*1 thority or argument appellant’s for the
claim presented. States,
In Holder v. Supreme United
Court addressed a situation which a
witness, courtroom, who had been in the
testified objection when no was made on
the basis of the Rule until after he testi-
fied. Supreme Court said that trial
courts may prevent a witness from
testifying solely on the basis Holder,
violated the Rule. U.S. case,
did give beyond reason the violation
of the Rule excluding testimony.
But the trial found, court could have as we concluded, that Harrell’s testimony
was not crucial to the defense. The other
cases cited in support of
her case distinguishable are on that basis.
We appellant’s overrule the sixth and sev- points
enth of error.
Having found no reversible we
affirm the trial judgment court’s and sen-
tence. MURPHY,
Jedidiah Appellant, Issac
The STATE of Texas.
No. 74145. Texas,
Court of Appeals Criminal
En Banc.
June 2003.
Rehearing Sept. Denied 2003. *4 Seidel, Dallas, Appellant.
Adam L. DA, Dallas, Smith, Asst. Lisa Braxton Austin, Paul, Atty., Matthew State’s State.
OPINION J., HOLCOMB, opinion delivered MEYERS, PRICE, Court, in which HERVEY, JJ., KEASLER, joined. 2001 of Appellant was convicted June capital murder. Ann. Tex. PeNal Code 19.03(a). jury’s answers § Pursuant to in Texas special issues set forth to the 37.071, Procedure Article of Criminal Code 2(b) 2(e), judge §§ the trial sentenced § 2(g).1 Art. 37.071 appellant to death. is automatic. appeal Direct to this Court 2(h). twen- § raises Appellant Art. 37.071 affirm. ty points of error. We indicated, all references to Criminal Procedure. 1. Unless otherwise Texas Code of articles refer to those error,
In point appellant Prospective jurors first would need be in- the trial rights claims court violated his proof by formed that the standard under Sixth Amendment to the United prove must its State case remains con- by limiting States Constitution his voir stant; may not it be increased or reduced questioning dire pertaining to State’s upon depending presentation a cer- proving beyond burden of a reasonable addition, In type tain evidence. because appellant posed doubt that a future dan proof by the standard of which the State ger. In pretrial appellant hearing, prove must its is not case affected sought permission from the trial court to presentation any certain type evi- prospective jurors ask following two dence, the trial could reasonably questions: questions have concluded that the would testimony
Would victim character cause confusing misleading. error you to reduce State’s burden of one is overruled. proof Special Issue 1? Number second you promise you Do the Court argument asserts the same he made not do so? I, point of error one under Article Section *5 objected The State on the ground the However, 10 of the Texas Constitution. questions sought commitments from the appellant because not argue does
jurors. The court
sustained
State’s
provides,
Texas Constitution
or should
objection. Appellant argues
ques-
that his
provide, greater
protection
or different
simply inquired
prospective
tions
whether
counterpart,
than
federal
appellant’s
its
jurors would
the State
its
hold
to
burden
inadequately
is
See
error
briefed.
proof notwithstanding
presence
(Tex.
State,
v.
