Pondexter v. State

PONDEXTER, Jr., Appellant, Earl Willie Texas, Appellee.

The STATE No. 71967. Texas, Appeals Court of Criminal En Banc. 16, 1996. Oct. 29, 1997. Rehearing Denied Jan.

579 Texarkana, Henry, appellant.

Craig L. General, Atty. Bayouth Popps, Asst. Laura Austin, Paul, Atty, for State. Matthew State’s

OPINION

OVERSTREET, Judge. indicted for the offense Appellant was pursuant to V.T.C.A. Penal capital murder 19.03(a)(2), alleging § murder Code committing to com- attempting course robbery, al- burglary mit of a habitation leged on or about October to have occurred 29, 1993, County. Prior to Red River trial, changed from the 6th Judi- venue was County of Red River cial District Court of Red the 102nd Judicial District Court July Counties. River and Bowie by jury, appellant guilty was found in a trial capital murder. The answered pursu- statutory special two issues submitted Criminal Procedure ant to Texas Code of respectively. “no” “yes” and Article 37.071 punishment at death. The trial court assessed pursuant to Appeal court is automatic to this 2(h) appeal § In his 37.071 article V.A.C.C.P. twenty court, four appellant raises to this points of error. FACTS

I. OF PERTINENT SUMMARY Ricky night of October On the Williams, Bell, Bell, appel- Deon James and discussed rob- apartment met at an lant Following lady.” this discus- bing “an old store, and sion, to a corner group walked they where house then to the decedent’s she owned. kind of ear checked see what park, to a trailer group walked The then there, Partida, then to a they Mend’s house. Once Castaneda 430 U.S. 97 S.Ct. Appellant (1977). met with James Henderson. bor- 51 L.Ed.2d 498 rowed a car and all five drove to Annona to trial, appellant Prior to filed a motion chal- buy go During beer and to club. the drive lenging jury array, hearing and a Annona, to and from the five talked about held. introduced evidence that mi- robbing lady, “crips the old and about comprised only percent norities about ten Specifically, they bloods and stuff.” dis- panel, up while AMcan-Amerieans made crip cussed which “had the heart” to do what twenty-two percent population about planning lady. do to the old On county. first State countered way house, group decedent’s reminding the court that under 35.07 Article stopped they at a store where talked about Procedure, party the Code of Criminal crip had the heart to knock out a man may challenge array only the ground on the happened getting who gas. Although jury that summoning the officer the has will- get Williams and Henderson did out of the jurors fully summoned with a view secur- car, no harm was done to the man. ing a or acquittal. conviction The State also group house, The drove to the decedent’s but argued appellant that had not met its burden parked away. the car few blocks On their prongs under the second and third of Duren. attempt house, they first to enter the were by away scared the sight patrolling of a Duren, As in set out in order to es police car. Four of the five ran back to the prima tablish a require facie violation of the car, but Bell ran James in another direction ment that there be a fair cross section the by and was not seen group the rest of the community represented, appellant must again night. Henderson, that Appellant, 1) alleged show: that group the to be exclud Williams, Ricky and Bell went back to the ed group is a “distinctive” in community; appellant decedent’s house where in kicked 2) representation that group in proceeded up front door. All four juries venires from which are selected stairs and into the bedroom where the dece- fair and in reasonable relation to the number sitting dent was on her all bed. Once four 3) persons community; in such and bedroom, were in the took Williams the sev- underrepresentation sys that this is due to en dollars that inwas the decedent’s coin group tematic exclusion of jury purse. thereafter, Immediately Henderson Duren, process. selection 439 U.S. at shot the decedent in the head and then hand- S.Ct. at 668. gun ed appellant, who also shot the case, They

decedent the head. took the dece- the instant did car, Duren, dent’s and drove to meet prong Dallas where the first because the were arrested in the car. group distinctive; decedent’s allegedly excluded is AM- However, can-Amerieans. for the following

