*1 98 judgmеnts ideologies. Court of Appeals competing (emphasis sup- of the plied)
and the trial court
reversed
are
and the
cause is remanded to the trial court for
Though may
pass
it
not
in
muster
other
dismissal
the information.
statutes,
fact situations or under other
see
Goguen,
566,
Smith v.
e.g.
94
415 U.S.
ONION, P.J.,
DAVIS, J.,
and W.C.
1242,
(1973),
S.Ct.
State, (Tex.Cr.App.1972), S.W.2d 718 (defend- (Tex.Cr.App.1987) persuasive, highly viable and both ant must show that statute is unconstitu- apply the of that situation). would rationale case to applied tional to him in present cause. I dissent. Deeds, supra, held In we the State right regulate nonspeech as- flag of the
pect burning of the Deeds, supra 721, States. See
United O’Brien,
citing United States v. 391 U.S.
367,
1673,
(1968).
88 S.Ct.
New 89 S.Ct. U.S.
1371-72,
(1969);
Halter v.
Nebraska, 34, 27 S.Ct. 205 U.S. Deeds, (1907). As noted su-
L.Ed.
pra: flag symbolizes the entire na-
“Since
tion, political phi- just particular one determine that
losophy, may the state kept created above the turmoil 44.29(b) proceed, necessary, to hearing punishment. conviction and then Art. V.A.C. Thus, disposition complete punishment. this case C.P. requires validity us to first decide *4 Weaver, appeal only, on
Richard Kristin Anderson, appeal only, Alan Richard Dallas, appellant. Wade, D. Atty. and John
Henry Dist. Banks, Scott, Nation, Winfield Gerry Rider Land, Attys., Dist. Asst. Donald Scott & Dallas, Huttash, Robert Atty., State’s Aus- Richard deputy Hart was a reserve sher- tin, for the State. iff who was called out to assist person
search for the who killed Officer up Kovar. He set surveillance an un- marked car almost two miles from the scene shooting. a.m., Around 4:00 OPINION male, Hart saw a white appellant, walk- ing toward him on Collins Road. He imme- WHITE, Judge. diately description radioed a of the man to Appellant capital was convicted of mur- dispatcher (muddy clothing), and torn V.T.C.A., der. See Penal Code Sec. 19.- car, and then pointing flashlight left the 02(a)(1). After the made affirmative pistol at the ordering answers to the special three issues sub- first, him to halt. At turned 37.071, V.A.C.C.P., mitted under Art. around steps and took several back the imposed trial court the penalty of death way again came. Hart ordered injection. lethal This case is before us on stop, lant to saying, step “One more appeal. direct Appellant that’s it.” turned around and raised his hands. He told Hart that he was presents us with fifteen not armed. Hart ordered the appellant to points of A error. review of the facts is lie face down on the road. He noticed that necessary. appellant’s right swollen, hand was During early morning hours of June *5 appellant bloody was and covered 20, 1982, County Dallas Sheriffs officer with mud. appellant Hart handcuffed the Ray Kovar was shot to death while investi- placed and him in the back seat of the car gating suspected a burglary. Kovar appellant lying so that was face down. partner, Crain, his Dwaine arrived at Lan- appellant’s Hart recited the Miranda warn- Grocery ders in response Store to a call ings way Sunnyvale to him on the to the backup a from Officer Charles Mitchell. appellant The Substation. indicated that approximately The time was 1:00 a.m. Af- rights. his understood At the substa- ter Kovar and Crain building, secured the tion, prisoner Hart turned his over to Lieu- began the three officers a search of the Potts, tenant charge Walter took area. investigation. the Mitchell saw Kovar walk around the east County Tom Boardman a Dallas was building, side of the flashlight with a in his Night Magistrate at time of the the shoot- pistol left hand and right his hand. ing. At 4:00 a.m. he was called and re- shotgun Crain took a and went to the west quested go Sunnyvale to the Substation. building side of the to search there. Mitch- arrival, Upon Boardman noticed that the ell and Crain both heard Kovar tell some- area was crowded with automobiles and “Hаlt, one, get up.” gun- Then a series of police appel- officers. Boardman found the help shots were fired. Mitchell ran to Ko- library. magistrate, lant the To the the var, lying and found Kovar face down. appellant was disheveled and looked like through couple he’d been “run a of barbed Crain heard Mitchell shout that Kovar appellant wire fences.” The told Board- report was down. Crain called on his man his name date of birth. Board- radio, down, being of an officer to his dis- gave man appellant then his Miranda patcher joining before Mitchell. no- Crain warnings. appellant He advised the flashlight ticed Kovar’s was turned on. murder, being charged capital he was Mesquite Crain watched two Police Offi- punishable by imprisonment which was life unsuccessfully attempt cers to resuscitate or death. Kovar, gunshot who had a wound to chest. Crain believed that Kovar was dead magistrate if asked the pain go at the scene. Several officers searched the was in he wanted to to the shooting, scene of the hospital. but were unable did not ask for suspect. complain to locate a not medical attention and did findings of fact and conclu- par- failed to make pain. Boardman observed concerning admissibility of appellant’s pressure, take the blood amedic sions of law bandage appellant’s hand and ele- This appellant’s then two confessions. supple- his arm. Boardman asked granted vate motion to Court the State’s up talking police. if he findings lant was of fact ment the record with affirmatively and appellant responded law, were filed and conclusions of which period. for a brief Boardman left on March with the Clerk of this Court moot. point of error is now 1986. This sign- Boardman returned witness appellant. He ing of a statement his tenth that he did not have informed argues that the trial court erred when According to Board- sign the statement. challenges for cause to failed to sustain man, appellant replied, might “I Appellant venireperson W.P. Ricamore. well, appellant then Judge. I did it.” The Ricamore was unable to consid- states that left signed the statement with his hand. range punishment for the er the full signed This first state- charged This offense with. ment, was admitted into evidence as which from an Rica- argument results answer State’s Exhibit No. 44. during voir dire that he could more Afterward, Sergeant Larry Williams punishment five consider the minimum Office, County interro- the Dallas Sheriff’s the accused was convicted years unless gated A appellant. second statement committing accidental murder. The prepared based on the conversation made those State concedes Ricamore Sergeant between Williams. dire, during but early his voir statements statement, signed Appellant which was so argues that Ricamore was rehabilitated admitted into evidence as State’s Exhibit range of could consider the full that he No. 46. punishment. The medical examiner testified that prospective juror’s ca To assess cause of death of Officer Kovar was a range punish the full pacity to consider gunshot wound to his chest. A .38 calibre ment, juror’s testimo exаmine the we must body from bullet was removed *6 State, v. as a whole. Pierce ny 604 S.W.2d Physical deceased. An officer from the Cuevas (Tex.Cr.App.1980); 185 of the Evidence Section Sheriff's Office (Tex.Cr.App.1978); Vig S.W.2d shooting. testified about the scene of the State, (Tex.Cr. neault v. explained magnum pistol He that a .357 State, 623 S.W.2d App.1980); and Porter v. fell. was found where Officer Kovar (Tex.Cr.App.1981). weapon. hulls in the There were six fired pistol, twenty-seven A .38 calibre found reviewing testimony of the venire- Kovar, feet from Officer contained four person, must determine Ricamore’s we empty fired hulls and one chamber. Both range punishment amounted of the view completely emptied by weapons had been against See prejudice or the law. to a bias firing. (c)(2), 35.16(b)(3) and V.A.C.C.P. Art. behalf, in his testified own exchanges and statements oc- following explaining he not aware at the during the voir dire of Ricamore: curred shooting that the deceased was time know, Counsel): it “Q. (State’s You that he police Appellant officer. claimed a a one-in-a-hundred case or might be a self-defense, a flash- after he saw acted case, if it came but one-in-a-thousand gun pointing at him and after light and a pipe you saw that case down the “halt,” telling him when heard a voice he proper yourself, ‘This is a you said to exchanging gunfire with the de- began proper of facts and it’s set case with ceased. proper I think it’s proper defendant. affirm the conviction. We will five-year sen- I could vote a in this case sentence’, you tence, could the minimum In his sixth do it? erred when it argues that the trial court
