*1
Marmor,
Malinas,
tía R.
Antonio, Ltd.,
Ruth G.
313-14,
Ball &
Weed,
Cukjati,
Curtis L.
(2005).
Martin Cukja-
&
*1,
2005 WL
at
For the
ti, L.L.P.,
Antonio,
San
party
for real
in reasons stated in In re McAllen Medical
—
interest.
Center,
S.W.3d—,
Favela a form consenting to sur-
gery but not the use of blood or blood
products. Several surgery, hours after
Dr. Ramirez large discovered a hematoma groin. Favela’s left Blood was withheld
in accordance with Favela’s wishes and he died seven hours later due to internal NEAL, Appellant Ronnie Joe bleeding. His wife and estate sued Dr. Ramirez and Sys- Methodist Healthcare
tem of San Antonio. The STATE of Texas. required statute, As days within 180 No. AP-75406. filing the Favelas served curricula vitae expert reports signed by Mandeep Dr. Criminal Appeals Court of of Texas. Dhadly, Jenny Beerman, R.N., and Sherri Ozawa, supporting R.N. their claim. Tex. June 13.01(d) 4590i, (re- § art. Rev.Civ. Stat. 2003).
pealed Methodist moved dis-
missal and sanctions on ground expert reports were inadequate. Id. 13.01(e).
§ Specifically, Methodist claimed reports appropriate omitted the stan- hospital
dard care and con- conclusory
tained statements regarding
causation. The trial court denied the mo-
tion, and petition Methodist filed a for writ
of mandamus.
The court of appeals, by memorandum
opinion, denied mandamus relief “because
an appellate remedy by appeal exists.” In
re System Methodist Healthcare San
I. DETERMINATION OF MENTAL RETARDATION Appellant’s points first three of er ror concern the of legislation absence im plementing procedures consistent with the Supreme United holding States Court’s Atkins v. one, Virginia,4 appellant argues that Texas’s penal death ty Eighth scheme violates and Four teenth Amendments United States given Constitution leg absence such islation. Angela Moore, J. County Bexar Public Court held Atkins Supreme
Defender, Antonio, San Appellant. of mentally per- the execution retarded son Eighth violates the Amendment’s Thornberry, D.A.,
Daniel Asst. Crim. prohibition on punish- “cruel and unusual Antonio, Horn, San Jeffrey L. Van State’s 5 Recognizing ment.” that there is “seri- Austin, Attorney, for the State.
ous disagreement” “determining which retarded,” offenders are in fact the Court OPINION to the States the task of develop- “[left] KELLER, P.J., opinion delivered the ing appropriate ways to enforce con- WOMACK, the Court in which stitutional upon restriction its execution KEASLER, HOLCOMB, HERVEY and Atkins, of sentences.”6 response JJ., joined. temporary judicial this Court created guidelines for trial in the courts absence juryA capital convicted *7 legislation.7 a We set forth substan- murder.1 jury’s Pursuant to the answers (detailed points tive test below under to the special set in issues forth Texas nine) eight procedural Procedure, Code of Criminal Article guidelines 37.071, 2(b) for trial to 2(e), §§ courts follow in de- judge the trial termining whether is sentenced him to a defendant mental- appeal death.2 Direct to ly of Atkins this Court retarded an Appellant purposes is automatic.3 raises twenty-six points later, claim.8 four years of error. We find all of Over the Texas them to be legislature without merit and any legis- therefore still has not enacted affirm. lation this matter. 304, 2242, 19.03(a)(2)("A § person com- 4. 536 U.S. 122 S.Ct. 153 L.Ed.2d
1. Tex.
Pen.Code
person
(2002).
mits an offense if the
commits murder
335
19.02(b)(1)
as defined under Section
and ...
person intentionally
commits
murder
5.
Id. at
10. 546 U.S. 126 S.Ct. 15. id. See (2005). 16. id. See
11.
Id. at
13. Tex.
justice
Indeed,
denied.”18
six,
if we
to
point
appellant
were
In
of error
con
satisfy appellant’s request,
not
we would
tends that
trial
court erred in declining
arrive,
if
point
know that
would ever
as it
empanel
separate jury
to
to determine
impossible
is
to
legisla-
know whether the
appellant
mentally
whether
is
retarded.
will
ture
ever
Appellant
Appellant
take action.
nev-
argues
jury
that
had not
er clarifies what
happen
he would like to
if
qualified
been
at voir dire to determine
legislation
enacted,
no
is ever
logi-
but the
retardation,
the issue of mental
but he
argument
cal extension of his
capi-
is that
by
this claim failing
question
forfeited
to
tal cases in which
jurors
mental retardation is at
at
mental retardation
voir
relegated
legal
issue would be
to a
no-
Appellant
argues
dire.
