*1 RICHARDSON, Damon Jerome
Appellant, Texas, Appellee.
The STATE of
No. 70746. Texas, Appeals
Court Criminal
En Banc.
Dec. 1993.
Rehearing May Denied
876 *3 Brown, Lub- W. Brown and Mike
Clifford bock, appellant. Lubbock, Ware, Atty., Dist. Rob-
Travis S. Huttash, Austin, Atty., for State. ert State’s ting photographs certain in evidence at the guilVinnocence phase; the trial court OPINION overruling objection pros- erred to the closing argument CAMPBELL, guilVinno- ecutor’s at the Judge. court, phase; cence the trial in its a trial At held in the District Court 350th jury charge guilVinnocence to the Taylor County1 in September late erroneously phase, finding of authorized a early appellant, October of found guilt theory upon supported based Richardson, guilty party Damon Jerome as a evidence; court, the trial in its capital murder of three individuals during single charge at the phase, criminal At transaction.2 *4 trial, punishment phase jury erroneously jury respect of the the an- instructed the with affirmatively punishment swered issues issue; the to the first and that the 37.071(b) to them submitted under Article court, charge trial jury in to the at the Procedure, Texas the Code of Criminal and punishment phase, erroneously al- failed to appellant was sentenced to death.3 Direct jury mitigating low the to consider certain appeal this Court was automatic under exception the points evidence. With of the 37.071(h).4 Article We now affirm. sufficiency error challenging the of the evi- eight error, points argues: dence, In appellant points appellant’s of error will be ad- that the evidence at his trial was insufficient chronological dressed in order. Webb, prove that all three victims—Vivian error, appellant his fourth ar- Smith, Quinnie Napoleon and Ellison —were gues liberty has that he been denied his transaction; single in a killed criminal that process without due law because the evi- satisfy the evidence was insufficient to trial prove dence was insufficient to accomplice rule; witness that the evidence beyond a reasonable doubt that the victims— parties was insufficient because the law Webb, Smith, and apply not Ellison —were all killed in § does to Texas Penal Code 19.- 03(a)(6)(A), provision Appellant he was same criminal transaction.5 under which convicted; that the trial in court erred admit- “suggests” contends that 3. At 2. 1. promote or assist the he to aid the other provided same criminal transaction." § that criminally responsible for an offense committed son murders more than one under which commits murder causing Texas Appellant’s jury: committed shall submit able defendant would commit criminal acts of vio- 7.02(a)(2) (b) change the conduct of another solicits, (1) (2) "[a] another would On conclusion of the expectation caused the death of the deceased was whether there is a whether the conduct the death of an Penal Code time of person in relevant of venue. encourages, [at provides, trial was held in deliberately commits [a person [by that the death of the deceased punishment phase], following § result; part: intentionally commission of 19.03(a)(6)(A), directs, aids, was individual] turn, if, commit capital] probability acting trial. presentation convicted, three person during Texas Taylor County the defendant Article 37.071 "[a] with intent to or issues to the the offense.” and the offense if he the reason- Penal Code the statute knowingly the court person attempts provides that the offense, of the per- on 5. The The record in the same criminal transaction. See Tex.Penal Texas guilt/innocence phase guilt same criminal Code capital doubt trial. (b)(2) All references ment. the conduct of the defendant in deceased individual first named in the indict- court shall submit provocation, under Section section ceased lence (£) If a defendant is convicted of an offense conduct (3) society; and if the § that, were submitted to the Code of trial offense that would if raised 19.03(a)(6)-(A), was (b) [*] inter court’s reflects of this article the defendant in transaction); to murder two or unreasonable in Criminal if alia, concluded [*] by the any, 19.03(a)(6), constitute a articles are to those in the charge all three victims were killed authorized a supra, [*] three issues under Sub- Procedure. evidence, only the deceased. beyond see also Fee v. only jury [*] footnote two Penal issues continuing response more killing with murdering a reasonable whether the [*] appellant’s finding persons (b)(1) Code, regard the de- at the to the threat [*] (it Wilson, dence, also were killed in the same crimi- which was Lubbock.