II. VOIR DIRE reasons, appellant carry fails burden meeting two, prong showing error six and seven of unfairness unreasonableness, three, contends that and prong trial court violated the and Equal showing systematic Sixth Amendment and the Protection exclusion. The record Clause of the Fourteenth Amendment to the shows that ran veniremembers were chosen United by refusing domly, by States computer through registra Constitution voter petit array. tion, Appellant dismiss the con- driver’s license and identification card undisputed registration tends that because there was sta- There lists. was no evidence by tistical to show that AMean-Ameri- introduced that showed up twenty-two percent cans made of Bowie difference percentage between the of AM- County percent and less than county ten per can-Amerieans in the and the on petit jury array veniremembers centage jury panel were on fact fair AMcan-American, face, repre- venire did not per reasonable. While on its ten sent a fair community cross-section of array twenty-two as cent of percent versus Missouri, required Duren v. county-wide U.S. raises inference of unfairness (1979) unreasonableness, S.Ct. 58 L.Ed.2d 579 or appellant failed to show did es- supports The record that the number of African-Americans who showing (registered that all qualified process prima facie case for the selection tablish a African-American, voters, all racial those with driver’s licenses fact of the cards) minority, peremptorily were of the same identification veniremembers percentages population as the State offered the similar the State. The struek exercising county. peremptory following reasons minority veniremembers. strikes on the “systematic Appellant also failed show Anthony explained that veniremember brought informa exclusion.” forth problem because of a health was struck relating only in this case. tion to the venire juror. This service as a could affect her (Tex. May problem that her would stated veniremember Cr.App.1987), “disproportion we stated that fair. ability and be her to concentrate affect single panel in a does not representation ate that veniremember explained The State systematic of dis demonstrate the exclusion she struck because answered Brown was groups in violation of tinctive much questionnaire “pretty that she was her rights under the Sixth Amendment.” Addi penalty,” totally against the death later vacil- stated, tionally, previously the venire- concerning the death lated in her answers regis through chosen voter members were employ- she was a State penalty, and stated tration, license and identification driver’s ee, on this did not want to serve and that she by computer. Appellant registration card explained that jury. State venire- simply offered no evidence that the selection Sanchez struck because she member systematical process operated any way to fact that life belief that based on the held the ly pan from the exclude African-Americans life, assessing she would lean towards means el. may prob- have a life sentence and therefore complains regarding a Appellant also viola- law, following and that she believed lems Equal tion of the Protection Clause of the justice system is fair “some- that the criminal Castaneda, Fourteenth Amendment. 430 explains that Finally, the State times.” 1279, requires 97 at U.S. S.Ct Steptoe was struck because veniremember showing intentional In discrimination. Degree Psychology she held a Masters ease, appellant instant to fails demonstrate psy- contact with professional and has had any underrepresentation manner that the testify in chologists this case. by African-Americans was intentional caused Appellant’s acts of the sixth and sev- State. ap on examining In a Batson claim enth of error are overruled. review, reviewing pellate court must de eight, appellant con findings whether the trial court’s termine failing that the trial erred in to tends court by evi clearly examining the were erroneous jury array prosecutor’s call a new due to the to trial light most favorable dence challenges peremptory purposeful use Williams, supra. ruling. Additional court’s against veniremembers the same race as rebuts ly, some other evidence which “absent appellant. appel The record establishes will explanation, we race-neutral State’s is African-American and that the State lant finding trial court’s that the not disturb the ” all peremptory challenges to remove used legitimate.... explanation State’s panel. Bat racial minorities from the Under (Tex.Cr. 9, 25 S.W.2d Chambers 79, 106 Kentucky, 476 S.Ct. son v. U.S. App.1993). (1986), appellant has once 90 L.Ed.2d ease, reviewing the record under the burden After prima established a facie standards, to appellant failed meet provide above to race-neutral shifts State rebutting reasons the race-neutral striking burden of for the veniremembers reasons fact, by there was the State. the burden of articulated question. then has by prosecutor the race-neutral reasons articu cross-examination showing that grounds pretext for to invalidate by the State were in fact a lated only the State. 804 enunciated discrimination. Williams persuasion, he attempt to (Tex.Cr.App.1991). meet burden S.W.2d did assert that there prosecutor were Caucasian venire- was never called aas witness members who also problems had health hearing, and that the notes that who had concerns about the fact that life were taken do not constitute “statement” life, meant and were not struck the State. under Rule and that the notes constitut- words, appellant In other argued that privileged product. ed work veniremembers who were struck were treat provides differently

ed Rule 611 than others with that when a the same “wit However, problem. held, writing previously we ness uses a to memory have refresh his for such, ‘“disparate purpose treatment’ as cannot of testifying testify either while automatically every imputed situation testifying, before party adverse striking where one of the State’s reasons writing produced entitled have the at the technically apply veniremember would it, hearing inspect to cross-examine the another veniremember whom the State found thereon, witness introduce in evidence acceptable.” Adanandus portions those which relate to the (Tex.Cr.App.1993). 224-25 Fur of the witness.” Tex.R.Crim.Evid. 611. The thermore, we have held that when “the State prosecutor asserts that the was never has offered numerous race-neutral reasons hearing, called as a witness at this but we challenge, say for its we cannot that the fact agree prose can not Although with this. jurors acceptable that there were pos other witness, actually cutor was not sworn as a he sessing objectionable one or more of the give testimony did regarding to the court attributes, disparate is sufficient to establish peremptory reasons for his strikes. Howev treatment.” Cantu v. er, appellant if entitled the notes And in all of the prosecutor used State’s explanations, prosecutor the asserted memory. refresh his Since there is no evi several challenging race-neutral for reasons dence from the record to establish that the each of the examining veniremembers. After prosecutor did in fact use his notes to refresh record, appellant’s the rebuttal was insuffi memory during testimony, his or before his cient to establish that the State’s reasons appellant’s contention under Rule 611 must pretext, were a and we find therefore that fail. finding clearly the trial court’s was not erro Appellant’s eighth point neous. of error is 614(a) Rule of the Texas Rules of overruled. provides Criminal Evidence that once a wit examination, ness has on testified direct the point nine, contends party who did not call that witness is entitled that in failing require the trial court erred to to “any examine and use statement of the prosecution to deliver its notes taken subject witness” to that relates matter of during jury selection to him for use cross- testimony. According appel the witness’ to concerning credibility examination of the lant, this means that was entitled prosecution’s explanation for peremptory his to prosecutor’s Appellant notes. failed to challenges. previously stated, As once the (f) mention section of the same rule. Rule supplied State has the court with its race- 614(f) provides the definition of a “state explanations, neutral the burden is on the purpose ment” A for the this rule. state defendant to show that a these reasons are ment is “a defined as written statement made pretext for racial Appellant discrimination. by signed that is or burden, witness otherwise

