Russell v. State

RUSSELL, Clifton Charles

Jr., Appellant, Texas, Appellee. The STATE of No. 66410. Appeals Texas, Court of Criminal En Banc. July 1983. Rehearing Sept. Denied Brown, Abilene, appellant. for

Stan Elliott, Atty. and R. A. Dist. Patricia Abilene, Grant, Atty., Asst. Dist. Rob- Jack Huttash, Alfred Atty. and Walk- ert State’s Austin, er, for the Atty., Asst. State’s State.

OPINION

ONION, Presiding Judge. taken a conviction appeal

This assessed capital murder. Punishment in accordance with at the court death jury’s operational affirmative answers to the the deceased on conditions. two pursuant issues left According Boyle submitted to Arti- the deceased 37.071(b)(1) cle (2), facility p.m. approximately F.A.A. 11:45 Y.A.C.C.P. Appellant The deceased had issued three Save grounds advances sixteen cards, 13,181, gasoline error. club credit nos. $ This evidence circumstantial 13,182 13,183, use at unmanned Appellant challenges case. sufficiency gas self-service stations. Insertion a guilt stage of the evidence at the of the trial, gas pump card and then support verdict, would activate the the or to show that concerning the the information transaction murder was committed in course of the relayed telephone committing would be via wires a robbery. challenges He also computer details, which would record the sufficiency support the of the evidence to date, time, place, including the amount of jury’s findings special affirmative gasoline purchased of the and and number penalty stage issues one two at credit card. grounds appel- trial. of error failing lant contends the erred court Manley, computer programmer Donald quash the indictment as it did name Marketing Company, for Western testified the robbery, victim of that the court erred computer printouts concerning from in admitting sample a blood taken from him transactions of December 1979. The warrant, of a virtue search printouts p.m. reflected that at 11:56 some- admitting court erred in an extraneous of- 13,181 using one card no. issued to H.O. prejudicial opinion fense testimony, and Tobey pump inserted the card at a at the that the court in refusing erred a station Treadway on South Seventh and requested charge on “deliberate” at the system Streets in Abilene. The was acti- penalty stage trial, of the and also erred in vated, gas no pumped. but At 11:59 submitting issues no. as it is un- p.m. the same card was used at the same constitutionally vague. pump complete transaction, reflecting a gallons gas pumped. that 20 were initially

We shall examine the evidence. deceased, Otha Tobey, Hubert was an officer, Kastner, police Abilene Bernard employee of the Federal Aviation Adminis- patrol testified that while on at 12:50 a.m. tration at the Municipal Airport. Abilene on stopped December 1979 he at the working His Sunday, hours on December Stop Grocery Highway Minute at East p.m. midnight. 1979 were from 4 until Washington and There he ob- Boulevard. Tobey, son, Rodney deceased’s testified his or grey served a silver Lincoln Continental p.m. father left home 3:40 on about Standing with Texas license no. MXM997. go date wearing work. He was a on the side of the was a male left car white jacket, pants brown suede dark and Dan curly with brown identified hair. Kastner Post driving boots. The deceased was his being height and of the same wife’s 1974 Lincoln Mark IV Continental person build of the he observed car. bearing plates automobile Texas license male, He saw a muscular and black build MXM 997. The car had a tail defective marks, acne out store facial come light. He was to fill the automobile get into ear. The Continental then gas jack- after work. His wife’s white Levi proceeded Highway west on 80. Rodney Tobey et was in the automobile. Miller, officer, police James Abilene pocket testified his father owned a knife partner, Gage, his stopped David sharp a with two blades carried wallet Stop Minute about 12:50a.m. on December money clip. and a 3. Miller saw Kastner’s vehicle and sil- specialist air Boyle, Joe traffic control ver Continental. One man was driv- Administration, .Federal Aviation with the er’s a black seat of Continental and at the on airport hurry, get the deceased De- out relieved male came of the store airport car, High- 1979. He arrived at the proceeded cember and it west on midnight, way Gage 20 minutes was briefed described the driver about Officer Wilson, officer, police Ronnie Continental as a white male. He Midland bearing saw a black male come out of the store at license testified he saw a Lincoln pace get passenger’s fast into the side B B & plate MXM at the number car. Trading 10 a.m. on about Post Midland men, white, one December 1979. Two Gage Both and Miller noticed one size, a black approximately lights tail on the Continental was not work- male, unloading television set were ing. Gage To- photograph stated a trading bey taking post. car like he it into Continental looked the one saw Stop. at Minute hitchhiking from Michael Wicker was 9 and Between 9:30 a.m. December 3 Mexico, Plains, Hobbs, New Texas to John Woods went to 526 Thomas Street in 3, 1979. About the afternoon of December pick up stepdaughter’s hus- Abilene to picked up by miles he was out of Hobbs arrival, Upon band for work. he saw a male in a silver a white male and black door, padlock and then observed a appellant as Lincoln. identified He lot blood and matter. brain Woods went Jr., Battee, the black as driver and William get police. a friend and to call the they told Wicker passenger. male Battee Barbian, officer, police Jay re- Abilene lady,” and appellant’s “old got the car sponded the call and went 526 Thomas Bat- in the car blood when Wicker noticed partially Street. Barbian found nude punched explained appellant tee had body of the deceased at the location. In- keys. car he in the had taken nose when vestigation large piece uncovered a of con- Hobbs, a they arriving After went bloody crete fresh on A with blood it. Appel- something to get Mimi eat. Mall to jacket white Levi was found as well as a drunk, lant, Bat- and apparently who was jacket. brown suede mall, began in the “grabbing” tee women Williams, pathologist, paid Dr. a con- causing Jarrett Wicker a disturbance. body. autopsy ducted the on the deceased’s and Battee Appellant left. their food and Tobey He related had received a severe near the Continen- followed. Officers were head, skull, crushing his blow to his arrested. tal and men were all three piece bloody could have been from the Baum, officer, tes- police Richard Hobbs large por- found at A concrete the scene. December approximately p.m. at tified missing. There tion the brain was were saw an he Mall and went to the Mimi wounds, being knife one to the numerous bear- illegally parked Continental Lincoln vein, juglar which could have caused death. hearing Upon ing MXM997. Texas license Appellant was identified one of two male cursing, saw yelling and he black entering Big Shop men Tex Pawn male was two The black and white males. 3, 1979 9:30 Midland on December between Battee, cursing who Baum arrested Dungan, operator, John and 10:30 a.m. The two gave his name as Green. Willie appellant accompanied by a also stated was males, appellant white identified attempted pawn They black male. Battee, Wicker, to calm crossed street Dungan requested set. When television offi- knowing Battee told him. but denied identification, male went black hitchhiking and had been cer Baum he was appel- Mercury, or and then Lincoln silver Appel- by appellant and Wicker. picked up li- presented Dungan with a driver’s lant up. replied picked “them” lant Battee had Tobey Tomey the name it. cense with name, differ- Appellant gave his but was appel- photo did not The license resemble gave officer. than name he another ent Dungan gave different appellant lant and appellant All were arrested with three men than that on the license. date driver’s birth being intoxi- being custody into taken accept Dungan refused to the television cated. left, Dungan the two men took set. When regis- Baum learned Continental the license number car which he phone After a con- deceased. be MXM 997. tered believed to Sgt. discovered, Casey body Street versation Bradshaw the where the Department, Police Baum Abilene removed matched the tennis shoes worn Battee splattered blood tennis Battee’s shoes. He when arrested. underwear, pants,