A. Yes. you explained “A. When it before somebody pulled gun wasn’t that a on a Q. Or a ten or a fifteen? man now we gun but know that the has A. Whatever it warrants. pulled been and the man has been killed Q. Or an eighty ninety or or a what- say years and that’s murder and I is five ever it you warrants? Are with me little; I really too mean that.” talking there on how open we’re about stated Ricamore then under what condition mindedness? range would consider minimum A. Yes. punishment. Q. you Do any problem have with right. presented “A. All If the case that? say such itself as and the man had not A. No.” gun used force with a or murdered such Later, attorney that, yes, I like could see. If an it was questions asked more regarding Rica- murder, sure, go along accidental could impression more’s range punish- years; with five it would be fine.” ment. immediately Rica- State confronted “Q. (Defense Counsel): go I’ll not more statement. through again question the whole “Q. (State’s Attorney): IWhen define you, but I think I’m you asking. see what you, ‘murder’ I said it was not Having guilty found the Defendant accident, it wasn’t self-defense because the offense of voluntary, murder for the a knowing murder is tak- intentional killing Deputy intentional of a Sheriff ing or of human life without an excuse having but reasonable doubt believ- justification. without Justification ing the prove State has failed to self-defense. Accident is an excuse. shooting Defendant at the time of going That’s not murder. It’s have Deputy Sheriff, knew the deceased was a killing. be a But there are all kinds of you could proper case under go taking things person into one proper hearing circumstances after persоn’s legislature another life. The brought all the facts either side out says enough there are of those give consider and of the mini- sentence things go into it you have years Department mum five in the Texas range punishment. broad have a you of Corrections if it to believed be the go They say further on to that before proper thing to do? you take a seat over here in can
should have more than five A. [******] ****** No. If it’s murder, years period. think he takes a box full mean that open *7 range life in minded you of a citizen to punishment. Dallas have to enough County, give give to consider anybody five That doesn’t years in you every case. It means murder that Q. (Defense Counsel): in a mur- Also you able to consider it if have to be and having der case found the defendant proper you give it. thought it was could guilty taking you, of murder could after true. A. That’s all the facts and into con- circumstances Now, you proper, it thought Q. you sideration and if can do that? you proper
could in consider and case present I A. If facts itself or give years in the minimum of five might thought possibility there be a of Department Texas of Corrections? along five-year yes, go I could sentence, No,” with that. A. State then attempted to question [******] know, range punish- (State’s Q. Attorney): Ricamore further on the You attorney began ‘Well, get up say, After the State’s here and Mr. ment. could rehabilitation, Ricamore, you give would five- attempt at Ricamore ever somebody gunned to following year sentence that made the statement: Well, Q. Any problem with that? down twelve school children?’ ob- image your viously with that in mind A. None. long you’re going say day to no all and Q. it? Any confusion about you’d qualified juror. be as a never A. None. although not the test. The test is That’s to Q. you anything you Do want life, taking knowing there’s a totally explained ask me that I have not life, taking you’re intentional you to at this time? minded, law, you you open can follow the No. A. court, charges you can follow the Q. just fun- You understand that’s as your juror you oath as a can follow presume to damental able range punish- consider the full can innocent; you give have to defendant you ment. If it calls for think five and range him a fair trial to the whole proper, you’d it’s do it. like if it’s Just punishment you qualified before can be proper give you to life could consider it up there in that to sit box? and do that. Now that’s all we’re ask- ing. proven guilty. A. Until he’s right,
A. All sir. Q. right. you And after find That’s Q. you Can do that? got give guilty you’ve him to him a fair range punishment, A. Yes. shake on the entire you that? your not close mind. Can do Now, Q. is there confusion about that issue? A. Yes.”
that are tells posed You number of None of the your could proper penalty you could ought influence supposed If it’s a mum or consider the full the law A. A. Yes. A. Q. Q. [*] see, you you to do that. The That’s all Not If Can proper proven. I don’t be goes you put do what you to ask [*] years if I’m to you do give anywhere in could lawyers at this case and further, want number of [*] or this number of you’re you, charge it that range give that? you judge just time to out here are only Mr. [*] you the maximum Judge Chapman think is go to way, yes. give the mini- Ricamore, thing they’re years judge. think it’s the punishment [*] tell you’re between. proper. or this you years. try facts [*] And sup- is: ishment. could voir yоu’re satisfied be one which that consider it knowing and intentional questions you indicated mind would be five-year or it could may thought you Mr. The trial court then took Ricamore stances were demonstrated if the five-year “THE dire to determine if the fairly open Wilson’s might certainly consider and assess a proper out of a saying mind COURT: sentence, consider the full sentence. be—There might be warranted but proper. Then in Mr. questions required set of facts and closed on this issue of a great you might your I heard telling me that for a I think number of cases might in some of a own mind that you in a range you reply killing your venireperson juror would never you be way what reluctant you, you do have circum- Scott’s in that pun- way *8 circumstances indicated the facts and (State’s Q. Attorney): you Do have five-year proper sentence you that a range pun- to the entire open mind and assess it? you could consider in a murder ishment case? Yes. MR. RICAMORE:
A. Yes. Q. proper you Now, certainly in could And a case the law THE COURT: five, give anywhere feeling life or give you your could with the quarrel no has thought proper you usually pun- in where between murder that offense of verdict should be? have no ought to be severe and ishment wanting to you from quarrel with Right.
A.
in
extremely cautious and careful before
it
a case of “accidental” murder. When
considering
assessing
fairly
questioned
ever
and
a
attorney
the State’s
Ricamore
five-year
such
further,
low sentence
as a
sen-
venireperson
stated he could
tence, just
you
as on the other hand
trial,
responsibly judge
proven
the facts
сertainly
should
be careful and cautious
punishment
and assess
within the full
assessing
high
ever
a
before
number
range
During
personal ques-
available.
penalty.
or a
years
sentence
death
Ricamore,
tioning of
the trial court ac-
say,
certainly
right.
And like I
that’s
all
knowledged
cau-
that Ricamore would be
really
The word ‘consider’ is
looked
assessing
punish-
tious in
the minimum
consider,
upon meaning fairly
if
and
judge
ment. But Ricamore told the
you
your
can tell me in
own mind that if
comply with
could set aside his caution and
you heard
circum-
the set
facts and
his oath and follow instructions.
proper
you
stances that convicted
it was
given
is
to the
Great deference
to be
you
give
if
could
it fair consideration and
decision of the trial court who has broad
you thought
you
proper
it was
could
ruling
challenge
discretion in
on a
you’re saying?
assess it.
