*2 II, SPURLOCK, FARRIS Before JOE KELTNER, JJ. ON REHEARING OPINION FARRIS, Justice. is original opinion
In our 12, 1987, we in this case on March sued aggrava appellant’s conviction affirmed weapon and his deadly ted forty years confine by jury sentence Department of Correc the Texas sec. ANN. PENAL CODE tions. See TEX. head, 29.03(a)(2) (Vernon 1974). Following gun to held a Palmer’s and told him date, rehearing. open register. appellant filed a motion for The witness stated granted rehearing that, although pulled and abated case the hood was over the to the trial court for a “Batson hearing” head, exposed. in man’s his face was Palmer Henry accordance with 729 S.W. further testified that the store was well lit (Tex.Crim.App.1987). robber, 2d 732 We withdraw got good and he look at the face *3 original opinion face, and substitute approximately to one minute dur- therefor. ing robbery. robbery the After the oc- curred, police Palmer went to the station point first of error chal- picked photograph appellant out a of lenges sufficiency upon the of the evidence photo lineup, stating he “a was which to base his conviction. Without cita- percent the in this hundred sure” that man tion, appellant the claims that identification gun photograph person put who was the appellant by eyewitnesses of three to the trial, pointed Palmer to his head. At to offense was not sufficient evidence on “positive” appellant and stated that he was which to convict. appellant was the man who stuck the reviewing sufficiency In the of gun the head. to back support the evidence a conviction based Eve Harris testified that she awas cus- evidence, upon direct the evidence is tomer at Palmer’s checkout stand when the light viewed in the most favorable the question occurred. Harris first State, Flournoy v. verdict. 668 S.W. appellant noticed when she “was faced 380, 2d (Tex.Crim.App.1984). 383 The crit with the almost head-on....” whether, robbers inquiry viewing ical so after the Spanish race, Both the robbers were evidence, any rational trier fact could sweatshirts, wearing with hoods over their have found the essential elements of the head, jeans. Harris testified that blue a reasonable doubt. Bon beyond crime State, 815, (Tex. appellant the lit ham v. store was well and she saw 819 probably Wilson v. Crim.App.1984); a moment real 654 S.W. “[flor real — close; 465, also eye eye.” picked ap- 2d Harris (Tex.Crim.App.1983) (opinion 471 on photo reh’g). pellant’s photograph lineup out of a police department, stating conducted The sufficiency ques of the evidence is a always that she “will remember the face appeal tion of law. The issue on is not gun because it was the face that had the prosecu whether we a court believe the trial, my pointed in face.” At Harris iden- tion’s evidence or believe that the defense appellant person tified as the who commit- “outweighs” evidence the State’s evidence. robbery, picked ted the and whom out she. 137, See Wicker 667 143 photo lineup. denied, 892, cert. (Tex.Crim.App.), 469 U.S. 268, (1984). 204 105 S.Ct. 83 L.Ed.2d If Don that he a cus- Shelton testified was guilt there is evidence which establishes night Kroger’s tomer at on the of the rob- doubt, beyond and if trier a reasonable bery entering As question. Shelton was evidence, we are not in fact believes store, he brushed into a man who was position suffi reverse on leaving making pur- evidently without Id. ciency grounds. of the evidence nothing chase. Shelton testified that was man, nothing obstructing his view Palmer testified that he was em- James head, good got he was on the man’s Kroger’s ployed by the Food Store as a person’s min- look at the face. About two robbery. grocery checker on date later, walking utes Shelton toward that, approximately He 12:30 testified when 23, 1985, observed, produce area of the store he heard a.m., he March buzz, meaning doors store, entrance through the two His- entrance coming into the store. Shel- putting on their someone panic males the hoods of Hispanic and saw two “jumpsuits.” Both men came into ton turned around males, guns, walk into the store. One went different store and locations. One checkstand, person Shelton the men came to of the men was the same Palmer’s Crim.App.1978); Sanders v. he entered the store. had brushed into as (Tex.App stand S.W.2d person to the checkout went over — Dallas ref’d); State, 631 S.W.2d pet. no- Lewis v. operated by