removed Gonzales, Jose State also called who shirt shoes. All items save the shoes testified Abilene on he came to November appeared what fresh had to be blood on 24, 1979, prior to the instant case. Near them. There were no marks lacerations midnight he met and Battee in a appellant’s body. club. later the About an hour three left in truck, Sgt. pickup supposedly Murphy James Police Gonzales’ to look Hobbs country, ap- for women. Department locked Once out and sealed doors of pellant began beating garage Lincoln Battee Gonzales. Continental at Hobbs clothes, They took his watch and wallet on December 1979. Inside the car he containing They drove off in the spots. $140.00. blood saw pickup telling after Gonzales to run. Casey Sgt. On December Bradshaw The appellant offered no evidence Abilene Department Police talked with guilt stage of the trial. phone Officer Baum over the and later ap- Bradshaw secured arrest warrants for Every circumstantial evidence case pellant day Battee. In Hobbs the next must tested necessarily be its own facts inspected he the Continental and found the sufficiency to determine the of the evidence card, deceased’s F.A.A. identification conviction, LeDuc v. support deceased’s bank and a club card Save a Earn credit card number 013181. He $ removed State, hart v. (Tex.Cr. 575 S.W.2d 554 parts right certain blood stained of the State, App.1979); Flores v. 551 S.W.2d 364 door and scrapings front took blood from State, v. Carlisle (Tex.Cr.App.1977); 549 parts other of the He car. received items v. (Tex.Cr.App.1977); Indo S.W.2d 698 clothing police of from the Hobbs that had State, (Tex.Cr.App.1973), 502 166 S.W.2d taken appellant and Battee. light and viewed in the most favorable State, v. Ysasaga State. S.W.2d The Post deceased’s Dan boots were cemetery. found in a Midland Williams, And a serologist, Sarah it is well established that forensic com- pared samples blood conviction on circumstantial evidence can of the deceased with prov not be if samples blood sustained the circumstances appellant known from the Battee, every en do not exclude reasonable samples as well blood as with hypothesis guilt except of the removed from the Continental from the accused; proof amounting only a clothing appellant As a Battee. strong suspicion probability or mere is in comparisons, result various tests State, supra; sufficient. Flores v. Earn Williams was able to determine the blood State, State, supra; Stogsdill hart v. v. appellant’s clothing on was not his nor that Cul 552 S.W.2d 481 compatible of Battee. The blood was with State, more v. (Tex.Cr.App. 447 S.W.2d appellant, of the deceased. While Bat- 1969). tee and the had blood type deceased all enzyme there were differences in the struc- (Tex. Moore v. In only ture. Williams related that .005% Cr.App.1976),it written: was population exactly had blood like that “Ordinarily, appeal the test on deceased. whether there evidence from which was (advised footprint gas jurors of the restrictions the A found at the Abilene in places upon condemning card law one where the credit was used them station evidence)1 footprint might rea- found 526 Thomas circumstantial matched was at 1. This least true until time of the majority opinion in Hankins

sonably morning 9:30 every conclude that reasonable next about a.m. at Thom- guilt Street, beaten, hypothesis brutally one-third his other than was exclud- as (444 supra missing. ed. found Ysasaga v. S.W.2d brain His trousers were 305).” top pockets of a turned inside shed with Continental, boots, money, etc., The out. Tex.Jur.2d, It has also in 24 been stated missing. were § Evidence, 742, p. 424: ascertaining guilt “In whether after About an hour the deceased left the accused has been established meeting appellant’s description awork man certainty, appellate moral court will car, along seen with was in the deceased’s light pre review the evidence Shop Minute companion male at the black sumption that the accused is innocent. body Abilene. About time presume any court The will not acts appellant discovered was identified be- against not shown the accused are ing trying pawn television Midland to have been committed him. Fur using He set the deceased’s identification. thermore, a conviction will not be sus seen was with male and was a black if the does appeal tained evidence not The boots were deceased’s car. deceased’s sufficiently establish all material ele placed found Other evidence Midland. charged.” Ysasaga ments of the offense driving New Mexico State, supra; supra; Flores v. He was William Bat- deceased’s car. with Nathan v. arrested, tee, he first a black male. When App.1981). blood in gave a name. There was different blood on car his and on clothes. circumstantial evidence cases to be his clothes shown not however, every necessary, fact compatible Battee’s shown to be and was point directly independently de deceased. guilt. enough fendant’s It is if the conclu by the sion is warranted combined and to show The evidence was sufficient incriminating cumulative force of all the of a rob- in the course murder committed supra; circumstances. Flores § 29.02) Code, (V.T.C.A., al- bery Penal (Tex.Cr.App. Mills v. sufficiency of evidence leged. Appellant’s 1974); State, Herndon v. 543 S.W.2d 109 (at guilt are over- stage) the contentions (Tex.Cr.App.1976). The rules of circum ruled. require stantial do not that the evidence trial court Appellant also contends certainty to a circumstances should moral indictment as failing quash in “erred actually every hypothesis that the exclude for the reason to count one therein may by another act have been committed notice in adequate provide fails same person, hypothesis but intended is a the victim of that said count fails name circum reasonable one consistent with the allegedly in the robbery appellant was supposi proved, stances facts committing.” course may that the have committed tion act person must out of har another not be upon The case conviction State, mony with the evidence. v. Jones pursu- drafted count one of the indictment Taylor (Tex.Cr.App.1969); 442 S.W.2d § 19.03(a)(2), Code, V.T.C.A., ant to Penal State, 87 Tex.Cr.R. 221 S.W. v. appel- pertinent part alleged v. su Flores lant: State, supra p. pra; Nathan v. unlawfully, “... then there did knowingly cause the intentionally shows the deceased record individual, Otha To- Hubert for 1979 in death an left home work December hitting him with a bey, by beating and wearing his Continental automobile wife’s cutting boots, piece of concrete and money Post with wallet and Dan knife; stabbing said leaving him with clip. He was last seen alive work Clifton body Russell a/k/a p.m. 11:45 His was found the Clifton Charles about Lacy C.P., then applied Charles did and there inten- to him was an unreason- tionally cause legislative the death of the Hu- denying said able him classification Otha Tobey equal bert course of protection commit- of the law.