Is that what
cause,
present
is
because the trial court
try-
MR. RICAMORE: That’s what I’m
venireperson, including
de
observe the
Honor,
ing
say,
way
Your
venireper-
meanor and tenor of voice of
here,
presented
two
it
one had the
down
State,
(Tex.Cr.App.1985)
son. Bird
107
jurors
Each of the four
explained
was excused
Hart
police
the
had
upon
challenge
a state
for cause.
formed a “horseshoe”
around the аrea
occurred,
killing
where the
record before us
contains the trial
both ends
court’s
of the shoe at Lake Hubbard.
master
area
jury
list of
strikes. This list
indi-
“pretty
well
manpow-
blocked off with
cates
Blevins,
the trial court excused
Ber-
participant
blockade,
er.” As a
in this
ensee, Holloway and
on
Tucker
the State’s
Hart was aware that a fellow officer had
challenges for cause.1 Because these four
been killed and that
the murderer was still
jurors were
sponte
not sua
by
excused
large.
superior
at
A
in the Sheriff’s Office
court,
trial
there is no foundation for the
assigned
partner
Hart and his
up
to set
appellant’s
points
four
of error. Points of
surveillance
intersection of Collins
eleven,
twelve,
error
thirteen and fourteen
Tripp
road in a
neighbor-
residential
are overruled.
hood.
his first
surveillance,
a.m.,
While on
around 4:00
alleges that
the trial court erred when it
Hart said that he
“saw white male with a
admitted into
during
guilt
evidence
ad-
white
jeans
T-shirt and blue
coming out on
judication phase of his trial his first confes-
Collins
Tripp
toward
across the road from
sion,
which
states was involun-
Hart,
where we were.”
sitting
who was
tary
illegal
and the fruit of an
arrest.
the passenger
police
side of his unmarked
The trial
pre-trial
court held a
hearing to
car, immediately
dispatcher
radioed his
if
determine
sup-
motion to
he “had
walking
a white male
us
towards
press the
granted.
confession should be
At
clothing
whose
muddy
and torn.”
As
that hearing, Deputy Hart
testified about
got
radio,
soon as he
off the
Hart
left his
his decision to
arrest
when he
car. He
flashlight
had his
out and turned
saw him
morning
on,
on Collins Road.
shining in the man’s face. Hart also
1. We note that
represented
State,
different counsel
(Tex.Cr.App.
Mann v.
appeal. Perhaps
on this
appellate
1986),
again
confusing
this Court
faced a
counsel
language
was confused
some of the
difficulty discerning
record. We had
the State’s
in the record.
specific grounds
challenges
for its
for cause
attorney
When the state’s
finished his voir dire
again requested
because the State
excusal of
Berensee,
court,
he stated to the tried
“I will
submit,”
jurors by
Mann,
saying merely, "we
juror, your
submit the
Honor." After his voir
supra, n. 6 at 746.
court,
Holloway,
dire of
he said to the trial
Grider, Moore, and Mann share a common fea-
Honor,
pass
juror.”
“Your
we
and submit the
They
ture with the instant case.
were all tried
Tucker,
At the conclusion of his voir dire of
he
County.
present,
in Dallas
From 1971 to the
court,
told
pass
the trial
"And with that we
little,
appears
any,
there
to have been
concern
juror
juror.”
and I submit the
suggestions.
great
for these
But there is as
The trial court understood the term “submit" to
specificity
today
need for
in voir dire
as there
attorney
mean
challenging
ju-
that the
(Even
years ago.
was seventeen
in Dallas Coun-
rors for cause.
The trial court indicated this
ty).
recognize
his entries on his master list. We
this
problem
condoning
A
arises from the
of this
representation
record's
of the voir dire in the
practice by
Attorneys
a trial court.
will look for
instant case.
happened
a better short cut. This
with the
However, we note this is not the first time that
Blevins,
prospective juror,
fourth
where there
cоnfusing
phrase
use of the
“submit the
"magic”
was no use of the
words "we submit the
juror” during
selection of a
has come be
said,
juror."
attorney only
pass
“We’d
State,
fore this Court.
In Grider v.
S.W.2d
much,
juror.
you very
We thank
Mrs. Blevins.”
(Tex.Cr.App.1971),
this Court commented
Though
might appear
reading
on first
prosecutor usually
on the fact that a
did not
accepted
juror,
mean the State
Instead,
challenge
make a formal
for cause.
said,
recognized
lant’s trial counsel
juror.”
a different mean-
‘We submit
This Court re
Blevins,
ing. When he
marked that the record
finished his voir dire of
did not indicate if this
court,
customary practice
County.
object
excusing
was the
he told the trial
"we’ll
Dallas
Grider,
Obviously,
at 398. In Moore v.
542 S.W.2d
her as to cause."
the trial court
949,
(Tex.Cr.App.1976),
recognized
thing,
cert. denied 431 U.S.
the same
because
recorded
(1977),
97 S.Ct.
had his at the man he had been appellant. brush, he identified at through something trial as He a fence or “Freeze, yelled, police.” enough thought just to—I he had his cut pect. of the details of what led him to arrest the partner head, his head off.” appellant. peared armed.’ Hart slowly, turned around at which time he took replied, in the him and I recalled he then started knew an officer had been shot and that was know.” was alone. Hart then asked him where his partner he “turned it.” When he had the gun “down face down On general description As soon was, said, several cross-examination, held him there and I I street, to be ” was. told to radio that we had a “No, Hart and the again “I as Hart The next When away him if had steps away sir. “physically Hart asked him stated hollered at him to halt and my gun asked if appellant replied I had no idea from me and started— he moved would blow lying brought spoke thing of the Hart “running from exhausted, tired, on the he’d been Hart said was the back of his yelled said, appellant ap- said, his hands filled in some subject, I me.” Hart face down where good ... appellant, ground.” ‘I’m “I don’t towards given All I Hart sus- my up he that an officer tion. On the rode with him back to the his placed After the determine appellant was was yes. they not have appellant. He also did not have a description From the hicle or the exact location. or how pened. formation on a response my questions. clothing hand. rights. appellant if A. Q. still were read $ in the back seat No, (Defense counsel): I a warrant many I was tom. The time appellant of a large record, did not realize what had When he thought $ the warrantless arrest sir.” way, appropriate he understood the to him. The was dead and the suspect. All he there were in the description n sfc Hart read the he had been cut. His for the arrest of the appears was handcuffed and finished, vicinity. $ a under police Sunnyvale You or of the that Hart did Hart asked type $ knew was had the- facts. We must car, day. appellant rights general suspect culprit of the of ve- no in- Hart [*] said hap- Sta- His partner then out breath.” Hart’s complains that his arrest was, jeep asked the where his because he committed no unjustified responded that he did not presence Deputy Hart. offense know. complains Appellant also that Hart made attempt question no him as to his activi- ap- Hart was then asked counsel for prior making the arrest. On this ties pellant if he had information error, appellant provi- on the point of relies jeep at the scene of the murder. 14.04, of Art. V.A.C.C.P.: sions (Hart): “A. All I knew—all the infor- satisfactory is Where it shown picked up simply listening I mation officer, upon repre- proof peace to a to the radio transmissions. of the One person, that a sentation of a credible squads squads CID —one committed, felony has been and that the tracking had a vehicle down—there been escape, offender about to so that there they jeep —I don’t remember said it— warrant, procure a such is no time to They They had a license on it. believe. warrant, pur- peace may, officer without trying were to run down the owner. sue and arrest accused. Irving heading think were towards That’s all I knew. or whatever. responds by arguing Dep- The State (Defense counsel): Q. Why had, knowledge, suffi- uty Hart within (that opinion he had located the ap- to conclude that the cient information suspect)? likely suspect, and that pellant was attempting escape from the scene of physical appearance. His He had was
A. the crime. been—for some reason or another *11 findings In his of fact and conclusions of There are several factors can which
law, the trial court found that “the initial help
suspect
may
indicate that a
be
by
arrest of the defendant
Deputy Hart
committed,
committing,
just
or have
an of
based
probable
The
was
cause.”
trial
fense,
suspect may
attempt
or that the
be
State,
court cited Brown v.
