*1 apparent no constitutional inhibition to con cealing jurors from the the consequences NELSON, Appellant, Marlin Enos deliberations, of their long they so are believing
not misled into that ultimate re Texas, Appellee. The STATE of sponsibility for the verdict rests else S.W.2d, where.” Draughon v. No. 70711. 337; S.W.2d, Davis, at 221- Cf. Texas, Court of Appeals Criminal Appellant’s pro point
222. third se of error En Banc. is overruled. Nov. 1992. Finally, appellant’s pro point fourth se Rehearing Denied Jan. 1993. error, he claims that he was denied effective assistance of counsel because perfect
counsel failed to a valid meritorious
attack on constitutionality of article argument point
37.071. His on this is actu-
ally provision a fail-safe in case we did not
reach the pro issues he raised in his se
points of through error one three due to
procedural bar. He asserts that his coun- performance
sel’s was deficient permit-
ting him to be tried and sentenced to death objecting
without raising or otherwise Nevertheless,
these issues. it does not deficiency performance
amount to a object
counsel to fail to point to a objection
such would have conflicted with
what at the time of trial was taken to be
settled law and would therefore be futile.
And, as we have found this to be merit, appellant’s
without pro fourth se
point of error is overruled.
Having considered each twenty- of the points
two by appointed of error raised
counsel, having fully considered each pro points error, four se
we do not any believe that of them merit judgment
reversal of the of the trial court.
Appellant’s conviction and his sentence of
death are affirmed. CAMPBELL, JJ.,
CLINTON and concur
in the result.
ton, Texas. Howard was known August friends to be homosexual. On neighbor, Castag- his downstairs Joe no, p.m. Castagno came home at 6:00 reading paper an heard automo- *3 Castagno bile arrive. From his window young carrying saw Howard and a man plastic go upstairs apart- sack to Howard’s Twenty thirty ment. minutes later Cas- tagno heard sounds which he described as bumps” coming “thuds and from Howard’s this, thirty residence. About minutes after Castagno young saw the man come down the stairs and enter Howard’s automobile. appeared difficulty The man to have start- getting in proper the Honda and then gear, but soon he able to drive the away. Castagno automobile did not ob- carrying anything serve the man when he downstairs, came and later was unable identify police lineup. in a report Howard did not for work at South- p.m. at 11:00 as western Bell scheduled night August telephone 25. He did not supervisor anytime during at the 11:00 p.m. a.m. and to 7:00 shift his co-workers McDonald, Randy appeal only, on Hous- They attempted became worried. to tele- ton, appellant. residence, phone the there was victim’s but Hatteberg, Ann no answer. a friend and Holmes, Jr., Atty., Mary John B. Dist. years, for five drove How- co-worker Keel, Connors, Morris, Lou Ned Claire residence, ard’s located in the Montrose Houston, Attys., Asst. Hut- Dist. Robert Houston, during night no- area of and tash, Austin, Atty., for the State’s State. automobile, ticed that Howard’s a black Honda, Later, missing. Hatteberg hospitals police in contacted local and the attempt an unsuccessful to locate Howard. OPINION shift, Hatteberg At the conclusion of her BENAVIDES, Judge. Tran, co-worker, and another Doa drove Appellant capital was convicted of mur- apartment. to Howard’s His automo- back V.T.C.A., Code, 19.- der. See Penal Section Hatteberg and Tran bile was still absent. 03(a)(2). apartment complex, entry After the returned an affir- obtained answer, knocking getting no after and finding mative on both of the issues Hatteberg and the two of broke window (2), 37.071(b)(1) submitted under Article them crawled inside. imposed penalty the trial court This case is before us on direct death. tray living Hatteberg observed a on appeal. containing marijuana. Hatte- floor .room berg was aware that Howard smoked mari-