ting the robbery.” offense of argument It is his initial that Article An 18.02(10),supra, examination of motion does list blood not as one quash reflects it grounds was directed to a claim for the issuance of a search duplicitous pleading warrant, that two means of and that a search warrant issued causing alleged death were and that for reason was appellant invalid. The put appellant proper failed quash notice filed a motion to the warrant. as to manner of death. There nowas said motion he asked the alternative for claim therein of failure to name suppress the victim a motion to the results in the robbery. prevent taking event it too late to of his blood. The motion was overruled. Appellant ground raises this for the first hearing there Whether was a does ap- appeal time since it was not contained pear warrant, from the record. The search quash. Appellant upon his motion to relied if any, is not in the record. There is no v. (Tex.Cr. 600 S.W.2d 288 Brasfield notes, transcription reporter’s the court and King v. App.1980), 594 S.W.2d any, if transcribed. We are unable to See also Silguero appraise the action of trial court or to v. 608 S.W.2d 619 (Tex.Cr.App.1980); appellant if urged determine ever his mo- Evans suppress. tion to App.1980). Sgt. Bradshaw on January testified The instant case can be distin 1980, he executed a ap- search warrant on guished from the above cases. In the in pellant and blood was taken. There was no case, above, stant unlike cases mo no objection to testimony nor to the latter quash tion to was made the basis that testimony serologist of the forensic as to allege the indictment failed victim concerning her blood sample. tests such underlying offensé. attempt Absent an argued If it can be has to draw the trial specif court’s attention preserved review, contention it is ically to the failure to name the victim of recently observed this court has held underlying transaction, nothing that blood is an item which a search presented for Kipperman review. may 18.02(10), warrant issue under Article (Tex.Cr.App. V.A.C.C.P., as Gentry amended 1977. See 1981); Woolls v. State, (Tex.Cr.App.1982) (Opinion on Discretionary Review Without A jurisdictional defect in an indict Petition). is a ment defect which renders indict Appellant’s argument as to the de- allege ment insufficient in it fails to equal protection nial of the of the law is the constituent elements of the offense. 18.01(e), based on the fact that Article V.A. State, v. Terry (Tex.Cr. S.W.2d 517 554 C.C.P., prohibits the issuance of a search State, App.1975); Brem v. 571 314 S.W.2d 18.02(10), under warrant Article if (Tex.Cr.App.1978). The instant indictment property or located in items are an not suffer does such defect. There is no newspaper, magazine, office of news te- fundamental error. levision station radio station. grounds appellant In two of error com- plains of the testimony objection admission of con- There was no on this cerning sample a blood taken him basis in trial Failure to object court. by it involving because was obtained virtue of an can even waive an error constitu warrant, State, v. argues invalid search Mendoza rights. if tional 552 facially was valid proce- warrant then the Hovila v. (Tex.Cr.App.1977); S.W.2d 444 State, 18.02(10), by dure authorized Article (Tex.Cr.App.1978). V.A.C. S.W.2d 243 562 778 State, Watkins v.

See also 572 S.W.2d 339 This was circumstantial evidence State, v. (Tex.Cr.App.1978); no Shannon placing 567 case. There was direct evidence (Tex.Cr.App.1978). appellant at scene of the ap- S.W.2d 510 Even if murder. Ex pellant objected, offenses are on the properly had his traneous admissible conten- identity question of if the extraneous of tion still merit. would be without order distinguishing common fense has sufficient successfully equal protec- claim denial of it characteristics to show was the tion of the law on the basis of unreasonable accused, and the classification, handiwork of State’s prove accused must an ques entirely case is circumstantial part existence a class of which he v. Hinkle identity. 442 tion and unreasonable discrimination. See Her- Jones v. (Tex.Cr.App.1969); Texas, nandez v. 347 U.S. 74 S.Ct. (1954). appellant 98 L.Ed. 866 This has failed to do. by appellant Gonzales was robbed Battee, and a black male. a white male

