*1 give appellant if he did not money is not be killed had refused to hand over the any bodily injury money, record is devoid of evidence threat of sufficient to show a imminently. placed in of imminent or death inflicted fear to be that he was knowing by any intentional or bodily injury of any of evidence Besides the absence appellant, required by as Cran of conduct bodily injury of imminent on overt threats State, supra. v. 16, January nothing in the ford there is likewise appellant had acted record to indicate that myriad Thus, of despite the instances place of way in such a as to him fear record, there harm in this threats of future practice In the commenta- imminent harm. any evidence of simply is insufficient robbery provision, to the current ry injury or death bodily imminent threat of 29.02, supra, note that is essen- authors § 29.02(a)(1), supra. The required § statute, robbery tially prior the same as the prove appellant is insufficient to Ann.P.C., 1408, as it “re- art. Vernon’s beyond doubt. There- a reasonable the art. 1408 elements with some states fore, appeals of court of judgment law, prior expansion[,]” “[a]s is remanded to is reversed and the cause violence used or threatened must be for acquittal. entry court for the trial compelling acquiescence to the purpose of 1408, supra, former art. theft.” Under WHITE, J., in the result. concurs has to constitute the crime held “that Court P.J., McCORMICK, and DUNCAN and violence, or in- there must be robbery, BERCHELMANN, JJ., dissent. in- timidation such character that jured put v. party is in fear.” Cranford “The fear arise supra 958. must however,
from the conduct accused temperamental ti- rather than mere (empha- midity victim.” at 959 Id. added). reasonably mayWe conclude
sis
that, pur- former as under art. 29.02,
poses supra, some conduct § Lamar Vernon necessary to part perpetrator is WHITE, Appellant, place complainant in SATTIE fear. case, although upon relied Cranford below, easily by majority the court Texas, Appellee. The STATE distinguishable the case at bar. No. 69763. There, the defendant “moved hand pocket in such a manner as his back Texas, Appeals Criminal Court of believe prosecuting cause the witness to En Banc. possession pistol, of a and thus Oct. 1989. Here, as justified.” Id. at 959. fear observes, cogently Justice McCraw Rehearing “[t]he 1990. Denied March any act testify did overt complainant There is no evidence appellant. on the occa carrying gun appellant was threatening question, that she made
sion told purse, or that she with her
movements carrying a complainant she was testimony time. Nor there
gun at that way intentionally or she in other in fear of imminent
knowingly placed him through her at the injury conduct
bodily State, supra, dissent
meeting.” Devine Although Cox testified 4-5.
ing opinion at believed he would afraid and he was *2 arm, Weiner, ap- her grabbed R. court and held appointed David Antonio, peal only, appellant. position for headlock with his arm San wrapped her neck. around Rodriguez, Atty., Fred G. Dist. Edward pistol, took displayed a .22 calibre as he III, Harris, Bill Karen Shaughnessy, F. building. Mingo fol- around the Sorrell Antonio, Amos, Attys., Dist. Asst. San sight but appellant and Sorrell lost lowed Austin, Huttash, Atty., State’s Robert *3 help of- sought in some of them when he the State. up Mingo caught on Main fices Street. again appellant had taken with them after and two were around the corner the Sorrell OPINION in tried to standing parking Mingo lot. appellant reason with the to release DAVIS, Judge. W.C. deceased, holding but continued Appeal from a is taken conviction arm neck. the deceased with his around her Penal Code murder. V.T.C.A. Appellant jerked Sorrell off 19.03(a)(2). finding appellant After § in head. ground and shot her twice an- guilty, returned affirmative result two The deceased died as a of the special to under swers the first two issues head. gunshot wounds to her 37.071(b), Art. Punishment was V.A.C.C.P. that after shoot- Witnesses testified Appellant seven assessed at death. raises deceased, ing appellant by the knelt down points of will affirm. error. We off, placed gun his shirt and twice tore dispose appel- In order to several fleeing head the scene own before error, points of the lant’s recitation San the direction of the river. Several necessary.1 trial is facts disclosed at concerning police testified Antonio officers against appellant alleges in indictment filed apprehension appellant. Appellant that, pertinent part holding standing by the was observed river A.D., day JUNE, on or the 19th about attempting fire gun to his and head 1986, VERNON LAMAR SATTIEW- gun sur- without success. HITE, defendant, hereinafter called did by rendered when confronted the officers. intentionally then and there cause the station, police At his arrest and later at individual, namely: death of SAN- emotionally up- crying and SORRELL, DRA called com- hereinafter set. plainant, by THE SAID SHOOTING Mingo, Jr., Willington Damian FIREARM, COMPLAINANT WITH A He key the State’s case-in-chief. witness HANDGUN, A said TO-WIT: and the had met Sandra testified that he Sorrell did then and there intentional- School, American Careers and the two ly complain- cause the death said girlfriend. He and boyfriend had become committing in the course ant while that he was love with Sorrell testified attempting to commit the offense anyone else since he had and had not dated upon THE COM- KIDNAPPING SAID dating begun her. PLAINANT; ... Mingo, morning morning shooting, On the The record reflects Gary rode deceased, and their friend Harris Sor- Sorrell of June Sandra school, rell, city located at 410 S. boyfriend, Willington Damian the bus her Jr., Heritage The three were Mingo, walking Main at Plaza. on Main Street were Careers, walking front entrance to toward the San Antonio toward American by ap- they approached nursing they were school when were aide school which he to talk Mingo Appellant said wanted pellant. As Sorrell both enrolled. reason school, Mingo tried to with they approached to Sorrell. neared the Ap- appellant displayed appellant, but boyfriend. former appellant, Sorrell’s Harris call the gun. Mingo whispered to to Sorrell pellant talk said wanted facts. liberally appellant's reci- tation of from the We borrow 1.
police. Appellant “grabbed lowing Mingo deceased the first incident. had ac- up the arm and companied again apartment took her under one of Sorrell neck, his arms and held her around her to retrieve some clean clothes for Sorrell took building.” incident, her around the As and her children. As in the first corner, lant Mingo appellant shotgun took Sorrell around the held a to Sorrell’s head unsuccessfully help tried to retrieve his arm with around neck and told nearby some Mingo law offices. He then followed or he leave would “blow her lot, nearby parking to a where out.” brains Mingo parking asked the lot attendant Gary Harris testified that he was a stu- police. call the dent at American Careers at the time Min- continued, go
As the confrontation Sorrell and Sorrell attended classes there. He whimpering “hollering”, Mingo still held had ridden the with bus and the tightly appellant’s grip, morning within deceased the of the offense. As *4 gun Appellant they approached held to her head. told Min- the front to entrance the her, go [appellant] school, if he appellant ap- couldn’t have “ain’t confronted Sorrell and nobody gonna peared angry.” else have her.” “a little Harris then con- school, tinued into the was “called but During time, another man tried to by Mingo police. back” and told to call the up appellant, come behind ceased the but police. Harris went inside and called the him, attempt appellant “[s]tay when told Chevera, you you, Ap- Tommy where are or I’ll shoot too.” Officers Alberto Mar- tin, pellant jerked Ralph Santos, Looney, Felipe then the deceased off the and ground her Department, and shot twice the head. the San Antonio Police each ground, ap- essentially After the deceased fell to the testified to same facts.