asserts that in order to meet this he adopted by or approved him.” Tex.R.Crim. is entitled prosecutor, to cross-examine the 614(f). Again, Evid. by as as the record does not well examine the taken notes prosecutor’s during State voir establish that notes were dire. To substantiate this contention, signed any way adopted or him. And cites Rules and 614(a) though appellant argues even the Texas Rules of Criminal that the trial Evi- by noting dence. court erred in replies ap- preserving that not the notes as record, pellant preserve point part duty failed to appellant’s this of error it was to 614(a) by failing object request to under part Rules 611 the court to include notes Additionally, at trial. Appellant the State insists that the record. did make such evidence, admitting this that above contends request a of the court. For all of the of Crimi- 404 of the Rules reasons, failing Rules court did not err trial violated. Over defense nal were Evidence require prosecution to turn over his to ap- that objection, witness Williams testified point ninth appellant, to it be relevant. This includes must jury objectionable member of and the evidence, to address 404 and so in order juror that he would have struck the claims claim, appellant’s 404 we must also determine v. peremptory challenge.” Nelson with Rule gang if evidence is relevant under the State, 126, 134(Tex.Cr.App.1992); S.W.2d 848 State, 75, 731 83 Demouchette v. S.W.2d argues that this evidence The State (Tex.Cr.App.1986). The record demon and activities is appellant’s affiliations only used thirteen strates contextual evi- same transaction relevant as ap peremptory challenges. Since fifteen general exception is an dence properly preserve has pellant failed admissibility of extraneous prohibiting rule strikes, appel by exhausting peremptory that in this case The State claims offenses. tenth of error is overruled. lant’s jury to know of the for the was essential regarding gangs in conversations and acts III. GUILT/INNOCENCE and com- jury for the have a clear order took two, five, way the murder one, plete picture of the three and stating in that we place. The State is correct trial court erred appellant contends that the excep- past in the that the list purport- have held admitting evidence of in 404(b) mutually “neither Rule is tions under gang affiliations and activities. ed accident, 404(b) identity, or provides or of mistake absence that: 1. Rule accused, timely request by provided, upon crimes, wrongs, or acts is of other Evidence given advance of trial of person notice is in prove of a reasonable character not admissible conformity case in chief he acted in in the State’s in to show that intent to introduce order however, may, arising be admissible therewith. It such evidence other than motive, proof oppor- purposes, such as other tunity, same transaction. intent, plan, knowledge, preparation, exhaustive,” collectively exclusive nor and dence is inadmissible under Rule there previously that we have addressed the issue analysis. is no need for a or 404 if Even evidence, of same transaction contextual find we were to assume that pass the evidence did such to be admissible certain eases. requirements the evidence is still State, Montgomery 388 not admissible as same transaction contextu- State, (Tex.Cr.App.1990); Rogers v. 853 al Undoubtedly, prosecution evidence. (Tex.Cr.App.1993); S.W.2d and More presented could have a clear and understand- no v. (Tex.Cr.App. S.W.2d 295 explaining able case appellant planned how 1986). fact, long we held that “it has been decedent, rob murder the without inter- rule this State that the is entitled jecting unnecessary information about surrounding know all relevant facts and gangs. put Had the State on its case offense; charged circumstances of the an testimony mentioning appel- without this offense is not tried in a vacuum.” Moreno gangs, jury surely lant’s with connection furthermore, 721 S.W.2d at 301. And problems following have had no would intermixed, “where several crimes are understanding sequence of events of the another, blended with one so connected night example, of the murder. For testimo- form an indivisible criminal trans ny regarding crip oc- handshake which action, proof by full testimony ... of robbery, curred after both the murder and given showing one them cannot be without clearly necessary could placing not be others,” evidence of same criminal events into context. Because all of transaction an contextual evidence which is testimony that was appel- offered about 404(b) exception to Rule thus admissi gangs necessary lant and was not to the Rogers ble. 853 S.W.2d at 33. jury’s murder, understanding capital However, issue, in addressing this it is im same transaction con- portant that we also into take consideration evidence, textual and thus not admissible as the fact that this Court has held that “same 404(b). exception under Rule The trial evidence,” transaction contextual admissi admitting court erred in this evidence. 404(b) “only ble under Rule to the extent necessary jury’s that it is understand finding that the trial court erred ing of England the offense.” admitting appellant’s gang evidence of af Such ev activities, filiations and must we now conduct idence is admissible “when the offense analysis. required, a harm Reversal is un would little make or no sense without also record, examining less after it is deter bringing in the same transaction evidence.” mined that the error made no contribution to Id. conviction, beyond a reasonable doubt. State, Tex.R.App.Pro. 81(b)(2); Harris v. examining After all of facts sur the .1989). (Tex.Cr.App Several fac case, rounding the murder in the instant we must appellate tors be considered question find that in the evidence had no reaching court before a decision. Under tendency probable to make more exis the Harris, the court should: consequence; tence of fact of the evi error, dence was not relevant under This Rule 401. examine the nature source the the simply error, evidence was introduced as an at of the whether to what extent it tempt State, to connect gangs emphasized by prob- in order was the and its Further, to show his bad character.2 Since this implications. evi- able collateral the argument, argued In oral the State that our between