Next, erred, appellant urges the court Tobey appears It the deceased was objection, admitting over evidence ob- white, men, one one black. robbed two illegal tained an warrantless search midnight, near Both occurred robberies person. Hobbs Officer ^Baum testified alone, male who was both involved a victim appellant 30 minutes about after partially both undressed or victims were arrested, Sgt. talking and after Brad- a motor vehicle undressed. In each case Abilene, shaw in he took trou- place took nine was taken. The robberies jail him sers from cell without a days apart in There were suffi Abilene. objection There was no warrant therefor. distinguishing characteristics cient common During testimony. testimony to this justify the admission or similarities serologist the forensic when the trousers See Ransom v. the extraneous offenses. offered, only objection were was that S.W.2d The objection was “a warrantless search.” State, supra. Hinkle v. questionable was overruled. It is whether preserved contention is for review is overruled. Appellant’s contention light general objection. appellant com- grounds In five of error plains admitting prejudi- the court erred in Further, clothing conclude the we con- opinion testimony “amounting to a cial was admissible under United States v. Ed to the is made clusion of law.” Reference wards, 94 S.Ct. U.S. testimony police Melvin officers Abilene further, (1974). it is ob L.Ed.2d 771 Still Martin, Casey Perry Bradshaw John served that Baum and later Bradshaw tes dis- investigator with the Wiley, and Otis clothing its condition tified as Boone, attorney, Robert Lee trict as well as objection prior to without the forensic ser- these witnesses convicted felon. All of ologist’s appear It testimony. permitted testify probabil- to the were object any right to timely failure to waived future. appellant being ity of violent appeal. Crocker complain testimony objection their Chambers (Tex.Cr.App.1978); S.W.2d state con- they qualified were their had all opinion. The officers clusion Byrd v. Von years, some known several App.1978). See also Boulware Boone having juvenile. him as a handled Shu (Tex.Cr.App.1976); 542 S.W.2d 677 ap- County inmate Taylor jail when (Tex.Cr. State, make 502 S.W.2d 758 Ap- pellant had there. been incarcerated App.1973). he had pellant had beaten him because expe- sleep. Based Appellant additionally the trial mumbled in his contends peni- in the admitting prior experience and his court committed error in evi- rience opinion appellant prior tentiary, expressed robbery of the extraneous of he dence in the future. Jose November be violent Gonzales on would “(b) objection The to presentation trial each witness’ conclusion of the On evidence, testimony weight given went to be court the the shall submit following the to the admissibility jury: and not the of issues testimony. the appeal appellant argues On “(1) witnesses of the de- whether conduct permitted were state conclusion law. fendant caused the death ground The of error comport does not with deliberately deceased was committed objection, nothing the trial presented and and expectation with reasonable review. Carrillo 591 S.W.2d another death deceased or (Tex.Cr.App.1979); result;_” (Emphasis supplied.) Cain v. (Tex.Cr.App.1977). S.W.2d 707 following The court submitted the charge: Further, previously we have held “Special Issue No. 1 qualified properly lay witness could defendant, “Was conduct of the opinion concerning state an probability Russell, Jr., Clifton Charles that caused that a murder defendant would con deceased, the death of the Hubert Otha tinue to commit criminal acts of violence. Tobey, committed deliberately and with Esquivel v. 595 S.W.2d 516 expectation the reasonable that the death App.1980); Simmons v. 594 S.W.2d of the deceased or another would re- (Tex.Cr.App.1980). Each wit sult?” nesses here involved knew the position and in a express opin Appellant’s special requested were charge was ions they did. as follows: Russell, comes “Now Clifton Charles Further, 37.071(a), V.A.C.C.P., Article above-styled Defendant num-

provides part: cause, by through bered his attor- In the proceeding, “... may evidence record, neys requests presented any be as to matter that the following be included in the Court’s court deems relevant sentence charge the jury herein: Appellant’s contentions are overruled. “I. Appellant complains the court failed to respond objection to his to the inclusion of “The word ‘deliberate’ means formed Special charge punish- Issue No. or arrived at or determined result provision ment since relating to said thought weighing careful of con- vague. issue is unconstitutionally against siderations for and proposed The contention overruled. Jurek v. Tex- ‘premeditat- course of action. The word as, 428 U.S. 96 S.Ct. 49 L.Ed.2d ed’ means considered beforehand. (1976); Collins v. you killing pre- “If find that the clear, accompanied by ceded and delib- Barefoot See erate part intent of Defendant to also Granviel v. kill, was the result which of deliberation premeditation, so that it must have upon pre-existing been formed reflection No error is shown. passion not under a sudden heat of further, appellant Still contends the court precluding other condition the idea of failing respond “erred in deliberation, it is then deliberate. timely requested charge, and instruction to “The law does not undertake to meas- punishment phase defining length ure in units time ” Spe- ‘deliberate.’ Reference is made period during thought must cial Issue 1.No. pondered ripen before it an in- can into 37.071(b),V.A.C.C.P., provides Article truly tent to kill which is deliberate and part: premeditated. vary will time

780 219, 124 varying (Tex.Cr.App. under Cr.R. S.W.2d 368

different individuals and 1938). test not The true circumstances. time, duration of but rather the extent State, In 553 107 King v. S.W.2d cold, judg- A the reflection. calculated (Tex.Cr.App.1977),this court held the trial may arrived at in ment a decision be “deliberately” not court need define time, period of a mere uncon- a short but 37.071, supra, charge Article in its used in though even it impulse, and rash sidered penalty stage murder kill, intent is not such includes an State, also v. 609 trial. See Sanne S.W.2d premeditation as will fix deliberation and State, (Tex.Cr.App.1980); v. 762 Heckert killing murder. unlawful as deliberate an 549 612 S.W.2d premedi- a deliberate and

To constitute killing, slayer weigh Further, must appellant tated has no made killing question and the consider showing that he entitled to the such against a choice above, reasons for charge requested out set and, having consequences, in mind the he he relies. does kill. decided In S.W.2d v. Granviel “WHEREFORE, prays Defendant that (Tex.Cr.App.1976), this court wrote: charge requested made a the above be requirements ap- statutory “The charge part of the Court's to the committed pellant’s be deliber- conduct herein.” mean it be a ately does not that must charge special requested was the This premeditated act.” trial court. which was denied v. Fearance “deliberately” The words “deliberate” (Tex.Cr.App.1980),this court wrote: statutorily defined the Code of are not hand, resort the other “On Criminal Procedure Penal Code. evidentiary sufficiency determinations error, prosecution It in a is not issue one is instructive for we statute, violating define a to refuse to ‘deliberately,’ as used in that know statute, when such word

word used in the charge punishment, is question of the sense, easily ordinary and it is used its linguistic equivalent of ‘intention- not the by everyone. Humphreys comprehended charge guilt-inno- ally,’ used in the 34 Tex.Cr.R. S.W. v. cence, Heckert rather, it is the statutory no defini Where there is embraces more thought process which term, question of trial court’s tion of engage in conduct than a will to depends on obligation the term to define the intentional conduct.” activates has a common and whether the term such # 6 of reiterates that Footnote Fearance fairly meaning can ordinary jurors “deliberately” “premeditated.” not be need meaning. such presumed apply know and Phillips v. re these authorities the Under App.1980). prop not charge have quested sim terms used are words Where er. used in their ple in themselves and are con- We do not understand supposed ordinary meaning, jurors are should now devise tends this court terms, meaning and know such common forth, “deliberately,” set definition com circumstances such and under such the failure of the conviction for and reverse necessarily to be are mon words foresight not to judge have the the trial charge jury. Hogan to the defined instructions give in his the same definition (Tex.Cr.App.1973), jury. to the 862, 94 414 U.S. S.Ct. cert. den. ground is overruled. Appellant’s of error 112; 136 Tex. Joubert L.Ed.2d