pellant palm morning duty raised the of her hand and officers were on of June Appellant pulse. briefly checked for a and were called to the scene of himself, deceased, gun put shooting. They turned the it down and observed the away Mingo bleeding, being by Mingo. walked scene. shot and held stayed body police caught up appellant with the until the ar- The officers on with rived. the east bank of the river. He was stand- gun in some bushes with the held to his Mingo explained prior to the shoot- trig- they pull head and observed him ing, appellant, difficulties Sorrell had with ger Appellant times. would “take several days prior her former roommate. Ten down, gun open up, appearing shooting, appellant at her called Sorrell something, repair put it or and it back she mother’s house and told Sorrell that (sic) together try and still and to fire it money. owed him some Sorrell wanted more”. some Mingo accompany apartment her to the officers, Upon being appellant, that she had shared with in order confronted money. appellant did so and came out of the bushes with his to return the He waited waiting, up he hands and was advised the officers outside the car. As was attention, Appellant complied and was passerby caught Mingo’s and he to lie down. related up appellant his arm handcuffed and searched. Chevera looked to see with time, appeared gauge appellant shot- that at this dis- around Sorrell’s neck and a .12 asked, Mingo my baby?”, gun to her head. was told to leave turbed and “[w]here’s repeating Ap- and over. appellant “blow her brains out.” over area, police. pellant rights of his and taken leaving After he called the was advised minutes, police homocide office. waiting approximately After ten he mother’s house and drove to Sorrell’s station, passed the police At the Martin and she called told her the situation about hallway noted that appellant in the and police. appellant appeared crying. Approxi- to be mately 15 to 20 minutes after encoun- Mingo recalled a second violent arrest, Sorrell, Looney appellant saw Officer also and occur- ter between Looney stated that office. days fol- at the homicide ring four to five approximately “emotionally crying” then a friend his in the upset, Tillotson noticed was His behavior “er- parking “I lot. friend’s was hope and asked officer she’s “something Tillotson knew must be right?” Is ratic.” dead. she all way.” for him He going on to behave Jagge Officer Antonio T.J. San closer to the window have bet- moved re- Department testified he is Police activity outside. ter view preserva- sponsible for the collection and she in a headlock and had the deceased scenes. physical tion of evidence of crime struggling. Appellant's appeared to be to the scene of He was also called high. testi- up held Tillotson free arm was scene, shooting. crime Jagee secured the he couple, he fied that as watched investigator diagrams had the made po- for the emergency number dialed Jagge as to photographs. take testified following: lice. He related the body the location of the deceased’s based [T]hey moving, still he was ... diagrams testified on his of the scene. He her, moving stopped and he for a further as the location the river bank moment, struggling, he she was and then apprehended where her, kind of over with hunched .22 revolver discovered. calibre back, up, he arched his then raised her cartridges car- spent Two .22 and one live rapid two shots in there were tridge gun.- inside were found succession, maybe just guess about that on the Willard E. Miller testified apart. second morning of as a the offense was at work his hold and carried Appellant continued Heritage His security guard Plaza. *5 deceased the corner laid the the duty guard parking was the lots and to the He knelt down for down on sidewalk. guardshack building. post locat- His was up seconds then stood and a few and the parking ed in one the lots near people in the direction of the that looked building. post morning, Mil- From his parking point in lot. At the were appellant the the cor- ler saw walk around gun appellant’s in hand. saw the Tillotson posi- ner with the deceased a headlock directly had it at his own Appellant pointed slightly girl up tion. The had her hands gun, He lowered the knelt beside head. way her the over head. On his down to call deceased, “fairly his shirt off the and tore police, appellant the shoot the Miller saw up roughly.” pointed He stood and testified, walking “I deceased. He and was gun again, to his looked around the head her, watching him, holding and he was and slowly the more and across some walked shots, up speeded I heard two that’s Iwhen street, running began through park- and an police, just down to call the and I called of the river. Once ing lot to the other side I ambulance was there. When while arrived, gave police police Tillotson the the back, police came the ambulance and the accompanied them to his name and later (sic) girl They both there. had the was police the station. (sic) next to laying over sidewalk Castillo, of the Coun- director Bexar Joe gun- Dwyer Miller said the Street....” Center, way on his to ty Mediation was right It was shot was “almost blank. building Heritage Plaza work Immediately the shoot- her face.” after at parking He morning of the was offense. onlookers, gun ing, appellant pointed the building in the lot next to the when his car around,” “waving if he were gun got his people He out of yelling. he heard away onlookers to trying get back the corner to see looked around car and him. from saw the creating the noise. He what was architect, Tillotson, away ap- testified struggling get an Steve deceased Heri- protests. in his office in he was at work Castillo pellant and heard shooting. morning gun tage Plaza of the he saw exhibit stated walking subsequently kill Sorrell. couple by his window and He noticed a the crowd clothing way they tore and at one thought unusual the his it was gun to his head. Castillo impression put own walking. His were appellant so followed fun.” man then just “having some another they were going. During punishment phase appel- they could see where he was Short- thereafter, following trial the in- ly police lant’s evidence was arrived. per- by troduced the State an effort Stengel Richard testified he the fire- special pun- suade the answer arms and tool mark examiner for the Bexar affirmatively. ishment issues At the out- County Regional Through Lab. Crime set, Frausto, Raymond police L. officer testing, Stengel conclusively could deter- Antonio, city of testified he was for the San particular handgun mine fired or whether fingerprint department. classifier for the attempted casing. Stengel fire a exam- appellant’s prints He stated the found weapon from the scene of ined the taken prints pen packets matched tak- crime, revolver, deter- a .22 calibre morning. pen packets revealed en that weapon did mined that fire the two previously convict- had been cartridge spent cases also found at robbery, Penal Code ed V.T.C.A. cartridge struck at scene. The live 29.02(a)(1), 1983, murder, V.T.C.A. § firing by pin least 14 times 19.02, in 1976. Penal Code § go weapon, but did not off. The bullets police officers Harold Schott San Antonio body retrieved from the deceased they Roger testified were W. McGehee DiMaio, Medical Examiner Dr. the Chief reputation the character and familiar with County, for Bexar were also tested appellant. Schott characterized Stengel. Stengel found that bullets “dangerous person” as a and “a bad lant fired from the .22 revolver. opinion dude to mess with.” McGehee’s autopsy performed Dr. DiMaio on being a appellant’s reputation was that for approximately deceased at 10:00 a.m. peaceful abiding and law citizen was bad. autopsy morning of the offense. The Lydia Mesquiti testified that as a social external and internal exami- included both in the Mental Health Unit for the worker two bullets nations. DiMaio removed Be- Psychiatric Department at the Medical