further
land,
man’s
to
unable
reach a final
jury’s
resolu-
determination was tainted because it
tion. To avoid
justice,
already
such denial of
we
appellant guilty
found
and was
uphold the Briseno framework unless
predisposed
and
thus
to find that he was not
legislation
until relevant
is
mentally
enacted. Point
retarded.
found no au
We have
of error one is
thority
overruled.
proposition
for the
that mental re
may not
by jury
tardation
be determined
two,
point
of
appellant argues
error
already
guilt,
ap
has
determined
that the
of statutory procedures
lack
Indeed,
pellant cites none.
we have noted
adjudicating Atkins claims violates equal
that the
of
may
nature
the offense itself
be
protection by subjecting different defen-
relevant to a determination of mental re
dants to different
procedures.
trial
tardation;
thus,
jury already
familiar
repeatedly
have
held to the contrary.19
with the evidence
at
presented
guilt
county-
draws an
analogy
stage might
especially
prepared
be
well
to-county discrepancies among election
determine mental retardation.
seeWe
no
procedures at
issue Bush v.
but
Gore>20
impose
basis on which to
on trial courts a
rejected
we
precisely
analogy
have
this
requirement
empanel
jury
a separate
previous
cases.21 Point
error
is
two
determine whether a
mentally
defendant is
overruled.
retarded. Point
error six is overruled.
three,
point
appellant
error
con-
tends that the trial
failing
court erred in
In points
eight
nine,
of error
the proceedings
legislature
abate
until the
jury’s
contends that the
determi
statutory guidelines
enacts
for determining
nation
mentally
is not
re
mental retardation.
against
great
This
tarded is
weight
presupposes
legisla-
that the lack of such
preponderance of
For
the evidence.
tion
appellant’s
claim,
violates
constitutional
purposes
an Atkins
we have de
“1)
rights.
already
As we
rejected ap-
have
fined
significant
mental retardation as
pellant’s
effect,
reject
claims to that
we
sub-average general intellectual function
ing,
this one as well. Point
usually
IQ
of error three
evidenced
an
score be
*9
2)
70,
overruled.
by,
low
accompanied
is
related
98,
525,
Id.
18.
20. 531 U.S.
121 S.Ct.
148 L.Ed.2d
(2000).
388
State,
521,
(Tex.
19. Roberts v.
220 S.W.3d
534
State,
Crim.App.2007); Threadgill v.
146
Roberts,
534; Threadgill,
273 3) of the weight preponderance great the adaptive functioning, limitations manifestly unjust.”26 as to be age of evidence so prior which occurs onset of findings give “great deference” to the evaluating We the Factors relevant 18.”23 below, in the best fact finder is the include: prongs three credibility and witnesses’ position assess person the best Did those who knew any conflicts in the evidence.27 resolve stage during developmental the —his friends, teachers, employers, au- family, pertaining turn now to evidence We mentally retard- thorities —think pre- defense retardation. The to mental time, and, so, if act in accor- ed at that only experts, but we will review sented two dance with that determination? be- testimony of Dr. Richard Garnett plans person only formulated who testified
Has cause he was the one through or his conduct appellant. carried them is Dr. Garnett specifically about IQ impulsive? had taken three testified that age 18. Neither the defense tests before leadership or conduct show Does his IQan test nor the State administered by it show that he is led around does 11, appellant At age for trial. preparation others? IQ 70. He received an score of received response his to external Is conduct 15, of 87 at age 72 at and a score score of regard- and appropriate, stimuli rational age 17. socially acceptable? it is less of whether coherently, respond
Does he rational- are that the scores Dr. Garnett testified ques- ly, and on oral or written “Flynn if effect.” applies lower one responses or wander from tions do his previously apply- have refrained from subject? subject to effect, however, noting that ing Flynn person concept” Can the hide facts or he effec- scientific it is an “unexamined tively in his or for provide own others’ interests? a reliable basis that does not signifi- concluding that an has
Putting any aside heinousness func- sub-average general cant intellectual capital gruesomeness surrounding the tioning.28 offense, that of- did the commission of require forethought, planning, and
fense appellant’s further noted Dr. Garnett purpose?24 complex execution school, including learning diffi- problems He failing grade. sixth an culties and
When
affirmative defense
trial,
adjusted poorly
parole
and was
mental retardation is
at
also
asserted
by
placement
ju-
prove
special
defendant bears the burden to
recommended
at
probation officers
Texas
of the evidence that he is venile
preponderance
addition,
Dr. Garnett
mentally
the suf Youth Council.
reviewing
retarded25
discus-
records and his own
ficiency
support
of the evidence to
find
cited various
retardation,
appellant’s family and friends
we examine
sions with
ing on mental
difficulty fol-
problems,
finding
against
showing
behavioral
whether
“so
Blue,
(quoting
v.
parte
S.W.3d
Id.
23.Ex
230
Meraz
CN
Briseño,
(Tex.Crim.App.2007)(citing
(Tex.Crim.App.1990)).