Heitman
her juror’s law her oath. reasonable doubt: or the find permits jurors to the law [T]hat dire, that her
During Treat stated voir cases some dangerousness future phrase “criminal acts understanding of the alone does the facts of the offense type meant “the same of violence” so, jurors must do or even mean that all de- as murder that the crime” particular juror’s so. A doing consider convicted of have been fendant would a proof beyond reason- understanding of phase. maintained that guilt Treat may require him to lead able doubt prove have to that the defen- would State of suffi- legal than the threshold more attempt to commit commit or dant would spe- to answer the second cient evidence prove future another murder order There noth- affirmatively. cial issue questioned by When dangerousness. that; fact, quite court, intentionally ing unlawful about
trial Treat stated that judge himself mentally opposite. a dis- As trial causing become person Bradley early in voir drug explained them a that would giving abled dire, coma also to the must put juror them into a rise an deter- individual act violence but con- a proof beyond level of criminal reasonable mine what him, even ceded later that these circumstances the law does doubt means to essentially attempted to an mur- amounted ... tell That individual him[.] der. high- threshold would set his venireman minimum required sustain er than the Fuller jury does not indicate he has verdict denied, (Tex.Crim.App.1992),cert. 508 U.S. *6 law. prejudice against the bias or 941, 2418, 113 124 640 S.Ct. L.Ed.2d (1993), ci- venireperson challenged (emphasis was footnotes and added and Id. omitted). ground cause that she would
for on tations punishment for imposing capital consider State, 799, 917 S.W.2d 811 In Rachal v. only. serial murderers We said that “[be opinion), cert. de (Tex.Crim.App.)(plurality categorically our law does re cause 1043, nied, 614, 117 S.Ct. 136 519 U.S. capital punishment only those serve for (1996), venirepersons L.Ed.2d 539 two before, may who murdered neither by for challenged were cause State. jurors capital individual a case.” murder that Venireperson Terrell testified even accordingly held that under these cir We beyond a reasonable doubt she believed cumstances, trial court did not abuse proved danger had future that the State chal granting its discretion State’s ousness, not answer the issue she would for Id. lenge cause. at 201. present also affirmatively unless State 859, had Garrett, prior a trial evidence that defendant 851 S.W.2d ed Venireperson granted felony for conviction. Id. challenge State’s if convinced be against who Adams testified even venireperson cause a testified that the future a doubt defen yond that he never answer the reasonable could danger, he would would be a future dangerousness affirmatively issue based dant require that the de facts nevertheless evidence solely of the offense. being kill human harboring was for another venireperson
The struck fendant answer the issue affirma upon before would prejudice against a bias law un defendant conceded that rely. tively. We entitled State Fuller, venirepersons proper reversed, juror were each must der explaining that had challenged, argued that Fuller proof ly for himself what amount of but decide 598 by
been
A plurality
against
overturned
Garrett.
challenge
cause
Treat. Treat
of the Court disagreed, holding that Fuller was entitled to determine for herself what
distinguishable.
controlled and Garrett was
dangerousness
future
meant
her. That
Id. at 811.
require
attempted
she would
a murder or
murder did not
her challengeable
render
later,
year
majority
A
for cause. Id.
State,
102,
Court in Howard v.
941 S.W.2d
129 (Tex.Crim.App.l996)(op. on reh’g),
But Treat’s
from the jury
exclusion
denied,
(2002),
cert.
that:2 except (Tex.Crim.App.l997)(stating that
A requires venireman who evidence of a errors la certain federal constitutional prior murder demonstrated an Supreme by beled United Court as States inability to abide the law if his re- “structural,” im categorically no error quirement predicated upon per- analysis). mune Appel to harmless error sonal threshold reasonable doubt. lant claims exclusion vio Treat’s erroneous more, The State must show viz: 35.16, lates and the Witherspoon, Article the venireman’s insistence on evidence appellant’s Fourteenth Amendment. As to prior prevent of a will him murder from claim, appellant Article 35.16 must show honestly answering special issue re- granted erroneously challenge gardless of whether he was otherwise deprived lawfully cause him of a constitut convinced beyond reasonable doubt of State, 738, ed jury. 71 Feldman v. S.W.3d dangerousness, future before it can be 749 (Tex.Crim.App.2002); Brooks said it has met its burden demon- 278, (Tex.Crim.App.), 990 cert. S.W.2d strate the venireman cannot follow the denied, 528 U.S. S.Ct. law. (1999); L.Ed.2d 300 Jones v. Thus, Howard, plain Id. under it is (Tex.Crim.App.1998), cert. prospective jurors may form their own def- denied, 528 U.S. 120 S.Ct. proof initions beyond reasonable doubt (1999). L.Ed.2d He no such has made *7 they challengeable are not for cause here. showing Point of error three is upon type based the of amount evi- overruled. they
dence to require reach that level of error, however, Witherspoon is not confidence. Id. Only at 127. if the venire- Jones, subject analysis to harm under person would to refuse answer the issue 982 S.W.2d at We stated Jones 391. “yes” type unless certain of evidence is that, circumstances, “[o]nly in very limited presented, even if pre- the other evidence juror erroneously when a is excluded be sented were sufficient to them convince of general cause the opposition to death special beyond issue a reasonable doubt, error), “does the penalty” (Witherspoon would be venireperson chal- lengeable Accordingly, juror by for Id. exclusion of a an unintentional cause.
trial court
granting
erred
State’s mistake amount
viola-
to a constitutional
holding,
legal
challenges
2.