victims not all two Appellant driving, parked nal transaction. contends further the ear who was about that, outstanding of the reason- “[b]ecause blocks from Ellison’s residence. Wilson hypothesis victims able were and walked Steams then exited car murdered the same criminal transaction car- quickly the residence. Wilson toward ..., no rational of fact could found trier have gun, carried ried an machine and Steams Uzi capital of the crime the essential elements time, shotgun. At that Hanson believed beyond a doubt.” The re- reasonable State only to intended Wilson Stearns which, if sponds “there was evidence frighten Ellison. trier-of-fact, jury as would believed twenty minutes About after Wilson prove that murders con- [all of] the occurred left, to Elli- Hanson to walk Steams decided temporaneously.” she reached son’s herself. residence When with, charged found residence, driveway she heard “a of, § violating Penal 19.- guilty Texas Code then inside. Once loud boom.” She ran 03(a)(6)(A). two, supra. See footnote Steams, inside, Wilson, appellant, she saw presented and ex- numerous witnesses State *5 Ellison, Rodney was Ellison and Childress. phase. Ap- during guili/innocence hibits the chair; sitting down and in a head was pellant presented guilf/in- no evidence Appellant on him.” was “there was blood phase. key was as nocence carrying a carrying pistol, a was Childress follows: shotgun, carrying an and Wilson still and wear- appellant were Uzi. Both Wilson Rodney Kennedy testified on or about Han- ing gloves. looked at rubber Childress 3, 1987, September appellant saw fire an he appellant had forced son and told her gun machine Acres Uzi behind Seven raised his him to kill Webb. Ellison then Appellant’s a Lodge in Uzi had Lubbock. help him. Han- head asked Hanson it. silencer attached to in appellant, appeared who to be son asked McNeal testified sometime Vincent charge, telephone could a doc- whether she 8, September appellant told him that before tor, Appellant took the but he said no. then “ripping him and Ellison off’ Webb were Hanson, Wilson, Uzi from handed it to that, consequently, something had “he to shoot Ellison. ordered her on or McNeal also testified that them.” kill her if she not. Hanson did threatened 8, September appellant fire a he saw about Ap- complied, firing three shots into Ellison. in gun road machine on a dirt Lubbock to remove pellant then instructed Wilson County. “drugs” from a cabinet beneath some sink, Shortly kitchen and Wilson did so. evening on Anita Hanson testified thereafter, left Hanson the residence 7, she, September appellant, and Lambert Wilson and Stearns. party at a mutual friend’s attended a Wilson party, at that Han- home Lubbock. While Ellison, Johnson, neighbor a Charles appellant tell Wilson that he son overheard Septem- 12:30 on that around a.m. testified kill Ellison. planned to Wilson Webb Johnson) 10, (i.e., his residence ber he left killings participate appel- in the if agreed to cigarette. to his car to smoke a and went out paid him lant to do so. car, sitting in he saw While he was driveway. into Ellison’s drive automobile approxi- Hanson testified further parked on the street later a van Moments 10, September mately 12:30 on Wilson a.m. Appellant exited front of Ellison’s residence. up her in ear at picked and Michael Steams Wilson, automobile, Hanson, and two resi- park and drove Ellison’s a Lubbock given 392, (absent against charge as (Tex.Crim.App.1992) dence be measured must S.W.2d State, sufficiency jury). objection evi- trial from inferences, other then males exited van.6 Someone based on evidence and those knocked on could found all of the door Ellison’s residence. rational have beyond opened Ellison door or all of essential elements of the offense and let some later, Virginia, A reasonable doubt. Jackson males inside. few minutes John- 2781, 2789, U.S. 99 S.Ct. 61 L.Ed.2d shotgun son heard like blast what sounded (1979). particular, reviewing “[i]n coming from the residence. sufficiency of the to show [the] neighbors Five other of Ellison testified capital [in ‘same criminal transaction’ that at a.m. September around 4:00 on context], murder we ... look see whether they gunshots. were awakened several rationally could conclude engaged uninterrupted continuous Lubbock Police Officer John testi- Gomez time, process, period of over a short of ... Webb, Smith, fied that and Ellison were carrying out murder of more than one [the] found dead in Ellison on residence person.” Rios v. afternoon September Police Lubbock (Tex.Crim.App.1992). Detective Walter Crimmins that a testified plastic search of the residence revealed two Utilizing required standard of re marihuana, bags shells, shotgun two sever- view, reject appellant’s must fourth casings, al shell nine-millimeter and some light error. Viewed most favorable photographs appellant. Department verdict, jury’s testimony of wit Safety Public firearms examiner M. Robert Hanson, Johnson, pathologist nesses and the Buckner that all testified of the nine-millime- conclusion, rationally supported jury’s ter casings weapon shell came from the same beyond doubt, a reasonable that all three of *6 weapon and that that could have been IM single victims died in a criminal gun. machine Specifically, testimony in transaction. the Finally, pathologist a forensic testified that question supports a conclusion that all three all of the died of multiple gunshot victims shortly victims died Ellison’s residence Furthermore, wounds. because all of the a.m., 10, September after 1987. 