Solomon v. State

Deceptive Trade Practices Act viola- Christopher SOLOMON, Circuit, Julian tions. The Fifth in Access Tele- com, Inc., noted that this Court had never Appellant, foreign illegality considered the effect of v. governed by on contract Texas law. 197 STATE Texas. Here, appeals F.3d at 707. the court of 73,459. No. considered all together, claims LDI/SMS’s concluding that “the actions undertaken Appeals Court of Criminal of Texas. and, illegal” were a re- [LDI/SMS] “[a]s June sult, any [LDI/SMS] cannot recover under of their asserted claims.” 18 S.W.3d at syllogism.

714-15. This is a flawed How-

ever, because we conclude that LDI/SMS’s law,

contracts did not violate Mexican we day question

leave for another of what foreign illegality

effect would have on

these claims.

Y. CONCLUSION appeals

The court of erred in holding contracts with its Mexican LDI/SMS’s Thus,

customers violated Mexican law. we appeals’ judgment

reverse the court of

remand the cause to that court to deter- any grounds

mine other Telmex asserted summary-judgment supports its motion

the trial summary-judgment court’s order. Barber, McKelvy

See

(Tex.1964).

Justice HANKINSON Justice participate

JEFFERSON did not in the

decision. Texarkana, Dodson, Attor-

Richard N. ney Appellant. Smith, DA, Matthew

Alwin A. Assist. Austin, Paul, Attorneys for Atty., State’s State.

OPINION KELLER, P.J., opinion delivered WOMACK, the Court which HOLCOMB, KEASLER, HERVEY, and JJ., joined. was convicted June 1999 of

Appellant September capital murder committed on jury’s Pursuant to the answers 1997.1 forth in Texas special issues set art. 37.071 of Criminal Procedure Code 2(b) 2(e), trial sentenced judge §§ appeal Direct to this appellant to death.2 19.03(a). 2(g). § otherwise in- 2. Article 37.071 Unless Ann. 1. Tex. Penal Code Articles refer all future references to dicated Procedure. to the Code of Criminal Appellant Court is automatic.3 Young interpreted raises nine him”—a statement points of error. will meaning appellant We affirm. was going to rob the Young man on the road. get declined to

I. SUFFICIENCY OF robbery involved but told THE EVIDENCE do, they got go.” “to do what Wood appellant engage and Davis saw in a con-

A. Guilt versation but did not hear transpired. what two, of error appellant’s Young stop by saw car complains that the presented State insuffi man’s car on the side of the Young road. cient accomplice evidence to corroborate then truck gas drove his to a different testimony. witness Three are witnesses appellant’s station and waited. When car relevant to resolving appellant’s complaint appear twenty failed to after min- thirty here: Javarrow Young, Virginia Marie utes, Young drove his truck towards town. Wood, and Christina According Davis. victim, Erie, way, On the he saw the Jason witnesses, appellant, all three Julius Mur lying ground. on Young flagged down Wood, phy, Young, Davis attended passing ambulance and directed it party Murphy’s mother’s home on the Later, police. scene. he talked to the September afternoon Young of Davis, testified that appellant engaged him in a According appellant to Wood and robbery. car, conversation about a Murphy drove Wood’s Wood sat the front present seat, was during this conversation passenger Murphy appel- but sat behind lant, did not talk. Appellant proceeded later to Murphy and Davis sat behind Wood. pistol show a Young glove from the com and getting along Davis were not because partment Appellant they trip. of Wood’s car. then had fighting been earlier on the passed others, gun pointed around to several Appellant to the side of the road to Erie, including Young Murphy. gun apparently and The having who was car trou- subsequently appellant, Appellant gave “jump,” returned to ble. Erie’s car a pocketed who it. paid appellant and Erie five dollars. Ac- Davis, cording to away, Erie headed Wood, Young, and Davis all testified appellant Murphy told that Erie had a lot people that two vehicles of togeth- traveled money his wallet and said something er to visit some out-of-town friends. One to the effect jack of “we should him.” At vehicles, truck, a was driven first, idea, Murphy appel- resisted the but Young’s girlfriend pas- and contained as lant goaded Murphy agreed. until he sengers Young, Young’s daughter, and a said, Murphy “Okay, give gun. then me the vehicle, friend named Phil. The other a Appellant I’ll do it.” to then told Wood car, by appellant was driven and contained out, gun gun take the Wood removed the Wood, Murphy, as passengers and Davis. glove compartment, Murphy from the and Upon returning from their out-of-town Wood, grabbed gun. According to af- trip, gas the two vehicles at a stopped dollars, paid appellant ter Erie five Mur- Young station. testified that he conversed him phy gun told her to hand and she appellant. Appellant with related that he complied. had seen a man with car trouble on the road, waved, Murphy side of the and the man had heard appellant Wood tell kill indicating Appel- he needed assistance. he should shoot and the man because “jack I Young going got caught lant told that he was “that’s how the last time.” 2(h). 3. Article 37.071 the testimo- robbery, without garding the listening to the conversation

