*1 224; S.W.2d Morano
550;
McCarty v.
Although plea bargains are af- enforceable into, they
ter are parte entered see Ex
Williams, 943; parte Rog- S.W.2d Ex
ers, 741; here, agreement no S.W.2d
was reached between the state and
lant, and thus no error shown.
Appellant’s final contention is that denying appellant’s
the trial court erred penalty
motion to bar the death because
appellant gave a statement to a San Anto police
nio exchange officer in for the offi promise prose
cer’s he not be would capital undisputed
cuted for murder. It is given
that the statement the officer was
not admitted evidence at either state of into trial, successfully since chal
lenged sup its admission a motion to
press prior to appellant’s first trial for the Ap
instant offense. No error is shown.
pellant’s final contention is overruled. judgment is affirmed. PENRY, Appellant,
Johnny Paul Texas, Appellee.
The STATE 68882.
No. Texas, Appeals of of Criminal
Court Banc.
En 9, 1985.
Jan. 1, 1985. May
Rehearing Denied *5 Huntsville, appel- Wright,
John E. for lant. Price, Hugh M. Atty. L. and
Joe Dist. Groveton, Barton, Atty., Robert Dist. Asst. Huttash, Austin, Atty., for the State’s State.
OPINION DAVIS, Judge. TOM G. for
Appeal taken from a conviction Trinity Coun- Trial was in capital murder. Polk change of from ty following venue County. finding appellant guilty got After her. I and down on sat down on her murder, capital jury returned affirma- stomach and I told her that I loved her findings special tive to the three issues I and hated to kill her but had to so she 37.071(b), under Art. Punish- V.A.C.C.P. squeal (Emphasis on me." add- wouldn’t ment was assessed at death. ed.) Appellant murdering was convicted In his second confession relat- P_ C_, a married following: “During ed the the last 3 weeks female, 25, 1979, by stabbing on October I thought about the Chick a lot. [deceased] pair her “in the scissors course of 25, 1979, morning Then on the of October committing attempting to commit the yesterday, got up I which was and went to aggravated rape” offense of of the said 8 or I town somewhere around 9 a.m. saw victim. girl City Hall who reminded me of the his first go Chick. I decided I would over to the complains that the trial court erred fail- get piece. Chick’s house and me a I also ing, timely objection, after to instruct the get money wanted to that she had voluntary manslaughter. on the law of purse. her I knew I went over to if testify did not at trial. His raped I Chick’s house and her that confessions, two written Exhibits 47 and would have to kill her because she would were introduced into evidence police tell who I to the I didn’t Both ap- State. confessions indicate that (Emphasis go pen.” want to back to the pellant way forced his into the deceased’s added.) house, grabbed neck, her around the Further on in the confession open pocket held his knife to her throat. struggle during
After a stated: “I came back and sat on her stom- which hit deceased, floor, knocked her going ach. I told that I her to kill against causing shoved her a stove her face her I I thought and that hated to but she bleed, the deceased stabbed the added.) squeal (Emphasis would on me.” lant with some scissors. Code, 19.04, V.T.C.A. Penal Sec. states: Appellant knocked the scissors out of the *6 Voluntary Manslaughter. 19.04. “Sec. dragged deceased’s hands. He her into the (a) person A commits an offense if he kicking hitting bedroom. After and her causes the death of an individual under repeatedly once, “stomping” and her circumstances that constitute mur- would lant had intercourse with the deceased for code, der under Section 19.02 of this ex- thirty Appellant minutes. next retrieved cept that he caused the death under the landed, they the scissors from where had passion immediate influence of sudden deceased, sat on the and her in the stabbed arising adequate from an cause. chest with the scissors. “(b) passion’ passion ‘Sudden means di- Appellant contends that the fore rectly by arising prov- caused and out of going following facts and the statement by the individual killed or another ocation from the second confession raise the issue acting person pas- with the killed which voluntary manslaughter: of “It I was while sion at the time of the offense and arises f_ing her that I decided to kill her solely provoca- is not the result of former the scissors since she stabbed me with tion. them.” “(c) ‘Adequate that cause’ means cause appellant In his first confession related f_ed degree commonly produce a would following: “I went on and her resentment, in a anger, rage, or terror got on the bedroom floor and then I after ordinary temper, person of sufficient through got up I and walked over to the incapable render the mind of cool reflec-
kitchen door the scissors had landed where picked up. I and them walked back to her tion. “(d) An offense under this Luck, section is a In the deceased initiated the diffi-
felony
degree.”
of the second
leading
culties
to his
by going
death
over
gun
house with a
Appellant clearly failed to raise the issue
assaulting appellant. Here, the evidence
voluntary
manslaughter under our case
shows unequivocally
that
initi-
law. Nowhere in either confession or else-
ated the entire
episode leading
criminal
where does
indicate that he was
death,
the deceased’s
acting under “the immediate influence of
had
aggravated
committed an
rape of the
passion”
sudden
when he killed the de-
deceased
Appellant’s
before he killed her.2
ceased or that he was
by “anger,
motivated
ground
first
of error is overruled.
rage, or resentment.”
his second
(Tex.Cr.