that and case at bar is that in the holdings Beasley Beasley, gang in v. 902 S.W.2d 452 we found the evidence relevant and (Tex.Cr.App.1995) during punishment phase and Anderson v. admissible of the case, (Tex.Cr.App.1995) support posi- S.W.2d 946 its In the trial. instant evidence connect- appellant’s purported ing appellant gangs tion that the evidence of with was introduced at the gang correctly guilt/innocence phase activities was admitted the trial We did the trial. then, now, Beasley, court. In 902 S.W.2d at we held and do not of a hold that evidence regarding gang gang that the evidence a defendant's defendant's affiliations is admissible membership during guilt/innocence it relevant because relates his character evidence reputation. phase character and The critical difference aof trial. Tex.R.App.Pro. review. weight error much serve consider how court should 52(a). error four is overruled. Point of upon the error. juror probably place would addition, determine the court must also In eleven, con- point of error declaring harmless the error whether overruling court that the trial erred tends encourage repeat with the State would evi- objection allowing into hearsay impunity. Through the com- report. a police dence pound Id. at 587. auto section property of the mander prof- Department, the Police State the Dallas Although there is no doubt that the generated invoice copy computer fered a by intro error State was the source what was property, that itemized record ducing character con irrelevant evidence of and stored from Henderson seized co-actor considered. formity, other facts must also be room, record. as a business property First, is no in the record there indication objected report was hear- that the emphasized gang related evi State this report police say, inadmissible as a and was example, the made no dence. For by police matters observed which contained appellant’s gang activities mention personnel. or other law enforcement officers opening closing arguments. either its by the objection was overruled Appellant’s jury may deciding weight have how much trial court. given testimony, must examine the we other introduced at trial. There for Feder know that the reason We witness, Williams, only who testified was one 803(8)(B), after which al Rule of Evidence Furthermore, gang these activities. modeled, pre rule was the the Texas was testimony. portion of Williams’ unreliability of that are sumed observations appel He testified that he saw also of a crime. officers at scene made lant was further shoot decedent. There (5th Quezada, 754 F.2d 1190 States United testimony told another inmate Cir.1985); Garcia in fact Final that he had shot decedent. pos The reasons for the (Tex.Cr.App.1993). ap ly, placed heard impli judgment impairment are sible pellant possession weapon shortly officers are con situations where cated murder, found before the and that he was matters, as the ducting business such routine Taking arrested in the car. decedent’s Cole “objective observations.” recording whole, intro all of this information as a beyond duction of the evidence was harmless police is a situation where Since this reviewing doubt. After all of reasonable routine, ordinary, performing his officer was evidence, we find that the trial court’s recording that was property duties of admitting error evidence of room, property in and out of the taken affiliations made contribution observations, pre and notation should guilty punishment and verdict or was there not unlike The ease at bar is reliable. sumed fore harmless error in this case. Points of Brown, 9 F.3d 911-12 United States one, three, two, and five are overruled.3 (11th Cir.1993), court that the where the held four, be not inadmissible under 803 contends evidence was type property not the “[wa]s cause the that the trial court violated the First Amend- by contemplated the exclusion Clause of the Four- ment and Due Process 803(8)(B).” agree with the State We admitting evidence of Rule teenth Amendment applied be rationale should appellant’s purported gang affiliations and that this the trial court did err that case at bar. Since activities. It is clear from the record property admitting from the in the records objection at trial on this appellant made no room, Therefore, point error eleven overruled. pre- appellant has failed basis. though put In point his character in issue. Appellant supplemental he had not has raised a also light the admission of such of our conclusion that reversible error in of error which likewise claims pursuant to Rule allowing harmless error character evi- evidence was the State to introduce 81(b)(2), point dence, supplemental is like- supra, this related i.e. of above-discussed handshakes, guilt/innocence overruled. wise conversations and twelve, point In appellant put envelopes where he them in and affixed completed contends that the trial court in property tags. erred allow these Given ing testimony facts, police from the officer who there is no doubt that a reasonable appellant arrested probable police because could have cause found that the officer’s testimony for such put arrest was not showed that the into issue au- evidence was appellant during Appellant Appellant’s the trial. thenticated. point asserts thirteenth stipulated that because he error is overruled. fact that probable arrest, cause existed for his IV. PUNISHMENT police officer’s was irrelevant. Of ficer Antribus testified to point fourteen, the fact that while of error patrol on night question, on the in he noticed capital sentencing contends that the Texas a blue Cadillacat gas a closed station. After Eighth statutes violate the and Fourteenth running the plate, Cadillac’slicense i.e. con Amendments to the United States Constitu ducting computerized check, registration jurors tion in they require that fail that be officer apart Antribus ear juror followed the to an single informed that on holdout complex ment he special where arrested issue life would result in an automatic accomplice. entirety Appellant argues tes sentence. that Article timony certainly 37.071, 2(a), placing ap prohibits ju § relevant in informing pellant in the decedent’s car Dallas on rors agree of the effects of their failure on 29,1993, corroborating October issues, special the testi is unconstitutional. This mony (Williams). of one of accomplices times, court has addressed issue several Appellant’s point twelfth of error is repeatedly over and has held that there is no ruled. failing constitutional violation to instruct jurors on the individual an effects their thirteen, point of error State, Emery swers. 