist testified on
cross-examination: II. “Q. you Could your tell from examina- Coupled confession, with tion, Doctor, you whether the blows that circumstantial evidence in this cause is have described to the head were struck more than sufficient to show intercourse, at the time of the—of after raped and killed Bickham. We know that or before? appellant accosted Bickham at the end of A. The I say best could was at or about bridge, North San Gabriel River the same time. It could have been a few place that a “tussle” took hedge at the minutes might before. It have Appellant evidently there. used some level few minutes after. of force or threat to take Bickham across Q. Okay. So, there could have been river, fence, over a and into the bath- any intercourse before of the blows were house, “struggle” where another ensued. inflicted? Appellant had intercourse with Bickham Yes,
A. sir. and then somehow rendered her uncon-
[*] [*] n [*] [*] 5¡C scious. He then dragged her at least par- tially river, body clad down toward the Q. eyes, ... The—the the trauma to the bludgeoned there, apparently her awith eyes, your opinion, did that come from rock, body and covered her naked eyes blows or can that result also driftwood. He threw her sweater and un- striking of the head somewhere dergarments, along weap- with the murder else? on, into the river. A. It can come under some circum- stances for trauma blood else- susceptible cоncedes that he is [sic] sorry, where—I’m trauma to the head aggra- for murder or conviction either elsewhere. particular But in- vated as those offenses were defined stance, my opinion it’s that it was from argues in 1976. He nevertheless that he direct blows because of the distribution capital should not have been convicted of type and hemorrhage. nature of the argument murder. is First His twofold. Q. that, And there way argues ordinary is—is there he consistent with you can tell injuries construction, whether all of these statutory rules of 19.- § occurred 03(a)(2), at the same time? supra, permit cannot read to the same crim- in the course of another murder whenever conviction episode; or inal comprising killing act is all that aggravating as to serve also rape by available (b) compels submission elevating simple rape aggravated factor bodily injury death threat of or serious Second, rape. on the maintains that imminently anyone.” inflicted on to be killing itself present state record the Code, Penal 21.02 former V.T.C.A. §§ See is in evidence available fact 21.03, of the latter prior to amendment & aggravate rape. I these shall address 203, 1, 96, p. Leg., 67th ch. by Acts § in turn. contentions bodily September 1981. “Serious eff. charge, defined in the conso- injury” was A. 1.07(34), Code, Penal nant with V.T.C.A. alleges inten- The indictment “bodily injury that creates a substantial the death Bickham and tionally caused death, serious risk of death or causes *24 in com- “was and there the course of then disfigurement, protracted or permanent aggra- mitting attempting to commit function of impairment of the loss or the stat- rape[.]” Conformably vated organ.”8 or bodily member utory rape aggravated definitions of statutory question is the whether rape in the trial court autho- extant charge, admits language, reflected in the find jury rized it the convict should murder on facts prosecution capital for appellant killed Bickham in the course of simple rape show no more than that attempting aggra- committing or to commit face the by a murder. On its followed charge, rape jury vated as defined the more, seem to demand inso- statute would viz: murder requires an intentional far as it provides person com- “Our law that a rape. An of an aggravated the course rape intentionally knowingly if he mits or by rape followed argument simple that a has sexual intercourse with a female capital nevertheless constitutes murder the without female’s consent. wife made. But it certainly can be murder is The intercourse without the female’s argument that could seems to me such an compels consent if he submit or her to capital proceed as follows: To commit by participate force that such overcomes 19.03(a)(2), supra, one under murder § reasonably might earnest resistance as by Sec- “commit murder as defined must circumstances; or, expected be under the Code, 19.02(a)(1)of” which is tion the Penal compels participate he her to submit or say, must have death one “cause[d] actions, by any by threat communicated Moreover, under 19.- anof § individual[.]” deeds, words, prevent re- or would 03(a)(2) “intentionally killer have must by ordinary sistance a woman of resolu- Manifestly, committed] murderf.]” tion, the same circum- under or similar intentionally caused the death one who has stances, of a fear of because reasonable intentionally or has also know- of another harm. injury” bodily under ingly caused “serious rape if person aggravated A commits bodily 1.07(34),supra, inju- since “serious § above, rape, commits defined “bodily may injury ... that causes ry” he: short, killing intentional death.” In qualify,
(a)
rape
or at-
also
bodily injury
causes serious
the course
would
rape.9 But
aggravated-
as an
tempts
fortiori,
to cause death to the victim
bracing
arguments,
emphasis supplied
of the
unless otherwise indi-
either
State’s
All
merely observed that “[t]he
Court in Alexander
cated.
facts,”
summarily
is the trier
Thus,
very argument
State made in
notwith-
9. This is the
held the evidence sufficient.
