*1 Angel RESENDIZ Maturino a/k/a Resendez-Ramirez,
Rafael Texas.
The STATE of 73849.
No. Texas, Appeals of
Court of Criminal
En Banc.
May 2003.
Dissenting Opinion as Amended 18, 2003.
June
Rehearing Sept. Denied *2 points of error. We raises sixteen
lant affirm. appel third *3 to is insufficient claims the evidence
lant
he
be
finding
the
that would
support
jury’s
society. In
to
review
continuing
a
threat
pun
at
sufficiency
the
of the evidence
ing
ishment,
the
at
this Court looks
the
to
verdict
light
in the
most favorable
of
rational
trier
whether
determine
reason
beyond
concluded
a
fact could have
appellant
probably
would
able doubt that
would
criminal acts of violence that
commit
society.
continuing
a
threat
constitute
307,
Virginia,
v.
443 U.S.
See Jackson
(1979);
2781,
Allridge
death. Additional sexually assault attempted to appellant Benton. OPINION punishment, heard evidence At J., MEYERS, opinion of delivered the committed murders of numerous other KEASLER, Court, PRICE, in which in Dunn testified that appellant. Holly HERVEY, COCHRAN, HOLCOMB, and her appellant approached August of J.J., joined. railroad Maier near some Christopher and Kentucky. Appellant 18, 2000, Lexington, in May convict- tracks appellant
On was He bound Dunn and Maier. then capital murder. robbed ed Tex. Penal Code 19.03(a). him. gagged and feet and jury’s § Maier’s hands Pursuant Ann. up object and large Appellant picked forth special to the issues set
answers it, crushing his Maier in the head Article beat with Code of Criminal Procedure Texas Maier, 2(b) 2(e), murdering 37.071, the trial skull. After sections her He then hit sexually Art. Dunn. appellant to death. assaulted judge sentenced object and left large in the head with appeal § Direct to this Court 2(g).1 37.071 2(h). survived, multi- but suffered Appel- § scene. Dunn automatic. Art. 37.071 Procedure. all future refer- Criminal 1. Unless otherwise indicated to the Texas Code ences articles refer
pie facial
trauma
error, appellant argues
fractures
second
sexual assault.
trial court abused
discretion
exclud-
its
probative
In October
unlawfully
not out-
value of the
was
entered the
of 87-year-old
home
Leafie
“any
justification.”
weighed by
valid
in Hughes
Mason
Springs,
Appel-
Texas.
lant killed
trial,
Mason
her in
hitting
Dr.
guilt phase
At the
Bruce
with an
In May
head
iron.
appel-
Cohen
the defense that he
testified for
Weimar, Texas,
lant traveled to
beat
believed
insane at
time
Skip and Karen Sirnic
capital
to death with a he
committed
murder
this
sledge
they slept
hammer while
in their
case.
on vari-
He testified that
relied
*4
sexually
letters,
records,
home. He also
interviews,
assaulted Karen
and
ous
re-
1999,
Sirnic.
In
appellant
June
ports,
of
unlaw-
photographs
well
scene
as
as crime
fully
home,
entered
Dominguez’s
Noemi
by appel-
of six other
committed
murders
her,
sexually assaulted
killed
her with
opinion.
lant
direct
forming his
On
pickax.
Appellant stole Dominguez’s car
examination,
shown the crime
Cohen was
Texas,
and traveled
Schulenberg,
to
where
was
to de-
photographs
scene
asked
73-year-old
he killed
Josephine Konvicka
photographs
the
jury
scribe to the
what
pickax
with the same
Dominguez.
used on
depicted.
then
the
The defense
offered
Appellant
pickax
left
the
embedded in
ob-
photographs into evidence. The State
1999,
Konvicka’s head. Also in
705(d)
June of
jected pursuant
of Evidence
to Rule
appellant unlawfully
80-year-old
entered
were not relevant
photographs
the
Gorham,
George Morber’s home in
Illinois.
upon them
simply because
relied
to
Cohen
Frederick,
daughter, Carolyn
Morber’s
opinion.
form
the State
Specifically,
his
appellant
was with Morber when
broke in.