In Luck v.
complains
(his
that State’s Exhibit No. 47
App.1979), we found no error in the trial
Smith)
confession to Officer W.F.
im-
charge
court’s refusal to
voluntary
man
properly admitted
timely objection,
over
slaughter
though
even
the deceased had
warnings typed
that the
on the confession
gone
over to the
house and hit
38.22,
were
in compliance
not
with Art.
Sec.
prior
and stabbed him
being
shot
2, V.A.C.C.P.3
appellant.
In Roberts v.
Specifically, appellant complains of the
(Tex.Cr.App.1979),
discussing Luck, we
typed warning
confession, “(1)
I
noted: “In Luck the Court could not find
right
have a
lawyer present
to have a
evidence which would raise the issue of
advise me
prior
any
either
questioning
voluntary manslaughter, pointing out that
(2)
or during my questioning;
that if I am
Luck,
at no time did
who did not testify,
employ lawyer
right
unable to
I have the
indicate
statement recounted
lawyer appointed
to have a
to counsel with
police officer, ‘that he was in fear of the
prior
me
any
to or during
questioning
” (Emphasis added.)
deceased.’
(Emphasis added.)
...”
case,
only
the instant
is there no
38.22, supra, literally speaks
Art.
appellant’s “anger, rage,
indication of
re-
right
lawyer
to have a
“advise” the accused
sentment,
terror,”
or
but the facts are far
speaks
right
lawyer,
“prior
to a
suggestive
phenomena
less
of such
than
during any
questioning.” (Empha-
they
added.)
were in Luck.
sis
1.
asked
person
for and received a
in-
or received from the
to whom the
struction on the lesser included offense of mur-
warning
statement is made a
that:
der.
“(1)
right
he has the
to remain silent and
any
any
not make
statement at all and that
imagine
2.
It is difficult to
a factual situation in
may
against
statement he makes
be used
him
passion
which sudden
quate
can arise from an "ade-
trial;
at his
19.04,
supra,
cause” under Sec.
when a
“(2) any
may
he
statement
makes
be used
*7
committing
defendant is in the course of
one of
court;
against
as evidence
him in
underlying
the
offenses delineated in V.T.C.A.
"(3)
right
lawyer
he has the
to have a
Code,
19.03(a)(2).
Penal
State,
Sec.
See Smith v.
present
prior
during any
to advise him
to and
(Tex.Cr.App.1959);
Appellant
discrep
that the
issue. Under the
contends
must
typed warnings
supra,
the
and the
the face of the statement
show
ancy between
magistrate’s
terms
that the accused received the
constitutes a violation of the
statute
warning from the
warning
proper
or the
of the statute and renders the confession
the statement. Since we
person who took
inadmissible.
printed warning on the
have held that the
problem
We confronted
similar
Ed
received from the officer who
confession
(Tex.Cr.
We could if portion that this of come or he had run. Nelson further warning satisfy proba- did not Miranda if we stated that he did think he had agreed appellant Appellant with that it had the effect ble cause arrest. followed the telling him he lawyer could not have a patrol officers to the car. prior during questioning. both to and We Livingston The officers drove to the Po- reject interpretation. such an Department lice and while outside met Ted Further, Everitt, investigator the record for the district at- indicates that magistrate torney’s lant taken to office. Nelson had was a no more radioed Everitt forty-five and him than minutes told he had someone he wanted before Officer gave him warning began Smith his and Everitt to talk to. taking statement, his and was informed Everitt testified that as soon as he magistrate right of his re- to have a up appellant walked he read him his appointed attorney, “present pri- tained or rights” “Miranda from a card. Everitt said during any ques- or to and interview procedure precautionary this was a normal added.)
tioning (Emphasis Appel- ...” took, especially he he when did not know a ground lant’s third of error is overruled. person’s in a case. involvement Everitt, appellant talking As the was appel his fourth plain Grissom noticed blood view on lant contends that first his written confes shirt. Everitt testified back product illegal sion was the of an arrest appellant if that he asked would improperly and search and was thus admit permit Appellant him to look at his back. ted. removed his shirt. Ray Billy deputy Nelson is a sheriff in puncture The officers noticed two small County. Polk He that he testified wounds on He said he back. riding patrol Deputy with Bob Grissom the bicycle had fallen off of a earlier that morning of re- October 25. The officers morning and stick had cut him in the a report describing suspect ceived a radio in it. Appellant’s back. shirt had no holes possible stabbing rape being in a case Appellant said the shirt he had been wear- investigated by Livingston De- Police ing at his house. was back partment. thought description Nelson fit who he knew had been recent- go appellant if he would Everitt asked ly paroled Department from the Texas get give it to the officers. the shirt and rape Corrections on a conviction. agreed signed consent to Appellant form. The form also contained search home, Upon finding appellant at Nelson warnings. standard Miranda informed him of the situation and asked anything Appel- him if he about it. appellant proceeded knew officers replied again, appellant lant that he did not. Nelson asked appellant’s house. Once searched, going handcuffed, if mind Nel- he would or re- was not time, investigating talk any way. son to to the officers At this Everitt strained Appellant go he if the case. said would had not to the deceased’s house. been they brought officers him home when back shirt, obtaining appellant’s Everitt After finished. accompanying him if he would mind asked deceased’s house so in the backseat of the Everitt rode after con- could talk to him further sheriffs car which was unlocked. Nelson Everitt investigation. ducting on-scene Everitt not under ar- testified that, searched, down, what we patted testified “we didn’t know He was not rest.