12:30 Point victims had some wounds from there which of number four error is overruled. had bleeding indicating been little — already the victims were dead the error, point appellant In his third of particular time those wounds were inflicted— liberty he has contends been denied his pathologist the “probably concluded that statutory violation of Texas law because the there episodes shooting.” were two of at his trial evidence was insufficient to cor testimony accomplice
roborate the of the wit The Due Process Clause the ness, argues Appellant spe Anita Hanson. Fourteenth Amendment to the United States cifically non-accomplice the evidence requires every Constitution crimi state circumstantially “only prove[d] presence [his] nal supported by conviction be evidence that offense, flight from the scene of the accept rational could factfinder as sufficient possession gun of a machine close ... time prove all of the elements offense offense, of the possible the the use of a beyond Winship, a reasonable doubt. In re gun in the machine murders.” The State 358, 364, 1072, 397 U.S. 90 25 S.Ct. counterargues that “there was sufficient evi (1970). L.Ed.2d appellate As an court suspicious dence of circumstances connect reviewing long a cold record the appellant after to the offense.” has evaluated the evidence and made its provides: 38.14 Article finding guilt, task our is to all of consider the record upon evidence and reasonable inferenc A cannot be the testi- conviction had light es therefrom in mony accomplice the most favorable to anof unless corroborated whether, jury’s finding the tending determine evidence to connect the other Thus, testimony testimony. Johnson’s deviated somewhat from Hanson’s committed; person single in a criminal with the offense and more than one defendant is not if it that a Appellant corroboration sufficient transaction. insists consid- history merely legislative shows the commission of the of- of the and text of eration 19.03(a)(6)(A) compels § fense. the conclusion that multiple limited to eases of statute “is 38.14, Article it is not neces Under guilty by in which a murder murderer sary corroborating to direct evidence of his conduct and not reason own deliberate ly link the accused to the crime. Reed v. words, appellant as In ar- party.” other State, (Tex.Crim.App. 744 S.W.2d gues law parties apply does 1988). necessary Nor corrobo 19.03(a)(6)(A). § prosecutions under rating to be sufficient itself to State, guilt beyond a reasonable doubt. establish Johnson S.W.2d otherwise, testimony Ibid. (Tex.Crim.App.1992), law re- Were considered and accomplice be Pau jected arguments appellant would valueless. identical to those (Tex.Crim. State, lus v. point in his of error. makes second We Furthermore, App.1982). explained in as we opportunity argu- to revisit those decline (Tex. 487, 489 Brown v. today. point Appellant’s second ments Crim.App.1984), “[p]roof that the accused error is overruled. near crime at or
was at or the scene commission, time when cou about the error, appellant In his sixth circumstances, pled suspicious with other admission, guilVinno- complains of at the may tend to connect the accused to crime phase, photographs five of him cence so as to furnish sufficient corroboration to by police in home after the found Ellison’s support a conviction.” photographs show murders. The wearing expensive clothing, a substantial Here, non-accomplice the State’s jewelry, and a fur coat. The amount of State placed appellant at the scene of crime photographs “to show there [was] offered addition, the time of its commission. In [victims] some connection between non-accomplice evidence established State’s objected Damon Richardson.” that, days a few before commission *7 photographs on the basis of Texas Rule the (1) crime, appellant feelings had ill for both of 403.7 ar Criminal Evidence (2) Ellison; upon to act Webb and intended gued photographs the were specifically that (3) possessed feelings; an Uzi those any in probative of issue the case” “not ... Finally, gun the machine with silencer. “in only suggest that he served to was established non-accomplice evidence State’s dealing.” drug in volved gun may have been used that an Uzi machine the hold in commission of crime. We the objects pho Once a defendant non-accomplice evidence tended to of tographic on the basis Rule was, appellant to the crime connect weigh trial the is the task of the court therefore, require- the sufficient meet against probative the its value of num- of Article 38.14. Point of error ments prejudice. In potential for unfair undertak is ber three overruled. task, must the ing this the trial court assess (if any) tendency photographs the inherent of two, appel point In error number of encourage on resolution of material issues liberty lant has been denied contends he basis, and must improper an then balance process of law the evi without due because tendency of against that the host inherent prove require at his trial failed dence including affecting probativeness, the § factors guilt Texas Penal Code 19.