106,
481 S.W.2d
ing
escape
from the commission
(Tex.Cr.App.1972)
110
support
of this
offense. These factors include furtive
conclusion.
State,
v.
gestures,
movements and
Smith
(Tex.Cr.App.1976),flight
Woodward v. (Tex.Cr.App.1982); 337 S.W.2d 1181, time of his arrest. He was mud- t. denied 469 U.S. cer 952; dy, smeared on him and his Garrison S.Ct. L.Ed.2d blood (Tex.Cr.App.1987). clothing was torn. himself; Hart, by Deputy be in control of his attention 3. When confronted officer, ap- first complete a uniformed and his answers were attempt reaction to turn around and propriate. away. Deputy Hart had to order to walk “9) Jones, Teddy ‘Mike’ a reserve offi- stop. Af- time to a second County cer for the Dallas Sheriff’s De- warning, appellant made ter the second paramedic firefight- partment and a gestures or no more furtive movements. Irving, City er for the examined De- 4. found in a resi- fendant. Jones cleaned some of the *12 neighborhood dential at 4:00 a.m. travel- injury from Defendant’s hand blood ing on foot. bleeding very by that time was which appellant 5. The was arrested on a number little. Jones asked Defendant a street, leaving
public the area which designed his questions to ascertain Deputy cordoned off to find Ko- been questions of consciousness. These level murderer. var’s date; Pres- the name of the included: States; paramed- ident of the United this, prudent per- From a reasonable and Defendant was ic’s name and whether did, conclude, Deputy as Hart son could going on around him. aware of what was male, walking this white who was and correct gave appropriate Defendant neighborhood at 4:00 alone in a residential questions. to these answers morning, muddy, had blood all in the was tom, clothing “10) began giving a him and his then over Defendant officer, attempted concerning uniformed to to flee from a the offense statement Deputy Ko- was involved in the murder of Potts had the state- Lieutenant Potts. attempting escape from the writing preprinted and was to var reduced to on a ment Though offense. war- pres- commission of that In voluntary statement form. rantless, hold the arrest of the Boardman, we read Magistrate ence of Potts justified under the rule appellant was to Defendant. Boardman the statement 14.04, appellant’s Article Y.A.C.C.P. he did not have told Defendant that not tainted this arrest. stated, confessions were Defendant sign the statement. I did it.’ might T as well. discussion on This does not end the with signed the statement “Defendant Appellant also ar- of error number one. hand; also Potts and Boardman his left first confession is inadmissi- gues that his appears in the statement involuntarily given by signed. This ble because it 44. No. Appellant asserts record as State’s Exhibit him to the authorities. taken from his first confession was Thereafter, “11) cleaned De- Jones help- him in a debilitated and while was wound, put the hand on hand fendant’s argu- support In of this less condition. it support and elevated armboard ment, that the “un- asserts throbbing. checked De- Jones to reduce facts” indicate that he was controverted nor- pupil response; which was fendant’s that he confess- physical shock at the time pressure was Defendant’s blood mal. disagree appellant’s as- with the ed. We (88). (88/60) pulse Be- taken matter, as did facts on this sessment of the pressure was Defendant’s blood cause court.
the trial Hospital to low, Parkland called Jones treat Defendant. permission to obtain findings and conclusions In his of fact call, received of this Jones As a result following law, court included the trial Ringer’s lac- administer authorization physical on the matter of the solution. tate his first confession: at the time of condition state- “12) signed Defendant After Defendant’s
“8)
had noticed
Boardman
ment,
checked Defendant’s blood
Jones
substation.
on his arrival at the
condition
receiving the same
pulse,
pressure
he felt
how
asked Defendant
Boardman
questions he
asked the same
results. He
talking
Lieu-
up
if
he were
De-
previously;
Defendant
had asked
said that
Potts. Defendant
tenant
to all
gave appropriate answers
fendant
time,
Defendant seemed
At this
was.
HI
questions.
receiving
After
Defendant’s
magistrate,
shock. The
present
who was
permission, Jones administered the intra-
give
warnings
set out
venous solution and Defendant was
15.17, V.A.C.C.P.,
in Art.
ap-
testified that
transported to
Hospital by
Parkland
pellant
appear
did not
incapacitated and
squad car.
told him
up
that he felt
“13) Upon arrival at
Hospital
Parkland
talking to Lieutenant
magis-
Potts. The
pressure
Defendant’s blood
had risen to
trate
permitted
testifiеd he would not have
all,
142/92.
Defendant was adminis-
interrogation
appeared
tered three liters of intravenous solu-
inwas
shock.
tion.”
We find that the
amply supports
record
judge
The trial
found that the first con-
findings
the trial
court’s
that the
freely
fession was made
voluntarily.
knowingly
voluntarily gave
the author-
Implicit finding
is the conclusion
ities his first
Appellant’s
confession.
first
suffering
was not
from
point of error is overruled.
shock at the time he
signed
made and
first confession.
*13
error,
In his
point
second
appellant
the
complains that the trial court erred when it
judge
The trial
is the trier of fact at
admitted
during
guilt
into evidence
the
ad-
hearing
on the voluntariness of a confes
judication phase of his trial the second con-
role,
sion. In that
judge
is the exclusive
gave
fession
of the
which he
to the
credibility of the
authorities.
witnesses as well
weight
as the
given
to be
This
to their testimo
second statement
taken
from the
ny. Vigneault
State,
v.