argued that
not rel-
photographs
the
were
Appellant tied Morber to a chair and shot
evant because
in this case was
question
the
him in the back
the
of
head with a shot-
whether
insane at the time
was
gun. Appellant
then sexually assaulted
murder,
committed
he
not the
Benton’s
Frederick and
struck her
the head with
photographs.
depicted
murders
in the
shotgun
the
with such force that the shot-
objec-
The trial court
the
sustained
State’s
gun
pieces.
broke into two
Neither Mor-
tion.
ber nor Frederick survived.
the trial court’s
This Court reviews
The facts of
appel-
the instant case and
stan
ruling under an abuse
discretion
history permit
juror
lant’s
a rational
to
dard
will
the trial court’s
not reverse
conclude that
would continue to
zone
ruling unless it
outside the
falls
be a
society. Accordingly,
threat
to
we
disagreement.
reasonable
Salazar
legally
hold the evidence
sufficient to sup- State,
141,
(Tex.Crim.App.),
151
port
jury’s
the
affirmative answer to the
denied,
127,
122
cert.
534
S.Ct.
U.S.
Jackson,
dangerousness
future
issue.
443
State,
(2001);
L.Ed.2d 82
Moreno v.
560;
U.S.
S.Ct.
61 L.Ed.2d
(Tex.Crim.App.1999).
S.W.3d
Allridge,
Appellant’s
In appel his first form the his are lant claims he denied trial or underlying was a fair when court shall exclude facts the the trial they court refused to admit data if be used danger crime the will photographs relating scene “for or purpose explanation extraneous other than as by appellant. offenses support expert’s opinion outweighs committed for in this case were photographs dence. explanation support as or or their value issue of they go relevant because unfairly prejudicial.” Tex.R. Evid. are multiple pho- Viewing appellant’s sanity. 705(d). may crime tographs of various scenes judge photo- the trial ruled the When no likely to find that more make inadmissible, stated, “To see
graphs grue- person could commit such “normal” will not be assistance acts, find that and thus some objec- to sustain the jury, going so I’m However, stat- “crazy.” ill mentally or trial, phase guilt Later in the tion.” court, under Rule the trial by ed photo- admit attempted to defense if its may be excluded relevant evidence again. The trial court sustained graphs substantially outweighed value is probative that, “the objection and related State’s prejudice, unfair confu- danger jurors] only purpose for which [the issues, jury, misleading or sion of for the could consider the delay, of undue or considerations assessing validity purpose of cumulative evi- presentation needless and, opinions quite frankly, they doctor’s may mislead dence. Evidence confuse or *5 for, uhm, pur- might consider it other it the the jury jury if distracts from the poses.” or tends to focus main issues the case The trial ruled the crime court that to tangential on facts jury’s the attention photos scene were not relevant because The photographs the case before them. they depict did not the crime scene where jury likely to the were distract question killed, they Benton was thus inadmis- were charged facts the crime and from the of then sible. Evid. 402. The court Tex.R. on crime focus their attention other the balancing conducted test for inadmissi- photographs were rele- scenes. While the 705(d) evidence Rule deter- ble under appellant’s sanity, the vant to issue of mined that have the could viewing not merely the would improper used for purposes. been necessarily prove appellant legal- that was gave theory court also an alternative for insane, probative value ly therefore their excluding the if photographs, even Additionally, oth- viewing limited. the was relevant, stating: “But evi- were relevant led may crime have to confusion er scenes may still the court by dence be excluded appellant the difference between regarding If, uhm, know, it’s, you under Rule 403. “crazy” legal issue of insani- being and the cumulative, know, you delay, con- needless Penal ty as defined in Texas Code Section issues, un- basically fusion of it’s pho- gruesome shocking While 8.01.2 rule der that as well.” may depicting other crime scenes tographs appellant Rule if it has com- Under relevant convince make the acts unthinkable to most “normal” tendency has existence mitted that, not mean at the any consequence people, fact that is of to the this does offense, did the case more or less time of Benton determination of wrong as evi- know that his conduct was probable than it would be without the not The term “ n mental (b) 8.01 the Texas Code states disease does 2. Section Penal or defect” that: abnormality only not include manifested (a)It con- prosecution is an defense repeated or otherwise antisocial affirmative criminal that, added). charged, (emphasis at the the conduct time duct actor, result of severe mental disease defect, was did not know that conduct wrong. 8.01(a).