881 S.W.2d contends that the trial court erred overrul State, (Tex.Cr.App.1994); Draughon v. objection to the introduction of bullets (Tex.Cr.App.1992); S.W.2d Nobles during appellant’s seized arrest.4 (Tex.Cr.App. 508-10 claims that the bullets should not have been 211, 221-22 1992); Davis v. introduced into evidence because Point error fourteen properly According ap authenticated. is overruled. pellant, under Rule 901 of the Texas Rules of Evidence, Criminal fifteen, before point evidence is admis of error sible, it must proven currently penalty that the evidence contends that the death as proponent is, Texas, is what the claims it administered in cruel unusual police and the testify punishment officer could Eighth under and Four appeared these bullets type to be the same teenth Amendments to the States United Constitution; sixteen, those that appel were retrieved and in arrest, lant’s not that these penalty were in fact the he contends that the Texas death same bullets. Courts appeals arbitrarily have held has imposed scheme been viola that evidence should be admitted if trial Eighth tion of the and Fourteenth Amend court found juror that a reasonable could find ments the United To States Constitution. contentions, the evidence was authenticated. appellant argues Pena substantiate his (Tex.App.— S.W.2d present capital sentencing Texas pet.); Waco Coleman v. 833 scheme is because it unconstitutional allows 286, 289 (Tex.App. open-ended [14th prohibited discretion that is — Houston ref'd). trial, pet. Dist.] At Supreme Officer Court’s decision Furman 238, gun 2726, Mitchell testified that Georgia, he seized a and 408 U.S. 92 S.Ct. (1972). magazines two loaded with 9 millimeter am The L.Ed.2d 346 Court Furman placed munition. He all of prohibited open-ended by this evidence in discretion demand trunk, room, property and took to the ing sentencing that statutes narrow cate- Though appellant’s brief references the bullets reflects that the bullets were seized dur- arrest, being during seized the record the arrest of co-actor Henderson. State, 233; v. 815 S.W.2d Lewis capital eligible for people who are gory of v. Kinnamon 560, (Tex.Cr.App.1991); a a provide means punishment, and State, wor- 791 S.W.2d death as to defendant’s determination from the support no appellant offers The Because on an individual basis. thiness is done cases, line overruling this of for sentencing meets these Constitution capital statute Texas eighteen point is overruled. requirements. category of of error There is a set eligible penalty. who for the death people are nineteen, appellant error point In of Supreme upheld the constitution- Court at trial insuf evidence contends that the sentencing ality capital scheme of the Texas jury’s negative answer support ficient to Texas, 262, 96 S.Ct. in Jurek v. 428 U.S. main Appellant Penry special issue. to the (1976). error Points of 49 L.Ed.2d 929 conduct suffi this Court should tains that are and sixteen overruled. fifteen if to determine ciency of the evidence review special to the issues jury’s answers seventeen, appel point of error In In 908 S.W.2d appropriate. Colella Penry spe statutory that the lant contends to (Tex.Cr.App.1995), we refused facially under is unconstitutional cial issue held that “be a review. We conduct such Eighth Amendments and Fourteenth ‘mitigating is weighing of evidence’ cause the is his It the United States Constitution. subjective undertaken determination special issue allows assertion that juror, we decline to review each individual type open-ended was con discretion that sufficiency.” at 448. for Id. evidence Supreme decision demned Court’s subjective de nature of this Because of the Georgia, Furman v. 408 U.S. 92 S.Ct. termination, jury’s findings. we defer to the (1972). actuality, In 38 L.Ed.2d 346 is nineteen overruled. Point error with the in Furman was concerned the Court that open-ended discretion of the statutes twenty twenty-one and eligible to narrow the list of who was failed makes two related contentions prohibi no penalty. for There is the death penalty scheme. the Texas death about allowing juries to against tion decide what First, claims that the trial court’s mitigating, weight much is and how evidence Penry special makes issue instructions on fact, going give it. this Court are of the sufficien- meaningful appellate review Supreme have both held that Court cy supporting special that of the evidence jury job is left to decide. best argues Secondly, appellant impossible. issue 967, 114 Tuilaepa California, 512 U.S. Arti- Procedure Criminal Texas Code 2630, 129 (1994); L.Ed.2d 750 Colella S.Ct. 44.251(a), conjunction interpreted in when cle (Tex.Cr.App.1995); 37.071, 2(e), facially § uncon- is with Article (Tex.Cr. 610, 614 Morris v. Eighth Fourteenth stitutional under is App.1996). Point of error seventeen over Constitu- to the United States Amendments ruled. Appellant argues that because tion. mitigating not list Penry special issue does eighteen, appellant factors, not re- and does aggravating unadjudicated the admission of contends that findings in that quire jurors specific make sentencing during the extraneous offenses which, identify is unable regard, this Court Eighth and Fourteenth phase violated considered, any, if the factors the States Constitu Amendments United review, appellate consequently, meaningful of the Code tion. Article 37.071 Under Constitution, is required under the which is Procedure, mat evidence “as Criminal impossible. relevant sen ter that the court deems asserting wrong punish presented during tence” impossible by review is meaningful appellate capital trial. This phase murder ment simply not capital It is cases. this Court previously upheld the constitution Court has impossible in unadjudicated appellate review allowing true ality defi simply there phase capital cases because of a punishment offenses by the mitigation. required As is 866 nition of capital trial. Adanandus 588