region lodged right front Jail, County she had the occasion xar Stengel gave them to deceased’s brain and Upon his at the appellant. observe arrival gun- testing. The doctor testified the quite county jail, she found to be *6 inflicted from a distance shot wounds were lying underneath his bunk and hysterical, analyzing In of less than two feet. baby?” saying, “[wjhere’s my She he was of the gunshot residue on the back both get any information from was unable to hands, concluded that deceased’s the doctor appellant. of the deceased’s hands were the backs Roach, physician a assistant at Delias L. gun muzzle of the at the time towards the County testified he observed the Bexar Jail opinion, weapon fired. In DiMaio’s was floor, appellant rolling about on the sob- gun- a result of two Sorrell died as Sandra that bing. Roach had noted in his records Her death was to the head. shot wounds high potential appel- for there was a suicide instantaneous. lant. brother-in-law, Brown, appellant’s John M.D., Garcia, psychia- Dr. Ceasar A. by appellant gun used was testified the patients in the Bexar Coun- trist who treats January gun purchased by Brown same Jail, had appellant. Garcia ty evaluated Brown June of 1986. visited appellant tearful and had noted that was thereafter, Brown 1986. At some said, my “I killed wife. don’t remember.” missing. gun was discovered the day appellant the next The doctor examined him calmer. He further and found much case-in- the close of the State’s After appellant exhibited several offering any noted that chief, appellant closed without personality the criteria for an antisocial trial court testimony. or The disorder, is, problems to personality that instructed motion for appellant’s overruled appellant dysfunctional. point that was deliberating approximately After verdict. suffering Appellant claimed to have been hours, appellant jury found hearing over the voices from blackouts murder of Sandra Sorrell. capital so, you must be convinced be- think previous three to four months. The doctor but in order to yond any reasonable doubt previous su- also stated claimed questions or both answer either attempts. icide affirmative, yes. if Only all Fields, deceased, Lilian the mother evidence, and believe, upon the based testified she a letter from received beyond they’re a reasonable convinced jury. In the lant. It was viewed that defendant’s conduct doubt that the he sorry told Fields how letter was death of deceased caused the that he had loved Sandra Sorrell. rea- deliberately and with committed regarded testified that she the letter Fields expectation that the death sonable as an insult. occur, if all 12 have been deceased would sisters, appellant’s Betty Jean Two beyond any reasonable convinced of Jackson, Joyce testified Sattiewhite and doubt, yes. answer re- parents both dead and that their beyond any If 12 are convinced all spare appellant’s life. quested jury to probabil- that there is reasonable doubt aunt, Hedspeth, Beatrice told Appellant’s ity commit would his jury she had raised con- criminal acts of violence that would and sisters and also asked seven brothers if continuing society, threat stitute a spare appellant. beyond everyone is convinced Dickerson, psychologist, Windell doubt, the would be reasonable answer mental for the Texas chief health officer yes. Department of four Corrections over Now, may ques- either you answer
years. He discussed the various factors unanimous, you yes it is tion unless an individual predicting whether may any issue no unless 10 not answer commit acts of future violence. Dickerson agree. or jurors more expressed pun- own reservations how words, complete In other have a gen- ishment is assessed in cases in verdict, judg- will sustain a verdict eral. sentence, if the are ment and answers two, both, or those yes to or one calling After witnesses to the the above If one or must be unanimous. answers stand, appellant in- closed. no, they can more is answered of them arguments of coun- structed heard you only no at least 10 of be answered panel sel. The deliberated and returned answer is no. You agreed have special issues affirmative answers to both don’t need a unanimous decision submitted. you yes. answer no like do to answer error, answer only You need 10 more to overruling erred in asserts the trial court nine who you no. have conclude *7 If The his motion for mistrial. motion was no, be answer should answered court’s action in inform trial based should be answer- three who concluded jury the the panel the effect of yes, be answered. And ed it cannot if agree special jury’s failure to on issues way one or the be answered cannot phase at the of the submitted other, affirmatively or with either trial. no, it should be answered agreeing that pan- general to the venire In his remarks hung jury, a mistrial. we have another sentencing el, discussed the the trial court a that sustain a verdict can So have princi- and the case procedure a sentence, more to or 10 or judgment dealing special issues. In the the ples no, answer or unanimous to answer the trial court explanation, of this course may an- yes. Question number one be following: the may stated be no; number question two swered Amos, may Texas, one yes; Ms. number Now, answered the State may two answered beyond yes; be submitted be answered issue prove must each no; may no; they be both they may both doubt, just preponder- not reasonable But any combination thereof. evidence, yes; or I or just maybe, of the ance unanimous; readily apparent that the App.1981). It is yes, to be it must be to be stating hung no, by that a trial court erred 10 or more. from fail jury mistrial would result and a any questions pro- Are we there before Art. agree any issue submitted. ure to general by ceed remarks with the 37.071(g), supra. attorneys? if Let’s see we can take region. Beginning through by them one erred does finding A that the trial court Any general questions 12. at this inquiry. We must now assess not end our may to answer for that the Court be able harm, any, occurred from the which with the law or you, whether it has to do 81(b)(2). assessing Tex.R.App.P. In error. one, personal This is number matter? from comments whether harm resulted added) (emphasis correct? re during process, dire made the voir in its viewing must the voir dire court view questions of the Prospective jurors asked entirety. Evert gener- Cf. and the court made some trial court (Tex.Cr.App.1978). regarding applicable law. al remarks remarks, opening Before the State made its reading the record does not A careful hear trial court retired to chambers to appellant. After any reflect harm to The objection from defense counsel. motion for mistrial was overruled lant’s following objection: appellant voiced the court, mention no further Further, any Honor, the made of the misstatement. Mr. Your comes now Griffin: sufficiently Sattiewhite, jury defendant, in cham- misstatement Vernon charge trial court’s following objection. attenuated makes the bers and court ex- punishment phase. The trial The court the Texas Code violated Procedure, plained: Article 37.071 Sec- Criminal to reach a (g), tion where it was unable proof phase of the this The burden special any of the issues