required under Section Addition- S.Ct. Appel- L.Ed.2d 75 8.01(b) ally, specifically point lant’s fifth overruled. Section states that of error is repeated abnormality manifested crimi- error, point In his appel sixth conduct, nal such multiple as the murders lant claims trial court erred admit depicted in photographs, is not to be expert of FBI ting testimony Special considered a mental or defect disease that Agent Brantley Alan his testimo because negates the responsibility of for ny Appel was not shown to be reliable. the charged offense. object reliability lant did not Therefore, testimony Brantley’s at trial. danger photo- Because the for our preserved has not error review. graphs would confuse or mislead the jury Tex.R.App. P. 33.1. value, outweighs probative their the trial court did not abuse its discretion in exclud- Appellant contends that also particular these photographs. The tri- not have Brantley’s testimony should been al court’s theory alternative for the exclu- relevant. Ap admitted because it was not sion of the photographs under Rule 403 pellant objection made a at trial. relevancy Appellant’s correct. first and second “any Evidence is “relevant” if has ten points of error are overruled. dency to make the existence of fact consequence is of to the determination his fourth proba or less probable the action more
contends future dangerousness special ble than it be without evidence.” would issue was unconstitutional is- the trial 401. We review sue susceptible beyond was not Tex.R. proof Evid. *6 court’s to admit evidence under an decision words, In appel- reasonable doubt. other Salazar, abuse of discretion standard. 38 argues lant in capital punishment 151; Moreno, S.W.3d 22 at at S.W.3d context, jurors apply higher a standard judge’s We will reverse trial decision proof beyond than a reasonable doubt be- only if of it is outside the zone reasonable cause they virtually will tolerate no risk in disagreement. Id. assessing danger. future Brantley The ap- State called to rebut jury properly was instructed pellant’s insanity Brantley defense. testi- proof on the beyond burden a reason 1999, fied that in June of was contacted presume able doubt. We follows by FBI the Houston Division the trial court’s instructions. Colburn v. police consult local agents, with FBI offi- State, 511, 966 (Tex.Crim.App. S.W.2d 520 cers, officials and state law enforcement 1998). Appellant presents no evidence to visited several regarding this ease. He rebut presumption. Appellant’s this crime in were scenes Texas which later point fourth error is overruled. appellant. connected He also reviewed point In his fifth ar records, appellant’s witness medical state- gues that trial pro court’s failure to ments, appellant, letters written vide a definition of ‘society’ special interviews law Based with enforcement.
issue on dangerousness future resulted documents, on of the crime these his tour appellant’s death sentence in violation of scenes, psycholo- his education as a clinical Eighth and Fourteenth Amendments gist, many years experience, and his of the United States Constitution. Brantley We formed the previously rejected
have argument. this is “organized an sexual killer” is serial who State, (Tex.Crim.App.), 939 “geographically S.W.2d 620 Brantley mobile.” de- McDuff v. denied, organized t. 522 U.S. scribed an sexual serial killer as cer attempt to in an “well-planned, family, and associates who committed an offender will. suspect pool, you if develop with a a multiple murders well-orchestrated” case, appellant me, element. sexual this At DEFENSE]: Excuse sir. [THE orga- displayed time, object the characteristics of an judge, going this we’re by committing serial nized sexual killer irrelevant speculative It’s to this. night, locations to using
murders at rear at to this case hand. homes, near murders committing enter Overruled. COURT]: [THE tracks, and random -vic- selecting railroad record, And, DEFENSE]: for [THE displayed He the characteristics of tims. be- object. If the court judge, we mobile travel- offender geographically relevant, prejudicial its lieves it nationally internationally. Brant- value, outweighs any probative value that all of ley testified those characteristics objection is that and that our further law en- demonstrated effort elude this is this witness’s none of from Brantley geo- forcement. related that as personal knowledge. serial graphically organized mobile sexual Overruled. COURT]: [THE killer, appellant sophist- criminal displayed Brantley's objected Appellant only to psychotic rather than behavior.