In so
the Court
justifying
in Howard noted
criteria”
for
as
Howard,
cause).
jus-
the existence of other
that
circumstances
599 through error five points a venire- Witherspoon, tion.” Id. Under the trial court erred eight, appellant claims “only person be excluded where would for appellant’s challenges cause by denying they it clear they unmistakably made venirepersons. Appellant four against automatically impo vote against would all biased venirepersons claims these were penalty, of the death or where their sition his chal the law and therefore against preclude making from attitude would them grante lenges for cause should have been impartial guilt determination or inno d.3 State, Drinkard v. 776 cence.” S.W.2d venireperson (Tex.Crim.App.1989). In During Wain the voir dire Witt, asked him 412, 105 844, Phillip Mays, defense counsel
wright v.
469 U.S.
S.Ct.
man conflict
when “the laws of
about times
(1985),
Supreme
establishing her own definition of that range the full he could not consider phrase implicate does not Wither claims Robuck punishment. Appellant spoon/Wainwright. Treat harbored no punish- years not as a could consider five penalty. to the death general opposition a for intentional murder. But ment an her on She was not excluded because views reflects that when the review the record general pre in punishment asked Robuck to consider some trial court five impair performance. years vent or her scenarios which hypothetical punishment, appropriate be Ro- might overruled. an error four is assume, complaints deciding, preserved his for review. 3. We without that agreed buck he that could consider five In its usual acceptation, chance[.]” a years and that “completely stated it de- “probability” something more than a pends on Appellant the circumstancefs].” “possibility.” As this Court stated in not shown that Robuck could con- State], 417, 421, Smith[v. punishment sider the full range for mur- State, which we relied on v. Cuevas[ der. (Tex.Crim.App.1987)], S.W.2d 331 “we special know that the second issue calls Appellant claims veniremembers proof for of more than a bare chance of Kimberly Thomas Brooks and Williams future violence.” than Requiring more a equated each the term “probability” of fu possibility mere that the defendant dangerousness ture “possibility.” He would commit criminal acts violence complains that the trial court should have continuing and would constitute a threat granted challenges against for cause society prevents freakish them on that basis. penalty. wanton of the death assessment dire, During the voir State’s Brooks ex- venireperson] understood [the Since plained his understanding the term “probability” only “possibility”, he as “probability” meaning as “not definite.” challengeable was cause. properly During questioning by counsel, defense We hold the trial abused its dis- explained Brooks that it “[i]t’s meant not a appellant’s challenge. cretion denying thing.” definite He stated it that was something “possible that the fu- (footnotes omitted). Id. ture” but that could not “put number Assuming Brooks’ and Williams’ under- on it.” He it stated was “a chance.” Dur- standings probability term was erro- ing Williams’ dire by voir neous, appellant has not shown he was Williams “probability” stated that meant entitled to Al- strike them for cause. could, possible “it’s it have could not.” though “proba- have we held that the term Upon further questioning, agreed she defined, bility” need not be we also fifty it would have percent to be more than held that the than a terms means “more chance on a scale zero to one hundred. Further, possibility.” mere Id. it must be questioned by When defense counsel explained to the veniremember Williams reiterated she would define accept him requires law to see and probability possibility. as a When ques- distinction between the terms as set forth about percentages by tioned the trial law, in Hughes. explained Once court, Williams She contin- say. could prospective jurors upon continue insist probabil- ued to reiterate that she believed or understanding definition of the term