155
(_n
OJ
7).
at
S.W.3d
(Tex.Crim.
40
S.W.3d
27. Hall
24.Gallo,
(quoting
S.W.3d
769-70
Bri
at
App.2004).
seño,
8-9).
at
*10
S.W.3d
28.Blue,
25.Gallo,
230S.W.3dat
lowing organizational poor and deci- Dr. appellant’s Cesar Garcia had been skills, sion-making history getting of into doctor and on his testified based observa- physical fights, susceptibility being treating appellant. and tions while He testi- manipulated or of fied that is advantage appellant taken oth- articulate and could adequate grievance write out an ers. Dr. Garnett further statement. noted that these Appellant organized, problems initially navigate sys- is can age occurred before tems, and has functioning “executive He concluded that appellant all satisfied Finally, skills.” Dr. ap- Garcia noted that prongs for mental retardation. pellant had devised an elaborate criminal The expert witnesses, State called four escape plan. observations, on Based these all of whom appellant concluded that was Dr. Garcia appellant testified that is not not mentally retarded. Dr. James Sher- mentally retarded. man finding based this on records from Dr. Richard Coons examined various school, juvenile detention, and other appellant. testified, records related to He sources, as well independent as his own essence, major appellant’s problems that clinical evaluation. on his Based own test- personal are than rather intellectual. Dr. of ing appellant, appel- he concluded that appellant adaptive Coons testified that is underperform lant tended to on examina- society, fits with the standards his tions, possibly anxiety, depression, due to worker, cultural group, capable is a and is simple lack of motivation. He testified to accomplish able tasks when he is moti- that appellant understood the conse- do vated to so. Dr. Coons had reviewed quences of his actions history and had a writings by appellant creative and testified gang abuse, involvement and in- substance that he “a prolific compe- writer” and is alcohol, cluding spray paint, marijuana, expressing tent at his As thoughts. an LSD, and cocaine. He further testified example, Dr. poem by appel- Coons read a appellant that had gener- a limited fund of lant in depicted which he himself as lion al knowledge place but was oriented as to struggling cage to break free from the and time. society trapped which had him. Sparks Dr. John received records from Dr. Dr. Coons echoed Sherman in stat- indepen- State and also conducted an ing appellant’s poor performance that on report dent examination to on sanity, com- IQ tests seemed to result from extraneous petence, and mental retardation. He problems such as anxiety, depression, or sane, found appellant competent, lack of Dr. motivation. Coons also noted mentally and not retarded. Dr. Sparks Flynn the aforementioned effect is testified that appellant had low intelligence applied properly only groups and not to cooperate but was able to with people and individuals. give responses questions. reasonable Appellant’s appel- mother testified that Sherman, Sparks Like Dr. Dr. testified problems, prob- lant behavioral school gener- had a limited fund lems, a possible injury, signs head knowledge al place but was oriented as to depression. appellant’s She referred to injury and time. had one head general “failure to thrive.” also testi- She no “organic syndromes.” but brain Based that appellant things fied had stolen appellant’s problems anger with dropped out school. Sparks depression, diagnose ap- Dr. would pellant having inmates, “conduct disorder and presented State two who personality.” antisocial simply testified that had boasted *11 addressing a factual suffi In fabricating his own mental retarda- about claim, evidence a review the ciency we tion defense. most light than the rather light neutral failed to establish the on- has Appellant is fac Evidence to the verdict.29 favorable significant of either sub- age 18 set before support if the evidence tually insufficient functioning intellectual or average general so weak that verdict ing the verdict is adaptive functioning. While limitations manifestly un clearly and wrong seems strug- that he there is much evidence out just, supporting if evidence is society throughout his gled coping with prepon weighed great weight and by life, underlying problems primari- his seem contrary so of the evidence derance rather ly personality-related behavior- and clearly mani wrong and render the verdict capacity. than to low intellectual related unjust.30 reverse for festly We do not the fact-finder’s second-guess not We will weight insufficiency greater if the factual weight relative and assessment the evidence actual preponderance and testimony by credibility presented of the ly conviction.31 favors witnesses, of five of expert four out upon the A cannot be had conviction concluded, re- whom based extensive testimony accomplice anof uncorroborated examinations, appellant that search and is not sufficient witness.32 Corroboration mentally Finally, not acts in retarded. his merely it the offense was if shows killing Tilly, as well as abducting Ms. committed.33 running ring prostitution included daughter, capa- his own that he was show evidence now turn to review of the planning ble of elaborate criminal ventures Appellant’s principles. on the above based unsuccessfully, to attempting, albeit cellmate, Mendiola, testified that Albert light In of the above conceal evidence. appellant introduced himself mention- facts, sup- was sufficient to the evidence Appel- of his case. ing coverage television had not met port finding that Mr. Mendiola: “I lant confessed to then prove his retardation. burden to mental Mr. her.” told Mendiola killed and nine are over- eight Points error Tilly, Diane he entered the home of ruled. schoolteacher, took a Rolex local gun