I juana. On the coffee table she saw a beer can, and this struck her as unusual be- CLAIM SUFFICIENCY cause, testified, did not drink. she Howard Appellant alleges that the evidence gloves on also black leather She observed conviction; support is insufficient to couch, regarded she as unusual which therefore, a review of the facts neces would because she did not think Howard sary. James Randle Howard lived in an At August. gloves black leather wear similar to gloves were identified as apartment at 3402 Garrott Street trial Hous- sister, brick, appellant’s testified that dis- also Blood was pair owned Howard. having problems. financial appellant was After a glove. right on the hand covered search, Hatteberg came to and Tran brief Early August in the afternoon of locked, door. The door was the bedroom officer, Janke, police a Houston Todd ' Tran Hatteberg in. She and broke working job security patrol second body the floor found Howard’s apartment management company. for an large pool of blood. appellant operating a mo- Janke observed plate. torcycle faded rear license medical Espinóla, deputy chief Aurelio motorcycle off the drove County, for Harris testified examiner apartment complex Janke premises of a number that Howard had suffered trial street, public *4 patrolling, onto a was body the and had been stabbed of blows to complex apartment to the about then back had skull times. He a fractured fifteen appellant minutes later. fifteen When a of and died as result blood loss. approached, determined stopped, Janke body po- near In the bedroom Howard’s plate expired, license and the bloody ten-pound a exercise lice discovered appellant asked for some identification. which, Espinóla bar and a butcher knife wallet, appellant opened When Janke testified, that could have were instruments it, baggie plastie a in which was observed made wounds consistent Howard’s Appel- determined to contain cocaine. later to the butcher knife wounds. addition lant was arrested. bar, police bloody exercise found a and p.m. August on Hous- At about 9:45 bed, telephone a steak knife on Bacon and John ton Police Detectives D.L. had Also on the
whose cord been severed. appellant met with and took Burmester papers and a suitcase bed were various was to be the first of two statements what Appel- containing pornographic material. appellant from him. In first statement piece lifted a fingerprints lant’s were from Mike, he, person a and said that named bed, paper lighter the deceased’s on apartment Howard had driven to Howard’s door, floor, can the bathroom and a Nothing in smoking marijuana. after Miller beer Lite that had been retrieved why they to the indicates went statement from the kitchen trash can. apartment. Ultimately, Howard Mike and reads, argue. then began to The statement Howard, the Katherine Ann deceased’s cryptically, “Mike and the man somewhat sister, parents her came to Hous- and later into the bedroom then went [Howard] his personal property. to collect How- ton yelling. man they began where expensive system, an ard owned stereo me a duffle bloody. Mike then handed television, and two video cassette record- two-way another speaker and bag, ers, apart- in his all of which were found in the Mike then went back bag. smaller However, ment. Katherine Howard discov- room, yelling. I heard the man start and necklace, missing gold ered that were a all According very quiet.” Then it became watches, including a Gucci of her brother’s statement, drove to appellant and Mike lenses, watch, and and several his camera in Howard’s automobile. various locations open of stock. The safe was and shares by noting that a cas- closed The statement missing. empty key and the it was might at the player speakers sette Hamrick, that he met Michael Gramblin testified apartment of Sharon August either 25 or 26 and at appellant on Bacon taking After this statement sister. driving relatively that time transported and Burmester gray compact or black automobile. Hamrick’s apartment. new From Hamrick’s Sony seen him in nice they had never such Walkman apartment Gramblin retrieved Nelson, appel- speakers. testified that he visited vehicle. Gramblin and a set of Doris living at told him jail where lant’s common-law wife who husband, with her prosecutors apartment the auto- to tell the about Hamrick’s appellant, acquaintance an appel- was aware testified mobile. Gramblin Walk- brought Sony Jolly, problems. Sharon Ham- David lant had financial man speakers to her. At trial while lying these he was on the moving floor items were determined serial number around I stabbed him. I kind of blocked receipt belong to the deceased. everything just out and kept stab- [sic] addition, Bacon and Burmester recovered a bing Every got him. time I hit him I pair earrings from another tenant who angrier. apartment lived in the complex same I gray went into the closet and got Hatteberg Hamrick. Ann testified that the sports bag, I going through then started earrings presents had been she had