State,
(Tex.
standing
see 740
Alexander v.
at 760
West’s headnote number
750, it is
all clear that Alexan-
The State
alterna-
S.W.2d at
not at
Cr.App.1987).
also made the
argument
intercourse
tive
in that
der held that
of sexual
“[e]vidence
cause that the evidence
bodily injury causing
assuming
death
to convict
of serious
sufficient
even
killing
finding
aggravation
rape apart
support jury
that murdеr
sufficient
necessary.
committing or
specifically em-
in course of
at-
itself was
Without
was committed
problem.
therein lies the
For
this theo- S.W.2d at
the Court held that intent to
ry every followed
a murder will
aggravated
commit
assault could not
capital
“ag-
murder. The
constitute
word
supply
necessary culpable
mental state
gravated”
wholly superfluous.
becomes
19.02(a)(3),supra.
murder
for
under
§
presumption,
This runs counter to the
hon-
imposition
found a source for this
Court
capital
juris-
ored elsewhere in our
murder
“merger
the so-called
doctrine” in the lan-
prudence,
promulgating
a statute
guage
ag-
of the statute itself. Because
Legislature
intends its entire enact-
gravated assault
is a lesser included of-
State,
ment to be effective. Heckert v.
voluntary manslaughter,
fense of
and be-
(Tex.Cr.App.1981).
at 552-53
S.W.2d
voluntary manslaughter
expressly
cause
V.T.C.A.,
See
Government Code
311.-
§
19.02(a)(3)
excluded under
as a basis for
§
021(2).
19.02(a)(3),
application
supra,
The State cites Barnard v.
prose-
Court held that Garrett could not be
(Tex.Cr.App.1987),
prop-
legislative prohibi-
cuted for murder. “The
osition that conviction for
murder is
against resting
19.02(a)(3)prose-
tion
a Sec.
appropriate
though
killing might
even
voluntary manslaughter
cution on
neces-
aggravates
rape.
be all that
See also
sarily
prohibition against resting
includes a
Fearance v.
(Tex.Cr.
Although he alludes to it
however,
interpret
rely
possible,
however, appellant does not
It
is
ogy,
ordinary
way
Garrеtt.
in a
upon
“aggravated”
rape
requirement
Instead he relies
construction, much
statutory
Accord-
principles
gives purpose
to the word.
today.
I do
Another circumstance
I
hold that
in order to convict
ingly, would
to make an
Legislature deemed sufficient
theory
capital murder on a
an accused for
susceptible to the death
intentional murder
intentionally caused the death
that he
commission,
simple
not of
penalty is the
committing or
in the course of
the deceased
aggravated
“Every
rape.
rape,
but
aggravated rape,
attempting to commit
presumed
to have been
word of a statute
that he caused
prove
must
either
State
rule of
purpose,
used for a
and a cardinal
apart
specif-
from the
bodily injury
serious
requires
that each
statutory
construction
the death of the
ic conduct
that caused
clause,
sentence,
phrase
given
and word be
deceased,
he at-
by discrete conduct
v.
Morter
reasonably possible.”
effect
deceased,
the death of the
tempted to cause
State,
(Tex.Cr.App.
551 S.W.2d
at 718
compelled submission to the
or that he
Butane
Eddins-Walcher
1977), quoting
bodily inju-
death or serious
a threat of
Calvert,
Company v.
587, 591,
156 Tex.
anyone.13
ry
imminently inflicted on
to be
also Polk v.
(1957).
298 S.W.2d
See
21.03, supra.
See former §
(Tex.Cr.App.