witness Palmer. Shelton pet.). wearing (Tex.App. Worth ticed that the man was now — Fort Therefore, committed no er up the trial court top sweat over his head. hood of his allowing the three witnesses who display ror The witness ducked behind the testify also appellant at trial to looked out over the identified stand in the store and previous to a identification stand, seeing entire Shelton as error photospread. in a Point of two good opportunity stated that had a robber, nothing was between view the robber, light- and that the himself and the his third good. went to ing was When robber arbitrarily struck contends that stand, directly Shelton looked the checkout minority solely on the basis all veniremen *4 approximately for at the robber’s face race. affirm the trial court’s of their We photospread, minutes. From a Shel- three finding insufficient that the evidence was photograph appellant. of ton identified a purposeful an inference of dis to establish court, appellant in pointed later out Shelton perempto use of crimination State’s “completely that stating that he sure” challenges. ry person who committed this man was the challenges peremptory The used prospective minority ju- strike all of four testimony from these hold that the juror, jury panel. One such rors from the sufficient evidence to witnesses constitutes Gonzalez, was a Mexican-Ameri- Catalina to have trier of fact enable rational two prosecutor female. The offered can ap reasonable doubt that beyond found exercising against her. a strike reasons pellant the crime. See Pichon all, a Seventh First of Mrs. Gonzalez was State, (Tex.Crim.App. 683 422 v. held a Master of Divini- Day Adventist who 1984); 104 Holloway v. 666 S.W.2d degree. prosecutor felt that this ty The Appellant’s first (Tex.Crim.App.1984). her to religious background would cause
point of error is overruled. punishment rehabilitation at favor Second, Mrs. contends, phase trial. Gonzalez in his second of the Appellant appellant’s as the error, in had the same surname the trial court erred point that counsel, prosecu- The Alex Gonzalez. the in-court allowing the State to bolster possible thought it was tor stated that by the three wit appellant identification of position might appellant’s favor testify that she tend to permitting them to nesses surname as his she had the same photosp- of a because picked appellant out they had lawyer. that Appellant contends before trial. read for the trial court unconscionable it was minority remaining members three in- their
permit these witnesses bolster Accord- panel were black. struck from the court identification ing prosecutor, Joe Gilliam impeached. testimony had been their employ- his education struck because State to a might him to hold the lead Bolstering a witness is occurs when him favor higher proof or make burden of unimpeached testi corroborate called to Betty punishment. position on Lyons v. mony of another witness. prosecu- because the was struck (Tex.Crim.App.1965). Richardo 951 388 S.W.2d quality con- job her as a may the wit tor believed Although one else bolster no her to hold the inspector would cause testifying trol in-court identification ness’s proof. The higher burden of the defend State pretrial identification as to a against Jere- his strike witness, bolstering prosecutor based occurs ant kept children she the fact that witness, Irvin on identified a de lene who has when a during swayed might living and be trial, that he identi at also testifies fendant because phase lineup. pretrial in a defendant fied the (Tex. family. 601 had a Wyatt v.
389
86,
been (Nods head MORRIS: VENIREMAN aggravated extreme affirmatively) hand, may be an the other there On And FOR APPELLANT]: [COUNSEL in- robbery people are aggravated where course, very hard for we cannot—it’s ranges you the different jured, so see right a determination now you to make minimum to the punishment from the you you do be- to what would [sic] maximum. heard evidence. you haven’t cause to that is to And all that is asked as anything and therefore heard We haven’t you would be able to consid- asking see whether able to you, he’s to be all that range punishment, not that full you er would be able as to whether decide give it in this case. We you can mini- range whether from one the full to consider this case. Yet know the facts of anywhere don’t the extreme and mum to the full you be able to consider would in between.