everything jewelry and threw all the to Howard.1 bag. glasses, I Sony took sun Early morning August on the 29 De- speakers, Walkman and billfold which tective Burmester took a second statement it, keys had about $50 his car appellant. from The statement read: which were dining on the table I already have made one statement about left, room. That’s about it. Then I went guy picked up me in the black car, got getting going in and after Honda car. What I said in that State- having after a bunch of trouble with ment was not all true. I decided to [sic] reverse, pushed I it into the street and get my it all off chest and tell the truth then left there. *5 picked up The man me at the Mc- [sic]. thing got The first I did was I went and by Donalds on Waugh Westhimimer [sic] Chrystal picked up some Then I [sic]. guy Drive. The circled block about Tim, Mike and I told then that I [sic] every times and slowed down time he bought the car. Then we went and by came and looked at me. Then he picked up a friend of theirs and went out stopped if and asked me I wanted to to his cocaine Tim connection [sic]. joint. got smoke a I in the car him with gun, boyfriend a a Her 9mm. was there apartment. went I we to his had a up. but he never woke The girl is a paper sack in with some beer it and I girl white I her but don’t know name. It along. plastic took it It was a with sack powder about an ounce and a half of way handles in it. apart- On the to his cocaine. ment chrys- he told me that he had some Then we went to Davids and did [sic] tal, him, why and that was I went with stayed some of the cocaine. We there all apartment smoking joint his after a with night doing cocaine. in About 9 him. morning drag queens I left and went to a got apartment When we we apartment Apartments in the Rosewood upstairs together. walked As soon as get got a needle. When I back Tim got gave in chrystal he me the and I car, gone with the all the other stuff it. I up did had a needle and shot in the brought was still in the car. We had I play arm. told him that I wanted to bag up it, through and looked Tim but weights up after I shot with and went took it back to the car afterwards. into bedroom. He followed inme [sic] I got When arrested all I had left was picked I up there. a bar off of the box cocaine, gram about a half pure lying in weight back of the set. stuff, gucci got and the I watch [sic] looking He was at me and I up went queer. from the only The time I ever him him kept and busted with the bar. I again saw the car it inwas a business hitting kept him knocking things and he parking looking lot I down, when went for kept over. He went he [sic] but mov- morning got caught. it the I I got never ing. There was a steak knife aor kitch- any got rid of of the I something en knife or other stuff out of on the dresser. It apartment cutting anything looked like he had been and don’t know some thing way gave rubber with and he was half other than by that David wife [sic] through got I Sony it. the knife and speakers. Walkman and the August 1. Houston Police recovered an automobile bile on 1987. matching description of Howard's automo- robbery beyond elements reasonable of error number one complains robbery that the evidence is insufficient that are doubt. elements support capital murder. conviction for the facts of this case are as relevant appellant’s indictment Paragraph one of follows: com- charges that “while the course of (1) person mitting attempting to commit the Rob- (2) committing in the course of theft Howard,” bery of James Randle (3) or maintain with the intent obtain intentionally caused Howard’s death property control of the Paragraph
beating him with a metal bar.
(4) intentionally
bodily injury to
causes
charges that “while
the course of
two
another.
committing
attempting
commit the
Howard,” appel-
Randle
Robbery
James
Appellant concedes that a rational trier of
intentionally
death
lant
caused Howard’s
fact could find from Nelson’s second state-
stabbing him with a knife.2
discovery
subsequent
ment
and the
property
apartment
in the
where
Howard’s
reviewing sufficiency
When
of the evi-
“whether,
that, beyond a
dence this Court must decide
Nelson lived
reasonable
light
doubt,
However,
viewing
after
most
Nelson committed theft.
prosecution any
favorable to the
rational
appellant argues that
rational trier of
trier of fact could have
found
essential
beyond
fact could not find
a reasonable
beyond
elements of the crime
a reasonable
Howard and
doubt that when murdered
doubt.”