781 Appellant challenges also the suffi case facts instant reveal The ciency support of the jury’s evidence to during brutal murder committed answer special affirmative to issue number robbery. of a to course addition numer one. That issue as submitted under Article knife body, including ous wounds 37.071(b)(1),V.A.C.C.P., has been already vein, jugular one to the deceased’s skull Taking set out. into consideration evi piece was crushed The concrete. stages trial, dence at both con we money and were tak deceased’s automobile clude, reiterating testimony, without Gonzales, earlier, nine days en. Jose had support that it was sufficient jury’s beaten, also attacked and and his “yes” special answer issue one. number testimony truck taken. There was also 107, See State, Granviel v. 552 S.W.2d being after the Taylor confined in 122-123 (Tex.Cr.App.1976). County jail appellant beat another inmate. testimony There was from several witness Appellant makes claim that the evidence appellant’s general reputation es that support insufficient the affirmative being peaceful law-abiding citizen finding penalty stage at the of the trial as bad, opinion in their he Special probability Issue No. 2 as to the continue to commit acts of violence in the of future criminal acts of violence. future. It is well cir established that the psychiatric testimony, There was no but cumstances the offense itself sus can support it is not essential to an affirmative tain an affirmative answer to the second finding to special capital issue in a special 37.071, under supra, issue Article if State, murder case. supra; Brooks v. they are enough. State, severe Mitchell v. State, (Tex.Cr. Freeman v. 556 S.W.2d 287 650 S.W.2d (Tex.Cr.App.1983); King 801 v. App.1977); State, Burns v. S.W.2d 556 270 State, 631 S.W.2d (Tex.Cr.App.1982); 486 (Tex.Cr. App.1977). State, (Tex.Cr. Brooks v. 599 312 S.W.2d App.1979); State, Muniz v. 573 When the facts of the instant offense S.W.2d are (Tex.Cr.App.1978). 795 jury, The considered with the at the additional evidence of penalty stage trial, may robbery, beating jail all the extraneous consider evidence guilt stage reputation, adduced at the we conclude the State, clearly support trial. Russell evidence is sufficient v. (Tex.Cr.App.1980); jury’s finding “yes” 254 spe v. to the second O’Bryan State, State, 591 supra; S.W.2d 464 cial issue. See Mitchell (Tex.Cr.App.1979); v. Duffy (Tex.Cr. v. 567 v. S.W.2d 197 Earvin App.1978); App.1979); Felder 444 cert. den. U.S. S.W.2d (Tex.Cr.App.1978); 414; S.Ct. Brock v. L.Ed.2d Brooks v. supra. S.W.2d Moore v.

State, 542 Appellant’s contention is overruled. Indeed, the circumstances the offense judgment is affirmed. surrounding may facts furnish greater probative any evidence than CLINTON, Judge, dissenting. regarding evidence the second issue stage submitted the penalty capital appeal1 automatic This results from a murder Duffy case. for the conviction offense of murder § cited; Code, cases there pursuant Penal V.T.C.A. 19.- Crawford 03(a)(2).2 Upon jury’s return of affirm- 2. Section 1. See Article part: tionally "(a) A person 19.03, 37.071(f), knowingly commits an offense if he [inten- supra, provides V.A.C.C.P. causes the death of germane an code individual] course of mit ... (2) and: ^[******] robbery person committing under Section ...; commits the murder in the attempting 19.02(a)(1) to com- of this findings provide special ative two issues sub- definitions for several punishment phase, 37.071(b)4 mitted at the Article terms contained Article —was 37.071(b), V.A.C.C.P., appellant’s punish- recognition that: the bottomed the specially ment was assessed at death. Article 37.- not by words had defined the 071(e), supra. Legislature; jurors supposed to are know terms, simple meaning in the common of Complaint is made of the failure of the themselves; Supreme the of Court the pun- jury trial court to the at the instruct States, determining special United in our phase ishment as to the definition of “delib- adequately guide capital jury's issues the erately” employed as that term is punishment, of deliberations on the matter special Appellant presented a first issue.3 require special of did not definitions the regard written instruction in this and re- question. reasoning King terms in The of quested its jury, submission to the the but today. and I to it is sound would adhere charge by was refused the court. Ar- trial 36.15, ticle Y.A.C.C.P. Appellant’s supporting contention and ar- however, question do guments, raise fair Appellant now contends that a definition developments the as to within last whether of “deliberate” was essential to assist the years necessarily six not availa- making inquiry in the a rational as to —matters contemplated or at the ble the Court special specifically, More he first issue. writing of modified some or King argues of inquiry “that the deliberateness —have (as opposed underpinnings of all the special logically focus issue number must reasoning) regards as the of that decision something other than whether the ... appel- is “deliberately.” term Illustrative intentional, killing question which was suggestion “deliberately,” lant’s by jury prior punish- answered itself, though simple by word of and has assails, others, phase,” among ment meaning;5 now taken a “technical” opinion King this Court’s in the “common” word has become “uncom- having (Tex.Cr.App.1976), capital mon” in the of our murder context distinguish properly “failed to between the procedure. requirement killing of an intentional guilt-innocence phase and the deliberate- Therefore, first appropriate to con- it is 1.” inquiry ness of issue number “deliberately” has sider the word whether “special material fashion a misplaced. any