pоint of error were reviewed. 74(p). Pro.R. is what it looked like to me. while he was incarcerated there
pellant’s accurately depicted State’s bunk in the Dallas Exhibit 58 is a wall above photograph County prior which Jail ap- hind the A. $ I couldn’t flashlight. [*] $ actually [*] see [*] nobody [*] be- trial. State’s Exhibit 59 is also a pho- [******] tograph depicting part of the another wall something. say A. I heard voice photo- above the bunk. Both ” up.’ ‘Halt’ or ‘Get display graphs important for their knowing denied that Kovar writings on that wall. State’s Exhibit peace he shot at him. was a officer when words, “Kill, kill, displayed Judge, explained: He also D.A.”, “forgive”; “I as well as the words say “A. ... I would we shot about “RLC”; Tommy”; capital counts love “two immediately the same time. Almost displayed only murder”. State’s Exhibit 59 the same time. phrase, pig police.” “Kill all white (Defense Counsel): Q. What did Appellant argues that the admission of gun swung you? think when that onto prejudiced these two exhibits into evidence myself going A. felt that was jurors minds of the and inflamed the dieing. And I was afraid of against prej- die. him. He also asserts that this [sic] outweighed impact udicial was not Q. firing And that’s when started probative photographs. Ap- value of the your pistol? *14 little, pellant states that the exhibits had if Yes, A. sir. any, probative there was no value because Q. you did realize whether or not ... establishing that he made the evidence in you figure you that saw the shot this writings, writings proper im- the were not dark? peachment appellant, they not were sir, No, I I had.” A. didn’t know relevant to a contested issue at either the he acted Appellant’s argument was that guilt phase, punish- or the determination self-defense, “fig- in after he saw the only phase ment of the trial. We will review gun. ure” with the the relevant facts in the record to make the evidentiary probative val- balance between Later, attempting to establish that while prejudicial impact. ue and premises the appellant did not enter the intent to kill Landers Store with the When the took the stand to him, appel- anyone who interfered with testify, jury already had heard evidence him he attorney asked about whether lant’s was relevant to his intention to com- which handgun prior acquired a to could have alleged mit the offense. Officers Mitchell burglarizing. night of going out on this jury they both told the that saw and Crain that he had wanted The stated go the store with his Officer Kovar behind him, gun with he could have to take a on, handgun flashlight drawn and handgun kept at his which was taken up”, yell, heard Kovar “Halt. Get both ex- The also mother’s house. exchange gun- they heard the and then plained that he had never been convicted implication testimony their fire. The weapon along with him on a carrying a Kovar was an that the murderer knew that burglary, carrying weapon a unlaw- prevent him or attempting to arrest officer why him he took store, fully. attorney His asked burglary of the and that Kovar handguns previous of the prevent the arrest. from one was shot to night. burglaries he committed direct examina- testified on (Defense Counsel): “Q. Do have in deny implication. He stated tion to this idea, pistol? any why you took that questions: response attorney’s sir, No, picked up, just itself, just I flashlight A. light, “A. The something. it, reaction to just a kind of a reflecting on the side of was
H3 Q. your purpose taking personal I actually What was in A. pistol burglary? police in that that were friends officers. carrying Q. Okay. judges A. I had no reason for How about pistol. really explain I can’t a reason D.A.’s? pistol
it. I’ve never even used a or shot any I’ve personally. A. never known pistol time in my but one life. them, Q. just Like or dislike ****** system, being in the in from court system? judicial Q. Well, right. your All what No, sir, nothing against I A. hold purpose taking pistols those from two them. company? the steel Q. Okay. real sure figured You're pistols,
A. When I seen might that? able to sell them.” Yes, sir, I am. A. appellant implied, by this, Q. you’re person And that’s never not a man of violent intentions. The pistol fired but back when argues appellant’s testimony State out ranch? fifteen there on the helped on direct examination to build the Yes, sir, predicate for the admission of Ex- (Emphasis State’s A. that’s true.” In added) 58 and 59. his testimony, hibits attempted lant create impression an argues it is The State the above minds of the that he did not set testimony predicate laid the for the night burglaries out on his impeachment with the ad- shoot, harm, anyone. intent to or He also photographs. Appellant mission two sought impress upon jurors that he responds proof that there was no that he officer, did know that Kovar was an writings. given made the When he was theory
that he had shot Kovar. His opportunity explain cross-examination only acted self-defense. them, appellant flatly making denied sought impeach writings State both to on the wall above his bunk. testimony, sought prove and to show that the The State otherwise. predisposition against hаd a to violence reviewing court’s the trial decision people law enforcement. On cross-exam- *15 successfully State established ination, attorney ques- for the State writings, appellant made the so that matters, appellant on in- tioned these him, against exhibits were admissible we cluding appellant’s state of mind after light all of the in the will review evidence parole his most recent from the De- Texas most favorable to the verdict. Jackson v. partment of Corrections. The want- State 307, 2781, Virginia, U.S. 99 S.Ct. appellant ed rebut the issue whether (1979). L.Ed.2d acted self-defense. side, appellant’s we have his un- On the “Q. (State’s you Attorney): When equivocal testimony he did not make left, time, paroled there this down last writings displayed in the two exhibits. you up your you made mind that weren’t side, we have the tes- prosecution’s On the back; going go right? never isn’t that cellmates, timony of two of Yes, sir, A. did. I Gary Banschenbach and LaCour. Robert Q. you cop killed Unless called to the stand to The State LaCour way? writing testify appearance about No, sir, en- thought A. never on the wall. my tered mind. Well, morning sitting I one “A. Q. police, you? You don’t like do reading, something in there and heard A. I do. know, on, scratching on the wall. you Q. You do? (State’s Q. Okay. Attorney): Yes, A. sir. know, got up, you And so I kind of A. on, going and I Q. to what was went Be real sure about that. curious (“Kill, kill, D.A.”). on, got Judge, He up you’ve to turn the TV because Exhibit 58 get pass writing, in front of his cell to nor stated that neither that noticed, know, TV, you 59, and I he was portrayed in State’s Exhibit were one ‘L’, like, scratching something with an prior to the time that he saw on the wall you know—and then noticed later on appellant writing on the wall there was stuff wrote all over wall. Though night. he did not see the Q. Okay. you Let me show what’s 59, working writing on the in Exhibit into as State’s been admitted evidence writing on the wall heard 58. You see that? Exhibit Number again night. He also saw what Yes, A. sir. depicted in 59 for the first time Exhibit What, that, Q. regard you night. did later that scratching? see this defendant This testify did not The witness Banschenbach bunk; is that cor- on the wall above writing. either that he saw make rect? However, testify he did that he had several here, sir. right yes, A. Be conversations with Q. pointing to the L’s? you’re And he heard the trial. He stated that Yes, A. sir. statement, “Well, they lant make the Q. you Was that on there before saw going I’m give penalty, me the death doing
the defendant
that or not?
me.”
couple
of these fuckers with
take
No,
A.
sir.
Banschenbach,
according
appellant,
Q. Was not on there?
he was
also stated that he was aware that
shooting
police officer when he shot
No,
at a
A.
sir.
though
Even
this witness did
Kovar.
Q. Okay.
of that?
You’re sure
writing
phrases used
see the
positive.
A.
I’m
made
impeachment,
the statements
Q.
you
doing
him
Okay. Did
see
with the writ-
appellant were consistent
‘Kill, kill, Judge,
says
rest of these—it
appellant to the
ings. This connected the
doing
him
all of that
D.A.’—did
see
writing
phrases.
just
the ‘L’?
No, sir,
the ‘L’.
just
A.
We conclude that a rational trier
go-
Q.
long
scratching
How
was that
beyond a reasonable
fact could have found
on, if
know?
ing
writings.
made
doubt
minutes.
Probably
A.
about ten
before the
There was sufficient evidence
Q.
that on the wall before
support
court to
that conclusion. We
trial
the de-
you say you
timе that
saw
this
whether the exhibits were
must now decide
scratching
‘kill’?
that ‘L’ on the
fendant
impeachment and
proper
admissible
No,
A.
sir.
evidence at
relevant
whether
putting
him
Q. You did not see
appellant’s trial.
stages of the
both
*16
on; is that correct?
improper
or
im
proper
As for
No,
No, sir.
sir.