Davis was not Davis, no evi- there was I and ny “that’s how Wood phrase heard the last but she aid anything to testified did the last time.” Davis dence that got caught him not Murphy encourage and told the murder. grabbed that she away and Murphy pushed her go, pro rule accomplice-witness The head down put the car. Davis her exited vides: Murphy a fire. Wood saw gun and heard upon the cannot be had A conviction Ac- take his wallet. the victim and shoot accomplice unless cor- testimony of an Wood, Murphy cording and tending to other evidence roborated shell re- bragged later about bullet with the offense connect the defendant chamber, ap- and maining gun’s inside the committed; is not and the corroboration coldly bragged going that he was pellant commis- merely if it shows the sufficient given by five dollars Erie as keep the sion of the offense.4 testified Both Davis and souvenir. Wood sufficiency review under conducting that, with after the incident sometime rule, reviewing accomplice-witness Erie, car contacted Davis ran from the accomplice testi- must eliminate court police. examine and then mony from consideration Murphy, and were sub- Appellant, Wood to see portions of the record remaining capital murder. sequently charged with that tends to con- any there testify. Appellant Murphy did not the commission accused with nect the Davis, Wood, Young all testified as “Tendency connect” rather crime.5 prosecution. for the witnesses sufficiency is the standard: than rational accomplice included an as a matter charge be evidence need not corroborating an accom- of law instruction for Wood and by guilt.6 itself to establish sufficient fact instruction for plice as a matter of upon not based rule is accomplice-witness Davis. notions of constitutional federal or state Appellant contends that and Wood be “oth- simply needs to sufficiency; there testimony accomplices, Davis were whose to connect the defen- tending er” evidence corroboration. And he contends required dant to the offense.7 Young’s testimony that should be disre- argument contains Appellant’s garded gave because he inconsistent First, erroneously appellant several flaws. police. Appellant con- to the statements accomplice. The to be an assumes Davis of Ms testimony cludes: ‘Without the notion that supporting only evidence Wood[], and the evidence Davis Ms. presence accomplice was her an Davis was insufficient, factual- as well as legally both pres crime. But mere the scene of the insufficient, support to the conviction.” ly of a crime is during the commission that, ence even if further contends Appellant accomplice.8 an to make one enough re- not Young’s testimony given credence is Id. at 462-463. 38.14. 4. Article 467, State, 470 S.W.2d