range? can do that? Do think Based on VENIREMAN MORRIS: my In—in MORRIS: VENIREMAN given in the I have been information mind, apply only in should a life sentence no, indictment, I couldn’t. bodily injury or loss a severe cases where On FOR APPELLANT]: of life. [COUNSEL given you I have the information that Can FOR APPELLANT]: [COUNSEL information from Mr. Gill? aggra- a situation where you foresee The informa- happen? MORRIS: might VENIREMAN vated *6 indictment. that he read from the tion Yes. MORRIS: VENIREMAN a me does not constitute I—a threat to And FOR APPELLANT]: [COUNSEL life sentence. hap- might where that if in situation FOR APPELLANT]: setting [COUNSEL you perceive yourself pen, could Okay, sir. life sentence? Yes.
VENIREMAN MORRIS: As- FOR Honor, APPELLANT]: I am [COUNSEL Your [PROSECUTOR]: earlier, speaking the indictment as I was question- going object to that line to deadly and use of a does read threats in allegation ing. That is not the weapon. issue has been case. I submit that the earlier, there settled. as I stated to
Now in And varying situations between. are FOR APPELLANT]: [COUNSEL talking about prosecutor ag- has been Honor, allegation is the—the Your type of situation where happens— the minimum gravated robbery. Whatever is no nothing taken and there not there is facts are the facts—the or as to minimum area injured. That is the potential one yet. And so the—the known aggra- any particular hurt in he of no one is to whether juror being asked as is punish- range vated the full could consider given situation which in fact extremes. then the other You take what is weigh might involve more than asking you do is to to What is than And more than —more the other indictment. extremes. On the different isit and—and—because extreme, the actual threat hand, can fore- the other to aggravated rob- very possible that may have been where that see a situation only threat- the defendant case, penalty going to be more where bery that there is deadly weapon. threat, there ened exhibited actual than —than being only a possibility of there is a alleged: against appellant The indictment threat. Defend- hereinafter called Carlos Salazar right. The All Court THE COURT: Tarrant, ant, State County and responses his the chal- heard and has day of aforesaid, or about 23rd lenge is sustained. then and intention- March did there Proceed. Counsel. knowingly, in the course ally while and Note FOR APPELLANT]: [COUNSEL with committing property theft that, exception Your Honor. our and maintain control intent to obtain place threaten and James property, said State, 691 S.W.2d Holloway bodily injury Palmer fear of imminent the Court of (Tex.Crim.App.1984), death, did then and the Defendant that, in Appeals held the absence Criminal weap- deadly use and exhibit a there objection specific to a venireman’s of a on, a firearm. to-wit: comment, excusal, other than the “[n]ote record,” no exception to error is our charged TEX.PE- Appellant under appellate preserved for review. Id. at 612. 29.03(a)(2). sec. On voir NAL CODE ANN. case, spe made appellant In the instant dire, Mor- appellant questioned venireman objection cific the dismissal venireman concerning impose he could ris whether statement, than Morris other “[n]ote penalty maximum had that, exception to Honor.” In his our Your Al- bodily injury or of life. severe loss rehearing, appellant motion for claims that though aggrava- would also constitute discourse with trial court immedi his robbery, ted it refers to different offense ately judge sustained State’s sec. 29.- under TEX.PENAL CODE ANN. Morris, challenge of venireman constituted 03(a)(1). Morris The fact that venireman proper objection. Actually, passage range punishment full could consider the response referred to 29.03(a)(1) him qualify under did not section objection the State’s line of brought to serve in this which was questioning. Appellant’s dire re voir 29.03(a)(2). parts under two section sponse specific cannot be as a construed have different and the statute elements objection ruling yet to a made jurors to have could entitled who challenge court the State’s range consider the full of venireman Morris. At no time did cause trial, is on offense for which defendant appellant specifically object to the excusal not one different elements covered stating, than of venireman Morris other statutory provision. Appel- a different that, exception Your Honor.” “[n]ote point of lant’s fourth error is overruled. *7 preserve to This comment not sufficient point