verdict as to upon the and never trial still rests State case, hung there would be Special shifts to the defendant. Each and a mistrial. We believe jury proved by the must be Issue submitted jury, potential jurors, informs the beyond a reasonable doubt. State failure to the effect of that the effect as spe- jury for the to answer order agree issue sub- jury on an unani- ‘yes’ jurors must cial issue article, respectful- under this mitted ‘yes’ that the answer mously concur a mis- to declare ly ask that Court regarding doubt beyond a reasonable trial. special issue. appellant’s re- The trial court overruled entertains a reasonable Any juror who upon this viola- quest ‘yes’ for a mistrial based as to a that the answer doubt jury tion. vote ‘no’ special issue shall regarding special is- deliberations 37.071(g) Code of Criminal Article of the jurors more vote ‘no’ If ten or sue. provides: Procedure special is- as to a jury deliberations state, court, attorney for the is ‘no’ sue, then the answer may not attorney for the special issue. regarding that juror of prospective or a juror inform a Special Issue on which there is agree the effect of failure If is not unani- jurors vote under this article. on an issue submitted (10) in at least ten mously ‘yes’or not *8 only court not the trial Appellant submits ’ ‘No, then there answer favor of also would be but the effect stated what Is- special no answer that shall be We jury of the effect. misinformed the sign not should and the sue foreman point of error specific only will address Spe- that any to answer his name objection at proper preserved by the Issue, added) (emphasis cial is, court in court, the trial that trial that jury Moreover, that we must assume of the failure the effect jury of formed the by as directed itself issue. conducted agree on an to jurors State, 741 S.W.2d v. (Tex.Cr. court. Marras Williams is no juror on this because there (Tex.Cr.App.1987). jury The did not exhibit burden deliberately. reaching legal definition for any confusion in a unanimous ver- correspondence dict. There was no be- asking I’m him for MR. GRIFFIN: jury during tween the and the trial court one, Judge. jury’s punishment. deliberations at Well, asking he’s if he AMOS: MS. Therefore, in applying presumption difference, putting and I think it’s sees a directed, that the conducted itself as juror to answer an undue burden questions we find that the were answered question. that a unanimous which was satisfied question, that MR. GRIFFIN: Just proof beyond a with the State’s reasonable there one— Accordingly, doubt. we hold that the trial THE COURT: Overruled. pun- court’s error did not contribute to I don’t see much A. Cowswert] [Juror beyond ishment verdict a reasonable doubt. intentional and delib- difference between 81(b)(2),supra. Mallory Rule things, provided, sup- I erate. You do (Tex.Cr.App.1988). Appellant’s S.W.2d 566 act, pose, voluntary you know. it’s of error is overruled. things deliberately, you go get You do water, you go over there inten- a drink of ap In his second of error the tionally deliberately get a drink of pellant contends that the trial court erred Now, got gun somebody’s water. overruling challenge for cause to something your making you head and do Cowswert, venireman Paul shown who was different, you if quite that’s a bit but disqualified juror to be as a due to his intentionally deliberately do some- inability guilt to reconsider mean, thing, you’ve done it. particular special context of the first issue Q. that, right. again, you All fol- So punishment phase. at the along you’ve already low with me that juror The record reveals that Cowswert ju- you decided that and the other he’s— was confused as to the distinction between intentionally life rors—that he took the “deliberately” “intentionally.” ju- Sorrell, you of Sandra how would answer initially responded ror that the two words one? number However, thing meant the same him. Honor, going MS. Your I’m AMOS: lengthy questioning after a by the object certainly That’s an im- to that. court, juror the defense and the trial proper question. You can’t ask someone stated could follow the law. something they’re going to vote on how Q. The bifurcated trial [Mr. Griffin] they’ve heard evidence. before you mentioned before is divided into THE COURT: Sustained. parts. part, you two The first decide QUESTIONS BY MR. GRIFFIN: questions these of whether the intention case, Q. any particular not to there, whether the defendant inten- case, any facts of this but in case where Sorrell, tionally took the life of Sandra you defendant in- have decided you will be—assume with me that individual, tentionally took the life of an that, jury’s you have done and that the you you believe—then would be would committed decided that able then to see the difference between murder, intentionally did all that that, you just have found and what what and caused the death and the rest of it. you be asked to find Then, guilt phase, you’d asked at the number one? questions. these The first one to answer A. I don’t see difference. you just read. Q. So— you
Do see a difference between that Deliberately intentionally. A. It’s question and the definition of intentional thing. basically the same me is you’ve got you? in front of Q. your definition is? That’s what Honor, going Your I'm MS. AMOS: *9 puts heavy this time. A. Yes. object at It that, walking pretty you’re but
Q. Logically, you would have to auto- do yes? matically answer number one line.- fine Q. very, very fine line. That’s A. Yes. It is a it, why difficulty with obviously we have Honor, MR. GRIFFIN: Your we’d ob- reason, it’s there it’s there for a and but then, ject, juror for or ask the be excused again, only it’s there to to consider and automatically that reason that he would phase during consider one question find the answer to number separate from apart, It is it is the trial. without evidence or to be affirmative guilt/innocence was found what contrary. any testimony to the As a trial, act. as far as intentional part of the have, logic, by the force of his he would individual, go that he holds as an a little further you definitions Now must bit act, question yes. pur- pick up have to answer that to act and a deliberate poseful, thought. says THE What the State? COURT: you you tell us that would not Can May inquire? I MS. AMOS: QUESTIONS BY would have the law is A. that there? A. pret A. don’t think can be sustained reason doing sonable tation. And then intentional Q. which Q. Q. —deliberate. Q. somewhere in-between MR. THE [*] Well, Do Well, I’m not I’m sure there is a reason. I also talked about or how that, would be GRIFFIN: you agree why COURT: person that our [*] let’s that’s very complicated. giving you you a reason or rationale for say MS. I way [*] your definition. Sure. look legislature with me that there’s a object That’s a that’s how AMOS: up [*] there is— a definition. here. to that. it. pre-meditation logic by any rea- [*] legislature you inter- here, and Premedi- I mean, [*] put I QUESTIONS BY QUESTIONS BY MS. AMOS: A. Yes. sion. only A. A. do it Judge. The venireman’s have there? Q. And then deliberate? Q. the law? or no until ed that Q. automatically answer this questions would be trial THE THE COÚRT: Overruled. MR. GRIFFIN: And I’ve done it Can Yes, then be able again. over, COURT: question you follow the instructions then deliberate and then and I could wait until the end of the trial when the you MS. before, yes. Let me see what know, to answer these That’s given AMOS: I to make a already answer- argumentative, guess question yes you? I could ques- deci- you tions. THE Overruled. Proceed. COURT: mean, going I’m not A. I Yes. QUESTIONS BY MS. AMOS: any predetermined decision until make there, juror can- Q. And it’s because evidence. I all the hear facts automatically answer that you. Thank MS. AMOS: happened of what just because [Emphasis phase of the trial. He guilt/innocence added] again again, look consider
must trial court analyzing whether only question. then and then answer cause, challenge we properly denied Well, overlap much. they to me so A. record; we a cold therefore are faced with very, very Q. overlap. judge It’s a who was They give do deference to the gauge accurately position fine distinction. to more v. demeanor. Holland the venireman’s know, Well, the evidence de- you A. (Tex.Cr.App.1988); court, 761 S.W.2d presented in pends on what’s if (Tex. distinction, Livingston you can make you State, 693 there, Cr.App.1987); Franklin know, suppose I could it was *10 281 appel error the denied, In his third (Tex.Cr.App.1985), 420 S.W.2d cert. 1031, erred in overrul 1238, the trial court