(2) intentionally
theft occurs
where there is evidence
the victim murdered this evidence
(3)
after
is
caused
death of the deceased
jury finding of
in the
support
will
murder
(4)
committing
in the
of
while
course
robbery.
course of a
See
robbery of the deceased.
Huffman
State,
(Tex.Cr.App.1988)
746
212
S.W.2d
Appellant concedes that a rational trier of
(Tex.
about
to answer
to the
korn for cause. After the trial court’s
issue,
special
then, finally,
action,
second
she testi
appellant used a peremptory strike
fied that she would answer “no” to the
The
Haverkorn.
State contends that
pen
second
issue so
the death
that
point
has
preserved.
not been
alty would not be assessed. Miles vacillat
agree.
preserved only
We
“Error is
if the
ability
ed as to her
her
to follow
oath as a
exhausts
peremptory
defendant
his
chal-
juror. “Under such
the trial
circumstances
lenges,
request
is denied a
for an additional
is in
position
court
the best
to evaluate the
challenge,
peremptory
identified a member
according
venireman’s answers and rule
jury
objectionable
of the
that
and claims
State,
572,
ly.” Ransom v.
582
he
have struck
juror
would
with a
denied,
(Tex.Cr.App.1989, cert.
497 U.S. peremptory challenge.” Demouchette v.
1010,
3255,
110 S.Ct.
In point of appellant error four contends challenge. emptory record does improperly that the trial court excluded reflect that was ever denied a sponte. sua disagree. Although Miles request for an additional chal- peremptory specif- are unable to find in record a we lenge. Nor does the that record reflect by attorney ic motion State’s objectionable juror identified an challenge that he the ve- court wished to and claimed that he would have struck nireperson cause, appellant immediately for juror peremptory There- challenge. Miles, objected when the court excused fore, find preserved. that error was not and, during argument the court in error five Point of is overruled. support objection, specifically of his objecting stated that he was to the State’s challenge appel- for cause. addition IV challenge
lant’s reference to the for State’s UNDER cause, court, CLAIMS ESTELLE SMITH response appel- trial objection, made it clear that the basis lant’s seven, points six, of error excusing juror inability her eight appellant contends that court the trial Thus, follow the law. the remarks of de- admitting testimony erred wit judge counsel and the trial indicate fense Smith, Phillips, nesses Dr. Jackson Dr. Jim predicated on a court’s action was Levy. Appellant complains and Debra challenge for the State. cause made made to statements these witnesses while filed Finally, strike list which was custody were not made venireperson as hav- in this cause lists the voluntarily knowledge with the challenge for cause. been struck against statements could be used S.W.2d Fearance v. See Smith, judicial Phil proceedings. in future Point of error (Tex.Cr.App.1988). n. 5 were, Levy psychi lips, respectively, a *9 is overruled. four atrist, psychologist, dormitory a su and five, in point pervisor Giddings con at 1984
In of error State School at the appellant, that revers when who was resident the trial court committed tends school, complained-of motion chal made the statements. by overruling error ible Commission, of the lenging prospective juror Michael Haver- A division Texas Youth question tempt will Appellant complains di- commit her to a verdict. We not also that to 3. by which asked her to Miles the State rected the merits of this claim as the defendant address to the her intention to vote “no” object about hypothetical question at did the not years if the defendant were seventeen old issues Nothing asked and answered. was time it was attempt was an specific to commit the witness to 52(a). Tex.R.App.P. preserved for review. and, thus, improper an at- set of facts
135
statements, he
not con-
lant made his
Giddings
youth
delinquent
found
houses
essentially
who
fronted with someone
Appellant was at Gid-
violent offenses.
for
the State whose function was
agent
de-
an
dings
adjudicated
he had
because
been
might
that
used
capi-
gather evidence
attempted
to
linquent for the offense of
crime
him in connection with the
against
tal murder.
he was incarcerated. See Es-
for which
during the
The statements were admitted
telle,
466, 101
at
The Sixth
S.Ct.