This is taken on King attack holding King of court need definition.”6 —that trial ****** Indeed, "deliberately” 5. held that Court has “intentionally." something is Hec distinct from 37.071, provides pertinent Article V.A.C.C.P. kert v. 612 S.W.2d 549 part: "(a) Upon finding that the defendant 3.01, that, provides 6. Article V.A.C.C.P. offense, capital guilty shall of a the court words, separate sentencing proceeding to conduct a in this phrases terms used “All be sen- determine whether the defendant shall understood their Code are be taken and imprisonment. or life tenced death language, acceptation in ex- usual common ****** cept speciallyi where defined." (b) presentation On of context, conclusion of Construction In related the Code of evidence, following submit the the court shall Act, 5429b-2, V.A.C.S., of several sections Article jury: issues code, apply penal Penal our V.T.C.A. which (1) whether the conduct of the defendant Code, 1.05(b), part: provides in § deceased was that caused death phrases be read in context “Words shall deliberately and with reasona- committed gram- according to the rules and construed expectation that the death of deceased ble phrases usage. Words and mar and common ” * * * result; or another would particular acquired a have technical (All throughout emphasis supplied by by legislative meaning, definition or whether opinion indi- of this unless otherwise writer otherwise, accordingly.” be construed shall cated.) 2.01, id. Section "deliberately;” "probability;” 4. These terms are: violence;" "continuing threat "criminal acts society.”

Obviously, view of the fact that “delib- v. erately” not Legisla- Texas, defined Jurek v. 428 U.S. 96 S.Ct. ture, the analysis focus the Court’s be- (1976). Moreover, virtually L.Ed.2d 929 gan on what is not. Smith every member this Court has at one time (Tex.Cr.App.1976) or another confronted a record Court, reviewing sufficiency voir dire examination in either support evidence to issue find- prosecutor judge trial a venire- informs ings general, made implication clear member “deliberately” means the that the fact “trig- defendant is thing same “intentionally.” though And german” in the by murder is not of and by implication it was held that words dispositive itself of the first issue. equivalents early on,9 are not the contro- Though guilty capital of offense ultimately versy necessitated this Court’s through only application murder of the law recent decision Heckert v. 612 parties,7 Smith’s individual conduct “encouraged” “aided” and another in Heckert, supra, In jury after the found commission the murder was correct- guilty intentionally defendant ly support held jury’s finding on the causing the death of while in his victim first issue: Smith was the first to burglary, course that same re- attempt victim, to shoot the and when his negative finding pun- turned a first misfired, weapon he called confeder- Contending appeal ishment issue. ate, “Get him.” In v. 552 Granviel “intentionally” and “deliberately” are “lin- S.W.2d 107 (Tex.Cr.App.1976), rejecting a guistic equivalents,” argued Heckert contention that the affirmative answer to the jury’s guilt punishment verdicts on and special issue number 1 insufficiently was presented could not be reconciled supported by and a evidence it because did not requiring show fatal variance killing “premeditated,” that the reversal. re- was held, jecting contention, statutory Court Heckert’s we held: require- “The ment that a killer’s be conduct committed “If were adopt this Court deliberately does not mean it must be argument deliberately and intention- premeditated act.” [Emphasis original] ally knowingly linguistic equiva- were lents, 37.071(b)(1),

Meanwhile, it would render Art. raged battle over wheth- nullity. holding Under “intentionally” er sueh and “deliberately” were question] different, deliberateness would be a different, same or [the and if thing in great finding what A useless that a of an way. deal of confusion be- words, knowing tween intentional or murder would meanings the two their import finding Texas with a that the de- murder irreconcilable scheme clearly lawyers extant fendant’s conduct was not de- among committed judges, scholars,8 legal liberately. presume as well as We will since Supreme before approved Legislature Court would not have enacted constitutionality facial 37.071(b)(1),supra, of that scheme and Art. it had intended application by its finding Texas courts Jurek deliberateness to be Code, Texas, 551, (1977); 7. Now V.T.C.A. Penal 7.01 and §§ 7.02. Issues in 555 Hous.L.Rev. offense, Goldstein, At the time Smith "Objections committed Charge to the Court’s "principals" law of Punishment;” contained Vernon's “Objection 16" at No. G-191 65, 66, Ann.P.C. Articles 68 and 69. (printed Capital Murder Defense Course Ma prepared terials for the Defense Criminal Law E.g., Commentary following Practice V.T.C.A. yer’s 1978); Project, December and Wilder v. 19.03; Code, argument Penal § oral on the con 1979). (Tex.Cr.App. 583 S.W.2d 349 stitutionality penalty procedure of Texas death Texas, infra, (1976); in Jurek v. CrL 4007 Sierra, (Tex.Cr. 9.E.g., parte Ex S.W.2d 322, (Tex. Blansett v. 556 S.W.2d 327 n. 6 (Tex. App.1974); Brown Black, Cr.App.1977); Due Process Death: Ju Cr.App.1977). Cases, Companion rek v. Texas and 26 Cath.U.L. (1977); Crump, Capital Rev. Murder: The explained As in Black’s based the same standard as that meditation. Law knowing.” (4th 1968) Dictionary intentional or ed. at 1343: rev. at 551. But see S.W.2d Blansett essentially “Premeditation differs (Tex.Cr. n. 6 crime; will, which constitutes the be- App.1977). will, supposes, an actual cause besides deliberation, persist- If, a continued instructs, King, supra, we are to original] [Emphasis meaning simple take ence.” the common of a word ordinary usage, any handy dictionary in its See n. 6. also Fearance “deliberately” just will confirm that means rejection Similarly, I adhere to the doing that —a manner of an act that Granviel, notion that a by supra, of the resulting “characterized from careful purported “frenzy” killing committed in a consideration,” thorough “characteriz- deliberately cannot be effected consequences; ed awareness of the will- expectation that death reasonable ful,” “slow, unhurried, steady Fearance, supra; would result. also See though allowing time for a decision.” Duffy Collegiate Dictionary, Webster’s New G. & App.1978). (1977).10 C. Co. Merriam That definition has approved by not varied from the one short, premise In first I believe that the ago eighty years this more than in Court is King, in still underlying the conclusion 60, Ferguson v. 36 Tex.Cr.R. 35 “deliberately” word sim- today: is a viable 369, (Tex.Cr.App.1896): S.W. 370 in Article 37.- ple in itself as used “ ‘Deliberately’ ordinary means ‘with careful con- its 071(b)(1), in is to be understood deliberation; or full in- sideration with or meaning. It taken on a technical has tent; a hastily carelessly, not de- or only in the sense enunci- definition —as ” liberately purpose.’ formed “deliberately” is Heckert, supra: ated in equiv- linguistic nor connotative neither in This definition turn reiterated And as Heckert “intentionally.” alent of approval years ago with in sixty five Welch crucial, for acknowledges, this distinction is 17, 71 Tex.Cr.R. 157 S.W. 946 the first regard render a failure nullity. issue recently, Most in Fearance v. 577, (Tex.Cr.App. n. which