- ment for under de- weight the evidence the 03(a)(6)(A), he killed relative of personally to wit: that issues, misleading relevant, the or provides: "Although prejudice, evi- confusion 7. Rule 403 delay, undue or jury, or considerations of may probative if is be excluded its value dence presentation of danger cumulative evidence." substantially outweighed of unfair needless appellant’s might guilt, irrelevant were gree proponent be disad- however which in State, than a summation of the evidence Fuller v. 829 no more vantaged without it. Point error the record. number seven (Tex.Crim.App.1992). An S.W.2d overruled. reviewing appellate court the trial court’s may only
decision reverse it for an abuse of error, point appellant his fifth discretion, i.e., only the trial when court’s portion court’s complains the trial decision was outside the zone of reasonable guilt/innocence phase au charge disagreement. Montgomery v. finding if guilt believed thorized (Tex.Crim.App.1990). (1) beyond a doubt either reasonable question Plainly, photographs were Stearns, Childress, Wilson, inten or Hanson probative prosecution’s and relevant to the knowingly or killed with a tionally Ellison guilt/innocence phase, case at the because (2) Wilson, Stearns, firearm; either or Chil- they helped appel- establish a link between intentionally knowingly Smith dress or killed Although photo- lant and his victims. firearm; (3) Steams, Wilson, with either may graphs suggest appellant was afflu- intentionally or knowingly Childress killed ent, way they any suggest do not in (4) firearm; appellant, act Webb with Thus, source of affluence. we are ing promote intent to or assist that, persuaded question, danger without primary said actors in the commission of the prejudice substantially outweighed of unfair solicited, directed, encouraged, killings, aid probative photographs. value ed, attempted primary to aid the actors Point of error number six overruled. killings. Appellant the commission of the portion of the court’s
contends this trial error, In his seventh appel “erroneously charge authorized the lant argues overruling the trial court erred in theory appellant upon a factual un convict objections prosecutor’s to the ar closing ap supported Specifically, the evidence.” gument guilt/innocence phase pellant at the of trial. insists that objections question related charge jury to the court’s authorized the prosecutor’s fur references appellant capital convict murder jewelry, coat and as exhibited in photo jury] Lam- [the event found that graphic previously. Ap evidence discussed Wilson, Rodney Childress, bert Michael pellant argues that the “State’s re counsel Wayne Anita [sic] Stearns or Hansen peatedly pho referred to the contents of the victims, caused death of deceased acts,” tographs suggest extraneous tp bad jury] [the and if further believed that the i.e., appellant’s drug dealing. criminally responsible for *8 any per- the actions of of the four named permissible There are four areas of causing death sons the of the victims. prosecutorial argument: the summation of prove is evidence to be- There insufficient evidence, reasonable deduction from evi the yond a doubt reasonable that Lambert dence, argument to of opposing answer coun Wilson, Rodney Childress or Michael sel, plea for v. and law enforcement. Brown intentionally knowingly Wayne Steams or State, (Tex.Crim.App. 692 S.W.2d victims, of or caused the death the [sic] 1985). The record in the instant re case them, any principal as a as a of either argument, closing prose flects his the party. connecting The sole evidence them appellant cutor referred to on one occasion as the is the to the commission of offense “this unfortunate soul with the diamonds and testimony the accom- uncorroborated of gold coat;” and the mink on a second occa plice [point Anita [sic]. Hansen See of sion, prosecutor appellant’s three, the referred to dealing error number with Article gold jewelry.” prosecu 38.1k, “diamonds accomplice the witness rule]. suggest Therefore, tor charge authorizing did not the source of the court’s affluence, comments, appellant jury a apparent upon His of the however. the conviction added.) argues, (Emphasis