ity possibility mean the same thing. Hughes, that is inconsistent with then Appellant Hughes relies 878 may challengeable In these cause. (Tex.Crim.App.1992), in circumstances, where the law was not Court reversed a conviction carefully adequately explained upon based an erroneous of a denial chal- Brooks, Williams and the trial court did lenge venireperson against cause who in denying appel- not abuse its discretion *9 equated “possi- the term with “probability” challenges lant’s of for cause. Points error bility.” We held: eight five through are overruled. venireperson’s] during [The answers his nine, point appel dire In error
voir indicate that he understood of “probability” any percent lant claims he was possibility as denied effective assis counsel, than tance “good rather as a “likelihood” of violation of the Sixth
601 be- penalty and supporter of the death to the Unit- and Fourteenth Amendments penalty dire, as a Constitution, lieved it should be available during voir ed States He non-capital for intentional murders. peremptory his used trial counsel when ju- on criminal previously two venirepersons two whom had served against strikes ries, returned convictions. erroneously of which he had unsuc- both counsel believed father had an “extensive Stating Finally, Wilson’s cessfully challenged for cause. Department. Police career” the Dallas challenge against for cause venire-
that his denied, that opinions held Venireperson Colditz person Mark Colditz had been de- to the might be viewed as unfavorable peremptory utilized a strike fense counsel a He he would have But record defense. testified against him. reflects alcohol, use, drug considering hard by cause time was submitted for Colditz erroneously stating mitigating even mental retardation to be appellant. Also his initially He stated that he challenge against venireperson cause evidence. also for denied, a acquit for failure was defense counsel would be “reluctant” John Wilson violation, prove a peremptory against a strike him. venue or for Miranda exercised in the both of which were contested issues prevail claim In order to on a of ineffec record, light case. this “there is at of counsel, appellant must tive assistance that counsel’s use of possibility” least the by preponderance of prove a the evidence on and peremptory strikes Wilson Colditz (1) performance was defi counsel’s and strategy was trial accord- reasonable (2) that, cient; defi and but counsel’s decision. See ingly, we defer to counsel’s pro performance, cient the result of the id. nine is overruled. error ceeding been would have different. Washington,
Strickland v. 466 U.S. appel In his tenth (1984). 104 S.Ct. 80 L.Ed.2d We be abated appeal lant claims this should repeatedly have that “[i]f stated counsel’s findings files fact until the trial court appear reasons do conduct required law as Arti by and conclusions of possi and is at record there least Appellant pretrial filed motions cle 38.22. bility that the conduct could have been seeking suppression of oral written legitimate trial we defer strategy, will ground on were statements deny counsel’s decisions and relief a involuntarily The trial court held made. claim on appeal.” ineffective assistance direct jury’s presence, but hearing outside the State, iz S.W.3d Ort of fact and findings did not enter written (Tex.Crim.App.2002). regarding conclusions of law admissi However, Despite appellant’s bility the statements. counsel’s mistaken cause, challenges hearing, about the close the trial dictat belief into the may ultimately peremptory findings have utilized ed its and conclusions challenges require A trial court satisfies the against Wilson Colditz for record. it dictates its
any legitimate As the ments of Article 38.22 when number reasons. out, the court re points findings voir dire and conclusions to State review their porter, they are transcribed and made examinations reflects a number of issues facts, part filed with legitimately a of the statement might the defense part clerk and a peremptory For the district made found warranted strikes.
instance, Parr v. appellate a record. had been witness Wilson see (Tex.Crim.App.1983); body of an S.W.2d finding murder case after also Andrade v. employee disgruntled was who shot 1999, pet. Dist.] strong (Tex.App.-Houston [14th employee.