ication testimony regarding the random selection to re- Brantley’s testimony was relevant however, appeal, On victims. insani- theory
but defensive un Brantley’s testimony was argues such, the ty. As trial court did not abuse profile evidence fairly prejudicial because testimony. admitting its discretion Brant- inherently unreliable and because Appel appellant.3 interview ley did not if Appellant argues further that even objection comport not with lant’s trial does relevant, Brantley’s testimony was Tex.R.App. P. claim he now raises. have at trial should not been admitted State, 33.1; Ibarra v. any probative the testi- value of cert.,denied, 531 U.S. (Tex.Crim.App.1999), un- mony substantially outweighed by 121 S.Ct. L.Ed.2d prejudice pursuant fair to Texas Rule of is over Appellant’s sixth of error *7 trial, 403. At made appellant Evidence ruled. only objection Brantley’s one Rule 403
testimony: eleventh, seventh, and In his any STATE]: there
[THE Is error, claims he points appellant twelfth —is type be- people fact that counsel. ineffective assistance of received came victims of indica- his crimes prevail on a of ineffective In order to claim trying tion about to avoid detection? counsel, must satis appellant assistance of Well, two-prong another test forth Strick fy that’s set [BRANTLEY]: uhm, classic, Washington, example or element of land v. 466 U.S. Specifi L.Ed.2d organized They select offender. S.Ct. per show cally, that are so this ran- he must that counsel’s strangers,
victims that he was victim intent on elud- formance was deficient and dom selection is better, perform authority prejudiced by counsel’s deficient ing law enforcement prejudice, you law In order demonstrate because when consider basic ance. rea “must show there is a investigative appellant
enforcement homicide that, but for counsel’s they probability start with techniques generally sonable errors, friends, result of unprofessional the victim’s inner circle of appellant. opportunity Brantley denied to interview 3. The defense
proceeding would have been different.” in securing appellant’s enforcement arrest Id. at 104 S.Ct.2052. There is “a mitigating evidence unless first strong presumption that counsel’s conduct found that evidence somehow ap- reduced falls within the range wide of reasonable pellant’s moral blameworthiness.
professional Id. at assistance[.]” portion The the relevant following is S.Ct. 2052. jury argument: State’s his seventh point of ap Special you No. 2 asked Issue to look at pellant argues that he received ineffective charge. sorry. I’m Look at all the assistance of counsel attorney because his again. Look at everything failed to effectively cross-examine Brant- you’ve beginning. heard from Look- ley. Specifically, he asserts that counsel things particular; at three should have questioned Brantley about the offense, circumstances of the the defen- reliability profile evidence. character, background, dant’s suggestion that cross-examination personal culpability. his moral And it should have been conducted in another you asked to look at all of that stuff and manner does not rebut presumption you anything, mitigating see if cir- find that counsel’s conduct fell within the wide cumstances, thing one we didn’t talk range of professional reasonable assis- charge about in that is in this voir dire Perkins, tance. parte Ex be, what mitigating circumstance could 323 (Tex.Crim.App.1986). Further, on you which may is evidence that one cross-examination, counsel elicited testimo- reducing find the defendant’s moral ny Brantley from that there were “disor- That’s, blameworthiness. that’s what ganized” elements at the crime scenes you supposed go through are and look which indicated that was not con- Anything for. in the record that re- sciously detection, eluding suggesting that And, duces his moral blameworthiness. appellant may have acting psy- been in a once I again, you want to base this chotic manner. questioned Counsel also evidence, challenge answer on the and I Brantley about travels and you to anything find in the record over Brantley admitted that had been the last two weeks that reduces his mor- stopped at the United bor- States/Mexico al blameworthiness. der on at least one occasion during his The State did not instruct the spree released, crime but was later sug- it could not appel- consider evidence of gesting was not as intent on lant’s background dealings with law evading capture sophisticated as a criminal *8 mitigating enforcement as evidence with- would be. The record that reflects counsel finding out first the evidence that reduced effectively cross-examined Brantley. As appellant’s moral blameworthiness. such, appellant fails to meet the require- Therefore, appellant has not met the re- ments prong of the first of the Strickland quirements prong of either of the Strick- test. seventh, eleventh, Appellant’s land test. In his eleventh points and twelfth of points and twelfth of error are overruled. error, appellant contends he is entitled to a punishment new hearing error, because his attor- In his eighth point appellant of ney object was ineffective for failing to argues the 12-10 rule Article 37.071 the jury argument State’s that jury the which requires jury ten votes for the could not consider evidence of return a negative answer to the first or troubled background or the actions of law special second and at least ten votes issue
549
does
jury
Eighth
an
that the
Amendment
for the
to return
affirmative
has held
the
special
require
juries
the
the
that
be informed of
swer to
third
issue violates
not
reach a unanimous
Eighth
Amendment to the
States
effect of
failure to
United
repeatedly reject
regarding punishment.