fifth error chal error. id. constitutionality lenges TEX.CODE the (Ver 37.07, 4 art. sec. CRIM.PROC.ANN. Nevertheless, the trial court’s excu- Appellant contends that Supp.1987). non proper light Morris was in sal venireman pur parole instruction on the court’s his answers on dire. Venireman voir sep both the suant to article 37.07 violates that, ultimately Morris in voir dire stated due powers doctrine and the aration of mind, my life sentence a should “[i]n—in in the United process of law clause both apply only bodily in a severe cases where the Constitu Texas States Constitution injury appropriate loss of In an life.” decisions tion. We reaffirm earlier situation, i.e., life or where loss of severe under holding 37.07 constitutional incurred, article bodily injury is venireman Morris State, 719 Spelling v. both clauses. affirmatively that he could con answered 404, Worth (Tex.App. 410 imposing penalty. sider maximum the — Fort 717 pet. However, granted); Patton v. remained adamant venireman Worth (Tex.App. could that he not consider maximum S.W.2d — Fort testimony MR. GILL: You heard the granted). of error five is pet. Point Captain weapon leveled at that the Think about how close we came Collins. point com Appellant’s sixth of error being case to someone killed. in this plains following argument by State going hap- you know it’s what is And during punishment phase of the trial: pen next time. you object And can be dam sure that when We to that as MR. GONZALEZ: n gets penitentiary, being speculative. he out of the it’s longer he’s going to be too much THE COURT: Overruled. gun in his back out on the streets with argument Appellant contends that gun is hand and who knows where that asking improper in that the State was going to next time? be possible future speculate Honor, we ob- MR. GONZALEZ: Your them in crimes of and consider being speculative. ject to that as reaching a decision. THE COURT: Sustained. disagree. argument made.by arguments in in is similar to this case upheld have been as a other cases which MR. GILL: And remember In Deni proper plea enforcement. thought: gets pris- for law That when he out (Tex.Crim. son v. he 651 S.W.2d going on he’s to realize that when argued “I store, up App.1983), the State that submit people do come here robs that you you put him back on the street... testify against him. get you go you better better home yourselves going And ask what Id. at 763. Ramirez gun.” people become of those that witness (Tex.App. he in there — Waco case next time when walks closing in pet.), prosecutor commented weapon. handgun, deadly Ask argument [Appellant] all that after “[i]f going Is to leave yourselves that. did, go man and turn you want to let that hope I we don’t witnesses next time? loose, green you him can turn on I question, that because have answer anybody light being to do that to to his able submitting you proper am if he wants to.” Id. at 733. state, in going punishment in this case is to be a argument instant We hold that the keeps him off proper plea law en case constitutes a great time. streets for a deal of appellant’s sixth forcement and overrule dangerous. big man with He’s He’s a point of error. pistol Again, he forfeit- his hand. brought rights. appel He himself here ed In his seventh Kroger in that the acts he committed lant contends error was admitting following Store. testi trial court Barrons, Tonie a former mony witness you think about how dan- Now when employee Kroger’s: is, to the facts of gerous he think back Barrons, Q. Ms. I believe testified Kroger Think Store. about how than somewhere other planned They worked they must have it out. now; Kroger is that correct? picked when there was a lot of that store money They picked that store there. A. Yes. *8 people few there and
when there were Q. Why Kroger? you did leave employees there few there. when were Honor, Your we MR. GONZALEZ: in the store and This man walked object relevancy of that would as to the they it. checked it out before robbed question. Honor, we ob- MR. GONZALEZ: Your THE COURT: It’s being speculative. to that as ject exception. MR. GONZALEZ: Note our THE COURT: Overruled. BY MR. HASE: Kroger?
Q.
you
When did
leave
only appellant’s twelfth
part
to consider
Day.
May,
Memorial
In
around
A.
point.
Kroger?
Q. Why
did
leave
appellant’s
twelfth
The substance
working me
they
Because
were
A.
court
fun
point is
the trial
nights still
I was still scared
and
punishment phase of
at the
damental error
the
jury
law of
charging
the
on the
by
the
Q.