fellow Wilson also *10 602 Parr); State, 6B, “Questions
refd)(following my Lee v. 964 began Exhibit law- 3, (Tex.App.-Houston 11-12 S.W.2d and yers” by [1st was followed six numbered 1997, Parr); pet. refd)(follawing Dist.] paragraphs, signed and at the by bottom 601, Amunson v. 6C, 608 “Jim.” Defense Exhibit stated on the 'd)(fol 1996, (Tex.App.-San pet. Antonio ref lawyers! my help back: “To Please me Parr). lowing That been done this problems I’m having, with the the staff ten ease. of error is overruled. a only me as monster.” The sees other began writing, narrative side its “Mi- error, ap his eleventh ” Substantively, .... they pertain chael al- pellant rights pursuant claims his to the appellant’s exclusively most desire to Sixth Amendment of United States psychiatrist prescribe contact a medi- prose Constitution were violated when the stop pre- cation to and hallucinations examined cutors letters and notes written him “losing vent from his mind.” The by appellant to trial attorneys prosecutor papers who reviewed the testi- protected by were attorney-client privi that he any fied did use information trial, materials, lege. Before
603 Texas; denied, Greenville, the Andrews Center required), cert. ing prejudice 531 1161, Texas; Psychiatric 121 L.Ed.2d in Timberlawn Tyler, S.Ct. 148 U.S. Steele, (2001); Dallas, my 727 And rec- Hospital United States in Texas. (6th appel Cir.)(holding
F.2d 586-87 in he’s is all of those documents ollection prejudice), failed to show cert. de complaints lants about hallucinations. made nied, U.S. S.Ct. Davis, And, yesterday you also Q. Mr. (1984). pre Even where a L.Ed.2d 353 wit- a number of to or examined talked it sumption applied, courts allow to is some knowledge their or regarding nesses F.2d n. Briggs, 698 at 495 be rebutted. split person- ego alter or hearing any (noting government presump free to rebut defendant; is that cor- from the ality tion). rect? view, calling for a A. Yes. showing
In our prejudice light is better rule in source, Q. you And can tell us what variety of the wide circumstances under reviewed, you absent these letters that privilege might which the be breached. across that information? you came Moreover, such rule with our is consistent Hospital A. Glen Oaks records. case own law. See Cain v. proceedings were adverse- Because (Tex.Crim.App.l997)(only into the attor- ly by tainted the intrusion Supreme designated errors Court ney-client appellant is not enti- privilege, are categorically as “structural” immune tled to a reversal. Point of error eleven analysis). error from harmless overruled. prejudice The evidence reflects no point ap In his twelfth appellant. prosecutor The who reviewed pellant claims was insufficient the evidence privileged documents testified that he prove venue. At close of State’s in any did not use of the information case, sought a directed verdict three in pages preparing material ground that the evidence was insuf questioned specifically case. When about County. prove venue in Dallas ficient appellant’s an issue discussed at trial that Appellant’s for a verdict motion directed attorneys potentially coming identified as jury charged that was was denied. materials, prosecutor pointed from the any in proper one of follow venue was in to several other sources which he had ing counties: obtained the information: (1) county in which the offense in Q. attorney] you point [Defense Can committed, or you out—outside these letters that (2) in one property where the is stolen reviewed, point you you said that can by county and removed the offender place your investigation in any out another, county where defen- mention that made of hallucinations? any property other dant took the or
A. I can to several [Prosecutor] may county through or into all, First of the defen- instances.... same, have removed the or records, I’ve those. jail dant’s reviewed (3) injury in one person if a receives an he was first booked into Dal- When Jail, county com- and dies another reason County las he made numerous county where the injury, also in the plaints hallucinations. I’ve re- such the death injury was received where medical records from viewed numerous occurred, county where the or in the past, various institu- defendant’s found, tions, Hospital body including Oaks dead Glen
(4) in county kidnap- may the in the prosecuted. special which be These ven- committed, ping any offense or in ue statutes have been enacted vari- into, county 1) through, reasons, or out of which the ous difficulty such the as: person kidnapped may have been taken. proving precisely where the offense was 2)
However, committed; if an offense has com- the location where been evi- 3) found; mitted within this State it cannot dence of the crime effect readily be within which determined that may upon a crime have several county 4) or counties counties; the commission took different or the effect that place, may county trial in the in held may upon the actor various coun- resides, which the defendant in the species ties. Texas venue statutes are county apprehended, in which he was or juris- codified “substantial contacts” in county to which he was extradit- diction; thus, lie, for venue to the defen- ed. dant, conduct, victim, or the fruits of his crime must have some rela- Appellant objected charge, to arguing tionship county. the prosecuting to The county that venue should be limited to the Legislature specified types has Appellant’s where homicide occurred.