1875.
punishment phase
proof
that
implicated because
Amendment cannot be
continuing
so-
threat to
would constitute
judicial proceeding
was no adverse
there
appellant, accord-
ciety. In the statements
spoke
against appellant when he
to
pending
witnesses, cold-bloodedly de-
ing to the
words,
In
the state-
the
other
witnesses.
he
scribed the offense for which
had been
“prior to
made
the
were
ments
to
witnesses
Giddings
attempted mur-
to
confined
—an
offense,
indictment,
alleged
ap-
the
the
the
seventy
der-robbery
sixty to
admitted
—and
counsel, etc.,
not
pointment
and
of
[were]
assaults,
which, according to
of
other
some
testifying as
in connection with
to the issue
may
appellant,
have resulted in deaths.
dangerousness.”
of future
Cook
Appellant urges
expand
us to
the doc-
928,
(Tex.Cr.App.1987),
741
945
S.W.2d
Smith,
454,
trine of
101
Estelle v.
U.S.
807,
grounds, 488
rev’d on other
U.S.
(1981),
1866,
S.Ct.
violated.4 Estelle United States preme Court held that the Fifth and Sixth PENRY CLAIM of Amendments the United States Constitu- by were violated the of a tion admission nine, appellant In point of érror com- testimony on of doctor’s the issue future failing plains that trial court erred dangerousness testimony charge properly to could questioning based on of a defendant mitigating evidence submitted consider the had not Fifth been warned of his who determining whether privilege against Amendment self-incrimi- The record should receive life sentence.5 nation and whose counsel had not been reflects, appellant acknowledges, that informed that the State to intended conduct granted following he asked for and was the examination. charge: special jury Special determining inapplicable find Estelle is to the answers to
We Issues, Appellant’s may you case. consider the entire evi- facts prior mitigation punishment such years statements were four dence age, capital subject family history, as the murder trial which is Defendant’s drug use appeal. background, of this Fifth Amendment social and intoxi- because, implicated appel- you. at the time not cation assist V, VI, XIV; argument concerning a 4. See U.S. Const. amends. Tex. in its brief considerable 19; 10, and Article body Appel- Const. Art sections upon of evidence which it believes 38.23, V.A.C.C.P. might rely, lant we think it best discuss mitigating it relates to value that evidence as Judge quite right out in his 5. Baird is Penry, Appellant particularly the rule of since concurring opinion Appellant has not com- challenge the does not State’s characterization 74(d), Appellate plied Rule Rules of Texas especially his claim. think this method Clearly, Appellant has directed Procedure. where, appropriate contexts such as one this portions of the attention of this Court prior was tried Su- because evidence claimed to be miti- record where the gating appears. preme Penry, points Court's decision *10 obliged Accordingly, arewe not may subject again But, on raised in an error Penry merits claim. to reach the it, corpus application obliged summarily for writ of habeas are we to overrule neither context, opinion. implies. present Judge In the extent not addressed in this as Baird presented the State has identified and because 136 argues appeal large appellant quantities money,
Now on that the session of special charge jury appellant to advise the how any failed that never took of it. Such respond jury to should the consider the evidence has been held this court to be mitigating issues; however, evidence them special before sufficient relevant to the opposed to render a sentence of life as to “Penry ’’-type does not constitute evidence suggested death. sets out a requiring an additional instruction in order charge jury reasoned, which instructs the to enter jury give to allow the moral negative finding special if it State, to a issue response. Lackey See v. 819 S.W.2d appro- 111, determines that a life sentence is the (Tex.Cr.App.1991). 134 See also priate response mitigating State, 350, (Tex. evidence. Black v. 816 S.W.2d 365 Cr.App.1991). Court, in Supreme