It was the
that made
CRIM.
parole
required
TEX.CODE
as
nights?
not want
work
(Vernon 1981). Ap
art. 37.07
PROC.ANN.
Right.
A.
points out
article 37.-
pellant correctly
authority, nor can we
Appellant cites no
v.
in Rose
unconstitutonal
07 was held
his claim that such
any,
support
State,
find
69,813, slip op. at TC-87-35-53
No.
inadmissible,
inflammatory,
reh’g
evidence
November
(Tex.Crim.App.,
if an error was com
prejudicial.
disagree
Even
reported).1
(not
We
yet
pending)
admitting
in
this
by the trial court
mitted
case
the
appellant’s contention that
reviewing
testimony,
the
court shall
to the trial court
must be remanded
there
the
unless
is a rea
reverse
hearing.
itself
The record
error”
“harmless
alleged
possibility
the
error
determining
sonable
adequate basis for
provides an
or
contributed
the conviction
affected
instruc
caused
the
the extent of harm
v.
Johnson
the
assessed.
record,
find
we
Having
tion.
reviewed
(Tex.Crim.App.
re
requires
no harm to
81(b)(2).
1983);
er
TEX.R.APP.P.
Such an
versal.
is considered harmless
the minds of
ror
Rose, majority
In
of the
of Crimi-
Court
average jury would not have found the
an
Appeals held that article
violated
nal
37.07
persuasive
significantly less
State’s case
powers
separation
provision
both
had the error not been committed. Haw
of the
and the
course
law clauses
due
(Tex.
kins v.
729-30
though
Texas
the stat-
Constitution. Even
Crim.App.1981).
If
error was
an
commit
however,
unconstitutional,
ute was held
admitting
in
this
ted
trial court
conviction was affirmed because there was
testimony, we hold that such error was
See
appellant.
showing
no
harm to the
seventh Rose, TC-87-35-67,
harmless and overrule
making
n. 9. In
this
point of error.
assessment,
concurring opinions applied
Almanza
two-tiered test
eighth point
In his
(Tex.Crim.App.1984) (opinion
S.W.2d 157
on
alleged prosecutorial
mis-
contends
reh’g).
conduct,
points
as
of in his
complained
objection
In
there was no
this
two, three,
seven, so permeat-
error
six and
parole
good
time
the inclusion of
proceedings
deprive appellant
ed the
as
appropriate
instruction. The absence
previously
fair trial.
have
of a
Since we
review.
objection
the standard of
dictates
points
in these
of error that there was
held
objection,
Inasmuch as there
alleged by appellant,
error
no error
so
error was
look to determine whether the
review,
preserved for
properly
was not
ap-
egregious
such harm that
and created
harmless,
the error was
we overrule
trial —in
pellant
not received
fair
has
eighth point
lant’s
of error.
Almanza,
short, “egregious harm.” Affirmed.
171. theoretical, actual,
minate See id. at 174.
harm accused.
The record reflects
placed adjudication probation on deferred previous felony case. The for
in a offense was,
which was tried instant case evidence,
as shown committed five placed probation. Dur-
days being after argument placed heavy
ing em- for a
phasis on both these facts asked
long Neither the nor the sentence. parole in their ar-
defense ever mentioned arguments, the
guments. spite of these forty decided on possible
years out of a maxi- confinement ninety-nine years.
mum of record, say
Based on we cannot egregious harm un- instruction caused
der standard. We Rose/Almanza
therefore overrule twelfth
of error. rehearing motion for
Appellant’s second
is overruled. JACKSON, Appellant,
Joe William Texas, Appellee.
The STATE of
No. 01-87-0080-CR. Texas, Appeals of
Court of (1st Dist.).
Houston 19, 1987.
Nov.
Rehearing Denied Jan. Frankoff, Houston,
Richard lant. Holmes, Jr., County Dist.
John B. Harris Cochran, Jr., Atty., Perry Winston E. McCollum, County Dist. At- Harris Asst. Houston, tys., appellee.