645 Livingston police Appellant’s arguments had” at the time. A offi- are without merit. “holding” the him. facts in issue are similar to those cer was crime scene for The found Clark v. S.W.2d agreed Appellant go prom- to if Everitt (Tex.Cr.App.1981), Moore v. not, “try ised that the officers would (Tex.Cr.App.1976), S.W.2d 664 and Jones v. hang something on him that he had not appellant done.” Everitt assured that this Clark, Moore, Jones, appellant inAs and happen. Everyone proceeded would not accompany police was asked to officers Appellant the crime scene. continued to voluntarily Appellant, and did so. like sus- ride with Nelson and Grissom. Clark, Jones, pects ques- Moore and was house, parked At the victim’s Nelson during investigative stage of tioned nearby Appel- while Everitt went inside. police activity. Even after blood was dis- patrol lant remained the backseat of the appellant’s covered on back he was not car. open One of back doors was and any way restrained and was asked Occasionally he was under no restraint. accompany the officers and allow a search. away Nelson and Grissom would walk from prior to his evidence revealed that con- they the car to look for tracks. Once went appellant free to leave and fession was was car, backyard, sight into the out of treated as if he was free to leave. They up for five ten minutes. also went Appellant was not arrested until he con- looking the road for tracks. that, Appel- “I done it.” fessed to Nelson minutes, thirty forty After or Nelson as ground of error is overruled. lant’s fourth car, appellant walked back to the tried to eighth grounds In his fifth and of error said, Appellant “Billy, talk to Nelson. I’ve appellant contends that the trial court got something you.” I want to tell Nelson admitting erred in into evidence the con- said, appellant quiet. told to be Appellant appellant signed. Ap- form sent to search “No, get I want to it I my off conscience. signa- pellant’s theory evidently that his get done it and I want my it off con- ture on the form was as the result obtained science.” held illegal of his arrest. Since we have point At this Nelson advised Grissom to at this was not under arrest place appellant under arrest. Grissom read merit. juncture, this contention is without warnings his Miranda while Nel- grounds sixth and of er- his seventh son went into the deceased’s house to in- ror, appellant complains that the trial court happened. form Everitt what admitting copies of erred in into evidence Appellant was taken inside the house warning cards used Gris- the Miranda made where he a brief oral confession. they read som and Everitt when Testimony toas what said inside warnings. This evidence should his the house never admitted before because, “it reflected have been admitted jury. Appellant police taken state- appellant’s oral written department brought magis- before illegally.” taken The cards ments were trate. they this because contained “reflected” Appellant now contends that he was un- of error wording complained of when, der arrest “Nelson and Grissom con- two and three. bearing guns him fronted visible wording complained of was not Since the car, badges in a marked inside his 38.22, supra, or Art. violative Miranda Alternately, home.” he contends he was argument must fail. under arrest when the officers noticed ninth contends in his illegal, bloody shirt. Since the arrest was to Nel that his statement the fruits of of error confessions were that, it,” been not have arrest, discovery son “I done should illegal as was the it since was mur- admitted into evidence wearing the shirt he was when he or, alternately, illegal an arrest result of dered the deceased. *10 was an said, oral admission made while in custo- this?” The deceased “This is Pam. dy. explained ground As in of error num- raped. I’ve been and stabbed Mother’s at four, appellant ber had not been arrested at Help hurry.” the church. me and all when he ques- made the statement in Peters arrived at the deceased’s house making tion. It was the of the statement within ten minutes. found She the de- prompted his arrest. Ground of error bed, lying ceased on the covered with nine is overruled. moaning. blood. The was deceased Peters Appellant complains next that his west- Buller, neighbor, Becky help. ran to a for illegally ern shirt was seized and admitted Peters and Buller returned and called the into evidence. This same contention was police. period Peters testified that the time part ground raised as of fourth receipt between her of the deceased’s call of error. It is without merit. and the police notification of the was about 15 minutes. Buller police testified that the ground error, In ap his eleventh of called were between 10:15 and 10:30 a.m. pellant contends that the trial court errone ously photograph Page, admitted into evidence a police answering E.C. the officer showing of his call, back the scars the deceased the initial stated that he received the put there in attempt report an at self-defense. radio his car at 10:26 a.m. The objection No was made at trial to this evi appeared deceased “looked bad” to him and Nothing presented dence. pain. blood, is for “bubbling review. be She had out Esquivel (Tex.Cr. of her mouth.” App.1980). Dr. Edward Bruce McClendon was on ground error, duty his twelfth of emergency the room the de- when complains that by admitting brought the court erred ceased was in. He described the 48, appellant’s into evidence injuries generally consisting Exhibit second as of a stab chest, written confession. eye, This confession was wound to the bruises around the given Ranger neck, to Texas Maurice Cook on marks the abdomen and left side. Specifically, appellant October 26. con- testified, jury’s pres- He outside of the tends that since his first confession was ence, that, “Obviously, she [the deceased] obtained, illegally presumption “there is a grip of was and under the influence produced the same force which know, mean, injuries. you I she died prior statement still in was motion.” As way an hour later. There no she ever above, appellant’s noted first written con- grip injury left the ...” He also legally fession Appellant’s obtained. recent, injuries testified that her were oc- ground twelfth of error is overruled. curring within 30 minutes of her arrival at error, eighteenth ground In his appel- hospital.
lant asserts that the trial court erred
Pruitt,
pathologist perform-
Dr.