as he criminally re- that he was determination below, emphasized language the sponsible of did conduct Lambert Wil- the requirements [the of] to to Wayne “fails conform son, Rodney Childress Michael of Criminal Article of the Texas Code erroneous, by 37.071 unsupported as Stearns lowering “has effect of Procedure” and evidence. As the evidence is insuffi- an proof of the standard and burden convict the named cient to codefendants punishment first [the affirmative answer principals, the court as [sic] follows finding a it indicates that of because issue] conviction has authorized of sufficient as would be reckless indifference by theory unsupported on the evidence. actual, expectation opposed reasonable added.) (Emphasis Napoleon of contemplation of the death Ellison.” certainly It is true that if the State guilt party prove as defendant’s Assuming arguendo that the trial doubt, beyond must the State a reasonable for the reason charge court’s was erroneous guilt person(s) as prove first of another need not re appellant, advanced we still actor(s). State, 513 primary Forbes v. charge if error verse we conclude that (Tex.Crim.App.1974). Howev State, Arline v. appellant no harm. caused er, statute, by accomplice witness (Tex.Crim.App.1986). 721 S.W.2d terms, application clear has no State’s determination, making In we must exam this guilt primary actors in proof jury charge, “the the state of ine entire opportunity this And we decline the context. evidence, including contested issues accomplice rule such witness import evidence, argument weight probative requirement of the into context as a counsel, any relevant informa other Here, was law. the State’s evidence common the trial as a the record of tion revealed rationally prove beyond a rea sufficient whole.” Almanza Wilson, Stearns, Chil- sonable doubt Furthermore, (Tex.Crim.App.1984). dress, guilty capi Hanson were and/or determination, may presume making our we Smith, Webb, Ellison, ei tal murder rationally, at jury that the acted least absent parties. Point primary ther or as as actors showing contrary. number five is overruled.
of error record, con- examining the entire After question appel- clude that the error caused error, appel eighth point presented All no harm. of the evidence lant following portion complains lant respect appellant’s guilt to the phase: charge trial court’s intentional, pre- conduct was that his showed you further instructed that before You are meditated, deliberate, merely reck- “yes” Issue may [Punishment] answer presented from which No was less. 1, you from the evidence must find No. rationally have concluded could defen- doubt that the beyond reasonable than anything less appellant’s conduct life of contemplated the dant intended or intentional, and deliberate. premeditated, be taken ELLISON would Therefore, finding NAPOLEON jury’s guilt given the or the of anoth- acts acts punish- either own first and its affirmative answer *9 presence who were issue, jury er others in have found that or must ment of the acting him in the commission deliber- appellant’s with conduct was committed expectation offense; partic- ately and the reasonable that defendant’s note would result. We his mental state that Ellison’s death ipation major was closing argument prosecutor’s that to the also was one reckless indifference might have invited nothing which contained human value life.8 (1987). respect express opinion with attempting We 127 Apparently, the court was trial attempt. requirements v. Ari- comply of Tison of this with the to the correctness 1676, zona, 137, 95 L.Ed.2d U.S. 107 S.Ct. 481
883 illiterate, jury punishment badly, first answer the issue was stuttered was a ground learner”; on conduct “slow he was reck- and that was released less rather than Point of deliberate. error from state care he was fifteen when or six- eight number years is overruled. teen old.10
Finally,
Amendment,
error number
Eighth
The
made
one, appellant,
Penry
citing
Lynaugh,
v.
492 applicable to the states
the Due Process
302,
2934,
U.S.
109
106
Amendment,
S.Ct.
L.Ed.2d 266 Clause of the
Rob
Fourteenth
(1989), argues
court
the trial
erred in
660,
over
California,
666,
inson v.
U.S.
370
82
ruling
objection
charge
to the
1417, 1420,
(1962), pro
S.Ct.
8 L.Ed.2d
punishment phase
Appellant
of his trial.
punishments.”
hibits “cruel and unusual
The
below,
argues,
charge
as he did
that
penalty
unconstitutionally
death
if
“cruel”
“provided
fully
no vehicle” for the
“to
despite
is inflicted
existence of
factors
give
consider and
effect”
evidence of his
that, according
contemporary
societal
disadvantaged background, in violation of the
morality, reasonably
standards of
warrant a
Eighth and
Fourteenth Amendments
sentence less than death. Woodson v. North
United States Constitution.
ar Carolina,
280, 303-304,
U.S.
S.Ct.
gues further that
impov
his “evidence of an
2978,
(1976).
2990-2991,
belief,
929
long
held
96
49 L.Ed.2d
defen- U.S.
S.Ct.