objections satisfy contacts that this “substantial Appellant were overruled. does complain appeal in this contacts” threshold for various offenses. about instructions, court’s alleges only but Soliz prove the evidence is insufficient venue omitted). (Tex.Crim.App.2003)(footnotes in County. Dallas special While some venue statutes 13.18, spe- Under Article if venue is not expressly apply penal to identifiable code cifically stated, proper county then the offenses, special provisions ap- other venue prosecution in county which the ply particular virtue facts of the offense was In appeal, committed. this specifically charged case rather than the reasons since there is no Compare (applicable offense. Art. 13.12 specifically governing capital statute mur- imprisonment kidnapping prose- false cases, applies. Applicant der Article 13.18 cution); (applicable prosecu- Art. 13.13 argues county “the in which the of- conspiracy); tion criminal Art. 13.14 committed” capital fense was in a murder prosecuting (applicable bigamy) when case should be the in which the county (applicable Art. 13.01 “offenses commit- argues homicide occurred. He further State”); in part wholly ted outside this restricted, that if venue were so evi- Art. 13.04 commit- (applicable to “offenses dence would prove be insufficient to ted the boundaries of two more homicide occurred County. Dallas counties, yards or within four hundred prove State only by need venue thereof’); (applicable Art. 13.06 of- preponderance of the evidence. 13.17. Art. streams); fenses committed on rivers or recently explained pur- We effect (applicable Art. 13.07 case in which vic- pose special provisions: venue injury county tim receives one and dies another). Texas, Legislature special if the There is no venue prose-
specified specific type expressly applicable venue for a statute to the crime, proper county capital then “the is there cution murder. Nor prosecution of that in mur- any providing capital offenses is which statute that in cases, Special only offense was committed.” der venue occurs where the statutes, however, venue expand place. Any homicide takes number of the provisions number of counties in an special may apply offense venue to a offense is case, upon provides Article 13.19 depending murder given “cannot the state but committed within its facts. county readily be within which determined case, last In the instant the victim was *13 place,” took or counties the commission in County.
seen alive Collin In confes- county in the can held the in which trial sion, drinking he was appellant stated that resides, he county where the defendant at a bar called Bleachers. There was evi- county to he is or the apprehended, Sports a bar dence that Bleachers Grill is made a provision This was extradited. County. in to his According located Dallas charge. Given the of trial court’s part the confession, appellant left Bleachers and the difficulty determining exactly where a ride with the victim “on the road hitched occurred, jury rational could offense way beside Bleachers to 635.” [his] provision concluded on this and have relied Myers Detective the area testified County, the in Dallas proper venue was in Dallas from Bleachers to 635 located Point of county appellant’s residence. Appellant’s further County. confession error twelve is overruled. appellant and states that the victim were toward when the driving he asked point of In his thirteenth trunk, stop
victim and get to and into the the its appellant claims trial court abused shot her. The suggests then admission appellant’s request by denying discretion in this occurred somewhere the same phase trial to during punishment the area as the abduction —between Bleachers photographic suppress an out-of-court and Dallas County. Appellant within by Sherryl made identification thereafter around in the victim’s car drove Wilhelm, in violation of the Due Process in to various locations Collin and Dallas Fifth Amendment Clause Counties, using the credit cards victim’s testi States Constitution. Wilhelm United attempting and her ATM The use card. hearing presence at a outside fied although medical examiner testified that jury that in she went August fatal, gunshot wound was victim work to her on lunch break while out car could have lived for several minutes or Hospital. Arlington Memorial ing longer shooting. after the victim’s door, a man opened she her car When body in in was discovered a creek Van her her from behind followed pushed County. Finally, Zandt the evidence made at into the car. Wilhelm several offense, showed that at the time of the until tempts open passenger door County. appellant’s residence was in Dallas man to choke her. He ordered started floor her face stand if it is sufficient her onto the board with Venue will seat, while he out any provisions under one of the venue down drove worked jury