Jack
admitting
testimony
Cindy
Gail Pe-
ing
autopsy,
testified that the deceased
ters that
the deceased told her over the
eye, strangulation-
had a
her
bruise on
left
telephone,
raped.”
“I’ve been
and
stabbed
neck,
type
left
marks on the
a bruise on the
a man’s
his nineteenth
side of the chest about the size of
complains
heel,
right hip,
a
lant
of the trial court’s failure to
shoe
a bruise on the
right
disregard
going
instruct
inches into the
deceased’s
stab wound
2½
lung.
kidney
ruptured
statement to Peters.
Her left
had
excessively.
bled
The stab wound was
The deceased’s mother called deceased
primary cause of death.
morning
9:00
October
between
complained
daughter
Her
at the
that the
and 9:30.
was fine
contends
Peters,
friend,
hearsay and therefore
time.
the deceased’s
re-
of statement was
Further, the
ceived a call from the deceased at “around
inadmissible under State law.
purportedly vio-
morning.”
10:00 in the
admission of the statement
Peters did
asked,
under the
calling
right
lated his
to confrontation
know who was
“Who
hearsay declarant
Sixth Amendment
to the United States
is not
“[W]hen
trial,
present
for cross-examination at
responds
Constitution. The State
that the
gestae
excep-
normally
“res
the Confrontation Clause
re
statement was
and an
rule,”
showing that he is
hearsay
quires
tion to the
unavailable.
therefore
*11
then, his statement
admissible.
Even
admissible
only
adequate
if it
‘indicia of relia
bears
As we said in the recent case of
bility.’ Reliability can
inferred
be
with
State,
486,
(Tex.Cr.
631
491
King v.
S.W.2d
out more in a case where the evidence
excep
App.1982),
recognized
is a well
“[I]t
firmly
hearsay
rooted
ex-
falls within a
general prohibition against
tion to the
hear
66,
ception....”
Appellant’s contention that his
rights
vi
then
the substance as “a
United States constitutional
were
Carr
described
clear, viscous-looking
gen-
by the admission of this
olated
statement
substance
Roberts,
similarly
must
fail.
ital area.” Later she testified that
Ohio
2531,
“appeared
L.Ed.2d 597
to be semen.” No
U.S.
100 S.Ct.
substance
(1980),
on the de-
Supreme
the United States
Court
slide smears were ever made
Right after Carr noticed the vis-
stated:
ceased.
substance,
cous
blood came
vagi-
out of the
(1947),
Tex.Cr.R.
649 rape. Appellant mit concedes that the de- teenth and fifteenth of error are body ceased’s was found and identified. overruled. addition to two written error, ground In his sixteenth rape
confessions to the murder and of de- appellant complains that the trial court ceased and his oral confession that “I done refusing charge erred it,” the evidence consisted of: charge A law of circumstantial evidence.
(1) longer on circumstantial evidence is no re pathologist’s testimony that the quired. 646 Hankins S.W.2d 191
primary cause of death was a stab (Tex.Cr.App.1981). chest; wound to the deceased’s (2) spontaneous the deceased’s utter- In his seventeenth that, ance to her friend “I’ve been appellant complains of the trial fail court’s ” raped ...; stabbed and charge ure to that his confessions had to be corpus corroborated. When the delicti is (3) bloody scene; scissors found at the evidence, established other no such (4) the deceased’s statement at the hos- ” charge necessary. Honea v. that, pital in; “the scissors are still (Tex.Cr.App.1979); S.W.2d Aranda v. (5) spermatozoa seminal stains S.W.2d found on underwear4 No error is shown. appeared “what semen” be twenty-fifth twenty-sixth vagina; the deceased’s *13 appellant complains of error that (6) testimony of the ambulance attend- in admitting the trial court erred the testi- panties ants that the deceased’s mony Armitage punish- of one Julia at the just were down above her knees hearing. Armitage ment testified concern- (consistent state- ing attempted aggravated rape an commit- that, ment up “She kinda sat against sought ted her. The State to show pulled panties past knees.”); her her responsible for this ex- (7) the description per- deceased’s of a traneous offense. her; son who attacked Appellant contends that the did not State (8) scene; a knife found at the prove perpetrator he was the of the at (9) testimony, consistent with tempted aggravated rape. Armitage After confession, lant’s in- punishment hearing, appel testified at the stalled a stove and a freezer at the lant asked for a mistrial on the same theo days deceased’s house several be- ry urged appeal. now on Before the trial crime; alleged fore the court could rule on the motion the State (10)marks and bruises found on the de- Armitage’s “follow-up” offered to testimo ceased consistent with a criminal as- ny. The court then “overruled and denied” by sault another. appellant’s motion for mistrial. The evidence is sufficient to establish proper pursuing The method of corpus delicti. ruling objection an until an adverse is ob State, (2) having corpus (1) objection;
The
re
established
tained is to
make an
delicti,
(3)
prove
appellant’s guilt
quest
disregard;
could
as
an instruction to
State,
agent guilty
of the
664
commission
move for a mistrial. Fuentes v.
by
(Tex.Cr.App.1984);
crime
his confessions unaided
other
333
Koller v.