475 U.S.
106 S.Ct.
89 L.Ed.2d lant asserts
State,
challenge
venireperson
(1986);
ing his
for cause
346
Bird v.
692
65
S.W.2d
improperly in
denied,
475
Barbara Lamm who
(Tex.Cr.App.1985), cert.
U.S.
appellant would
1031, 106
1238,
(1986).
by the
This rule is ty assessed. seemingly equivocating respons faced with Holland, supra, at 318.
es.
the fol-
During
proceedings,
dire
the voir
place:
lowing exchange took
apparent
record
readily
It is
from the
equivocat
juror
that the
was confused
you
Q.
Should
[By defense counsel]
However, appellant is
responses.
in his
guilty
decide that
the defendant
equivocation
equating confusion and
with
murder,
only thing you can
capital
inablility
to follow the law.
an
gets
death.
life or
decide whether
State,
sponsibility for
erred in over
that the trial court
death,
of error
in contravention
ateness of
to the admission
ruling
objection
heightened standard
Eighth Amendment’s
misconduct commit
offenses or
extraneous
reliability in the determination
Ap
appellant against the deceased.
in a
ted
appropriate
death is the
testimony elicted from
complains of
pellant
S.Ct. at 2647.
Id. at
specific case.
during the
Mingo
Willington
holding in the Damian
that the
concedes
concerning previous
phase
guilt/innocence
limited to
specifically
case
Caldwell
that this evidence
note at the outset
between the deceased We
violent encounters
apellant.
presence of
initially heard outside the
and the trial court sustained
ante, Mingo
As discussed
testified
Later,
objection.
the testi-
specific
lant’s
approximately
days prior
ten
to the fatal
mony
again
jury.
introduced before
shooting,
accompanied
the deceased
apartment
apparent
so she could return some
that at this
in the trial
It is
arriving
money
appellant. Upon
at the
court,
defense
and the
the trial
upstairs
deceased
apartment,
went
Mingo’s
of the content of
were all aware
Mingo
ap-
in the car. After
while
waited
testi-
though
prejudicial
no
testimony even
*12
minutes,
forty-five
appellant
proximately
the time of the
mony had been elicited at
A
appeared
passerby
in the window.
objection.
objection
The second
second
Mingo’s
stopped
get
to
attention so that
appellant
granted a
was overruled and
was
up
up.
Mingo
look
When
looked
to
would
“running
testi-
objection” to the admitted
window,
appellant
he saw
his arm
with
concerning
of
mony
the extraneous acts
shotgun
around the deceased’s neck and a
misconduct.
Mingo
Appellant
to her head.
told
complain
appellate
order to
left,
Mingo
appellant
unless
“blow
admitting
that the trial court erred in
level
Mingo
immediately
her
left
brains out.”
lodge
testimony,
certain
the accused must
police.
and went to call the
timely objection
testimony.
to
by
A related incident was also recalled
(Tex.Cr.App.1987),
State,
Thompson v.
App.1983). tionship existing between condition of the victim and to show the test, prong As the to the the appellant’s mind at the time offense. elicited evidence the instant case reflects V.T.C.A., Code 19.06. Penal § the had tumultu- deceased a relationship terror- Accordingly, ous which we hold that the admitted deceased, finally on issues other ized and threatened the evidence reflects material during testimony. ally promote orderly progression Dr. We the of the tri- made Stafford’s attorney objection proposi- support law an to a line found no in the case for a al. When an has witness, disrup- testimony running objection particular a it is tion a a from often judge preserve him to the error whenever that mat- tive for the trial to force make matter would trial, objection opposing brought up again question in the and re- same after each ter was brought just attorney gardless up what the can the what or counsel so that receive witness brought ruling judge preserve up. We such a the time it was stated that same from fact, satisfied, is, doctrine, preserva- long conflict with as Rule error. As 52 is propo- objection long running tion error doctrines that stand for the constituted a time- as the grounds ly objection, stating specific "error evidence is the sition that in admission of the for in else- ruling, cured when the same evidence comes desired the court to make the movement objection, (if specific grounds apparent where and that defendant without the not the every alleged object running objection) must time the inadmissible then the the context of the omitted)”. (citations is offered preserved be deemed an error should late Procedure, court. Appellate Under the Rules of proposition What stands for is Goodman Goodman, 52(a) quite adopted Rule states since lodges running objec- an who a advocate that, clearly pains sure not make it does tion should take preserve complaint appellate In order to a subject encompass broad a matter review, too reach presented party have a must too a different witness- over broad time or over objection timely request, mo- a trial court 52(a) complied But tion, Rule must be with. es. stating specific grounds rul- for the running objection, are specific there situations where to make if the he desired court express permission of the trial made with the grounds apparent context. were not from the so, rules, judge, only so more "pot does but does much promulgating we no these took disruptive appropriately running objections in certain than redundant because shots” at trial) (to orderly of individual legitimate A flow of series they function. have a situations running objection, instances, objections. will actu- in some than appellant’s Robinson, character. proving su- burden the absence of sud- pra. passion paragraph charge den applying the law of murder to the
Second, we must determine whether the charged court facts of case. The trial probative outweighed value the prejudicial following manner: effect of the evidence. Robinson Plante, both factors used probative
measure the value of extraneous V. similarity offenses include the between prior act and the offense charged, Now, you find from the evidence be- closeness time of extraneous transac- yond a reasonable that on or about doubt offense, charged tion avail- and the June, A.D., day the 19th in Be- ability proof. of alternative sources of County, Texas, defendant, xar Ver- Robinson, supra, 898. Sattiewhite, non did intentionally Lamar case, individual, In the appellant’s prior namely: instant con- cause the death of an threatening duct of Sorrell, while by shooting deceased Sandra said San- holding gun to her head twice firearm, occurred to-wit; dra Sorrell with a prior shooting. The events occurred handgun and the said defendant did in- shooting days within few tentionally cause the death of the said reflect ongoing course of violent con- Sorrell Sandra while in the course of by any provocation duct not caused committing and attempting to commit part of the deceased. Since the victim is of kidnapping upon the offense the said dead, Mingo is the witness closest Sorrell, you Sandra will find the actual events who could accurately most of capital murder as *14 relationship recall the appellant between charged in the indictment. the deceased. Without this evidence you beyond Unless so find a reason- regarding prior conduct toward you or if able doubt a have reasonable deceased, the the would have left been thereof, you doubt will find the defen- regarding a void prior with the relation- murder, guilty capital dant not of ship. Accordingly, support these factors next consider whether the defendant is probative the overwhelming the value of guilty of murder. admitted evidence. Prejudice is inherent in the use of extra- neous prejudice offenses. This can be less- VI. by introducing ened the evidence as a you if Now find from the evidence transaction rather than as a criminal of- beyond a reasonable doubt on or Mingo’s fense. testimony suggest did not June, A.D., day 19th about the of in appellant had faced civil or criminal County, Texas, defendant, Bexar the liability offenses, for the extraneous Sattiewhite, Lamar did Vernon intention- merely regard- related factual information ally individual, the an cause death of ing Moreover, the relationship. Sorrell, by namely; shooting Sandra the requested limiting never an instruction the firearm, said Sorrell a Sandra to-
jury’s use of Though the evidence. some handgun, defendant, wit: a the prejudice apparent, is over- the acting, acting in so was not under the whelming probative value out- greatly weighs any passion prejudicial effect. hold immediate influence of sudden We cause, the properly extraneous acts were ad- arising adequate you an then Robinson, mitted. Appellant’s guilty will the of find defendant murder.