A.
important
to resolve
peachment,
is
Q.
rephrase
After —let me
that.
justi
appellant’s statements
the
whether
look,
go in there and
you
Did
ever
59 to
use of Exhibits 58 and
fied the State's
scratching and seen
this
after
heard
open the
appellant
him. Did the
impeach
‘L’,
of the
doing
and see both
him
the
jury
the
he
by trying to convince
door
pictures
on these
items
are
danger
police?
for the
trouble
wasn’t
his bunk?
scratched above
State, (Tex.
Nelson v.
S.W.2d
Cf.
A. After—
appellant argues that it
Cr.App.1974). The
Yeah,
him
Q.
after
saw
scratch-
questions on cross-examina
the State’s
was
ing the ‘L’?
the
independently created
tion which
Yeah,
night.”
later that
A.
impeachment
the exhibits.
grounds for
State,
H5
legitimate-
case,
he was
appellant’s
gave
impression
the
the
In the instant
The
acting in self-defense.
exhibits
ly
direct examination created
testimony on
ap-
they
relevant
showed the
were
because
impression that he
a non-violent
the
people
en-
had a hatred
law
pellant
only
committing prop
interested
person
forcement,
tendency
a
to vio-
and exhibited
crimes,
that he
no
erty
had
intention
Brandley v.
them. See
lence toward
during
burglary
causing anyone harm
his
(Tex.Cr.App.1985). In
ques
the
Store. The State’s
Lander’s
brief,
these exhibits
appellant conceded
not the
on cross-examination were
tions
special
the second
issue of
relevant to
were
of the
first to raise the collateral matter
phase
his trial. Art.
punishment
the
tendencies, especially to
appellant’s violent
37.071(b)(2).
a
The exhibits did indicate
This
people
authority.
issue was
wards
appellant to commit crimi-
proclivity of the
direct.
the
raised
on
When
acts of
that would constitute
nal
violence
began its cross-examination on
State
continuing
the
society.
We find
threat
matter,
state
the
volunteered the
relevant evidence at both
exhibits were
friends
“actually
personal
ment
he
stages
appellant’s
trial.
police officers." This assertion
that were
gratuitously by
appellant,
the
was offered
represent in-
though
Even
these exhibits
merely
could have
answered the
when he
statements,3
flammatory
pro-
find their
we
negatively.
prosecutor
affirmatively or
impact
prejudicial
exceeds the
value
bative
gratuitous testimony,
appel
the
might
jury.
State
police,
friend of
collat
lant was a
writings in
made the
proved
su
Shipman,
eral to
matter at trial.
proper as
The exhibits were
the exhibits.
pra,
distinguishable.
is
testimony.
impeachment
appellant’s
to material issues
They were also relevant
A
as a
defendant who takes the stand
stages of the trial. Point of error
at both
other
may
impeached
witness
be
three is overruled.
as a
witness. The defendant’s character
witness
in issue the minute he tоok the
eight,
error
Ray,
of Evi-
stand. 1
Texas Practice: Law
complains
improper argument made
of an
dence,
643,
(3d
ed.
pp. 571-574
Secs.
during
prosecutors
final ar-
by one
1980).
may
impeached
defendant
guilt
phase
gument at
determination
Ray, su-
by prior
inconsistent statements.
appellant argues
appellant’s trial. The
(Pocket Supp.1986);
pra, Sec. 642
Vernon’s
prosecutor’s
statement was both a
612(a).
in-
In the
Ann.Rules Crim.Ev.Rule
appellant’s failure
testi-
on the
comment
case,
insin-
stant
made false
pre-trial hearing
argument
and an
fy at
relationship
law
uation
with the
about
the record at trial.
outside
County,
community
enforcement
in Dallas
argument by
dispute began
This
in an effort to bolster his defense that
appellant. Appellant’s
counsel for
police
intentionally
shoot at a
would
presentation
counsel criticized
State’s
part
officer. This was
case, and the fact that
the State
of its
strategy
trial
to convince
paramedic Jones
failed
call
such,
As
only
in self-defense.
State’s
acted
during
its case
chief.
witness stand
proper impeach-
exhibits 58 and
who, among
those 250 offi-
“And
all
appellant’s testimony.
ment of the
standing
paramedic?
there but a
cers
there, remember, since about
He’s been
These
also were relevant
exhibits
talking
morning.
I’m
2:00 that
guilt
issue
to a contested
at the
determina
*17
Richard Hart.
the
phase
stage,
At that
tion
of the trial.
witness, inciden-
And
called that
appellant
he was not aware
testified that
called Richard
tally? The defendant
police
Appellant
at a
officеr.
that
shot
Here,
1986).
place the
the evidence did not
impeached a
Compare
cases
the State
3.
to
where
appellant
his
offenses.
situation where he was tried for
defendant with
extraneous
in a
Hoff
State,
(Tex.Cr.App.1974);
criminal, generally.
man v.
didn’t prosecutor subpoena appear only why for the 4. can had received One wonder prior to ask if he State trial. failed to Jones on cross-examination
117 complained about argument prisoner find to no ever Though we the him, him, anything said bad about improper, we also conclude that was ever be improper they’d— The essence of the harmless. placed the had argument State was Honor, Your COUNSEL]: [DEFENSE its list of the witness Jones on witnesses object I to that. chief, in made a during case but call its brought —have [PROSECUTOR]: they in case not to call him tactical decision you, too. evidence him for rebuttal. needed That’s testi- [DEFENSE COUNSEL]: argu are to conclude We able That’s record. fying. outside the doubt, ment, did not beyond a reasonable no There’s evidence whatsoever guilty, or the contribute to the verdict complaints lodged against not there were Chapman v. punishment assessed. Cali him. 824, 17 L.Ed. 386 87 S.Ct.
fornia, U.S. Oh, on, now. come [PROSECUTOR]: State, (1967); v. 2d 705 Williams stand, reopen the You want take (Tex.Cr.App.1983); and Monto S.W.2d Scoggins? know than Mr. You better State, (Tex.Cr.App. ya v. that. irrefutable, light 1987). in The facts are the I’d ask COUNSEL]: [DEFENSE he inten confessions that appellant’s two rule Court to on— the death of tionally and caused knowingly objection will be THE COURT: Your the acting was in law peace officer who sustained. discharge duty. pun At of his official ful Ask that the COUNSEL]: [DEFENSE ishment, jury knew the disregard it. jury instructed to be burglary, for penitentiary been twice Jury disregard the THE COURT: will again probation once on a revocation argument. last regular They also knew of conviction. his May answer [PROSECUTOR]: jail. argu his conduct in The erroneous remark, Judge, incorrect? that is sidebar ment, that on its wit the State had Jones No, your sir. THE COURT: Address list, Point of error ness was harmless. please. jury, arguments the eight is overruled. Ask for a COUNSEL]: [DEFENSE nine, of error the mistrial, Your Honor. de complains the trial court erred when it Motion will denied. THE COURT: motion for mistrial nied dis- asserts the instruction argument prosecutor response by to an the error regard not sufficient to cure phase. was during guilt determination disagree. argument. We of the above argument by appellant claimed the said attorney outside the for the State was argument case in the instant The State’s During the record of the case. State’s nev was outside record. following argument closing argument, the rep credibility, good or the er attacked made: was argument. utation, his of the deceased objected that properly The appellant the man Ray
There’s Kovar. That’s ... outside Force, prosecutor “testifying was Air country who served This not a case jury. for almost record” to man was married who argument invit prosecutor’s years, man was a deacon where the nine argument outside improper worked ed church. That’s the man who prosecutor’s ar appellant. The eight for record the Sheriff’s Office for —over Johnson, supra; gument invited. of man that eight years, and kind (Tex.Cr. State, 574 S.W.2d that would Franks v. you to want beliеve four It not one of the ground, App.1978). lying on the first at a man shoot argument. Ale approved officer forms for peace the kind of because that’s (Tex.Cr. who, 493 S.W.2d was; jandro man yet, that’s the such, argu evidence, prosecutor’s App.1973). As under submit attempting remark improper eight years, was an ment jail in the over worked *19 118 reputation Second,
to vouch for the credibility and
attorney
the
for the
incor-
State
of the
rectly
deceased.