have
Jones
agreement
Constitution. We
373,
State,
States,
119
ed identical claims.
v.
68 v.
527 U.S.
S.Ct.
Johnson
United
(1999).
644,
2090,
(Tex.Crim.App.2002);
Appellant’s
656
230,
denied,
(Tex.Crim.App.1999),
238
cert.
1466,
1070,
143
550
119 S.Ct.
L.Ed.2d
1082,
805,
528 U.S.
120 S.Ct.
145 L.Ed.2d
(1999),
Apprendi
Jersey,
v. New
530
(2000). Appellant’s eighth point
678
of er
2348,
466, 120
550
Supreme
opinion
United States
Court’s
There is no error in omitting
in Apprendi
Apprendi,
Supreme
the definition of a
in
word used
the statute
Court held that sentence
when the word is
in
ordinary
enhancements
used
its
judicial
easily comprehended
based on
fact
sense and is
findings
violated due
ev
State,
process.
held,
eryone.
771,
Russell
The Court
v.
665
than the
S.W.2d
“[o]ther
780
conviction,
(Tex.Crim.App.1983), citing Hum
prior
fact of a
fact that
State,
434,
phreys v.
34 Tex.Crim.
30 S.W.
penalty
increases the
for a
beyond
crime
(1895).
statutory
1066
If there
no
defi
prescribed statutory
maximum must
term,
nition of a
the trial court is not
be submitted to a jury,
proved beyond
obligated
it
to define the term when
“has
a reasonable
Apprendi
doubt.”
530 U.S.
meaning
such a common
ordinary
490,
at
Appellant
burden. judgment We affirm the of the trial court. fifteen, point
As to of error we have rejected identical claims and decline to P.J., KELLER, points concurred in State, revisit the Tong issue. joined error one and two and otherwise denied, (Tex.Crim.App.2000), cert. opinion of the Court. 532 U.S. 121 S.Ct. 149 L.Ed.2d thirteenth, Appellant’s four WOMACK, J., dissenting opinion, filed teenth, points and fifteenth of error are J., JOHNSON, joined. which overruled. WOMACK, J., dissenting opinion, filed a JOHNSON, J., joined. in which In his sixteenth opinion substituted for This should be appellant contends that Texas Penal Code May the one that was filed on section 8.01 is unconstitutional does not define the words “know” and raised the defense “wrong.” He claims that the result is the was time he committed this insane at the arbitrary capricious imposition homicide. As bases for his on penalty. appellant’s expert death wit- sanity, issue of *10 in forming in the field experts relied on facts of this homicide and six ness used the subject. on the opinions or inferences that the commit- other homicides Further, in expert may event “[t]he photographs ted. facts included These ... the un- disclose on direct examination homicides, which the scenes of the other derlying facts or data.”3 in evidence. offered departure a from the These rules are Photographs Were the Irrelevant? law courts majority of common view of objected photographs The to the State opinion to expert that forbade witness’s an as not rele- being of the six other scenes hearsay reports on or were be based vant, the trial court sustained the ob- Although there was “a not in evidence.4 beyond jection. It seems to be serious contrary strong case trend toward law question objection of that the irrelevance view,”5 it include the cases of the did not merit, had no the Court since treats adoption “Prior to the Texas courts.