S.W.2d
State, supra;
State,
(Tex.Cr.App.1975).
evidence.
v.
Gutierrez
Dr. Kenneth and Dr. Felix appellant’s com- testified for the State as to psychiatrists Peebles are the two who testi- petency to stand trial. appellant’s dangerousness fied as to future competent jury appellant A found hearing. punishment
at the appellant’s At stand trial on March 13. 12, 1979, appellant for On November the Dr. Garcia testified capital murder trial in- arraigned open attorney in with his court the defense on the issue of and Peebles present. response inquiry sanity. Vogtsberger to an from Doctors court, on the attorney in- in for the State appellant the and his testified rebuttal insanity. appellant had issue of formed the trial court that trial, During penalty phase the Dr. You this case. know what the effect of you Peebles testified that “dan- the three issues will be the event gerous and does constitute a to soci- ... Is there yes any pride threat answer so, ety any person, and will continue whenever life of less taking to do the much a in society.” person he’s free this Peebles based which evidence has shown on testimony age afflicted of examination of here was an child at the during competency the in- hearing boy records reflect that nine. The this case, on an stant examination age as mind at the nine had an afflicted of competency sanity lant’s and made get Peebles and can’t around that And we ... prosecution prior in a for of then, age seventeen, again of at the we aggravated rape, offense of being boy find the condition of this as appellant’s stay in basis of a mental institu- retarded, now, mentally and even these practiced psychiatry tion where Peebles say he mentally doctors is retarded ... 1973. But, with this boy mentality, a with this affliction, though even have you mental Vogtsberger Dr. testified there was a against found that issue us as to insani- high probability appellant “would commit ques- think ty, any I that there don’t of criminal acts violence consti- that would single you one juror’s tion of minds continuing society,” tute a threat wrong, something definitely that there is that dangerous would be if re- basically, boy. with this think And I leased. single you there is not one of objections No made whatsoever were boy doesn’t that this had brain believe dangerousness testimony the future damage they it as found at the Universi- Vogtsberger. Peebles and Texas, ty they when tests ran those appellant presented testimony Before at those formed conclusions ...” punishment stage he reoffered “all of complains that neither Peebles given the evidence heretofore on main Vogtsberger any nor warned him that guilt trial on the phase innocence during statements he made their interviews reduced, the witnesses heretofore without against him used could be him on necessity having to recall them.” dangerousness punish- issue of future at a jury During argument punishment at the hearing. ment stage, appellant’s attorneys both dwelt Smith, supra, Supreme Estelle on mental condition and asked Court held the admission of a doctor’s assessing punish- to consider it in danger- testimony the issue of future ment. ousness, pretrial in- psychiatric on a based Attorney Wright stated: *15 penalty terview a defendant a death I think also a “... there’s been lot of case, a defendant’s Sixth violates Fifth and Johnny Penry’s evidence here about Paul rights when he has been Amendment not mental condition and Cer- mental state. right that advised of to remain silent or his tainly you have to believe that his mental against can at a his statements be used him healthy. mentally ill. state was He’s punishment hearing. Supreme But the Certainly you know that his environment Estelle, supra, at Court stated 451 U.S. part in played a this. Think each about 1874, 465, at that: 101 S.Ct. special you those issues and see of if insanity a asserts the “When defendant inquiring don’t that we’re into the find psy- supporting introduces defense and state mental each of defendant testimony, may de- chiatric his silence (Emphasis every one them ...” of prive only State of the effective added.) proof controverting of his means it has Attorney Newman stated: interjected he on an that into issue Now, Accordingly, Ap- you we several Courts of upon
“... are called case. that, upon peals held under such circum- punishment are called assess have 652
stances, a required berger, defendant can be testimony which in part was based sanity submit to a examination conducted psychiatric examinations of prosecution’s psychiatrist.” during warnings which insufficient were given. principle underlying Parker In (Tex.Cr.App.1983), Parker v. applied by has been in capital - this Court denied, -, t. U.S. cer case, 762, 769 496, 104 (1983), S.Ct. Griffin L.Ed.2d 689 we (Tex.Cr.App.1983). Appellant’s twenty- relied on language in.holding this that the twenty-fourth grounds third and of error psychiatric introduction a defendant of are overruled. testimony in order insanity to raise an de fense constitutes a waiver of the defend In twenty-seventh ground his of Fifth privilege ant’s Amendment in the appellant complains of the trial court’s re- same manner as would the defendant’s grant fusal requested charge on volun- testify election to at trial. tariness of the punish- confession at the stage. ment that,
We also stated
“it would be absurd
to hold that
waived his Fifth
Once a trial court has determined
rights
Amendment
but he could still use
taken,
voluntarily
that a confession was
the denial of his
right
Sixth Amendment
there is no
right
federal constitutional
protect
counsel to
his Fifth Amendment
jury. Lego
have the issue resubmitted to a
right
prevent
using
the State from
re-
Twomey,
U.S.