fourth of error is overruled. believe, you you If do not so or if have thereof, you a reasonable doubt will find in his contends fifth guilty the of defendant murder and charge of error that the trial court’s the fundamentally you next the jury was defective due to will consider whether defen- upon place prosecution guilty manslaughter. voluntary the failure to the dant is (Tex.Cr.App.1985) we Cobarru overruled
VII.
bio,
the
it held that the
supra, to
extent
you
beyond
If
find
from the evidence
charge in
failure of the trial court to
ac
on or
the
reasonable doubt that
about
Cobarrubio, supra, consti
cordance with
A.D.,
June,
day of
19th
in Bexar
Instead, “Cobar-
tuted fundamental error.
defendant,
Texas,
County,
Vernon
light
must
rubio error”
be reviewed
Sattiewhite,
intentionally
did
Lamar
holding
Almanza
individual, namely:
the death
cause
of an
(Tex.Cr.App.1985).
In
Alman
Sorrell,
shooting the
said San-
Sandra
za,
the con
supra, this Court abandoned
firearm,
to-wit;
dra Sorrell with a
cept
defendant,
of fundamental error
handgun, but that the
Vernon
Sattiewhite,
doing,
charge
adopted two-part
act-
instead
test
Lamar
so
allegations
influence of
examining
under
immediate
to be used in
passion arising
adequate
from an
sudden
jury charge
step
error.
is to
The
cause,
you
ifor
have a reasonable doubt
charge
determine if the
contains error.
act,
defendant, if he
so
as to whether
did
objection
if
Secondly,
there
adequate
so under
immediate
did
error,
only if
reversal is mandated
then
cause,
you
will find
defendant
record
the error
some actual
reveals
caused
manslaughter.
voluntary
made,
objection
harm.
no
Where
you
if
you
If
do not
have
so believe
egre
actual
burden is on
to show
thereof, you
reasonable
will ac-
doubt
Lawrence,
gious harm.
Id. See also
su
quit
voluntary
man-
pra, at 212.
slaughter.
order to ascertain whether
ac-
Although appellant
object
did not
to this
harmed,
reviewing
cused has been
trial,
portion
charge
at
now as
light
court
must examine
charge
him egregious
serts the
caused
evidence,
charge,
the state of
the con-
failing
apply
harm
the law of sudden
issues,
arguments
counsel,
tested
portion
passion
to the
murder
information con-
other relevant
charge. This is a
of first
Almanza, supra,
tained in the record.
impression before the Court.
issue
Accordingly,
trial court’s
171.
passion
applying the law of sudden
charge
voluntary manslaughter
er-
charge
portion
*15
was decided
murder
of the
of evi-
roneously submitted due to absence
State,
in
287 manslaughter charge consists of guilty, guilty only voluntary defendant is he is following: lesser offense. lover, (1) Appellant to the new stated Voluntary manslaughter is established Mingo, of the confrontation at time
when it is shown that murder was [appellant] that ‘If he can’t have her 19.02, supra, committed under except § gonna deceased], nobody else ain’t [the that the death was caused under the imme have her’. passion diate arising influence of sudden V.T.C.A., adequate
from an
cause.
Penal
(2) Appellant
gun
turn the
on
tried to
19.04(b);
State,
Code
572
Braudrick
shooting
§
himself after
the deceased.
(Tex.Cr.App.1978)
cert. denied
(3) Appellant
crying
emotionally
We must
man v.
next determine whether there
*16
1983)
argument
support
(shooting
is evidence in
after
over a
the record to
that if
However,
appellant
guilty,
guilty only
ring).
is
is
Court
he
of the
has distin
charge
guished
passion
lesser included
A
offense.
on vol
cases where the
was not
untary manslaughter
only
given
Hobson,
(Charge
supra.
should
sudden.
on vol
untary
when
manslaughter
there is evidence that the defendant
not warranted where
morning
place
acted under the “immediate influence of
took
and
altercation
arising
passion
adequate
stabbing
place
evening.)
from
the
sudden
the
took
State,
State,
(Tex.Cr.
435
Marquez
cause.”
v.
289 paragraph. Appellant s capital necessarily application murder without der lant is overruled. considering first whether the fifth of error jury of murder. The must look first in his sixth of error capital paragraph to the murder since mur- 37.071(b),V.A.C.C.P.,5 complains that Art. essentially “Murder Plus” another der is in that it denies him the is unconstitutional case, capital In the instant the offense. right impartial jury, effective to a fair and murder in course of feature was a counsel, equal protection of assistance of kidnapping. Section 19.03 of the Texas law, law, process due and due course of provides: Penal Code right free from cruel and and his to be (a) person A if he commits an offense guaranteed by unusual commits murder as defined under Sec- Fifth, Sixth, Eighth and Fourteenth 19.02(a)(1) of code tion and: Amendments to the United States Constitu (2) person intentionally commits 10, 13, tion I. and 19 of The and Art. §§ committing the murder the course Specifically, appellant Texas Constitution. attempting kidnapping, commit properly fails to nar contends said statute
burglary, robbery, aggravated sexual
eligible
of individuals
for the
row
class
arson;
assault, or
penalty.
death
n
[*]
[*]
[*]
[*]
[*]
gist
appellant’s argument is that
special
meaningless
one is a
issue number
(c)
jury
beyond
If the
does not find
jury
because it is one which the
reasonable doubt that the defendant is
automatically
affirmatively
will
answer
section,
guilty of an offense under this
punishment stage
of trial since a find-
may
be convicted of murder or of
offense,
ing of
conduct
intentional
has been made at
(emphasis
lesser included
is,
guilt/innocence stage.