Eighth Amendments, jurors and Fourteenth special affirmatively Texas the first issue if provide appellate safeguard does appellant’s mitigating review as a believed that penalty sentence, to ensure that the death is not militated in favor of a arbi life was trarily irrationally imposed. Parker fundamental error. to ob- failed 808, Dugger, 731, ject 111 at trial to 498 U.S. S.Ct. - the trial court’s instructions on (1991). basis, though L.Ed.2d 812 this even opportu- The Texas scheme there an does nity reason, adhere to for him to do requirements Pulley of so. For this v. Har ris, 37, 104 465 U.S. waives review of this Appel- S.Ct. 79 L.Ed.2d error. (1984) providing in lant also claims that this prompt, for a error was funda- automatic mental, penalty and therefore review a death this contention be sentence. Fur thermore, appeal. raised for the on sufficiency review first time There is conducted no basis examining jury’s this court when claim that an fundamental dangerousness twenty- swer to the error. of error special future is .Point explained however, sue. three As is overruled. above because of subjective in determining nature what point twenty-four, appel error evidence, mitigating constitutes this Court lant contends that the trial court committed portion does second-guess not of the by refusing ju reversible error to instruct jurors’ State, decisions. Chambers v. they rors that mitigating should consider 21 (Tex.Cr.App.1995); S.W.2d Colella v. aggravation punishment. evidence in No State, 908 S.W.2d 437 failing give error was committed in twenty twenty-one Points of error are requested jury instruction to the since such overruled. an instruction would have been a misstate ment Curry of the law. As we held in point twenty-two, error appel State, 910 490 (Tex.Cr.App.1995), S.W.2d lant contends that the Due Process Clause of (Tex.Cr. Morrow v. 910 S.W.2d 471 the Fourteenth requires Amendment App.1995), Penry only juries requires that engage Court to in proportionality in review provided with a vehicle which can penalty Supreme death cases. The court mitigating consider It is evidence. for the addressed the pro issue of whether or not jury evidence, any, determine what if con portionality capital review eases in re evidence, mitigating stitutes and how much quired, certainly and has stated that “we did weight given. it should be Colella v. comparative hold that review was consti 437 (Tex.Cr.App.1995). tutionally Point required,” and there “is no basis in twenty-four error is overruled. holding comparative pro our cases for portionality appellate review court is Having appellant’s points reviewed all of required every case which the death error, we affirm the judgment trial court’s Harris, penalty imposed-” Pulley and sentence. 37, 50-51, 465 U.S. 104 S.Ct. (1984). MCCORMICK, P.J., J., CLINTON, L.Ed.2d 29 Although Supreme recognized Court concur in logical that the most the result. basis Eighth for this claim was under the Amend- BAIRD, J., I concurs: concur in the reso- ment, thorough it is from reading clear point eleven, lution of believing Pulley, that it propor- found no constitutional error was cured when the same evidence was tionality requirement. Furthermore, review through disagree admitted other I sources. Hughes 294 with the treatment of of error nine- (Tex.Cr.App.1994), interpreted this Court teen, twenty twenty-one for the reasons holding Pulley requiring proportion- stated in Morris v. ality capital review in cases under both the J., (Baird, dissenting). join I remainder Eighth and the Fourteenth Amendments. majority opinion. twenty-two Point of error is overruled. MANSFIELD, Judge, concurring. twenty-three, join contends that the trial court’s punishment However, I opinion of the Court. charge, herein, expressed instructed the to answer for the reasons I write issues, of or prejudice, confusion the respect unfair separately with one, two, jury, of misleading These or considerations three and four. the numbers relevancy of cu- delay, presentation of evi- points of error concern the undue needless gang membership of the purported of 403. dence evidence. Tex.R.Crim.Evid. mulative phase of appellant guilt-innocence generally at evidence is admissible Character appellant’s trial. pursuant punishment phase of trial 404(c); Criminal use Texas Rule of Evidence ap- presented Evidence at trial established guilt-innocence at the of character evidence at an pellant and three other individuals met provisions phase is of trial restricted robbery apartment plan a of the victim’s 404(a). Rule Criminal Evidence of Texas They subsequently to the house. walked drove residence of a fifth individual and then In Anderson get beer. to a convenience store to some Beasley (Tex.Crim.App.1995), and drive, During the five talked about (Tex.Crim.App.1995), “Crips planned robbery and about