upon. parking gradually Wilhelm was instructed Cardenas lot. Cf. passenger seat way upright onto 389 her up. the ear was allowed sit When (Tex.Crim.App.2000)(holding case, light, at a Wilhelm sufficient traffic murder evidence must be slowed down onto the street. under- out and prove disjunctively alleged jumped one of rolled Brooks, offenses); help from another motorist. at 283 received lying She white, her abductor as jury general described (stating when returns She haircut, earring, disjunctively a short indictment clean-cut with guilty verdict on build, shadow, medi slender alternative of commit- a five-o’clock charging theories twenties. offense, height early to tall ting verdict stands if evi- um same obscuring nothing there was supports any charged). dence of theories Wilhelm said his face and she in the up. car with him the neck Stanton testified that he was approximately thirty Doug- modify photos computer minutes. able to so Ligón, police las H. size, officer trained in that appeared posi- ah similar tion, composite sketches, producing worked and background. None of the sus- in composing drawing pects Wilhelm apparently stands out as of a differ- her Ligón abductor. testified that Wil- ent race suspects. from the other The trial helm having also described man as court did not abuse its discretion in over- dark and being olive-complected. ruling appellant’s objection hair to the reliabili- October watching while a television ty lineup on the race. basis of case, report *14 news about the instant Wil- of error thirteen is overruled. composite helm drawing saw of the sus- error, In point his fourteenth of pect recognized for this offense and him as appellant the claims trial court abused its the same man who had abducted her. She in denying discretion for a request jury Stanton, contacted Detective of John the required instruction that have Arlington Department, Police in- who had to jury only consider extraneous offenses vestigated her case earlier. the purpose determining the future put Detective Stanton testified dangerousness special issue. This argu together lineup photos, including of six rejected ment has been pre addressed and appellant’s picture, for Wilhelm to view. State, 469, viously. v. Jackson 992 S.W.2d suspect He told might Wilhelm that the (Tex.Crim.App.1999). 478 Point error might lineup, not be in the and that it fourteen is overruled. necessary anyone.
wasn’t
to
her
choose
fifteen,
In point
appellant
of error
He testified that when Wilhelm viewed
claims the
punishment
trial court erred at
photo
five,
number
appellant’s photo, she
failing
in
to
to
jury
submit
definitions
stopped and there
in
change
was visible
“probability,”
of the terms
“criminal acts
her demeanor. Stanton stated that Wil-
violence,”
and
“continuing threat
so
said,
God,
helm
my
“oh
I’m—I’m virtually
ciety.” Appellant argues that without def
sure ...” and
quiver-
that her voice was
terms,
initions for these critical
the statu
ing.
Stanton asked her
she was sure
tory aggravating circumstances are not
and she said she
sure as she could
was as
narrowed,
adequately
jury’s
and the
ver
this
Although
after
amount
time.
rationally
dict is not
reviewable. This
appellant now asserts a number of reasons
repeatedly
Court
held
these
rehable,
why
photo lineup
was not
are
unconstitutionally vague
terms
and
objected
trial he
solely
ground
jury
presumed
to understand them
the photo lineup
appeared
up
be made
State,
without an instruction.
v.
Feldman
individuals
“different races.”
738,
(Tex.Crim.App.2002);
S.W.3d
appellant objected solely
Because
on this
(Tex.Crim.App.1999),
v.
Ladd
basis,
will
reliability
we
address the
of the
denied,
t.
529 U.S.
cer
1070,
lineup
ground
on this
alone.
The race
120 S.Ct.
tional. twenty are over- of error nineteen (Tex.Crim.App.l999)(citing numer 586-37 ruled. denied, support), cert.
ous cases the trial court is af- judgment of 120 S.Ct. L.Ed.2d 782 U.S. firmed. (2000). Point of error sixteen is overruled. seventeen, appel of error KELLER, P.J., in the concurred result penalty lant claims the Texas death of Error Number respect process of scheme denied due joined opinion Three and otherwise *15 Fifth, law, in of Eighth, violation and the Court. Fourteenth to Unit'ed Amendments JOHNSON, J., opinion, filed impossi States Constitution because of the JJ., joined, and WOMACK COCHRAN bility simultaneously restricting respect that in the result to concurred
jury’s
impose
pen
discretion
the death
and Eight
Error Numbers
Points of
Seven
alty
allowing
jury
while also
unlimited
joined the opinion
and otherwise
of the
mitigat
discretion to consider all evidence
Court.
ing against
imposition
the death
penalty. Appellant relies solely on Justice
JOHNSON, J.,
concurring
filed a
Blackmun’s dissent from the
States
United
opinion in which
and
WOMACK
Supreme
Court’s denial
certiorari
in COCHRAN, JJ., joined.