That
added)
argues
lant
“common sense teaches that
A
first find
must
com
there is no difference between ‘intentional’
19.02(a)(1)
mitted murder under Sec.
before
”; thus,
and ‘deliberate’
“there is no real
jury may
capital
convict of
murder.
distinction between ‘intentional’ and ‘delib-
Thus,
capital
must look to the
despite
repeated pro-
erate’
this Court’s
application
conjunc
paragraph
murder
disagree.
there is”. We
nouncement that
paragraph.
tion
the murder
It is axio
argument
repeatedly
has
re
This
been
matic that
this Court
will consider
rejected. Marquez, supra;
viewed
charge as a whole rather than
series of
State,
(Tex.Cr.
Russell v.
Selvage
isolated statements.
932,
App.1983)reh. den. 466
U.S.
S.Ct.
(Tex.Cr.App.1984)
S.W.2d 17
cert. denied
(1984).
recently
scheme.
S.W.2d tial for violent
(Tex.Cr.App.1981),
(3)
opined
potential
549
we
that
an individual’s
for violent be-
‘deliberately
(4)
intentionally
age,
es-
havior decreases with
knowingly
linguistic equivalents,
unpredictabili-
sence of human behavior
37.071(b)(1)...
be
... Art.
would
a use-
ty-
thing
finding
that
an inten-
less
a
of
attempted
to elicit a
The defense
knowing
or
tional
murder would
response
pun-
from Dickerson as to which
finding
with a
irreconcilable
appropriate
ap-
ishment would be most
for
committed
conduct
not
defendant’s
penalty,
mandatory
pellant;
the death
or
presume
deliberately. Wewill
imprisonment.
objection
life
The State’s
Legislature
not have enacted
judge
was sustained
trial
37.071(b)(1)
Art.
... had it intended for
excep-
perfected
lant’s counsel
his bill of
finding
a
deliberateness to be based
tion.
upon the
standard as that
in-
same
According
appellant,
to
court’s
knowing.’
tentional or
permit
testify
refusal to
Dickerson to
[emphasis
Id. at 552-58.
added]
a
opinion
in his
should receive
Thus,
rejected appellant’s
has
Court
life sentence resulted in a violation of Rule
argument
special
issue
is unconsti-
one
702,
provides:
This
Tex.R.Crim.Evid.
Rule
sufficiently
tutional
to
nar-
because
fails
scientific,
specialized
If
technical or other
eligible
row the class of death
murderers.
knowledge
to
will assist the trier
fact
State, 771
486
See Fearance v.
S.W.2d
or
understand the evidence
to determine
(Tex.Cr.App.1988);
also
Tex-
See
Jurek v.
issue,
an
qualified
a fact
a
witness
as,
262,
2950,
96
49
428 U.S.
S.Ct.
L.Ed.2d
skill,
expert by knowledge,
experience,
Estelle,
(1976);
929
v.
463 U.S.
Barefoot
education,
training,
may testify
or
there-
3383,
880,
(1983),
L.Ed.2d 1090
103 S.Ct.
77
opinion
to in
form of
an
otherwise.
874,
209,
104
78
reh. den. 464 U.S.
S.Ct.
Id.
Phelps,
L.Ed.2d 185.
484
v.
Lowenfield
placed
has
limitations on ex
231,
546,
This Court
U.S.
108 S.Ct.
mate other error, I further to disassociate write CAMPBELL, J., concurs in the result. myself from much that I consider errone- TEAGUE, J., frequently unnecessary dissents. rationale. ous and reaching hang up whenever of er- incentive to
Addressing appellant’s ror, com- agree the trial court committed arduous.* Because consensus seems too *20 error, instructing first in the venire pound indifferent whether he is an accused regard failing effect of to to the at all with by way nega of a life sentence achieves his issues, special a verdict on reach hung provision jury, or a tive answer misinforming in the venire of secondly, designed principally benefit must be The manner in that effect would be. what continue encouraging jurors to proceeds apply Tex. majority which the answer deliberating an affirmative toward however, 81(b)(2), is dis- R.App.Pro., Rule inclination. is their collective where that upon “pre- majority relies turbing. The observes, appellant’s majority As their instruc- sumption” jurors follow trouble reach- appears to have had no jury majority sets But the instruction the tions. special is- to answer the ing a consensus any issue simply jury informs the out Thus, purpose of affirmatively. sues according yes or no cannot answer either by the trial was not undermined the statute should left the court’s instructions be appellant likely Nor is it court’s error. instruc- Nothing about this unanswered. For this complain if it had been. would that, contrary fact tion remedies the agree I the error was harmless. reason 37.071(g), unambiguous language of Article majority’s purported “pre- Resort to the informed the ve- supra, the trial court has unnecessary. sumption” wholly nire, erroneously, and then effect special agree any failure to on one point third of er- Turning appellant’s Nevertheless, by conjuring this issues. ror, is that the trial that need be said all majority shifts “presumption” the shadow in Lamm ac- court instructed venireman 81(b)(2), supra, Rule the burden which wishes, upon appellant’s cordance with to show harm- places squarely on the State special issues answers to affirmative “[t]he lessness, he was to show Nothing imposed.” penalty death will be its majority facilitates harmed. Thus the suggests this instruction in record court's error does that the trial conclusion majority’s The not be efficacious. would not call for reversal. in- court in this to the trial “deference” tack. It seems I take a different would rhetorical, stance, however, for purely purpose of Article apparent to me that the calls for nothing here either which there is kind of 37.071(g), supra, is to act as a Her- attitude or demeanor. assessment of Legisla charge. The “dynamite” inverted Indeed, in the nandez v. that fail jurors to know ture did not want majority, the excerpted by the ve- colloquy hung reach a verdict—a ure to speak! nireman does not even incur not result State jury—would appellant attacks error four In a retrial. ring expense additional The ma- extraneous offenses. admission of words, Legislature, while desir other part, in that “the evidence jority responds, capital cases costly to avoid retrials necessary to refute that was reached, punishment verdict is no which passion.” At 284. acting under sudden take the fact that jurors not wish did when an anomalous rationale This seems special issues answer one of failure to sentence, rejecting one considers that life results nevertheless * generally, See gave obviate this scenario. would positive the trial court misinformation The R.J., here, Lingering Voting hung jury Clary, mandate a Death: Doubts would for that a mistrial, conceivably Capital might Constitutionality have harmed Texas’ About the minority jurors single juror Procedure, or a Mary’s lant. A holding LJ. St. Sentence special at least one the belief that out in (1987). have this ve- Yet would not according to the "no” issue must be answered sentence will be im- that a life nire instructed persuaded to might nevertheless upon