S.Ct.
testimony
buttal
arising out of the flawed
(1972).
L.Ed.2d 618
interview.”
supra,
Parker v.
at 53.
Texas,
the defendant does have
prosecution
Parker
involved a
for bur-
right
the further
to have the issue of the
glary
rape
with intent to commit
where the
of a
voluntariness
confession submitted to
testimony
psychi-
State introduced the
of a
38.22,
jury.
Art.
Sec.
V.A.C.C.P.
atrist in
insanity.
rebuttal on the issue of
38.23,
See also Art.
V.A.C.C.P.
In the instant
case
raised the
however,
reject,
We
conten-
insanity
guilt-innocence
issue of
at
tion that he is entitled to an instruction on
phase
guilt-inno-
and reintroduced all of the
penalty phase
voluntariness at the
of a
testimony
cence
punishment stage.
at the
trial,
capital murder
where as here such
jury argument
It is clear from the
already
issues had
at the
been submitted
appellant’s attorneys
they
wanted the
guilt-innocence stage.
twenty-
Appellant’s
jury
testimony
to reconsider
all of
rele-
seventh
of error is overruled.
insanity
punish-
vant to the
at the
defense
through
twenty-eight
of error
stage,
ment
wanted the
to consid-
thirty appellant challenges
sufficiency
special
er it as to “each of those
issues.”
support
jury’s
of the evidence to
af-
reading
It is also clear from a
of the record
punishment
to the three
firmative answers
appellant’s jury arguments
and rein-
37.071,
issues. See Art.
V.A.C.C.P.
guilt-innocence
phase
troduction
testimo-
argument
almost en-
bases
ny
response
testimony
were not a
inadmissibility
tirely
purported
Rather,
Vogtsberger.
Peebles
confessions,
his two written
a contention
trial,
throughout
the entire
relied
previously rejected.
we have
heavily
history
instability.
on his
of mental
*16
one,
respect
special issue
With
to
appellant raised the issue of
Since
reason
the evidence of deliberateness and
insanity
guilt-innocence stage
at the
expectation of death was overwhelm
able
punishment hearing
trial and at the
ing.
issues,
respect
special
to all of the
includ
confession, appellant
to
ing
dangerousness,
effectively
future
he
In his
admitted
killing
telling
he
her so
waived his Fifth and Sixth Amendment
the deceased
was
rights
complain
danger
“squeal”
not
on him. He also
to
about the future
she would
if I
testimony
Vogts-
of
confessed that he
that
went over
ousness
Peebles and
“knew
raped
appellant
to
the Chick’s house and
her that I
evidence shows
to be an
rapist, quite willing to kill
kill
habitual
his vic-
would have to
her because she would
tims, particularly
give
who
those
least
tell who I
I
police
was to the
and
didn’t
of
Near the end
indication
resistance.
go
to
pen.”
want
back to the
appellant
his second
confession
written
appellant’s
Portions of
confessions read
stated, “If
been
I
it had not
the Chick
punishment stage
at the
show that he had
killed,
stabbed and
it would have been
planning
rape
been
for
to
some-
months
Chick,
or some other
but I don’t
Jackie
body
prior
and that in the three weeks
to
think it would
been Jackie
have
because
instant
appellant
offense
had focused
fought me.”
she wouldn’t have
on the deceased and Jackie Howdeshell as
appellant’s
The evidence that
possible
Appellant
victims.
confessed that
response
conduct was an unreasonable
“thought
raping”
he
about
Howdeshell and
the victim’s actions and that she did not
into her
broke
house.
provoke him
substantial. The
was also
evi
Howdeshell testified
her
that
house had
in
special
dence reviewed
the discussion of
twice been broken into
the time
around
jury
issue one was sufficient to allow a
appellant
the instant offense when
was liv-
kill
appellant
find that
did not
the deceased
ing
by.
close
She
that
also testified
she
him
because
stabbed
with scissors in
lant showed an
in her and
interest
asked
effort, causing superficial
her resistance
marry
her to
him.
Further,
jury
wounds.
was free to find
Appellant’s confession shows that he
that even
resistance
victim’s
caused
if
calmly and unhurriedly retrieved the de-
her,
doing
to kill
his actions in so
plunged
scissors and
ceased’s
them into her
response.
did
constitute a reasonable
explaining why
after
had to kill
he
her.
rights
The victim
her
in
was within
resist
ing
involving deadly
an
Ap
attack
force.
respect
With
punish
to the second
granted
pellant
and was
deserved
issue,
“probabil
ment
which focuses on the
special
instruction on
issue three. Evans
ity that the defendant would commit crimi
State,
(Tex.Cr.App.1980).
v.