watch, ring, and from diamond II. OF SUFFICIENCY her, raped he confessed that home. He
THE EVIDENCE no “so there wouldn’t be using condom provided Mr. twelve, Finally, appellant error evidence.” detailed account direct- his Mendiola with a supporting contends that evidence a “ranch road Tilly to walk into factually ing due to Ms. conviction is insufficient area, they had arrived at this in area.” Once participated insufficient evidence that eleven, had time to Tilly him that he still point of he Ms. told killing. mind, appellant responded but change his argues that there is insufficient evidence mind going change his accomplice tes that he was not corroborating Pearl Cruz’s in if he could turn him re- timony. because she 417). Watson, State, (citing at (citing 204 S.W.3d v. at 524 31. Id. 220 S.W.3d Roberts (Tex.Crim. Johnson App.2000)). 32. Art. 38.14. (citing Watson v. Id. Id. (Tex.Crim.App.2006)). 414-15 *12 leased her. He then forced her to kneel Cruz testified that then ap- she watched down and shot her four times. pellant As he was pack Tilly’s various items from Ms. said, burns, reloading gun, his house, she “It it gold including a ring diamond and a burns,” after which he last watch, shot her one her luggage. put Rolex into He time. Appellant told Mr. Mendiola that he car, Tilly’s items he put Ms. and Ms. Tilly’s body might was worried that Ms. be seat, Tilly herself in back her head still found, up logs so he “covered her with and Appellant covered. drove the three of brush.” them in minutes, the car for about fifteen got after they which out of the car and
Throughout the events leading up to and walked into a wooded area. rape following Tilly, and murder of Ms. appellant accompanied by his 15- on Cruz went to describe jumping over a year-old Cruz, daughter, Pearl pro- who barbed-wire fence with her father and then detailed, lengthy vided testimony at trial Tilly helping him lift Ms. over the fence. about According these events. to her tes- Tilly they Ms. doing, asked what were but timony, she carried out her fa- and her to keep quiet. told her Immedi- plan by knocking Tilly’s ther’s on Ms. door thereafter, ately Appellant Tilly shot Ms. falsely saying and that she needed to use death, times. being six As she was shot Tilly’s phone Ms. her because car had bro- Tilly out, “Oh, God, my hurts, Ms. cried it ken down. After Tilly Ms. let into Cruz it burns. Bless this child.” and Appellant home, her Cruz a gun, pointed drew it at fence, Cruz then crossed back got over the Tilly, Ms. “get and ordered her to down car, Tilly’s into Ms. and drove back to floor,” Tilly “face down.” Ms. com- their motel room. plied, and appellant, Cruz let who had Later, while watching missing person secretly waiting outside, been into the report on the television news about Ms. house. Tilly, appellant they became worried that Appellant used shoelaces to Ms. Til- tie would be discovered. He and Cruz re- ly’s Appellant hands behind her back. Tilly’s Ms. car turned to the same field in Cruz a gun then found and ATM card in they which had Appellant killed her. Appellant Tilly house. ordered Ms. gasoline poured over car and set it on him tell her PIN so that he could use the fire in a attempt destroy any failed card, Tilly
ATM gave and Ms. a number. evidence the car. Appellant briefly then left the house while Cruz testified that after she was arrest- still keeping Tilly Cruz was Ms. there at ed, police Tilly’s body she led the to Ms. gunpoint. Appellant returned and said up. which she and her father had covered Tilly that Ms. had given wrong num- hiding She also described the stolen credit Again, ber. he ordered her to tell him her in her flushing cards underwear and them PIN, gave and she a different number. down the toilet in police while she was time, Appellant left the house a second custody. later returned with cash. placed then a sheet over Ms. Cruz’s testimony trial conflicted with
Tilly’s raped head police, her. Cruz asked her her earlier statement condom; father why using he was not he which she did not state that her father had raped Tilly told her that had it used one but that Ms. or that she had if asked Afterward, slipped Tilly. off. used she could shoot Ms. asked When peroxide on Tilly attempt why points Ms. an she had from her omitted these statement, erase the evidence of his semen. “was earlier Cruz said she *13 all the recounted victim. Cruz dered the first talked when she ashamed” trial, detail at great in relevant events she tes- explained that further police. She through plan of their conception from the plea truthfully satisfy at trial tified execution, in the aftermath as well as exchange in for its agreement with the State police and led confessed to the cap on her which she thirty-year punishment. Tilly’s him- body. Appellant them to Ms. Tilly autopsy gun- An of Ms. revealed general ac- gave self his cellmate a more arm, back, right in her and shot wounds rape and of how he committed count leaving wounds The these chest. bullets testimony of together, Taken murder. lung and passed through right her had Cruz, appellant, various witnesses— aorta, as and muscle. Dr. as well bone pres- involved in the police officers case— DiMaio, con- autopsy, who conducted ab- appellant in which picture ent a clear Tilly probably died within that Ms. cluded some of her valu- Tilly, stole