(1976).
are
Sometimes,
however,
commit
acts
dants who
criminal
defendants
attributable
disadvantaged
proffer mitigating
back-
is
rele
evidence
ground,
prob-
mental
or
emotional and
special
or that
rele
vant
issues
has
lems, may
[morally] culpable
be
than
less
culpability
moral
vance
defendant’s
excuse.
who
no
defendants
have
such
issues. Pen
beyond
scope
special
of the
U.S.,
329,
S.Ct.,
ry Lynaugh,
v.
109
at
492
at
added;
(Emphasis
quotation
internal
marks
cases,
spe
In
2952.
such
must be
omitted.)
and citations
cially
way
in a
it to
instructed
allows
Thus,
MILLER,
Judge
writing
as
give
effect
to such evidence.
consider
State,
Court,
Mines v.
short,
explained
truly mitigating
for
Ibid.
this
evidence
941,
(Tex.Crim.App.1992),
852
ev
placed beyond
S.W.2d
951
not be
the effective
must
background
sentencer;
or
idence about
defendant’s
of the
the sentencer must
reach
‘mitigating’
“in
[and]
character
is
fact
rele
be
in some manner all of a
able
consider
vant
assessment of the
v.
individualized
evidence. Johnson
mitigating
defendant’s
—
penalty
for the offend Texas,
propriety of the death
U.S. —, —, —,
113 S.Ct.
[only]
(1993).
er
if there is a nexus between this
2668,
2658,
2671,
885
37.071,
alleged
ap-
that
taught
fact
his mother
him
Crim.Proc.Aim. art.
as
Tex.Code
crime,
shoplift
capital
plied,
his
in
manner
operated
tends
excuse
an unconstitutional
may
‘“Sympathetic
failing
provide
jury
as
be to
in
plight
we
a vehicle for the
...,
during
appel
give
Penry’s mitigating
childhood
do not think
we
consider
effect
might rationally
morally
disadvantaged
lant
found
background
be
less
evidence
basis,
culpable
organic
damage
for his adult behavior on
brain
moderate retarda-
according
contemporary
poor impulse
moral
as
control
values
tion which resulted in
significant segment
inability
shared
soci
experience.
our
and an
to learn from
”
ety.’
State,
446,
S.W.2d,
v.
recognized
Gunter
that:
The Court
331,
quoting Draughm v.
...
commit
defendants who
criminal acts
(Tex.Crim.App.1992).
disadvantaged
that are
to a
attributable
background, or
emotional
mental
might
appel-
Our conclusion
be different if
problems, may
culpable
be less
than defen-
lant
presented
had
that
his mother
dants who have no such excuse.1
taught
had
him to kill or commit other
violence,
capital
crimes of
or if his
had
crime
319,
Penry, 492 U.S. at
at 2947
S.Ct.
begun
robbery.
might,
as a
Such evidence
Brown,
(quoting
v.
479 U.S.
California
viewpoint
society
whole,
from the
as a
tend
837, 841,
107 S.Ct.
AFFIRM the of the trial court. appropriate determination of is death case,” specific jury in a MALONEY, J., disposition concurs be give must able to consider and effect to point joins of error number one and any mitigating evidence relevant to de- opinion. remainder character, background, fendant’s or the circumstances of crime. OVERSTREET, JJ., CLINTON and dissent. case, In this absence of instructions informing jury that it could consider
BAIRD, Judge, dissenting.
give
mitigating
effect to the
Penry’s
mental retardation and abused
Believing the majority erroneously re-
background
declining
impose
appellant’s
error,
solves
first
I re-
penalty,
death
we conclude that the
spectfully dissent.
provided
was not
with a
for ex-
vehicle
pressing its “reasoned moral
response”
rendering
sentencing
that evidence in
I.
decision....
Penry
Lynaugh,
U.S.
2934, 106
(1989),
S.Ct.
Penry,
L.Ed.2d 256
the Unit
U.S. S.Ct. (1976)). relevant, beyond scope “evidence 944 issues, special jury’s individu- of Unfortunately, Supreme Court offered Appellant’s of moral cul- alized assessment guidance appropriate on the instructions pability for the crime.” Penry.2 applications or vehicle for our of Nobles, (quoting at v. 843 506 Goss S.W.2d Regrettably, subsequent cases from the State, (Tex.Cr.App.1992) [em- 162 826 S.W.2d Supreme equally guidance. Court are void original]). phasis in Collins, See, U.S. —, 113 Graham v. 506 (1993); 892, 122 260 L.Ed.2d John S.Ct. lodged I a there dissent Mines because —Texas, 2658, U.S. —, 113 son v. S.Ct. simply requirement is no for nexus basis (1993). 290 125 L.Ed.2d Mines, Eighth in the Amendment. 852 (Baird, J., dissenting). 952 And I
S.W.2d at continue believe II. Eighth requirement nexus restricts struggle application
This
with the
Court’s
explicit
hold-
Penry
struggle
Amendment and violates
is well chronicled. That
ing
Penry
that a
must be able to
majority
led a
of this Court
create a
give
any mitigating
“consider and
effect
requirement
“nexus”
defendant to suc-
back-
evidence relevant
a defendant’s
State,
cessfully rely
Penry.