Doctors Peebles and testi- reaffirmed in Sanne per- anti-social fied had an See also S.W.2d sonality continuing and would threat be (Tex.Cr. Russell society. There was of lack of evidence theory that: App.1983). King rests appellant’s part for the remorse instant simple are previous There was also “Where terms used words offense ones. themselves, meaning failure to re- and are used ample evidence of meaning, jurors sup- ordinary their are form himself. *17 654
posed
meaning
to know such common
V.A.C.C.P.
is unconstitutional because it
“desert,”
terms and under such circumstances
any concept
does not contain
of
such
necessarily
common words are not
jury
or
to find
allow
that a defendant
charge
jury.”
to be defined in the
to the
does not
to die.
deserve
Joubert v.
219,
136 Tex.Cr.R.
assertion,
Contrary
to
368,
S.W.2d
Adams
directly
question
dealt
of
We decline
to re-
invitation
constitutionality
the statute’s
in relation to
King
progeny.
verse
and its
These
alleged
provide
jury
its
failure to
for
le
grounds of error are overruled.
special
nience
all the
issues are an
after
thirty-fifth ground
In
of error
affirmatively. Appellant’s thirty-
swered
complains
lant
of the trial court’s failure to
eighth ground of error is overruled.
grant
charge
a
on circumstantial evidence
respect
ground of
With
to
error
punishment stage.
ground
at the
As in
of
thirty-seven,
in
it has
effect been answered
sixteen,
Hankins
error
our decision in
Jurek v.
Supreme
opinion in
Court’s
State, supra, disposes of this issue.
Texas,
2950,
428 U.S.
96 S.Ct.
ground
In
thirty-six,
of error
(1976), upholding
L.Ed.2d 929
this State’s
contends that
the trial court erred in sub-
statutory
imposing capital
scheme for
mur
mitting
jury
punishment
to the
at
statutory
der. Our
scheme allows for
stage,
timely objection,
over
a
form
verdict
aggravating
consideration of
broad
permitting
penalty
assessment of the death
Code,
mitigating factors.
Penal
V.T.C.A.
where the evidence showed
to be
imposition
19.03 ensures that
of the
Sec.
mentally retarded.
possibility
death
if
sentence
not even
ground
In
thirty-seven, appellant
of error
aggravating
certain
circumstances are not
complains that the trial court erred in fail-
proven beyond
by the
a reasonable doubt
ing
require,
to
as a
of the
condition
assess-
State.
penalty,
ment of the death
State
present
all
Defendants are allowed
beyond
any
show
a reasonable
doubt
possible
mitigating information at
relevant
aggravating
found
circumstances
to exist
punishment hearing,
part
as
outweighed any mitigating circumstances
jury
answering
effort
to aid the
existed in this cause.
which
special issues.
ground
In
thirty-eight, appellant
of error
argue
Defense counsel
is allowed
court erred in fail-
maintains that the trial
against
penalty
general,
or its
the death
ing
charge
jury
submit a
at the
imposition
particular
in the
case at hand
punishment stage authorizing a discretion-
light
mitigating factors.
In
of all relevant
ary grant
mercy
upon
the exist-
based
sum,
pass-
penalty
the Texas death
scheme
mitigating
ence of
circumstances.
despite failure to
es constitutional muster
grouped together grounds
Appellant has
aggravating
require
to find that
thirty-six through thirty-eight
of error
outweigh mitigating ones.
factors
purportedly offered “ar-
his brief and has
ground
error
respect
With
gument
support
and authorities” in
of each
light
thirty-six,
in the
the evidence viewed
fact,
ground
appellant’s argu-
of error.
did not un
most favorable to
State
only
thirty-
ments relate
of error
mentally
equivocally
show
to be
eight, concerning
discretionary grant
Vogtsberger
testified that
retarded. Dr.
mercy,
“concept
or a
of desert.”
appel
personal
on his
examination
based
(Tex.
Adams v.
lant,
he did not believe
be
Cr.App.1979),
on other
which was reversed
mentally retarded.
Supreme
the United States
Texas,
unequivo
did
Court in Adams v.
Even if the evidence
448 U.S.
moderate
(1980),
appellant’s mild or
specif
cally
we
establish
S.Ct.
various witnesses into evidence at the “Q. explain the reason or ex- you Can petency hearing. diagnosis? in the plain the difference thirty-nine Yes, of error com give person as “A. we like plaint testimony made of Maurice possible give Cook’s and diagnosis mild a as that he took a statement from as far as of the doubt them benefit gave warnings. Appellant him various can, degree retar- and with some we testimony regarding the con asserts emotional, depriva- social dation prejudicial fession was and should not have expect that he would be tion we would competency hearing. been admitted at the making adjust- difficulty in in more life, particularly through ado- ment to stand, taking Prior to Cook’s the witness Since that lescence and adulthood. prosecution witnesses for the defense and know, time, he, had in the you been (in jury) objec- front of the testified without out, has penitentiary and then come concerning tion both written statements out, he time after he was and a short given police by appellant. Evidently, admission, raped according to his own ability each side believed that lady, he killed the again, but this time warnings give detailed understand her why him he killed and I asked determination statement was relevant to a and— Error, competency. any, of his if testimony cured
admission of Cook’s
was
MR.