Collins,
Callins v.
U.S.
S.Ct.
join
opinion
except
I
as
Court
(1994)(Blackmun, J.,
jected identical claims. 3 S.W.3d at those points. 575. Point of error seventeen is overruled. In murder trial in which the a point eighteen, appellant In of error penalty, state Texas law seeks death I, makes same claim Article under requires jurors whether determine sections 13 and the Texas Constitu- probability a that the defendant “there is tion, that he sev- asserts error criminal of violence that would commit acts enteen. appellant argue Because does threat to so- continuing would constitute that provides the Texas Constitution ciety. Only jurors if all believe that ...” greater provide any should different or danger to be a the defendant will continue protection in this fails to regard, penal- trial assess the death can the Tex.R.App. adequately brief this claim. 37.071, art. ty. Tex.Code.Crim. Proo., 38.1(h). eighteen Point of error
PROC. 2(d)(2). 2(b)(1) Thus, impera- §§ and it is overruled. jurors the difference tive that understand points twenty, In of error nineteen and “possible.” and “probable” between appellant claims the cumulative effect of will win the possible it is that I the above enumerated constitutional viola- While indeed, it is process probable; him law in it is not lottery, tions denied due improbable. highly plained There are re- that several he has suffered harm by the ports people receive from mailings who expend need to peremptory challenges. Clearinghouse say Publishers that harm, He therefore failed to establish and, they “may already be winner” con- I would find the error denying fusing possibility begin and probability, challenges for cause was harmless.
spend as have won For millions.
them, inability distinguish between
“probable” “possible” has a financial
cost.
If juror “probable” “pos- confuses
sible” and also believes that is a there
small chance that might the defendant future, commit violent acts in the even if HALL, In re Sharron Relator. juror also believes that another vio- No. 12-01-00065-CV. unlikely, juror may lent act is feel compelled to find that the defendant is a Texas, Appeals Court of danger. juror future If that is also the Tyler. vote, twelfth of that cost confusion is March 2001. the defendant’s life. Rehearing 2001. Aug. Overruled Hughes
(Tex.Crim.App.1992), this Court stated *16 prospective juror
that a who distin- cannot
guish probable between possible and is
properly challengeable for cause and that
the trial court its abused discretion de- Too,
nying legisla- such a challenge. very
ture when specific promulgated it procedures death assessing the
penalty, and this Court bound those
procedures. legislature required
“probability,” and so must this Court. case, jurors appear this two from the “proba- distinguish
record to unable to
bility” “possibility.” and Brooks stated “ ” chance,’ probability that the ‘a while
Williams “continued reiterate that she probability
believed mean possibility thing.” Murphy op. same
-, Hughes, supra. Under both Brooks properly Williams were challengeable,
and the trial court abused its discretion appellant’s
denying challenges to them. Although
The next issue is harm. I find an abuse discretion as to Williams,
both Brooks and
neither served
jury,
has not com-
written
notes
contained in them in his prosecution of
letters,
and
three
including
pages of hand
appellant. The trial court concluded that
appellant’s
written notes
attorneys,
if
any
there was
it was harmless
jail
by jail
were seized from appellant’s
cell
beyond a reasonable doubt. The court did
personnel
appellant
after
attempted a sui
find, however,
6A,
that Defense Exhibits
cide. The
by
documents were viewed
6B
6C
attorney-client privileged,
were
prosecutors
Appellant
before trial.
claims
questioned
but
they
whether
were located
the seizure
knowing
amounted
“in secure
place.”
and confidential
attorney-client
unlawful intrusion of the
privilege
and he is therefore
The State’s intrusion into the at
to a
entitled
reversal.
torney-client relationship
a defen
violates
trial,
During
hearing
held a
right
dant’s constitutional
to counsel when
presence
of the jury.
outside
An em-
prejudiced by
defendant is
the viola
ployee
County
Morrison,
Dallas
Sheriffs De-
tion. United States v.
449 U.S.
partment
pursuant
361, 365-66,
665,
testified that
to the
101 S.Ct.