v.
on
Nobles
843
character,
ground,
circumstances of
(Tex.Cr.App.1992).
In other
503
S.W.2d
the crime.”
words,
Penry,
to relief under
be entitled
nexus
defendant must establish “a
between
Mines,
(quoting Penry,
852
960
S.W.2d
mitigating]
and the circum-
[the
...
328,
[emphasis
492
109
at 2951
U.S.
S.Ct.
which tends to excuse
stances
the offense
Nevertheless,
nexus re
original]).3
offense,
explain
of the
the commission
by majority of
quirement
adopted
has
been
is less
suggesting
[the defendant]
...
has
settled law.
this Court and
become
v.
deserving of
death sentence.” Mines
Therefore,
beliefs,
regardless my personal
State,
941,
(Tex.Cr.App.1992).
852
951
compels
me to
doctrine
stare decisis
conversely,
Stated
See,
apply
requirement.
Ex
the “nexus”
(Tex.Cr.
Porter,
324,
presented by
parte
the evidence
defen-
827 S.W.2d
327
[W]here
(Baird, J., dissenting).4 But
App.1992)
stare
dant’s witnesses failed to show a connec-
blindly
ac
they
does not demand
I
tion
events
described and
decisis
between the
Texas,
and,
(1993);
approved
v.
subsequently
two
vehi-
715
Zimmerman
We have
such
2.
instruction,”
374,
(1993).
- U.S. -,
v.
Fuller
cles:
the "nullification
S.Ct.
breaking disregard— the authority disregard figures to and III. As breaking relatively minor rules. only majority opinion partial a offers they up increasing move the scale of developed recount of the at evidence the assault, violence, rape, attempted mur- punishment phase appellant’s trial. of Ma- der, murder, manipulation people of to However, jority op., at behavior, be involved in criminal those complete review of the record a nex- reveals your dangerous people are most that appel- us between the instant offense you society. encounter in our can disadvantaged background. Dr. lant’s James argument During at the Grigson, psychiatrist, testified on behalf of trial, phase Grigson’s used State response hypothetical State. to a testimony request the basis to affirma- as question, which included to acts similar those statutory tive punish- answer to second by appellant committed in the instant of- ment issue. fense, Grigson appellant Dr. concluded that continuing be a society. would threat to Question number obviously two is However, testimony Grigson of was inter- one we where have heard most of the rupted present order for to evi- testimony, “Is probability, ‘proba- there a (appellant’s) disadvantaged dence bility,’ that the Defendant would commit (This background. testimony is recounted in criminal acts violence that would consti- majority opinion.) Grigson then re- continuing society?” tute a threat as a following called witness and the ex- you Think that about have change place: took heard to that issue. There has been a talking pat- wealth about the Q. you After testified on direct examina [appellant] tern that ... violence has tion, we allowed the Defense intro already with established. Twelve run-ins evidence, duce some part that years law time he was 11 do background evidence had to with the home, your at years old. Think kids ... this case which Defendant young. old. That’s included the fact that the time he — years already he was old had had at And, now, going get up Defense law; least run-ins that he you, “Well, just here and he was tell steal- Ranch, grew up Boys out at Texas which Well, ing Gentlemen, to eat.” Ladies boys awas home for had who been this that crime he committed that he’s on having problems with the law. Does nothing eating. trial for has to do with him fact, asking you that thos assume kill go people He didn’t these for food. He e facts, way in any change your opinion almighty killed for the dollar them probability [appel about of the ... almighty drug. stealing He wasn’t eat. committing for lant] criminal acts of vio killing you He wasn’t to eat. And look can lence would which would be—which con things like that. continuing society? stitute threat You witness witness come on heard after No, way A. would cause me to they the stand and talk had known about change certainly opinion, but it does years, Damon Richardson for for validating opin- add substance to years, years, they all for have likely type It’s ion. more with that reputation, opinion same about his that his far background and with escalation of reputation being for peaceable and law- person they abiding violence that are people was bad. You heard from is— going drug to continue the same behavior. enforcement administration. factor, captains escalating the escalation vio- You heard from at the Lubbock Well, you psychiatrist need heard un- lence. Department. Pohce You from don’t Depart- you tell that. That’s sense. at the common dercover