676 S.W.2d
at 410
step of
agree
I
with the first
therefore
Childress
1984);
must
Boykin
appellant’s argument
State
(Tex.Cr.App.1990).
at 364
Cf.
*26
State,
rape by
some
782,
prove aggravation
(Tex.Cr.App.
818 S.W.2d
at 786
killing
I
1991) (statutes
apart
from the
itself.14
should not be read in such a
conduct
138,
State,
(Tex.Cr.App.
assuming
rape
S.W.2d
at 140
12. Even
that the
victim and the
v.
552
individuals,
1977).
body
separate
a dead
are
we are to hold that
murder victim
Unless
State,
"aggravated”
super
raped,
S.W.2d
word
would nevertheless be
see Gribble v.
808
can be
also,
21.03(a)(1),
rape may
65,
72,
supra,
(Tex.Cr.App.1990),
fluous. Under
it must
§
n. 16
at
aggravated
killing.
where the defendant "causes seri
precede
perforce,
bodily injury
attempts
ous
or
to cause death to
the victim or another in the course of the same
majority contends that this construction
14. The
who,
episode[.]”
criminal
A defendant
rejected
leads
must be
beсause it
of the statute
committing
simple rape
course of
an otherwise
argu-
I
to “absurd results.” As understand
ment,
victim,
against
intentionally causes the
one
proof, the State
because of difficulties of
"another,"
death of
has a
committed
fortiori
capital mur-
convictions for
will obtain fewer
aggravated rape
by
of the first victim virtue of
der,
many
settle in
instances
and will have to
Thus, every rape
having killed the second.
fol
separate
convictions for the offenses
for
murder,
by
lowed
an intentional
even the mur
Op.
particular
at 244-245. That a
and murder.
"another,”
prosecution
der of
will result in
convictions,
may yield fewer
how-
construction
murder,
"aggravated”
and the word
still
ever, hardly
a basis to conclude it is
seems
although
purpose. Accordingly,
no
I
serves
Indeed,
give
capital murder stat-
absurd.
our
agree
disposition
with the ultimate
in Crawford
interpretation would seem to be
ute its strictest
State,
(Tex.App.
v.
and address whether the evidence here
(Tex.App.
Although by his own confession hy- unconscious, cumstances ... there is a reasonable lant knocked Bickham the act unconscious, rendering pothesis guilt other than which also would a victim man- unknown, ner is and means not sufficient account for the circumstances.” Girard v. quite champion Wooldridge as Barnard was different than that made this revisionist view of text, 247, is, kind, support today here. As I said in the ante at Barnard to be for its construction inapposite. Wooldridge disingenuous. inAnd the evidence clearly bodily injury demonstrated that serious occurred well 15. Our of the before the conduct that caused recent abandonment Carlsen/But- 816, State, quote "analytical the death. 653 S.W.2d at n. 9. To ler construct” in Geesa v. 820 very (Tex.Cr.App.1991), expressly our belief that “this is the conduct S.W.2d 154 was Legislature sought proscribe capital applicable only as a is- of- made to cases tried after footnote, ignoring fense” while and then suance mandate in that cause.