We
“(Objection)—BY
NEWMAN:
in else-
because the same evidence came
going into the de-
object
the doctor
objection.
where without
Boles v.
offense,
it
alleged
because
tails of the
(Tex.Cr.App.1980).
and is
appropriate at this time
is not
of this
to the issues
highly prejudicial
forty-two
of error
involves
Ground
time,
ask the Court
At this
we’d
case.
through his conver
testimony that
Cook’s
it
jury not to consider
instruct the
appellant on the date of
sations with
mistrial.
request a
Not
shirts were recovered.
offense two
I
right,
All
will
“BY THE COURT:
testimony earlier admit
only was identical
Ladies and
your objection.
sustain
further,
objection,
appel
ted
but
without
disregard the
jury,
gentlemen of the
in
and an
objection was sustained
lant’s
and Dr.
Dr. Peebles
last statement
Appel
disregard
given.
struction to
go
not to
Peebles,
instructed
you are
He thus
for a mistrial.
lant did not ask
that he
offense
details of the
into the
requested. DeRusse
all the relief
received
proceed.
can
you.
You
related
Though
“BY MR. NEWMAN:
response
What was the
improper
Peebles’
ruling
clearly
on the mistrial?
his testimony was not
calculated to
*19
inflame
jury.
the minds of the
Carey
See
“BY THE COURT: Your motion for
State,
v.
However,
every
not
of evi
mention
“Prospective
prejudicial.
jurors
dence of the crime itself will
shall be
be
informed
imprisonment
The
the offense
a
presented
evidence of
that
sentence of life
or
competency jury
mandatory
must
death
on
be of such a
is
conviction of a
deny
capital
prospective juror
felony.
nature as to
the accused a fair and
A
shall
impartial
serving as
competency.
disqualified
juror
determination of his
be
from
Brandon,
supra (Opinion
See
unless
oath that
Appeal
On
he states under
the man-
Abatement).
imprisonment
datory
After
of death or
penalty
for life
not affect his deliberations
will
case,
In the instant
Dr. Peebles’
any
on
of fact.”
issue
improperly injected
remarks
details of the
Appellant,
Texas,
relies on Adams
who
v.
alleged crime itself into evidence at the
supra,
in the instant
concedes that
case the
court,
competency hearing. The trial
how
inquire
prospective jur-
State did
if the
not
ever, promptly
firmly
appel
sustained
prospect
ors
affected
would be
objection
lant’s
instructed the
jurors
the death
and that no
penalty,
were
disregard
response.
Peebles’
An instruc
12.31(b),supra.
excluded under Sec.
tion
disregard improperly
evi
admitted
usually
negate
dence
sufficient to
error.
is
a similar situation
Paced with
(Tex.Cr.
592 S.W.2d
Furtick v.
(Tex.Cr.
White
App.1980).
held,
App.1981),
reading
on our
we
based
testified,
Before Peebles
witnesses
Texas, supra, that
12.-
of Adams v.
Sec.
objection
for both sides testified without
31(b)
per
unconstitutional. The
se
prior
regarding: appellant’s
incarceration
used, however, to
statute
exclude
cannot be
conviction;
on a
penitentiary
rape
per
jurors
grounds
than those
broader
as a
in the
status
defendant
Supreme
mitted
Court
by the
Wither
capital
prosecution;
murder
instant
Illinois,
88 S.Ct.
spoon
U.S.
might
possibility
receive the
(1968).
tion. final of error is the Court. overruled. judgment is affirmed. *20 CLINTON, Judge, concurring.
For the dissenting reasons stated in the
opinion
in Russell v.
(Tex.Cr.App.1983),I remain convinced in King observation made
S.W.2d 105 (Tex.Cr.App.1977)1 and relied majority today,2 has over the Roger Leroy Quinton DeGARMO aka intervening years proven to be unsound as Combest, Appellant, Earl regards term “deliberately.” As special issue, used the first
word “deliberately” “simple is not in mean- Texas, Appellee. STATE of ing,” as continuing debate between No. 69027. lawyers, judges3 scholars and over its meaning import well attests. Court of Appeals Criminal Texas, En Banc.
It is inconceivable to me that the Court has acknowledged jury’s failure to dif March 1985. “deliberately” ferentiate from “intentional Rehearing April Denied 1985. ly” would pro constitute a denial of due cess, see Heckert v.
(Tex.Cr.App.1981), yet continues to refuse require as a matter of course that the “distinctly be informed the law [of]
applicable case,” 36.14, to the Article V.A.
C.C.P., regard. in this
Thus, it is clear to me that
objection charge to the guide
it failed to jurors’ deliberations meaning “deliberately”
as to the in the
punishment phase, constituted error.
However, due to the fact that the evi- uncontested,
dence of “deliberateness”
overwhelming large part gleaned and in admissions,
from written I can-
not see that the
under the facts of
simple
1."Where terms used are words
in them-
overruling grounds
through
2. In
of error 30
34.
selves,
ordinary meaning,
and are used in their
jurors
supposed
are
to know such common
Russell,
supra,
(Opinion
3. See
at
n. 8
dis-
meaning and terms and under such circum-
senting).
necessarily
stances such common words are not
charge
jury.”
to be defined in the