5. Cook v. 858 633, (Tex.Crim.App.1999), State, 7 S.W.3d 641 v. 8. Medina Thompson (Tex.Crim.App.1993)(citmg v. 1102, denied, U.S. t. 529 cer 627, State, (Tex.Crim.App. S.W.2d 631 691 (2000). L.Ed.2d 782 120 S.Ct. 146 1984)). (Tex.Crim.App.1999), Cathey S.W.2d U.S. t. cer 805, 145 L.Ed.2d 678 120 S.Ct. gave the trial jury capital While court an sufficient to connect him to the accomplice as a matter of fact instruction accomplice-witness pur- murder for rule Davis, regarding that instruction was not poses.11 Young’s testimony appellant that raised the evidence. Even if in- “jack” he intended said the victim was evidence, struction had been raised connecting appellant some evidence jury would have been free to believe robbery placing him at the scene that in accomplice. Davis was not fact an capital murder. Point of error two is accomplice, Because Davis was not an her overruled.

testimony could be used as corroboration. Dangerousness B. Future At least two facts revealed in Davis’s testi- 1) mony linked to the crime: eight, appellant In of error appellant formed the robbing idea of Erie legally contends that the evidence was in goaded Murphy committing into support jury’s sufficient to answer to 2) robbery, commanded dangerousness” special the “future issue.12 gun Murphy. Wood to hand the evaluating sufficiency of the evi support jury’s dence to answer to that Appellant also in contending errs issue, we utilize the standard in articulated that we should ignore Young’s testimony. Virginia: Jackson v. we view Appellant implicitly Young concedes light most favorable to the verdict accomplice was not an believes any and determine rational trier whether testimony ignored ground should be on the beyond of fact could have found a reason that Young credibility lacked as a witness. probability able doubt there is a credibility But the of a is an witness issue appellant would commit criminal acts of decide, for the and we have held constituting continuing violence threat to past credibility attacks on a wit society.13 do not corroborating ness defeat the effect Moreover, We outlined a non-exclusive list of testimony.9 ap of the witness’s may factors that be considered deter- pellant’s attempt contention amounts to an mining whether a defendant constitutes a superimpose sufficien legal factual continuing society: threat to cy upon accomplice review the witness rejected (1) standard —a contention we the of capital circumstances the of- Cathey v. State.10 fense, the including defendant’s state of mind acting and whether he was alone Finally, appellant erroneously assumes parties; or with other that connecting the evidence him to the (2) the calculated nature of the defen- him robbery did not also connect to the acts; dant’s murder. previously We have held a defen- (3) presence