matter one in which relevant as evidence permit refused Rule Texas courts was excluded under Rule Evidence 408.1 experts opinions solely based on state record, hearsay regardless outside Photographs Were the Inadmissible inadmissibility. admissibility or As late its Opinion Underlying Evidence as rule was reaffirmed this Expert an Witness? Supreme year a] Texas ... [and Court The says later, Appeals.”6 Court the trial court “con- also Criminal Court of balancing ducted the test for inadmissible 705(d), Perhaps why Rule this is Texas’ 705(d) evidence under Rule deter- rules, mandates unlike the a bal- federal mined could have ancing underlying test if facts or data improper purposes.” been for used are in evidence. “When the inadmissible Court does not further discuss rule. be underlying facts or data would inadmis- evidence, Our Rule an the court shall exclude of Evidence states that sible expert if the opinion may danger witness’s be on the facts or data underlying based they purpose facts or that are not in that will used for a other data admissible be type explanation support evidence if are of a than an for the reasonably support 1. "The this theory trial court’s alternative for the The essential reason in view is jury was exclusion of the that seemed be that the asked to under Rule Ante, inference, accept at 546. as the witness’ correct.” upon upon hearsay or based other someone’s Ante, presumably which were not inadmissible facts 2. at 545. supported by any evidence at the trial and no which therefore the had basis for 705(a)’. 3. TexR. Evid. finding to .... be true calling question opinion 4. “A for a direct [A] [was taken] broader view Federal knowledge upon expert based firsthand of an 703, which has Rule of Evidence been direct, simple, is so and thus effective that adopted jurisdictions.” in various state Ed- party may for similar reasons desire obtain ward W. on Evidence 38-39 Cleary, McCormick opinion upon reports based of others. (3d 1984). ed. view, however, formerly majority There was a Id., at 39. improper question that a if for the calls of reports witness’ on the basis are evidence or are not in inadmissible Guy Wellborn, Goode, III, and M. 6. Steven Olin (without hearsay Sharlot, rule re- evidence under Practice —Guide to the Michael Texas citing hypotheses, sup- their contents to be Civil and Criminal Texas Rules of Evidence: omitted). ed.1993) (footnotes truth.) (2d § ported 703.3 by other evidence as to their *11 expert’s opinion outweighs their appellant’s value as to the sanity in this homicide. explanation support, or or are unfairly Surely they were relevant. The trial court beneficial.”7 Exclusion always is not re- received in evidence the facts of the other quired. “Usually ... limiting offenses, instruction and there seems to be no dis- will suffice to negate the danger agreement that the about their relevance. I be- jury will improperly consider the inadmis- lieve the question correct is pho- whether hearsay sible for its purpose tographs substantive of the scenes of admittedly those 705(d) and ... requires Rule that one be relevant homicides would be a distraction given upon timely request.”8 issue, from only contested which was appellant’s sanity. If the Court would photographs These were not hearsay or perhaps consider that question, would extra-record evidence on expert which the hold, do, as I that the would 705(d) relied. Rule plays part, no in my not have been a distraction from con- view. tested issue. Was the Evidence Confusing Did the
or Evidence Lack Probative Value? Misleading ? The trial court also ruled “under Rule Although admitting photo- 403” that “cumulative,” evidence was graphs ap- “were relevant to the issue of would cause delay,” “needless and “confu- pellant’s sanity,” says Court sion of the issues.”9 “merely viewing the photographs would not necessarily prove The says, Court “The insane, legally probative therefore their question were likely to distract value was limited.”11 What does this from the facts of the crime charged and mean? “Necessarily” “inevitably” means focus their attention on other crime result,” or a necessary “as and “neces- scenes.”10 There was dispute no about sary,” in this usage, means “unavoid- the conduct and the result of the offense able.” that was charged, and danger hence no distraction from those facts. this, If any, or necessarily evidence disputed fact of this proved homicide was insanity, suppose excuse like I appellant’s sanity at the time he com- that a court would acquittal. direct an mitted parties it. The agreed “Necessarily this proving” requi- fact is not a homicide was one of a series of homicides site for evidence to admissibility. All that that the committed. The required is that evidence be relevant.13 expert witness was that Relevant evidence is having any “evidence the facts of all the homicides were relevant tendency to make the existence of fact 705(d). Ante, 7. TexR. Evid. 10. at 545. Ante, sic). (punctuation 11. at 545 al., supra §