S.W.2d 584 and 584 that words King But also teaches 1981) appellant’s motion for (Opinion ordinary are “not are in their sense used “deliberately” rehearing), charge we characterized necessarily to defined be thought process embraces as “the which supposed to jury,” “jurors because are engage more a will to in conduct and terms,” than meaning and know such common conduct,” and de- activates the intentional 219, citing 136 Tex.Cr.R. Joubert person engages “the who certain scribed It is deliberately” as conduct one who “has whether necessary to accordingly consider himself, said to ‘Let’s consideration point the evolution there exists at this ” do it.’ law, any compelling rea- our murder “deliberately” be require that son to holding I would adhere to Granviel sense, ordinary in the court’s in its defined say that conduct committed and continue punishment, at instructions “deliberately” “premeditated,” need not be requested. a definition pre- an should such is but element deliberation "deliberatus,” word Dictionary, from the Latin Word McMillan borrowed 10. Webster’s New Ed., irregular Company, infinitive past participle New McMillan Students mind, “deliberare,” (1969) adjective weigh pon- meaning "deliberate" as "to York defines formed; libra, der,” "carefully thought pur- done de out is derived from turn + considering; not pose,” rash or meaning or “careful "scale.” "slow; hasty,” charge unhurried.” re- was the thrust of the This basic quested case. See in the instant word made discloses the "deliberate” It also opinion majority at 779. having appearance English, in Old its first reaching questions Supreme Before of wheth- Court observed Furman Texas, Georgia, Florida, er North Carolina mandates that discretion is where afforded and Louisiana had enacted constitutional sentencing body, that discretion must be procedures imposition of pen- the death and limited so as to minimize the “directed alty, Supreme Court of the United wholly arbitrary capricious risk of ac- obliged States was first determine Gregg, supra, tion.” at at S.Ct. “punishment always, whether the of death procedure, 2932. In addition fair regardless enormity of the offense requires Constitution “accurate sentenc- procedure or the in imposing followed ing indispensible an [as] information12 sentence, is cruel and unusual in violation prerequisite to a reasoned determination ” Constitution,” previously issue an whether defendant shall live or die... presented to the Court in Furman v. Geor- supra, Gregg, at 96 S.Ct. at 2933. gia, 408 U.S. 92 S.Ct. 33 L.Ed.2d procedure praising After of bifurcat- (1972), but not at that time resolved. ing guilt punishment, the issues of 153,168-169, Gregg Georgia, 428 U.S. Court concluded: 2909, 2922-2923, 49 S.Ct. L.Ed.2d 859 provision “But the of relevant informa- (1976). rejecting Gregg’s contention in procedural tion under fair rules regard, considered, Supreme Court guarantee alone sufficient to among things, death is a whether be properly will used ... information punishment disproportionate to the crime: jury, members which [the are] question “There is no that death as a unlikely dealing to be skilled in punishment unique severity in its they given.” information are irrevocability. When a defendant’s life is Gregg, at S.Ct. at stake, the Court particularly has been Conceding problem appropriate that the every safeguard sensitive to insure that by use juries “may of relevant information is observed. But we are concerned here totally correctible,” not be the Court noted only imposition with the capital pun- of that problem seems clear ... that the murder, “[i]t ishment for the crime of and will if the is jury given guid- be alleviated when has been deliberately taken life regarding ance13 the factors the about the by offender, we say cannot the defendant_” crime and the Id.