dant’s at the partic- forethought scene and the and deliberateness execution; ipation underlying by in the offense to be exhibited the crime’s 267, State, (Tex.Crim.App.), ty 9. Fuentes v. 271 that the defendant would commit criminal 1026, t. 528 U.S. 120 acts of violence that would constitute a con- cer S.Ct. 541, L.Ed.2d 420 145 tinuing society.” threat to Cathey, supra. 10. See 828, v. S.W.3d 830 13. Jackson 33 (Tex.Crim.App.2000)(citing Virgi Cook, Jackson 858 S.W.2d at 470. nia, 307, 2781, U.S. S.Ct. 61 L.Ed.2d issue, 37.071, 12. The found Article (1979)). 2(b)(1), probabili- asks: "whether there is a Moreover, ap (4) Davis that rec- testified prior the existence of a criminal committing Murphy crimes; pellant into goaded prior the of the severity ord and confirmed last and robbery, she (5) personal and cir- age the defendant’s Woods part of related the statement offense; at cumstances the time “caught last time.” getting concerning (6) acting was whether defendant addition, appellant Young In that testified under duress or the domination of an- stop rob formed intent to Erie before time of other at the of the commission So, the car. ping alongside victim’s offense; appellant planned the that evidence shows Further, that crime in advance. (7) evidence; psychiatric and appellant bragged about the chambered (8) character evidence.14 five dol bragged keeping shell and about absence of lars a souvenir show an the first We shall address re a lack of showing remorse. Evidence together. all three factors These factors a find support morse some for constitutes deal with the circumstances of offense. ing dangerousness.17 of future that We have held the facts of offense dang factor, alone can be sufficient to show future the fourth the State Regarding case, In present Wood appellant showed that had committed sev- erousness.15 appellant Murphy a prior testified that told to kill eral In he shot at offenses. got the victim because “that’s how I a friend not sell em- caught house because would balming appellant him. appel the last time.” That statement fluid for In strongly probative person. lant In was of future dan shot another June person gerousness. Appellant appellant claims another committed a that car’s statement was not to kill the carjacking corroborated. Even threatened indulge we For that questionable police. were to in the owner if he called incident, ag- with assumption accomplice-witness charged any application punishment gravated robbery, rule had and he was on bond trial,16 of- phase when he testimony Wood’s re offense committed This of crimes garding adequate sequence the offense on trial was fense before us. ly pattern violence phase. escalating corroborated In his shows an guilt brief, of future some evidence contends corrobora constitutes addition, committing dangerousness.18 tion should connect the defendant significant the offense also connect defen the offense while on bond is disre- dangerous dant mind fact a bold particular showing state of when the commit- imposes spect killed. law. It is similar to victim was The law no for the we ting parole an while on requirement. such offense —which State, State, 238, 735, (Tex.Crim.App.1999), (Tex. Dewberry 17. v. 4 743 14. Reese v. 33 S.W.3d 245 S.W.3d 1131, Crim.App.2000). denied, t. U.S. 529 cer 2008, (2000); Tre 120 146 L.Ed.2d 958 S.Ct. State, 549, (Tex. 15. S.W.2d 552 Nenno 970 849, State, (Tex.Crim. vino v. S.W.2d 854 991 Crim.App.1998). App.1999). specifically accomplice- 16. We have held the Jackson, 247; Reese, 33 S.W.3d at 33 inapplicable to be witness rule extraneous S.W.3d at 838. presented during punishment offenses phase. Farris v. 507 (Tex.Crim.App.1990), U.S. cert. S.Ct. L.Ed.2d 504 have tendency held has some fu- Appellant show improperly contends that Davis ture dangerousness.19 lay opinion rendered a on the ultimate issue of the case and in engaged mere Regarding the sixth factor —whether the speculation appellant’s as to mental state. defendant acted under the domination of another —the appel- evidence showed that In Fairow v. State20 we discussed the leader, lant acted a giving as admissibility, orders con- predecessor under the of the cerning robbery rule21, Finally, murder. current lay testimony concerning presented the State testimony culpable from a neu- mental state with which an ropsychologist appellant that posed said, a dan- act is committed. We ger of future violence. The evidence was a possess person- [W]hile witness cannot amply support sufficient to jury’s affir- state, al knowledge of another’s mental mative answer to the dangerousness future may possess he personal knowledge of special issue. Point of eight error is over- opinion regarding facts from which an ruled. may mental state The be drawn. much or give then free to as as little

II. EVIDENTIARY MATTERS weight it opinion sees fit. Therefore, that we conclude once the Lay Opinion Testimony A. Witness proponent opinion per- of the establishes four, In point of error sonal knowledge of the facts underlying contends that the trial per court erred in opinion, he the percep- has satisfied mitting lay a give opinion witness to an tion requirement of Rule 701. This is so about the ultimate in issue the case. Dur opinion culpable even concerns ing testimony phase Davis’s at the guilt mental state. trial, following colloquy occurred: personal knowledge Christina Davis had Christina, just [PROSECUTOR]: let me car, testimony events and her you question. ask this You were in the responsible was for the rob- car that night. person Who was the bery was upon knowledge. based responsible car getting Mr. Erie robbed, in your opinion? requirement second of Rule 701 is opinion helpful that the to the trier of be my opinion? [DAVIS]: fact to either understand the witness’s tes- Yes. [PROSECUTOR]: timony determine a fact issue. Chris. [DAVIS]: testimony Davis’s here was no more than [DEFENSE COUNSEL]: That calls for shorthand rendition of the facts. The trial legal Object conclusion. to that. In- court could properly found her vading province jury. testimony helpful clear under- THE COURT: Overruled. standing of her testimony or the determi- The defendant [PROSECUTOR]: was? issue, nation of a fact in and there was no me, Yes. To it [DAVIS]: was. error in admitting it. Trevino, 991 S.W.2d at 854. opin- ions or inferences is limited to those (a) rationally ions or inferences which are (Tex.Crim.App.1997). 899 20. perception based on the of the witness and (b) helpful understanding ato clear of the