The United States Ju 262, 276, Texas, rek v. 428 96 U.S. S.Ct. mitigating evidence included the Other 2950, 2958, 929, (1976), 49 L.Ed.2d held 941 (nineteen following: appellant young sentencing guided that the Texas scheme at the time of the commission of the of jury’s by “narrowing discretion fense); appellant subjected had been eligible by requir class of death crimes and (father family very young strife when used ing jury special to answer additional and, drugs during physical beating of older deliberateness, regarding issues future and, siblings, pushed appellant); appellant dangerousness provocation.” Bare engaged religious activities. How 38, State, (Tex.Cr.App.1989), v. 784 45 S.W.2d ever, field although relevant to the concerns of denied, 1011, t. 497 110 U.S. two, evidence, cer special issue this like the 3256, (1990). Thus, 111 S.Ct. L.Ed.2d 766 supra, “Penry” evidence is not evidence penalty sentencing the death statute is fa Id., requiring an additional instruction. cially Penry Lynaugh, valid. v. 492 See 11; State, slip op. at v. Boggess 1991 WL 302, 315, 2934, 2945, U.S. 109 106 S.Ct. 69,990, 29, (Tex.Cr.App. May 87597 No. 256, (1989). However, L.Ed.2d 276 Pen- 1991); 166; Goss, supra at see also Nobles that, ry, applied the Court found to that (Tex.Cr. v. 843 S.W.2d 507-08 petitioner, special our framework issues App.1992), and cases cited therein. jury did not themselves allow the There was that evidence had a reasoned, express response its moral addition, history drug In abuse. Penry’s evidence of mental retardation and drugs confessions revealed that he used analyzing Penry-type child abuse. is However, the occasion of the murder. particular sues we examine the drug have found that evidence of use alone by appellant to if it is offered determine level of evi- “Penry does rise to the appellant’s personal relevant to moral cul dence,” Ellis, Ex Parte and, so, pability if whether 212 (Tex.Cr.App.1991), nor does evidence of adequately respond to that evi able voluntary time intoxication at the dence. 826 162 See Goss S.W.2d Goss, supra at 166. murder. (Tex.Cr. App.1992). Sergeant County LaCoste of the Harris While it is difficult to determine during that Department Sheriff’s testified appellant’s brief the evidence he con from pretrial prob- incarceration he had had no value, mitigating tends was of the record appellant kept lems that several witnesses testified dur reveals Lynaugh, his cell clean. Franklin v. phase punishment as follows: 164, 177-180, 2320, 2330, U.S. S.Ct. person, a nice not considered (1988), 101 L.Ed.2d the United violent; by them to be was a Supreme States Court found that evidence employed; good worker when good prison significance of a no record has good relationship appellant enjoyed a social outside the second issue. and that with a friend of his sister friend’s Testimony Finally, from the latter two a confession to another mother. that, capital appellant evidently murder which witnesses indicated because of their frequently perpetrated prior were a short time to the of- employment, they pos-
137
us,
imperative,
constitutionally
consider it
nor
in the
before
made
fense
case
indispensible,
following
that a reasoned moral re
claim:
the
capital
jurors
sponse be solicited from
thought
I hit him I
about what
When
every minutia of
devel
about
a defendant’s
years
to
I
11
old
happened me when was
opmental history. Lewis v.
815
any-
and I was molested.
I never told
(Tex.Crim.App.1991). Nor do
S.W.2d 560
it,
I
body
but wanted to
about
necessary
ques
we think it
to submit the
sister,
past.
always
my
I
tell
wanted to
extra-statutory
culpability
tion
moral
of
my
but never did. I wanted to tell
broth-
er,
showing
without a substantial
that some
I
I didn’t
but
never did because [sic]
significant
actually
has
dis
like I
circumstance
want him to look at me
was a
to
of a defendant
a
hating guy queers
I
ever
abled the conscience
faggot.
been
repre
happened.
degree recognized mitigating by
that
a
since
society. Accord,
segment of
sentative
our
Gribble
(5th
Collins,
F.2d 1009
Graham v.