8. Goode et note 705.3. 12. See Oxford American Dictionary Ante, relevant, “Although at 545. may probative admissible, be excluded if its value is except sub- 13. "All relevant evidence is stantially outweighed by danger Constitution, provided by of unfair by otherwise issues, prejudice, statute, rules, confusion of the by or mislead- pre- these or other rules jury, pursuant considerations of undue statutory authority. scribed Evi- delay, presentation or needless of cumulative dence which is not relevant is inadmissible.” evidence.” TexR. Evid. 403. TexR. Evid. 401. *12 repeated criminal ... conduct.”17 only by determination consequence that is of per- mean that a Surely the Court cannot probable proba- action more or less of the crimes cannot repeatedly commits it would without the evi- son who ble than be or de- to have a mental disease be found dence.” ways. manifested in other fect that is also says pho- that these The Court because necessarily prove would not that tographs important aspect of The more insane, pro- appellant was “therefore their sentence, previous is the Court’s statement Now, all evi- bative value was limited.”15 appel- says in which it that evidence value; I probative dence has limited have that he was conduct does not “mean” lant’s any that had unlimit- not heard of evidence devaluing this evidence again insane —once probative ed value. Is the limited value of conclusively prove it not did this evidence different from the limited insanity, which no evidence has issue all value of other evidence? Or is sentence ever done or can ever do. The that has limited value does also evidence that scenes of says also necessarily prove that not a fact? Is does that person’s might six homicides show any meaningful way distinguish there abnormal, person unthinkably was but probative photo- limited value these might the issue of whether he was confuse graphs probative from the value of Why? insane. How? other item of evidence? Or does a trial Now, the trial court received oral evi- every court have discretion to exclude item dence the other homicides as rele- about every of evidence because item has limited insanity. Is the Court vant to issue
probative value? that that evidence also was relevant saying abnormality, insanity? but not Can the Evidence Would Confuse insanity not there be evidence of that is Abnormal with Insane? abnormality? If there can also evidence says, gruesome The Court “While and be, know that these how does Court shocking photographs depicting other photographs are evidence of the latter may crime scenes that convince the not the former? appellant has committed acts unthinkable nature of the photographic Or is to most ‘normal’ people, this does not that makes it more rele- excluded evidence that, mean at the time of the Benton of- abnormality insanity? than to Is vant to fense, appellant did not that con- know photographs, only true of all or duct wrong required under Section is there photographs? homicide-scene Or 8.01(a). 8.01(b) Additionally, spe- Section something particular photo- about these cifically abnormality states manifested juror’s graphs that would turn a mind conduct, by repeated criminal such as the insanity, and into away from the issue of multiple depicted photo- murders in the abnormality? area of the irrelevant graphs, is not to be considered mental disease defect.”16 Have Been Admitted. They Should statute, The Court misstates the which “
says suggests ‘mental or defect’ does No one disease homicides that the abnormality manifested the six other not include Ante, added). (emphasis 16. at 545-46. 14. Tex.R. Evid. 403 Ante, 8.01(b). § 17. Tex Penal Code at 545. misleading
committed or unreliable were any way. no question There is serious insanity;
of their relevance to the issue of I on that disagree
the Court and do not
point. Why not want the would State reliable,
jury to have this relevant evidence appellant’s
to decide the issue of the insan-
ity? I fear that hints the Court’s
at the answer: The State did not want the
jury to see these powerful would have been
that the abnormal. Proof of
abnormality necessary step was a prove
effort to that he was insane and hospital
should be confined a mental injection given
rather than the lethal I intimate State desired. do not sanity, suggest
view as to his that the justify a require
facts would or even find- I insanity. do think that his evi- admissible,
dence was that he should have it, trial which the sees and that requires
the law that he does.
I would sustain the first and points
second and remand this case for a
new trial. Lynn ROUTIER, Appellant,
Darlie of Texas. STATE
No. 72795. Appeals
Court of Criminal of Texas.
May 2003.
Rehearing Sept. Denied