ducted Ms. shot. Dr. being “a few minutes” after her, fatally shot raped belongings, able Tilly’s Ms. DiMaio also testified that when This testi- her times in cold blood. several found, tied body her hands were be- was by the additionally strengthened mony was shoelaces, legs her back with and her hind DNA evidence. While fingerprint and were bent at the knees. among the discrepancies there are some Sailors, Robert a forensic scientist work- day, of accounts of the events that various County Criminal ing the Bexar Investi- by are the cohesive overall they dwarfed Laboratory, gation testified about the re- factually suffi- The evidence was picture. of collection sults a sexual assault evidence conviction support appellant’s cient to kit, vaginal in which he obtained a swab Moreover, accom- capital murder. Cruz’s body containing a micro- Tilly’s from Ms. by amply corroborated plice testimony was spermatozoa. By of com- scopic amount guilt. appellant’s the other evidence sample col- paring the with a DNA swab are over- Points of error eleven twelve appellant, Dr. lected from Sailors found ruled. could not be excluded as the appellant Appellant’s donor of on the swab. DNA III. INSTRUCTIONS JURY profile only be seen in one 138 would five, appel- of error four and points trillion African-Americans. that the trial court erred lant contends Melvin Lleras testified Officer on the State faffing place the burden fingerprint liquor on a had examined ap- doubt that prove beyond a reasonable Tilly’s bottle in Ms. house and con- found mentally not retarded. have pellant is We print belonged appel- cluded that the burden held that defendant bears lant. by proof preponderance to establish mentally is retarded.35 argues appellant’s confes- evidence that he five Points of error four and are overruled. to Mr. Mendiola inadmissible. sion was reject argument, this as we consider seven, con- of error reviewing when even inadmissible evidence in failing trial court tends that the erred sufficiency of the evidence.34 jury as to the consid- properly instruct other than of mental deficiencies By own stark admission and that eration his mitigating evidence. mur- mental retardation accomplice, appellant raped and his Gallo, at 239 S.W.3d 34. Johnson v. v. (Tex.Crim.App.l998)(citing Gardner (Tex.Crim.App.1985)).
Appellant argues given that the jury instruction would have allowed the to convict him in this capital jury case “somewhat similar” to the if the murder even Penry alone, one we held unconstitutional found that Cruz acted any without case, State.36 In that the trial court in- involvement appellant. structed jury first to consider whether jury instruction at issue stated: mentally retarded and *14 To warrant a conviction of the defen- then “consider any whether other miti- dant, Neal, capital Ronnie Joe of mur- gating circumstance or circumstances ex- der, you must find from the evidence ist.”37 This Court held that the instruc- beyond a only reasonable doubt not might tion have jury confused the about that Joe Ronnie Neal Pearl and/or
whether it was allowed consider evi- Cruz, on in question, the occasion was dence of mental deficiencies other than engaged or were in the commission of mental retardation.38 The instruction in felony burglary, the of at- offenses case, however, this specifically instructed tempted burglary, kidnapping, at- jury the to consider impair- “the mental tempted kidnapping, robbery, at- ment of the defendant might that not tempted robbery, aggravated sexual retardation, amount any.” to mental if assault, or attempted aggravated sex- complainant, ual assault the of de- as
Appellant
argues
further
instructions,
fined in these
but also
the trial court’s failure to mention a bur
that during
any
the commission of
one
of proof
den
in the
might
instruction
have
above,
the
offenses enumerated
if
jurors
confused the
they might
because
any,
complainant
was shot with a
have assumed that
of proof
the burden
firearm with the intent of killing the
applicable to
ap
mental retardation also
complainant.41
plies to other mental deficiencies. The
defendant
prove by
has the burden to
A conviction should
re
be
preponderance of the evidence that he is
unobjected-to
versed for
jury charge error
retarded,
mentally
but neither side bears
only if it
resulted
harm.”42
“egregious
of proof
respect mitigat
burden
with
objection
concedes that no
was
ion.39 Although appellant claims that the
trial,
egregious
made at
so
harm
stan
required
trial court was
to instruct
applies.
egregious
dard
if
Harm is
it de
jury
point,
on the latter
he concedes that
prives
impar
of a “fair and
an instruction that neither side bears the
tial trial.”43
proof
generally
burden of
required.40
is
not
assuming arguendo
jury
Even
that the
Point
error seven is overruled.
instruction
was erroneous
that it would
thirteen,
appel
jury
have
allowed
to convict
lant contends that
parties
charge
even if the jurors believed that only Cruz
State,
(Tex.Crim.App.2005).
terials of
appellant requested
which
disclo-
law if the
Supreme
arresting
sure.
officer had probable
Court has held that
government’s
preserve
respect
“failure to
cause with
po-
person
being
tentially useful evidence” does not violate
arrested as
statutory authority
well as
process
due
unless the defendant shows make the arrest.55 If the officer does not
that the
loss
the evidence resulted from
warrant,
have
he still has
au
statutory
“bad
part
faith
police.”51
of the
thority under Article 14.04
it
where
presents
no evidence that
by satisfactory
shown
proof, “upon the
police
acted
bad faith.