membership gang evidence Court found way to the vic- Bloods and stuff.” On phase of the punishment at the admissible store, they stopped house at a where tim’s as relevant character evi defendant’s trial gas. They they pumping a man talked saw testimony acknowledged as that dence. We Crip about which “had the heart” to knock gang membership to the criminal However, attempt out and rob the man. no may prejudi gang have been activities man, though was made to assault or rob the However, testimony not un cial. was testimony two of the five did there was only jury was fairly prejudicial because the get out of the car and walked toward char required to the defendant’s determine testimony man. at trial showed the Other membership gang acter based on gangs five about before and made statements required wheth were not to determine per- after commission of the offense and guilty was of the miscon er the defendant “Crip formed handshakes.” Deon Williams Anderson, gang. duct or bad acts of the personal knowledge he had testified no about Therefore, evidence supra, at 950.1 we held whether was a member of char gang membership was admissible as any Crips gang. other earlier Williams Texas punishment under acter evidence had he testified had “heard on street” 404(c) Evidence and Texas Rule Criminal gang. inwas 37.07, Criminal Procedure Article Code of trial, Appellant, prior filed a motion 3(a). Anderson, supra, at 952 Section testimony limine to exclude evidence (Mansfield, J., concurring). did not ad We objec- gang membership. Appellant’s about dress, Beasley, whether in Anderson and testimony concerning ap- tions to Williams’ membership of an accused gang evidence of alleged gang pellant’s activities were over- phase of guilt-innocence is admissible at ruled; granted appellant the trial court his trial. running objection. however, case, present In the any having “Relevant evidence” gang belonged to a testimony tendency to fact make the existence of Williams, testimony of who admitted was the consequence determination knowledge he had first-hand probable probable or less of the action more some testi- gang member. There was was the evidence. Tex. than would be without accomplices talked mony appellant and his relevant, Although evi- R.Crim.Evid. gang performed a gangs and even about probative if its value dence be excluded handshake, danger but none substantially outweighed by Anderson, "hanging with other Ferguson, police out” Worth he saw defendant 1. In a Fort Fergu- Finally, officer, knowledge Officer personal Posse members. Canine testified as to personal knowledge that membership to his son testified as in a called defendant’s in the distribution Ferguson he the Canine Posse was involved testified ob- Canine Posse. Officer drugs Apart- illegal the Caville in and around occasions wear- served the defendant on several ments. Posse tee shirt. He further testified Canine gang membership.2 any evidence of actual In- illegal introduce evidence as to violent or deed, testimony engaged is best characterized gangs as activities such as the “bragging,” probative Crips, rather than as or reli- which would testimony have made the able. assuming, arguendo, appellant’s Even alleged gang that evi- of membership more gang of membership prejudicial. Finally, dence testimony admissible as was intro- relevant guilt-inno- under Rule 401 at primarily place duced to the instant offense trial, i.e., phase my opinion context, cence of it is possible that this motivation behind erroneously evidence Perhaps was admitted its commission. most significantly, should have been excluded under Rule gangs appel- State did not mention or given its reliability given lack of gang its alleged membership during lant’s its highly prejudicial nature. closing argument; given this record it is apparent attempting the State was not to However, applying the harmless error process by emphasizing taint the trial analysis Bishop forth in set 869 gang testimony related at one of the most (Tex.Crim.App.1993), 346-347 it stages closing argu- critical of the trial — my opinion admitting the error in the ment.4 gang-related testimony present case beyond was harmless a reasonable doubt. Because, my opinion, the erroneous ad- 81(b)(2). First, Tex. App. Rule Proc. we note gang-related testimony mission of did not shooting was observed the victim in appellant’s punish- contribute to or conviction Williams, the head who so testified at ment it impermissibly appel- did not taint Second, Kendricks, trial.3 Michael a fellow above, given lant’s trial for the I reasons appellant, inmate of testified told beyond conclude a doubt the er- reasonable Third, him he shot the victim. ror was harmless. driving arrested while the victim’s car. comments, join With I opinion these Fourth, several witnesses linked the Court. weapon used shoot the victim. This