21. Rule 701 Texas Rules of Evidence testimony witness' or the determination of a provides: fact in issue. testifying expert, If witness is not as an testimony opin- the witness' in the form of

365 him. exchange testimony against her to But even if we were assume concluding its responds that in The State per that the trial court erred arguendo any opinion agreement to with Wood would eliminate mitting express given Davis here, cooperate appellant’s if testimony would to admission this be incentive for her new trial Appellate Texas Rule of Proce conviction overturned and harmless. were 44.2(b) provides necessary. that a dure nonconstitu- became “that affect error does not substan tional 34.5(c)(1) sup permits Rule While must be We have rights disregarded.” tial appellate with of an record plementation rights that not substantial are determined from the material has been omitted that by the admission of evi affected erroneous record, rule be used appellate cannot court, appellate “if the after examin dence appellate Point to create a new record.23 whole, fair as a has assur ing record appel deny overruled. of error five is We that the error did not influence the ance supplement to the record. lant’s motion

jury, slight or had but effect.”22 case, jury present In the had al- Photographs C. upon all ready heard of the facts which nine, appellant error point In Davis’s conclusion was based. Davis did ad trial in contends that the court erred purport expert to be an to otherwise mitting photographs punish at the certain position possess in a information not be Erie, Jr., Jerry ment trial. stage of already jury. related to The opinion brother, a witness victim’s was called as little, any, weight added to Davis’s here punishment stage. during for the State circumstances, testimony. Under the we Jerry pages, In filled testimony that three a fair that the in assurance evidence father, a explained the victim had a that did not influence the or had question wife, Jerry children. identified and two slight effect. Point of error four is wed photographs depicting the victim’s overruled. uniform, in ding, victim his sailor’s children, and of the victim victim’s scenes Agreement Plea B. with Wood Appellant swimming with his children. five, error photographs constituted contends that engaged prose- contends State impact He victim evidence. inadmissible concerning misconduct Wood’s tes cutorial not rele photographs claims that the were trial, timony. At testified that she Wood punishment phase, in the any vant to issue plea agreement entered into with the relevant, probative if they were plead guilty in which State she would danger of outweighed value was to twen aggravated robbery, be sentenced prejudice. unfair prison, truthfully testify ty years were agree photographs trial. has filed a mo We appellant’s Appellant evidence; impact victim with a relevant supplement the record dock tion pur- other apparent he had no claims shows Wood et sheet le- pose. therefore address the plead Appel We must yet has or be sentenced. photographs relevant both to gal principles and the suggests lant that Wood State Contrary impact victim evidence. have made secret “sweetheart” deal State, Reese, Berry n. 5 S.W.2d (quoting v. 33 S.W.3d at 243 Johnson State, (Tex.Crim.App. (Tex.Crim.App.1999); v. Green 967 S.W.2d 410 1995). 1998)). (Tex.Crim.App. n. 3 S.W.2d claims, appellant’s (3) to we have held that proponent the time the needs to de- relevant, victim impact evidence velop evidence; is “in the the context of mitigation issue, the special to (4) proponent’s the need for the evi- victim, show the uniqueness of the the dence.27 harm defendant, caused by the and as present case, In the probative the value of rebuttal to the mitigating defendant’s evi- the relatively evidence was low. While dence.” Part showing a victim’s having tendency some to humanize the uniqueness is to humanize the victim for by victim humanizing family, pho- his the jury.25 the Although past we have the tos were not particularly strong evidence victim, referred humanizing to of this or of impact the victim’s death’s on some humanizing of family members family photos’ potential members. But the accomplishes purpose by impressing impress irrational, jury in an but