assumed that
the appellant had a
“spotty” work record
the
from
date of his
The trial court did
the
sustain
ob
parole
second
in March of 1982
the
until
jection,
attempt
prosecu
an
by
cut off
the
commission of the
in
instant offense
June
to
on
expand
improper argument,
tor
his
of 1982. There was no evidence in the
disregard
the
to
instructed
the
support
record to
assumption.
prosecutor.
the
statement of
This was suf
remaining assumptions, complained
by
In Drakes v.
ficient to cure the error.
the appellant,
supported by
were
evidence
State, 505
892 (Tex.Cr.App.1974),
S.W.2d
a
in the record.
prosecutor
a
attempt, arguing
made similar
It is settled in
this State
record,
outside the
credibility
bolster the
psychiatric
opinion
expert
testimony of a
reputation of a
In
rape
victim.
dangerousness
defendant’s future
may case, we also held that
the instruction
solely
based
upon hypothetical questions,
cured the error. Point of error nine is
without the benefit
examination
a
overruled.
State,
defendant. Vanderbilt v.
629 S.W.
appellant
In his fourth
the
denied,
2d 709 (Tex.Cr.App.1981) cert.
456
complains
the testimony
of the State’s
910,
1760,
U.S.
102 S.Ct.
72
169
L.Ed.2d
expert
punishment. Specifical-
witness
State,
(1982);
Smith v.
H9 penitentiary for sent to the He was case, any impact from outweighed given his years and was of five sentence assumptions. We set out erroneous *20 February 11th. time to laid back which was hypothetical rest of the expert: before 1978, fur- assume April the 25th On again at in court that this man was ther assume I’d like to [PROSECUTOR]: he received original court where Griffith, facts, that following Dr. these ’76 and in December of back probation talking is a white person I’m and sentence was revoked probation male, age at the twenty-four years of concurrently the five- with to run time, the 30th was born on December present in he had received year sentence 1957, twenty-five in a cou- so he’ll be to the He returned September of 1977. ple of months. ' penitentiary. completed the tenth this man That paroled than from man was high dropped out— That this grade school and to assume want grade. penitentiary. dropped out the eleventh and first two parole for these on question is a whether that while That there convictions, August 11th he com- truan- dropped from school for excessive County, Zandt own, burglary Van but— mitted a cy just dropped out on penitentiary 1979, returned to and three-year time for a two to for the third the first two prosecutor then set out 1982, sentence, this and that March appellant claims on this assumptions which again returned to paroled man was by the appeal supported evidence. are County. Dallas assumptions Both dealt with the Griffith, would you, I’ll Dr. ask Navy for unsuit- being discharged from the into evi- been admitted look at what’s presented the rest of his ability. He then 54, and Exhibits 53 and as State’s dence hypothetical. to look at you specifically I’d ask 19th, 1975, on December of That where of those exhibits pictures in both from the United separated this man was sentenced man who was it shows the in the State Navy and came to live States Department of Corrections. Texas Texas, Rusk, Henderson East Texas— mother. County lived with his —and later, you had year De- Have approximately a That [PROSECUTOR]: exhibits, those 1976, at both this man was to look
cember the 13th chance burglary and the offense of Doctor? convicted for five-year probated sentence.
received Yes, аt them. I’ve looked [WITNESS]: the time he This man stated that at you. Okay, thank [PROSECUTOR]: he understood probation, received that fur- Griffith, you to assume I want Dr. probation and conditions of the terms talking that we’re this man ther term he understood the first and that peni- in the about, time he was the last probation, is com- and condition of which in the referred to lost what is tentiary, against of this the laws mit no offense he re- good time because penitentiary or the federal state or other state four down there obey orders fused to system. times and to work four and refused times later, stay on Febru- yet, fight during And two months this last in a also was being paroled this man ary the 11th before penitentiary in the for another charged and arrested of 1982. in March of that September And that in burglary. prosecutor asked point, the At this actually September the year, same 1977— appeal complained of on assumption third February the jail since 19th—been record spotty work appellant had a burglary and 11th, convicted prison from his release the date of from penitentiary. sent He offense. of the instant until the date hypothetical. proceeded with
then However, hand, per- right this fore in began burglar- [PROSECUTOR]: purchased automobile, locked, son ize this Jeep, closed mercantile store. very important object became a aspect person’s of this life. Honor, Your [DEFENSE COUNSEL]: Your Hon- [DEFENSE object ATTORNEY]: we’ll that also as outside or, object we’ll that on the basis the the evidence. Ask that excluded affirmatively record shows that he didn’t hypothetical from question. purchase did, Jeep, that someone else THE COURT: Overruled. there’s no support evidence to While in the course *21 [PROSECUTOR]: very statement that it became a committing of burglary, this this man prominent object in his life. Ask that by was discovered first some citizens and that not be considered and be stricken by then County deputy a Dallas sheriff. from the record.5 That of within ten minutes the time
THE COURT: being by Overruled. depu- between first discovered a sheriff, ty deputy other sheriffs from you Let ask fur- me [PROSECUTOR]: County Dallas arrived at the scene of the assume, Griffith, ther to Dr. that on June mercantile store. 20th, 1982, in an money, effort to obtain during period, That this ten-minute this man committed three more—or bur- squad this man saw a marked Sheriff’s glarized buildings, three more while on car, sirens, flashing lights heard saw red parole burglary, and that in of one only that police- could come from a buildings caliber, those took two .38 load- equipped vehicle. pistols, only ed and took these two items Honor, Your [DEFENSE COUNSEL]: building from this where there were also object to all hypothetical we’ll as that desks, typewriters— calculators on the being supported by not the evidence and We’ll object [DEFENSE COUNSEL]: ask it be the hypo- that excluded from evidence, to that also not question. thetical Honor, Your and ask that it be excluded THE COURT: Overruled.7 hypothetical question. from the This says, man then [PROSECUTOR]: THE COURT: Overruled.6 hypothetically, words, in his own —and television [PROSECUTOR]: deputy after these various sheriffs ar- However, along sets. pis- with two rived at the scene that he atwas the rear tols, only other item taken awas talking door—and let’s assume he’s 7-Up, large bottle of a think call —I building there —that he looked them liter bottlеs. flashlight gun pointing saw and a and a proceeded This then a man about half me.” at him—“at mile further down the road and came to a then “I says, Assume man closed, locked mercantile store. And shooting I started at him. then believe time, up not to this this man had also shot five times. The officer shot drinking beverage, any alcoholic been me, right I was a hit in hand smoking dope. not been bullet.” further, IAnd ask to assume Dr. Assume that he ran from the rear Griffith, then, building direction, that this man with a tire northerly in a be- pistols pistol tool in his left hand and one a lieved he threw the down about store, just yards that he had taken a short time hundred from the and then be- complained assumption complained assumption 5. This fourth 6. This was the fifth was the appeal. supported by on It also record. appeal. light appellant's on admis sions on cross-examination that he committed complained assumption This was sixth 7. monthly burglaries payment, make testimony appeal. supported by It was pistols could sold the he he have stole LaCour, mate, appellant's cell stated offices, assumption this from one of he he a told him knew killed light of the evidence. reasonable police officer. charged capital mur- says, this “I the offense of he—assume that man didn’t with word, actually” “actually” my der. —and shot, person I but I see the but—“didn’t during jury further that Assume police a officer.” knew it had to be attempted man process, selection this happened, potential that after this this a Assume fellow inmate bribe a charged man has arrested and hung jury been trial. juror to cause capitаl murder for shoot- the offense people This man has stated several police deputy ing actually this he under oath that did officer— stated sheriff. Depart- return Texas want to ever further that this man has been Assume did, Corrections, if he ment of offense of convicted earlier, I said take would—as would capital murder. pigs other with him.