Points
representation of a credible person, that a
*16
fifteen and sixteen are overruled.
committed,
felony has been
and that the
escape,
offender is about to
so that there is
In
of errors seventeen
procure
no time to
a warrant.”56 For the
nineteen,
appellant contends that the
test,
purposes of this
re
statutory
trial
denying
court erred in
a motion to
quirement
“satisfactory
of
proof’ is equiva
suppress all evidence
as
seized
a result of
lent
requirement
to the constitutional
his detention and arrest because neither
probable cause.57 Probable cause
if
exists
suspicion
probable
reasonable
nor
cause
the officer knows of facts that would lead a
police
existed. A
may
officer
lawfully
reasonable person to
conduct
believe
the sus
temporary
detention if there is
pect has committed or will soon commit a
suspicion
reasonable
to believe that
14.04,
detained
crime.58
the context of
person
violating
Article
the law.52
suspicion
“satisfactory proof’
goes
“escape,”
Reasonable
if
exists
the officer
also
that,
specific
necessarily
has
articulable facts
when which is not
a crime.
Wilson,
State,
(citing
Id.
49.
at 180
v.
Kuhlmann
477
55. Parker
v.
206
S.W.3d
593
436,
2616,
U.S.
106 S.Ct.
91
State,
L.Ed:2d 364
(Tex.Crim.App.2006)(citing Amores v.
(1986)).
407,
816 S.W.2d
(Tex.Crim.App.1991);
413
Ballard,
889,
State v.
987 S.W.2d
892
83,
Brady Maryland,
50.
v.
U.S.
83
373
S.Ct.
(Tex.Crim.App.l999)(citing New York v. Har-
1194,
(1963).
turn on witnesses’ or demean- car, police their identified themselves When, case, inas this the trial court or.59 asking him appellant, began officers fact, findings specific has not made we initially answered questions. Appellant light most must the evidence view telling the officers that questions, ruling.60 to the trial court’s favorable staying vehicle was his and that he review de novo application trial court’s asked the motel. When Officer Gonzalez credibility turning facts not of law to identification, appellant for some form demeanor.61 however, but instead he did not answer Miguel Greg Gonzalez and Officers away. The immedi- started to run officers Blockley information about had received dispatch appellant’s flight ately alerted They possible Tilly. Ms. kidnapping him, deliberately staying ran after knew cards had been used that her credit they significant distance behind because particular just highway at a area off the reaching they him believed had observed thin, man tall and a black about six feet They weapon for a near his waistband. Ford pickup black woman with white up to him and arrested eventually caught truck. The officers observed at fleeing police. him for that same location and noticed he description satisfied the was a facts, light of the officers these tall, thin, him, they black man. When saw de suspicion support had reasonable open *17 the truck’s the motor door was and parking Ap in the lot. taining appellant driving running. was While around the in his that the officers pellant asserts brief area, eye officers with the made contact or suspicious no behavior had observed appellant. offi- appellant Once noticed the “merely activity of criminal and evidence cers, suddenly appeared very he nervous. fact, identify” though, In desired to him. away He from vehicle while walked the the ample reason for the evidence reveals the running motor was and the door was still appellant concluded that officers to have open. doing, appellant had left a so activity. been in criminal engaged had items, comput- of valuable such as number location, descrip appellant’s general The in the truck equipment luggage, er and female, tion, a and his contact with black anyone might to plain and in view who the description all matched the his vehicle to in the happened parking have be motel given suspect of the officers had been ap- lot. The officers continued to observe investigation. Appel missing-person their the lot pellant parking walk from police by acting to nervous lant reacted building, up motel and walk and then down truck while the leaving and his unattended time, motel stairs. whole the outdoor This running, open, the door was engine was appellant the officers noticed Taken and valuable items were inside. “closely” car. The of- watching police police communicating provided these facts together, ficers him with a black saw 61.Guzman, (Tex. at 955 S.W.2d Guzman Crim.App.1997). (Tex. 60. Torres v. Crim.App.2005). that, specific