upon jury that real people were in fact way indelible was also low. The primary by harmed the victim’s death. hu- This danger of prejudice unfair from victim im- manizing effect normally accomplished pact testimony tendency is its to encour- member, the live testimony family of a age jury engage “measuring the case, present but most of the close worth of the victim compared to other family so, here, testify; members did not society.”28 members of photos The of the photographs had the effect of humaniz- family members did nothing encourage ing family. the victim’s just Rather than jury comparisons; to make such noth- hear that the victim family, had a jury ing in photos singled those out the victim given pictures family members. family or his being different from other pictures Those showed family mem- families. photo of the victim in his bers as being just more than names. may sailor’s uniform had slight some tendency to encourage comparisons, but then, question, The real is whether the the uniform simply reflected the victim’s probative value of the photographs was occupation, which, under the circum- outweighed by the unfair danger preju- stances, appear does not unduly prej- to be dice under Texas Rule of Evidence 403.26 addition, udicial. In photographs were generally We consider the following fac- gruesome they nor designed were in any prejudice tors probative versus val- shock the jury or cause an extreme emo- analysis: ue tional reaction upon based irrelevant (1) probative evidence; how is the facts.29 (2) potential of the evidence im- Regarding factor, the third there were press irrational, in some photographs presented seven within three nevertheless way; so, indelible pages of testimony; the length of time Mosley (Tex.Crim.App.1998), 24. jury, S.W.2d or delay, considerations of undue t. presentation 526 U.S. or needless of cumulative evi- cer 119 S.Ct. 143 L.Ed.2d 550 dence. Reese, 27. 33 S.W.3d at 240. Id. Mosley, 983 S.W.2d at 262. provides: 26. Rule 403 relevant, Although may Reese, be exclud- 29. See (photograph 33 S.W.3d at 242 probative ed if its substantially value is out- played fetus in a jury’s sympathies casket on weighed by danger prejudice, of unfair upon based facts that should not have been issues, decision). confusion of misleading relevant to its tracking the jury charge guilt-innocence present the evidence was short. needed statutory need for the Finally, language: the State had some procure testimony. The State did not tes- If, conspir- attempt carry in out the the and children. timony from victim’s wife felony felony, another acy to one commit exposure the photographs were conspirators, of by is committed one the the had to close members of the these felony guilty all are of conspirators family. considering victim’s After the rel- committed, no having though actually factors, we conclude that trial evant it, if intent the offense was to commit its in determin- court was within discretion the unlaw- in furtherance of committed ing probative value photographs’ ful and was that should purpose, one substantially outweighed by the

was not anticipated of as a result been of prejudice. of unfair Point error danger Capital the conspiracy. out of carrying nine is overruled. murder, murder, attempt- robbery, and robbery ed are felonies. III. JURY CHARGE Independent Impulse A. Now, from be you if find the evidence one, appellant In of error on or yond doubt a reasonable that the trial court erred in fail contends day of September, about the 19th ing his on requested to submit instruction County, in State of Texas that Bowie “independent impulse.” Relying upon Murphy, then and Julius did Jerome State,30 Mayfield contends intentionally death of an there cause the an if that he is entitled to such instruction individual, ERIE, by shooting JASON he with charged conspiracy liability is firearm, him with a and the said Julius under Penal offense Texas Code there in Murphy was then and Jerome 7.02(b) § a ques evidence “raises committing attempting of course actually tion whether offense commit robbery offense of JA to commit the of perpetrated ted was in furtherance of the ERIE, you if find from SON further was one felony, or which should have been beyond a doubt the evidence reasonable anticipated by the Defendant.” promote the acting with intent to 7.02(b) theory sets forth the of con- robbery of the of JASON commission spiracy liability: ERIE, said JUL CHRISTOPHER If, attempt carry out a conspir- SOLOMON, intent IAN acted with felony another acy felony, to commit one assist, the of promote, or commission conspirators, committed one of the ERIE, encourag robbery of JASON felony conspirators guilty all are of or at ing, soliciting, aiding, directing, committed, actually though having no Murphy aid Julius tempting to Jerome it, to commit if the offense was intent robbery, if in the of the said commission of the unlaw- committed furtherance any, shooting JASON and that purpose, and was one ful should ERIE, Murphy, by Julius Jerome if anticipated aas result of the have been such, there was done in furtherance carrying conspiracy. out of the ERIE, conspiracy to rob JASON any, an that should with and was conspiracy accordance the law of offense anticipated as a result trial have been liability, gave court instructions you conspiracy, then portions carrying out application the abstract (Tex.Crim.App.1986). will guilty fluous, Capital fact, in and would be an impermis- find Defendant of Murder. sible comment weight on the of the evi- Likewise, you