267 trial court 162, judgment (Tex.Cr.App. fore reverse 631 at 164 S.W.2d entry judg- of a the cause for 1982). and remand The State has failed to establish Holding instead that acquittal. appellant ment of suspicion more than a rape and of aggravated bodily injury attempted or the elements caused serious 246, ma- may “overlap,” op. at from the murder to cause death conduct discrete respectfully I dissent. killing jority “The law deems such level of does not. itself. proof support insufficient to a convic- Pick- upon
tion circumstantial evidence.” BAIRÍ), J., joins opinion. this State, supra, ering v. at 129. BAIRD, dissenting. Judge, of a threat of death Nor is there evidence compelled bodily injury or serious majority fails to follow our Because the rape. The record Bickham to submit to the statutory interpretation estab- policy of express threat contains no indication of State, 818 Boykin lished in S.W.2d Certainly Bick- at all.16 the bruises on resрectfully I dissent. (Tex.Cr.App.1991), and forearms tend to show ham’s hands correct; a page Judge Clinton is See must have response to acts or deeds that upon murder based conviction However, conveyed some level threat. aggravated rape re- commission 21.- under this Court’s construction of § bodily that causes serious quires conduct 03(a)(2), supra, provision read in as that injury separate from that which causes 1976, threat, express “absent an verbal evi- (Clinton, J., complainant’s At 248 death. prove aggravated sufficient dence was reasons, dissenting). following I For the knife, rape gun, ... when a join Judge dissent. Clinton’s used, deadly weapon bodily was or serious inflicted.” Rucker injury was fact I. (Tex.Cr.App. at 586 1979). Here there is no that a general evidence rule of majority states the made, weapon verbal threat was that a statutory interpretation follows: used, bodily injury in- or that serious statute, try interpret any we When we prior during flicted to or the commission of intent or effectuate the ‘collective’ “to rape. I is a Thus would hold there legislators who enacted purpose of the proof failure of of a threat sufficient State, legislation.” Boykin v. Rucker v. aggravated. show the (Tex.Cr.App.1991). Nor- State, supra.17 goal sim- mally, accomplish we this will focusing on and
Accordingly
ply by
evi-
our attention
we should hold
meaning
discerning
objective
dence is insufficient to establish
of its
text at the time
guilt for the offense of murder committed
statute’s literal
aggravated rape.
Id.
majority
In the
of situa-
keep-
in the course of
enactment.
States,
tions,
yield
re-
with Burks v. United
ing
exercise will
an end
437 U.S.
(1978)
effectuating the intent of the
98 S.Ct.
269 aggravated requires proof of an sexual still interpretations of the statute ministrative majority, by permit- Today legislative history” to determine wheth- assault.4 capital mur- Legislature er intended of death for the offense ting imposition hypothetical not commit- apply der statute to rape which aggravated of was majority. Like- by сreated by situations required of murder as ted in the course wise, authority support I have found no 19.03, legislative efforts thwarts § majority’s conclusion. by punishable of narrow the class crimes 19.03, death. time of enactment of At the § aggravated penal provided code for the majority our es- abandons Because the offenses listed commission of three of the interpretation, statutory policy tablished 19.03(a)(2): kidnapping aggra- and within § com- respectfully these I dissent. With (See, kidnapping Tex.Penal Code vated ments, Judge I dissent. join Clinton’s 20.04); robbery and and Ann. 20.03 § § robbery (See, Tex.Penal aggravated Code and, 29.03); rape
Ann. 29.02 § § (See 21.03).3 rape 21.02 aggravated § § Legislature re-
Clearly, could have aggravated kidnapping
quired proof robbery
aggravated
refused
do so.
but
Leg-
explanation
offers
majority
no
specifically require
decision to
islature’s
EMERSON,
Christopher
Jethro
aggravated
proof
rape
support
of an
Appellant,
capital
murder.
conviction
v.
Rather,
majority
recognize
fails to
19.03 was enacted
wake of
§
Texas, Appellee.
STATE
Georgia,
238,
92
Furman
408 U.S.
S.Ct.
No. 1139-90.
2726,
(1972) (decided in con-
statute that narrowed the class of crimes Texas, 408
punishable death. Branch v. 310-311, (White, J., 2763
U.S. S.Ct. at
concurring). light being 19.03 en- § Branch, following the term can acted Legislature specifically assume aggravated require proof
chose to eligi- limit the of death order to number Indeed, 19.03, although offenses.
ble § forms, Legislature other
amended 3, 1983; 977, 1, 5312, Sept. Acts committing p. eff. charged § ch. 3. 1987; 20, 573, 1, 1987, 1, original- Sept. Leg., on December 1976 and § offense 70th ch. eff. Therefore, C.S., ly and, and convicted in 1977. all Leg., tried ch. 70th 2nd Acts to the Penal Code herein will be to references Therefore, Sept. offense the instant eff. 1987. as it at that time. the code existed prosecuted mur properly as a could be September 1983. after der had it occurred Legislature effectively It should be noted the However, retroac amendments are not those eligible expanded the class death offenses in (Tex. Lindsey v. tive. by amending our statutes and 1987 related 1984). App. renaming aggravated rape, "ag — Dallas to gravated the offense Leg., sexual Acts assault.” 68th