Also, Griffith, to as- Dr. want period, this sume that since time you, hypothetical Let me ask on the man, contemporaries amongst —be- given you, you’ve got facts I’ve jail bragged cause he’s been —has opinion regarding this man we’re *22 offense, quite appears to be about this talking hypothetical about this situa- if Has also he is proud it. stated that probability tion whether there is a as to convicted, pigs take more he’ll some that this individual will commit future By “pigs” you him. want to assume con- criminal acts of violence that would police talking he’s officers. about continuing society? stitute threat to you Ask assume that to further Honor, Your [DEFENSE COUNSEL]: things, man who has done all of these province object. I’ll That invades the jail, while above bunk would write jury. what’s contained on Exhibits 58 State’s THE Overruled. COURT: you and 59—if will look at those. hypothetical In the of the entire context (Witness exhibits) examines assumptions question, facts, you Ask to assume further these discharge spot- unsuitability and of his Griffith, Dr. this has that man stated impact. The ty work record little under that while armed and oath he was same, expert’s opinion would have been the he building at the rear of the would assumptions he to since considered other anyone upon shoot kill came and who dangerоusness: better indicia of future officer; is, him as he described this Well, yes, opin- have an [WITNESS]: flashlight with a hand and what one all, you tell me that this ion. First of other; appeared weapon if to be a in the going person says they are to com- him, thought kill they going he were to violence, they’re mit acts of future them, killed no matter would have kill, predict- going his own and does they were. ing, right there. recall, that, you me this you Let ask if things One the best that we have hand, he had been in the man stated shot behavior, go predicts on behavior is that time, about or six hours that at the five gone up progressively man has and this doctor, surgeon medical later when a ascending in an manner and the scale ready finger getting amputate and gotten and worse worse. worse that the amputated, on his hand that was any get how can worse Don’t know asked him if he was wor- medical doctor done, already than he’s unless what police having killed a ried or afraid about frequency is allowed to— officer, was, only “I’m the answer and Q. Okay. And happen going to interested in what’s [PROSECUTOR]: you get any worse than that’s—now can my I’m not worried about hand. situation, killing a say hypothetical in the officer." peace officer? being bragged on This man has A. being Correct. as a result of arrested
TV Q. And say thing, else?”, the next “Anything responded, only thing frequency, worse is the hearsay, irrelevant, “It’s no other—it’s it’s predicted has person; this been this not material to matter at The trial.” that correct? trial objection court sustained the in-
A. That’s correct.
jury
disregard.
structed the
The trial
court
the request
refused
for a mistrial.
if
assumptions
Even
the erroneous
were
This
is the
point
refusal
basis for
important
hypothetical,
more
ap-
to the
error.
no
appellant object
At
time did the
pellant
object
expert
failed to
when
grounds
on the
that his Fifth Amendment
gave
opinion
expert’s opinion
rights
were
violated.
was based on false assumptions.
only
He
objected,
province
“That invades the
Immediately
this,
after
asked
State
jury.”
pre-
The
any,
if
was not
Dr.
Griffith
he was able to interview
point
served. The fourth
of error is over-
appellant. There
objection.
was no
ruled.
answered,
witness
“No.” There
no
objection.
seven,
error
argues it was error for the trial court to
Later,
redirect,
the State asked Dr.
grant
a mistrial when the State at- Griffith,
try
him,
“You did
to talk to
didn’t
tempted to admit
into evidence the
you, and
wouldn’t
you?”
ap-
let
lant’s refusal
be interviewed
pellant objected, stating only, “Your Hon-
expert
State’s
witness.
or,
objection.”
objection
same
sustained,
Dr.
State called
Griffith
was instructed to
When
stand, they
sought testimony
disregard.
first
him concerning
appel
from
from
letter
Again,
objections
there
no
*23
letter,
lant’s counsel.
Ex
that
State’s
questions
these
appellant’s
violated the
62, appellant’s
hibit
counsel informed Dr.
right
Fifth Amendment
to
silent.
remain
Griffith that he did not want Dr. Griffith to
questions
which the State
Dr.
asked
appel
interview
observe his
If
client.
a
ap-
Griffith were
direct comment on the
correct,
lant’s assertion is
the
that
State
pellant’s
undergo
refusal to
psychiatric
appellant’s
admitted evidence of
refusal to
Though appellant
interview.
raisеs
proper objection,
be interviewed over
then
Fifth
appeal,
Amendment claim on
he would be entitled
for violation
to relief
comport
does
objections
with his
at
right
of his Fifth Amendment
to remain
Nothing
preserved
ap-
trial.
has been
for
Smith,
454, 101
silent. Estelle v.
451 U.S.
State,
pellate review. Smith v.
683 S.W.2d
1866,
(1981).
S.Ct.
Officer Kovar. guilt
The evidence determination
phase had a also showed
premeditated figures of hostility towards officers, prosecutors
authority: peace
judges. The evidence showed
bragging after the murder to his cell mates him he would take “some more” with CHENEY, Appellant, Sandra got if he sent to TDC. punishment, At the ex- State elicited Texas, Appellee. The STATE of pert opinion Clay of Dr. Griffith. The propounded hypothetical
State to Dr. No. 1065-84. Griffith,8 replied appel- to which he sociopathic personality, lant exhibited a Texas, Appeals Court of Criminal likely to commit criminal acts of vio- En Banc. punishment, lence in the future. At June 1988. packets penitentiary two from the prison lant’s terms two were also admitted
into evidence. *24 reviewing light
After the evidence in a verdict,
most favorable to the Jackson
Virginia, supra, we find it be sufficient support the affirmative answer special
second issue. Point of five is error
overruled. point appel- his fifteenth argues penalty
lant that the Texas death fails
statute is unconstitutional because it provide jury’s a vehicle for the consider- This mitigating
ation of circumstances.
point of error was raised for the first time appeal. object
on did not constitutionality death Texas prior
penalty statute to trial. The punish- no presented
lant evidence at the oth- mitigating
ment of a phase, nature request
erwise. The failed to Nothing is mitigation. instruction special support jury’s answer to affirmative 8. of error four. See discussion hypothetical trial to issue number two. evidence at included other