with articulable facts when crime.65 Probable cause to search exists combined with reasonable inferences from is a probability” finding when there “fair facts, those person would lead a reasonable inculpatory being evidence at the location to suspect had appellant committed searched.66 If exception applies, this then they the offense were investigating. police may “every part search may vehicle and its contents that conceal identify Once refused to object of the search.”67 attempted escape himself and to from the police while to appearing weap reach for a following record shows the facts on, the officers had further reason sus point relevant to this of error: After ap- pect that he had committed was about pellant had fled Gonzalez and Officers to commit a crime. This attempt escape arrest, Blockley but before the Officer compounded the above evidence that he Day Gonzalez informed Bill Officers crime, had a providing committed satisfac Sylvia Espino of the situation and led them tory proof that he had felony committed a Blockley to appellant’s truck while Officer to escape indeed, was about was al — stayed on lookout in the motel area. Offi- ready escaping that there was no time —so Day cer testified that at once arrived procure a warrant. Points of error scene, he searched the truck and found seventeen and nineteen are overruled. items, jewel- including luggage, numerous ry, a makeup, laptop computer, a lawn- eighteen, ap mower, tools, bottles, liquor appellant’s pellant contends that the trial court erred stub, pay laundry detergent, bag in admitting from evidence seized the war- wet clothing. luggage He lifted one of the rantless search of his automobile. Evi labeled, tags and saw that it was “Diane dence seized police without war Tilly.” Photographs of of the the contents may rant be if an only exception admitted truck were at admitted into evidence trial. the Fourth Amendment’s warrant re quirement A applies.62 defendant chal already explained We have above that lenging admission of evidence on the had police probable cause to arrest basis of the Fourth Amendment bears the person because reasonable prove initial burden the search likely would believe he committed *18 without a If occurred warrant.63 the de crime or would soon commit a crime. The burden, fendant meets this the burden investigation itself was based on informa- then prove shifts to the State to that an leading police suspect tion the to that ap- exception applies.64 pellant Tilly. had kidnapped Ms. The offi- had such cers reason to believe that the truck exception
One
holds that
police
lawfully
belonged
appellant
they
the
to
may
search an automo
because
had
Cruz,
they
if
probable
suspect,
bile
have
cause to
observed him and the other
believe
it,
standing
that
the vehicle contains
to
evidence
next
and because the truck
609,
State,
17,
(Tex.
62. McGee v.
24
615
Wiede v.
214 S.W.3d
(Tex.Crim.App.2003)(citing
Crim.App.2007).
Minnesota v. Dick-
erson,
366, 372,
2130,
508 U.S.
113 S.Ct.
124
(1993)).
Gates,
L.Ed.2d 334
(citing
n.
Id. at 24
Illinois v.
462
213, 238,
U.S.
103 S.Ct.
her.
all of these
The trial court admitted
proba-
to show that officers had
its burden
A
at trial.
ballistics
items into evidence
cause to search the truck and that the
ble
had examined some of
expert who
was thus valid under
warrantless search
the scene of the
spent cartridges from
exception.
the automobile
they
that
had all been
testified
murder
than the
found
gun
from a
other
one
argues
fired
further
This evidence was
in in the motel room.
there was no concern that the evidence
testimony
appel-
destroyed
supported by
or lost
Cruz’s
the truck would be
be
own
they
Tilly’s
lant
use Ms.
appellant
already in
insisted
cause
and Cruz were
her,
gun that
kill
rather than the
policy custody.
exception, gun to
The automobile
mattress,
however,
under the
require exigent
they
circums
would later leave
does not
latter
that the
eighteen
is over
because
believed
tances.68 Point of
easy
too
the authorities
gun would be
ruled.
to trace.
points
twenty
twenty-
of error
addition,
questioned
one,
prosecutor
that the trial court
contends
gun
about how she used
seized
admitting
erred
evidence seized from Cruz
Tilly.
up
from the
room to hold Ms.
his motel room without a search warrant.
motel
her,
gun
handed
prosecutor
Having
from the front desk of
learned
she
the manner which she
indicated
man and
were
girl
the motel that
black
Tilly
get
gun
as she told Ms.
held
floor,
staying in a room on
second
ground.
down
*19
Espino
Day
Sylvia
Officers Bill
and
exigent
that
argued at trial
occupied
two
of
rooms
The State
knocked on
doors
entry
the
justified the
of
try
appel-
to find
circumstances
on the second floor
door,
police
investigating
room
the
were
the
and
because
lant’s room. Cruz answered
missing person.
a
of a
The State
police
person
report
her as the
with
recognized
the
that
search
appeal
in the
also contends
whom
had communicated
467,
465,
exigent cir-
requirement of
Maryland Dyson,
and there is no
v.
527 U.S.
119
68.