(Tex.Cr.App.1990), we held that
the evi
— U.S. -,
Cir.1992),
granted
cert.
other circum
dence of child abuse and
S.Ct.
The and sentence are affirmed. mitigating by representative nized as segment society, of our MILLER, omit- [citations OVERSTREET MALONEY, JJ., concur in the result. ted]
BAIRD,
Judge,
concurring.
[*]
[*]
[*]
[*]
[*]
[*]
... Without some further evidence of
error, appellant con-
point
In his ninth
significant
dysfunction
moral
attribut
37.071,
tends
art.
Tex.Code Crim.Proc.Ann.
experience,
unwilling
we are
able
Eighth and Four-
applied,
violated the
to conclude that an isolated and unex
teenth
the
Amendments of
United States
plained
producing
event
irrational hatred
Constitution,
provide
failing to
vehicle
people
quite
for a
class of
is
whole
jury
give
for the
to
effect to
mitigating
kind of
circumstance envi
responds:
mitigating evidence. The State
saged by
Supreme
the United States
identify mitigat-
failed to
in Penry.1
Court
argue
spe-
evidence and to
how the
Maj. op. at 137.
cial issues failed to allow consideration of
Therefore,
mitigating
evidence.
stated,
Simply
such statements are erro-
nothing
presented
is
for review. His
requirement
There
under the
neous.
is no
point
ninth
of error should be overruled Eighth Amendment of a “substantial show-
requirements
for its failure to meet the
Moreover,
ing” of a “disabled conscience.”
74(d).
Tex.R.App.P.
Penry
limited to situations of
should
be
“significant
dysfunction
moral
attribut-
brief, pg.
State’s
66.
experience.” Because
able to [a childhood]
Appellant’s
wholly
agree.
I
brief
fails
majority
Penry
continues to read
far
mitigating
identify what he believes
only.
narrowly, I concur in the result
too
Further, appellant
to show
evidence.
fails
evidence,
any,
if
was “not rele
how such
CLINTON,
dissenting.
Judge,
“beyond
scope”
to” and/or
of the
vant
my
view the evidence is insufficient
required by
punishment
Penry
issues as
v.
support
com-
302, 320, 109
2934,
verdict
Lynaugh, 492 U.S.
S.Ct.
(1989)
robbery.
2948,
(Quoting mitted murder
the course
Looking all the evidence in verdict, I do not see
most favorable to the of could decide a rational trier fact
how doubt the intent
beyond a reasonable formed. property take Howard’s jury confa-
Today majority sanctions
bulation; evidentiary gaps with plugging hap- might have
speculation about what with what
pened that is at least consistent proved. But
the State has confabulation proof.
not itself We should reverse of the trial court in this cause
judgment of entry judgment for of a
and remand not, I
acquittal. Because the Court does
respectfully dissent. Robertson, (court appointed
Phil Clifton appeal), appellant. for Hamilton, McMullen, Andy Atty., Dist. J. Austin, Huttash, Atty., State’s for Robert the State. McGLOTHLIN, Appellant,
Curtis APPELLANT’S PETITION OPINION ON FOR REVIEW DISCRETIONARY v. MALONEY, Judge. Texas, Appellee. The of STATE aggravated A convicted of 1256-92. No. having inter sexual assault sexual younger with a child than fourteen course Texas, Appeals Court of Criminal years-old, punishment at and assessed En Banc. $10,000 twenty years imprisonment and a Code, 22.021. The 23, fine. Penal V.T.C.A. § Dec. 1992. Appeals affirmed in a Eleventh Court Rehearing Feb. 1993.
On
published opinion.
v.
McGlothlin
1992).
(Tex.App.-Eastland