punishment invariably is disproportionate the sanction, crime. It is an extreme Having requisites determined the con- of suitable to the most extreme crimes. imposition of penalty, stitutional the death of [citations omitted].” Supreme proceeded the Court measure supra, 187, at Gregg Georgia, against requi- S.Ct. at several state statutes those 2931.11 Having Gregg, determined that is sites. In both supra, death Proffitt punishment 2960, killings, Florida, 242, suitable in deliberate U.S. S.Ct. Judgment by opinion jury given 11. the guidance of Court announced "The idea should be Stewart, joined by of Justice Justices Powell and decisionmaking hardly in its is also a novel Supreme Stevens "the [hereinafter Court” con- proposition. invariably given are Juries care- sistent with all other decisions of Court this apply instructions on the law and how to ful July since 1976]. they before are authorized decide mer- virtually its of a lawsuit. It would be un- sentencing The exercise informed discre- 12. any legal thinkable to follow other course in a tion, according Gregg, requires to the Court in system operated by traditionally that has fol- taking (1) into account: the circumstances of lowing prior precedents and fixed rules of offense; character; and, (2) (3) pro- When are law.... erroneous instructions pensity of See the offender. also Lockett v. given, quite required. retrial often is It is Ohio, 438 U.S. L.Ed.2d S.Ct. legal system simply a hallmark our (1978), [holding “individualized sentenc- juries carefully adequately guided be in ing” constitutionally required capital in their deliberations.” cases]. supra, Gregg, at 96 S.Ct. at 2934. Particularly relevant to the issue before us 13. rationale; today following is the (1976), stitutionally rejected sentencing inquiry L.Ed.2d 913 the Court mandated “vagueness —“objective particular- consideration of the and overbreadth” attacks on ized Georgia circumstances of individual statutory “aggra- and Florida of- particularly well met circumstances,” vating repeatedly referenc- fense” —seems special statutory our first and third is- ing the Supreme manner which the State special issue, the sues.17 Unlike the second provisions up Courts had construed jury’s first third attention focus point,14 declining presume they surrounding historical facts commis- adopt “open-ended constructions” in issue, The first sion of the the future. offense. third, capital unlike the is submitted all Viewing proscriptions Texas guilty; cases in which the accused found offense, murder, capital as themselves “mitigating it could be labeled a factor” serving purpose aggravat- the same as the negative finding since a thereon auto- ing by Georgia circumstances codified operates “mitigate” pun- matically law, Jurek, Supreme Florida Court Conversely, ishment to life. the focus supra, constitutionality saw the Tex- inquiry might be bet- “deliberateness” procedure dependent as on whether the “aggravating circum- ter characterized an 37.071(b), special issues embodied in Article finding on stance” affirmative because an particular- “allow consideration of imposition sen- prerequisite it is a of a Jurek, supra, mitigating ized factors.”15 of death. tence 428 U.S. at 96 S.Ct. at 2956. The then, Apparent, crucial function of is the Court concluded: the Texas question” “deliberateness that, Georgia appears “It thus as capital potentially the dif- murder scheme: Florida, capital sentencing pro- Texas imprisonment and life ference between guides jury’s cedure and focuses the ob- jury’s considera- death. It follows that the particular- jective consideration question tion must be focused of this ized circumstances the individual of- defendant individual conduct offender_” and the individual fense murder transaction and Jurek, supra, 273-274, at 96 S.Ct. meaning distinct jury comprehend its Supreme its Court made clear under- As the in the case. inquiries standing role of reiterated, the second “ba- Supreme Court Furman’s issue,16 Court, arbitrary construed requirement” “replace[ sic is to ] “particular focus on the circumstances” of jury objective discretion standards ... guide, regularize, rationally character make offender,” “individual and and process imposing for a sen- propensities. prong The other of the con- reviewable Jurek, 271, pointed supra, at Accord Gregg, supra, at S.Ct. 14. In the Court to the 2956. 586, 2954, Ohio, Georgia striking Supreme one Court’s Lockett v. U.S. S.Ct. statutory (1978). aggravating for circumstances failure L.Ed.2d 973 standards,” provide objective “clear and and probability the de- 16. "Whether there is a that of “a that that Court’s demonstration concern sentencing procedures criminal of violence provide guid- fendant would commit acts the new continuing juries." threat ance to that would constitute 37.071(b)(2), society.” Article V.A.C.C.P. Similarly, Proffitt, supra, the Court ob- in Supreme deci- served that under Florida sions, Court 3, ante, "impermis- statutory provisions were not recitation of the "deliber- 17. See n. for vague” sibly in special had been "construed a man- question," and issue. The ateness the first guidance.” providing adequate inquires: ner third issue evidence, by the con- "If raised whether allowing only Observing systems consid- 15. that killing deceased duct of the defendant in aggravating circumstances are uncon- eration response provoca- was unreasonable in provide individualized stitutional for failure tion, any, by if the deceased.” stated, determinations, sentencing the Court See Evans v. jury "A be allowed to consider on the must App.1980) punishment issue was third [wherein only why basis all relevant evidence partic permit jury "to to consider construed imposed, also death sentence should be but mitigating circumstances’’]. ularized why imposed.” it should not ing tence of death.” Woodson v. North Caro different and distinct from the lina, 280, 303, 2978, 2990, “intentionally,” 428 U.S. that 96 S.Ct. word as word (1976). charge 49 L.Ed.2d Because of the previously defined qualitative difference death and guilt, between punishments, a correspond “there is (2) instead, employed spe- as first ing reliability difference need for issue, “deliberately” cial word appro the determination is that death doing an means a manner of act char- priate punishment specific in a case.” by resulting from careful acterized Woodson, supra, S.Ct. at consideration; thorough charac- by terized awareness of the conse- It has come to this Court’s attention willful, slow, unhurried, quences; from numerous and sources diverse that though allowing steady as time for a “deliberately” employed the term decision.21 special punishment first in our issue statu- tory capital murder has scheme created a though appellant the instant case great confusion, calling ques- deal of into it, requested jury not instructed in reliability tion jury findings made any meaning fashion of “deliber- 8, ante, accompanying thereon. n. See ately” meaning and how differs from text. It is now unreasonable to assume “intentionally.” Having determined jurors that will be able to determine the such an to the instruction is essential relia- reliably issue without further assistance bility jury’s arbitration that issue legal when scholars and members of the eases, I punishment submitted at bench and the subject bar have debated prejudicial error deny would hold it was continuously for years.18 more seven than guidance such in this case. meaning “deliberately” word is hold, To so I majority’s failure to thus, settled; now jury assistance to the dissent. Accordingly, available. we should now em- ploy power us reserved to the Su-

preme in Jurek,19 supra, Court and hold upon timely request by capital mur-

der defendant or the party

entitled to have the instructed at the punishment phase20 to the effect of the

following:

(1) employed issue, the first

the word has “deliberately” a mean- majority by pre- necessity 18. The avoids the critical issue Court intimated the construe tending comprehended arise, “easily might word is certain reserved words everyone” "jurors Jurek, fairly and therefore can be construction Court. presumed apply meaning,” know such U.S. at 96 S.Ct. at n. 6. n. faulting making showing then no guidance to the factfinder this issue is 36.14, V.A.C.C.P.,requires: 20. Article necessary. shall, felony judge "... each case ... [I]n pondered consequences I too have argument begins, before the deliver to the holding suggest though unpalata- I I find it jury, charge distinctly setting written ... a ble, preferable having capital it is more even case;_” applicable forth the law to the courts convictions vacated the federal be- V.A.C.C.P., 36.15, compare See also Article grossly applications cause of uneven of our sen- (Tex.Cr.App. Williams v. tencing procedure Compare, down the line. 1981) (wherein give the trial court’s failure to Blansett, Wilder, e.g., supra. I phase punishment instruction at the stop[ "the buck have here." ] objection held not reversible error absent an true, instruction). requested King, supra, 19. While it is observed Supreme that the States United Court did not Collegiate Dictionary, 21. Webster’s New G. & C. require particular we construe words and (1977). issues, Merriam Co. phrases special punishment extant

Case Details

Case Name: Russell v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 6, 1983

Citation: 665 S.W.2d 771

Docket Number: 66410

Court Abbreviation: Tex. Crim. App.