on one posed failure to reach verdict will mistrial that "yes” avoid a vote in order to complains pur- not of a special He issues. venire, contrary to Instructing the never occur. application of ported Article unconstitutional 37.071(g), supra, provision express of Article supra, its 37.071(g), supra, Clary, but of see imposi- solitary can force holdout that even a breach. than a mistrial rather sentence tion of life majority holds, finding harm egregious fifth error the cor- under Alman- no my view, rectly that the issue of sudden za. arising cause, adequate from an passion proceeds to “assume” majority Code, 19.04(a), Penal V.T.C.A. § raise the of sudden the evidence did issue by the simply raised evidence. premise passion, decides that and with hold evidence these encounters ad- authorizing paragraph conviction give context to the of- missible instant “im- need not contain the murder fense rather than as evidence from which element,” Bradley plied see upon could draw inferences based (Tex.Cr.App.1985), of the ab- S.W.2d 847 conformity. perspec- character From that *21 so, passion. rea- sence of This is sudden inquiry majority’s “similarity” tive the into majority, “capital because murder sons prior of acts to the instant offense irrele- is essentially is ‘Murder Plus’ another of- Furthermore, unnecessary. I vant and re- fense,” p. application At the murder suggestion, in ject majority’s context of charge require paragraph appellant’s in did superfluous prejudice-versus-probative- its negation passion beyond a rea- of sudden analysis, prejudicial of impact ness that doubt, “consider[ing] that sonable may extraneous misconduct somehow be whole,” p. 289, charge jury At as a by packaging “lessened” it as a “transac- of will it must find absence devine tion” rather than an “offense.” It is passion capi- sudden in order to convict of prejudicially accused’s misconduct which vi- argument tal murder This echoes as well. him, inviting improper pro- lifies character now-Presiding Judge of in McCormick inferences; pensity not whether that mis- in dissenting opinion v. Cobarrubio subjected conduct has him to “civil or crimi- State, 675, (Tex.Cr.App.1983), 749 S.W.2d liability.” nal rejected by a this majority which was of dispose appellant’s It is sufficient to of Cobarrubio, Here, Court. no less than point of fifth error to observe there was supra, jury if followed the court’s absolutely constituting no evidence “ade- presumption to the letter —a instructions quate cause.” evidence Absent of some willingly, misguid- majority embraces provocation part of deceased or edly, in resolving acting him, one with may every appel- chance found error —there incapable been cool have reflection is not capital murder lant without ever sufficient to raise the issue whether he having to he acted under decide whether killed the deceased while under the influ- passion the immediate influence sudden passion arising ence sudden from an arising adequate is true from an cause. It adequate State, cause. Hobson v. 644 that the element of of sud- implied absence (Tex.Cr.App.1983); 473 S.W.2d v. Gonzales passion den was contained in the murder State, (Tex.Cr.App.1986) application paragraph. assuming Even (Clinton. J., dissenting). Because “sudden bottom, charge top read the court’s passion” by was not in fact raised however, have “considered” it need never evidence, agree I para- that failure of the beyond paragraph authorizing convic- graph authorizing for capital conviction obtaining for its capital tion murder before require negation murder that issue recognize failing in its verdict. beyond a reasonable doubt not funda- majority today, gratuitously dicta mental error v. 686 under Almanza threatens the rationale of Co- to undercut (Tex.Cr.App.1985). 157 See S.W.2d Moore jurisprudence our back barrubio and set (Tex.Cr.App.1985) 528 years. passion six The issue of sudden (Clinton, J., disagree dissenting). I cause. than was not raised in this No more unnecessary majority “it is to un- that need said. analysis dertake a harm under second Finally, agree appellant’s seventh I also
step Almanza, supra, since ... nor charge.” point of is without merit. The error lant was not entitled to At it, Rather, finding no mative of what 288-289. see any given appropriate” most provocation is tantamount “would be Houston, Huttash, Attys., punish “a in issue” at the Dist. Robert case fact Austin, Atty., for the phase ment of a murder trial under State’s State. 37.071, See, again,
Article Hernan State, supra. presents
dez v. Thus it no susceptible proof by
relevant fact issue expert testimony as authorized Tex.R. ON APPELLANT’S PETITION OPINION Cr.Evid., Rule 702. Nor would it seem that FOR DISCRETIONARY REVIEW jury’s response” “reasoned moral to evi proffered mitigation, Penry Ly dence PER CURIAM. U.S. -, naugh, 492 109 S.Ct. Appellant was convicted for (1989), L.Ed.2d 256 involves an issue of assault, enhanced, aggravated punish subject expert “fact” assistance con imprisonment. ment was set at life templation supra. Surely of Rule appeal. conviction was affirmed on Ro jurors none but the individual themselves (Tex.App.— dasti v. jury’s can inform this exercise of the collec 1988). Appellant peti Houston filed a [1st] majori If this is what the tive conscience. discretionary raising tion review two concluding ty means the record did not grounds for review. *22 “qualified that Dickenson was to rec show fact[,]” ommend to the trier of ground, appellant contends agree p.At then I without reservation. Appeals holding that the Court of erred in properly that the trial court admitted into majority ap- fails to sustain Because self-authenticating pen pack error, pellant’s respectful- second containing judgment and sentence et ly dissent. though for enhancement even the dis used certify documents. trict clerk did DUNCAN, J., joins opinion. in this pen packet was certified the custo copies of records as true and correct dian Department of the files at the Texas Appellant argued under Din Corrections. gler (Tex.App.— 1988), Tyler judgments and sentences had to be certified the clerk from the county they from which came. filed, petition Since ASTI, Appellant, Steven James ROD Tyler granted review of the Court of Court id., opinion Dingier, issued Appeals’ Texas, Appellee. The STATE of opinion dealing proper certification. (Tex.Cr. Dingler v. No. 424-88. this case App.1989). We therefore remand Texas, Appeals of Court of Criminal Appeals for further consid Court En Banc. light opinion in eration in of this Court’s Dingier, id. 1, 1989. Nov. Houston, appellant. Inger, J.
Robert Holmes, Jr., Atty., B. Dist. William
John Roe, Delmore, Asst. III and Michael A.
J.