evidence, together, taken is overwhelming appellant’s

evidence of guilt. KELLER, Judge, concurring. overwhelming guilt While evidence of is a My difficulty majority opin- first with the account, factor to be taken into we have held regard ion is with its treatment magnitude that if the a error was of that it error nine. I prosecutor’s believe that the disrupted juror’s orderly evaluation of voir product, dire notes are work and the evidence, then the conviction is tainted required not should turn voir dire required, and reversal is no matter how over- notes during over to the a Batson defense whelming guilt might have hearing. been. Harris v. my (Tex.Crim.App.1989). opinion, I disagree analysis also majority’s with the gang-related testimony disrupt did not with dealing evidence of jury’s orderly gang evaluation of the membership. majority says evidence. The testimony solely The itself membership consisted gang evidence of in this case “gang-talk” among appellant membership may Gang and his “ho- was not relevant. mies,” plus guilt-innocence. Williams’ as to not be relevant knowledge evidence, gang second-hand As true with other Additionally, membership. membership any tendency the State did not is relevant if has Anderson, held, Compare Harris, police 2. supra, where a officer 4.In Court knowledge witness testified as to his first-hand conducting analysis, the review- harmless error belonged gang. that the defendant to a declaring court must determine whether particular encourage the error harmless would contends that he shot the victim in see, repeat impunity. do State to it with I jaw and that this was fatal wound. logically, how determination can be made such (Another brain.) individual shot the victim in the urge aspect that we of Har- reexamine this The medical examiner testified the wound to the ris. jaw victim’s could have been mortal. in admit- trial court did not err any fact of conse- curred. make the existence ting this evidence. than probable less quence probable more the evidence. Tex. it would be without j opinion the Court. concur in the must Evid. 401. This determination R.Crim. case-by-case basis.1 be made on WHITE, J., joins. case, the of the

In the instant evidence crip of which “had the heart” to discussions man at kill the victim and to knock out the station, crip of the handshake gas murder, show a was relevant after the motive for the murder of Martha possible Certainly tends to Lennox. the evidence SHANNON, Appellant, Marcel Willie otherwise make sense of evidence co-defendant, after shoot- unaccountable: head, victim in the handed Texas, Appellee. STATE gun shot the victim after No. 71805. already had been shot. she Texas, Appeals Criminal Court of majority, According could State En Banc. presented a clear and understandable

have surely that is case without the evidence—but 11, Dec. 1996.

not the for relevance. Under the facts test Rehearing Denied Jan. case, gang membership of this was mere- life; ly aspect it an incidental part for murder and it

was of the reason explanation why part was of the for murder occurred as did. Had gang-member- required to excise the been murder, aspect against ship its case would have been less coherent less believable. do not occur in a vacuum. The

Events jury placed right has a to have offense proper setting all

its so that realistically evaluated. Burks v. 876 citing (Tex.Crim.App.1994), S.W.2d 900 (Tex.Crim.App.1986), Mann 743 t. denied U.S. cer (1987). 95 L.Ed.2d S.Ct.

prosecution capital murder where consid the behavior of the defendant

eration of critical, of the offense the entire context Id. showing In the his actions is vital. testimony that indicated that instant case the gang under part murder Lennox’s taking to view the offense allowed way it proper setting, oc- (Tex. membership is admissible at evidence of 1. In Anderson punishment. in this case concerns Beasley The issue Crim.App.1995) guilt/innocence. 1995) evidence at (Tex.Crim.App. admission of such we considered whether notes accomplices made statements pellant and his of error is overruled. crips gang. night throughout the about ten, appellant contends point crips They fact that talked about the overruling erred in that the trial court another, discussed fought one bloods Hall for motion to excuse veniremember what crip the heart to do had inability disregard on her cause based lady. Addi- to do to the old planning testify during the trial. appellant’s failure to testimony from this same tionally, there was under Article asserts that crip group discussed which that the witness 35.16(c)(2) of the Texas Criminal Code to knock out a man who the heart had Procedure, challenge for cause should be a station, two of gas gas a and that pumping juror prospective if the “has bias sustained performed crip involved the individuals any prejudice against applicable the law The State after the murder. handshake upon which the is entitled to the ease defense testimony of witness maintains that According rely[.]” appellant, venire- Rule 401 and both relevant under Williams is Hall that was unable to member testified she inadmissibility general exception as an personal her beliefs that an accused set aside 404(b), and acts under Rule extraneous if testify on his own behalf he should admissible. therefore indeed innocent of the accused offense. explains generally, evidence Rule however, is correct in as The State crimes, wrongs and bad acts is of other serting preserve has failed stage guilt/innocence admissible of error for this Court. review (b) trial, provide § of the rule does but preserved It well established “error general rule.1 exceptions for some perempto if the defendant exhausts Rule that under We must also remember ry challenges, request for an is denied admissi- in order challenge, peremptory identifies additional ble, Rule

Case Details

Case Name: Pondexter v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 16, 1996

Citation: 942 S.W.2d 577

Docket Number: 71967

Court Abbreviation: Tex. Crim. App.