detectives Sheriffs Again, juvenile proba- brought It’s we ment. You heard from a common sense. reason, you nar- one psychiatrist You heard from DPS these tion officer. selection, you you agent. again, over told that on cotics Over and testimony you if you their thing reputation could consider heard same all, you helps chose If it it’s there is bad. to. you. aren’t here cram down We *14 got specific a And then we little bit more They your anything. talk about throats to you. know that Damon has been for We escalating starting back when this violence Kansas, and, again, have pen you years he old with his brushes was first packet at. penitentiary here to look law, gradually and until the little with the fingerprint expert; know You had the anymore, brushes brushes don’t become him, is dispute is no that that it’s there time, they they penitentiary be- become picture, him. The there is not mistaken shooting people randomly on the come is, that that and look at indictment who Lubbock, Texas. streets of pack- penitentiary in that that’s contained burglary, He down for and he et. went Grigson’s testimony a nexus established theft, he went down for and what was disadvantaged appellant’s back between stealing. This Food? Huh-uh. Guns. charged ground the commission of the enough offense, to eat poor child that can’t have explain the commis and tended to Mines, has resort to a crime 852 S.W.2d at sion the offense.5 life of stealing guns. However, majority conveniently 951. testimony from its discussion Grigson’s omits gets penitentiary, He out of the appellant’s of error. In addi first very point. obviously at that he is reformed omission, majority glaring tion that penitentiary, Days gets after out of the he requirement from nexus deviates joy in Lub- riding does he do? Goes what that, nexus, holding a to establish order guys and to show the other what bock required provide “evidence appellant was this,” is, person says, tough he he “Watch taught him to kill or that mother had people, that doesn’t as two innocent he of violence....” Ma commit other crimes know, motorcycle, ride on a even holding jority op., at 885. This this,” you them. And and shoots ‘Watch There is basis this patently absurd. It under oath. heard that from stand holding Penry any other ease from the totally unimpeached. He shoots them. And the Supreme or from Court. Court stealing for anything do with Has authority in majority any sup can not cite years old? Does food when he was holding. Penry, port of its absurd anything to the fact that have do with jury must be Supreme stated “the able Court growing up, maybe rough life he’s had mitigating give any to consider effect maybe go he has had to down back relevant defendant’s TYC, Council, maybe Texas Youth character, ground, or the circumstances of but go penitentiary, he has had to 328, 109 Penry, 492 U.S. at S.Ct. the crime.” up. building building, he’s he’s Moreover, holding is belied at 2951. about, Capital murder you testimony Grigson. you I think And have heard times, criminal behavior can be attributed to couple heard mentioned disadvantage may for his crime his blameworthiness dimmish Even as contended death, probability there is a penally even as it indicates that less than childhood warranted dangerous Penry, 492 required in the future.” he will be State the same evidence contended Penry statutory at 2949. suffered U.S. at 109 S.Ct. the second an affirmative answer to poor impulse inability and an Penry, control miti- from issue. As in experience. two-edged “it gating learn from became a sword: does not involve a crime of violence. As
Grigson explained:
A. ... I have examined Mds that are
years charged murder, old that are really
but that’s rare. Most the time they age you whenever are that are talk-
ing theft, about stealing, playing hooky, run-ins, you but the have fact
run-ins, law, you with the primarily are rules, showing early disregard
regulations, authority figures, and for
whether parents, those are school teach-
ers, extremely important and that’s you
when then connect to re-
peated acts of severe violence. That *15 you really
means that pre- could have
dicted down up here as went the scale going
what was to occur.
IV. reasons, For these I believe there was a also, 824; See S.W.2d nexus between mitigating evi- 359. dence the offense which tended to ex-
plain the commission Today offense. majority bastardizes child it sired
Goss, Nobles, and Mines. Because the ma-
jority binding fails to precedent follow the Court,
from respectfully I dissent. Danny
Ex Parte Lee BARBER.
No. 71344. Texas,
Court of Appeals Criminal
En Banc. 23, 1994.
Feb.
Rehearing May Denied