2013,
(1999);
justify
was valid as a search incident to a weapon past lawful mimic and her own actions Appellant arrest. may does address a not either have added dramatic flourish at trial, arguments, these but but argues instead was not essential to the State’s that exception the case. expert consent to the warrant The specifically ballistics requirement apply. gun does not ruled out the as the weapon. murder The signifi- Blockbuster card was of little any State further contends that er- light cance. overwhelming the other admitting ror in the evidence was harm- evidence, find, beyond we a reasonable less. Appellant does not ques- address the doubt, that the evidence seized from the tion of harm. room motel did not to the contribute ver- The police may search defen twenty dict. of error and twenty- Points dant’s residence satisfying without one are overruled. Fourth Amendment’s general requirement twenty-two, In point ap of error of a they warrant if exigent have circum pellant that trial contends court erred stances probable and cause to search the in admitting Cruz’s confession because it
residence.69 process. was obtained in violation of due
Assuming, twenty-three, appellant of error without deciding, that the contends that trial trial court court erred in fail erroneously admitted ing charge to submit an Article items 38.23 room, retrieved from the hotel jury on the confession. A we will defendant conduct a harm analysis. If we standing has no to raise constitutional find, beyond doubt, a reasonable that a challenge person’s to another confession.73 constitutional error did not contribute to applies The same rule in the context of verdict, then the error was harmless standing Article 38.23.74 lacks such that we will not judgm reverse the challenge raise either constitutional ent.70 To make this determination, we statutory challenge legality “calculate, must nearly as possible, the lacking probable standing, Cruz’s statement. And impact of the error on the jury he was not entitled to an Article light of 38.23 the other evidence.”71 The error regarding instruction confession. was not harmless if there is a reasonable twenty-two twenty- Points likelihood it materially affected the jury’s are three overruled. deliberations.72
Our review of the twenty-four record shows In points of error briefly examining Cruz about twenty-five, appellant how she used contends gun, the State was adding admitting one more trial court erred surveillance vivid detail to the much larger story videotapes receipts they ATM because events surrounding the Seeing properly pursuant murder. not were authenticated appellant’s accomplice 901(a). actually handle the to Texas Rule of Evidence We do (Tex. 69.Gutierrez McCarthy, S.W.3d 680 S.W.3d at Crim.App.2007). 73. McMahon v. Tex.R.App. 44.2(a). P. *20 1978). (Tex.Crim.App. State, Jones v. 766, (Tex. 119 S.W.3d 777 191, Crim.App.2003) State, (Tex. State, (quoting 202 McCarthy v. 829 S.W.2d v. Fuller 65 47, S.W.3d 55 (Tex.Crim.App.2001), Crim.App.1992). cert. denied, 972, 2693, 536 U.S. 122 S.Ct. 153 (2002)). L.Ed.2d 862
285 der, danger and has he is a future and that nonconstitu- ruling not a based on reverse may in not his favor factors mitigating not “substan- no error that does affect tional deter- position make the If, in best examining the rec- be the after rights.”75 tial is men- the defendant whole, any mination of whether as a we determine ord special issues Because the jury, tally retarded. slight or no effect on the error a are inter- murder trial so capital trial court’s in a we will not overturn the then twined, hearing related the “the the evidence ruling.76 have observed that We in influ- may result undue overwhelming guilt special of evidence of issues presence considering the analy- jury this on the when a role” in ence plays determinative the claim of mental retardation. Assuming deciding without defendant’s sis.77 Thus, special jury’s in the answers the admitting trial court erred surveil- the against the receipts, may prejudice ATM such them de- videotapes lance issues a retar- light purpose in for the of mental error was harmless of the over- fendant Alternatively, it is whelming guilt evidence of shown other dation determination. analysis possible presen- of that the defendant’s evidence detailed above our also a sufficiency the under tation evidence related to mental re- of evidence of adversely affect the points of eleven and twelve. Points tardation claim could error twenty-four twenty-five mitigation are issue. I jury’s of error decision on of whether a overruled. feel that determination mentally be defendant is retarded should affirm the trial judgment of the to hearing in a manner similar a conducted court. competency to stand trial. regarding MEYERS, J., concurring a opinion. filed However, us, do the case before I not disagree that the de- with conclusion PRICE, JOHNSON, JJ., concurred. mentally I not retarded and do fendant is J., COCHRAN, points concurred special jury findings on the dispute not 18, 24, and joined 25 and otherwise specific issues. Due to the facts of this opinion Court. case, I there no need for a agree that jury to consider the mental retar- separate MEYERS, J., concurring opinion. filed Therefore, point I concur in dation issue. error, Appellant’s sixth join opinion of error six otherwise failing that the trial court argues erred majority. empanel separate jury determine mentally agree whether he is I retarded. mental
that when issue of retardation raised, jury separate
is should consider mentally
whether the defendant is retard- capital mur- prior beginning
ed of a jury already A has
der trial.1 who decided guilty capital mur- defendant is State, 352, (Tex. 44.2(b). 356 P. 77. Motilla v. Tex.R.App. State, Crim.App.2002) (quoting 790 Harris v. (Tex.Crim.App.1989)). S.W.2d 587 (quot v. S.W.3d 76. Morales ing Johnson only be when the defen- 1. This should done 1998)). (Tex.Crim.App. showing prima that he dant made a facie has mentally retarded.