Unless dence.34 beyond so find a there is no reason- enumerated doubt, able or if defense of you “independent impulse” have a in reasonable thereof, you Code, doubt will Penal acquit appellant’s the defen- proposed de- dant CHRISTOPHER JULIAN SOLO- fensive issue would simply negate the con- MON, Capital of Murder. spiracy liability element of the State’s case. then, All required, that is appro- is for the (Italics added; capitalization original). in priate portions jury charge track Appellant argues that these instructions 7.02(b). language of To the extent were not enough to cover “independent Mayfield contrary, holds to the it is impulse” issue and contends that the trial overruled. Point of error is one overruled. court should have submitted following additional instruction: Accomplice Testimony B. If you evidence, believe from the beyond point three, In doubt,

a reasonable error con- on or about 19, tends September that the judge trial erred in Murphy, failing Julius in submit, in both guilt punish- the course of committing robbery of Ja- Erie, phase ment Erie, charges, son an murdered instruction that Jason and that accomplices the evidence could not corroborate each question raises as to However, testimony. whether other’s the murder of as we have Jason Erie was explained in perpetrated point in connection with of error furtherance of the rob- two, bery, accomplice Wood was the only murder should have case. anticipated Although been the trial court by Defendant submitted Christo- an pher Solomon, instruction you concerning being Davis an will find the Defen- dant, fact, accomplice Christopher Solomon, as a matter of the submis- guilty sion of the capital murder. instruction was erroneous be- cause the issue was not raised explanation, With little we held in May- evidence. Since there ac- was one that a defendant was entitled to an field case, complice in the did not “independent impulse” instruction in a con- raise an regarding accomplices issue cor- spiracy liability case when raised roborating each other. Point of error however, evidence.31 That holding, is no three is overruled. longer in fight viable of our more recent in Giesberg decision v. State.32 In Gies- C. Lesser Included Offense berg, we held that defendants were not entitled to a defensive six, instruction on “ali- of error bi” because alibi was not an enumerated contends that the trial court erred re penal defense in the code and the issue fusing to submit the lesser-included of adequately was accounted for within the fense of robbery. A defendant is entitled general charge to jury.33 Because alibi the submission of a lesser offense if a merely negation (1) elements two-pronged test is met: the lesser case, State’s super- its inclusion would be included offense must be included within 31. Id. at 515. Id. at 248-251.

32. 984 (Tex.Crim.App.1998), S.W.2d 245 cert. Id. at 250. 525 U.S. 119 S.Cl. L.Ed.2d 51 at the time were established proof necessary to of- elements establish dis- (2) There is no crime was committed.37 charged, and must fense some evidence pute was shot and killed. that Jason Erie permit in the record that would exist testimony trial was The uncontradicted find jury rationally to that if the defendant intentionally shot robbed Murphy guilty, guilty only he is of the lesser testimony also the victim. Uncontradicted robbery Because is offense.35 contained kill Murphy to appellant shows that told proof the for in the within murder course I got the victim because “that is how robbery, appellant of a has met first to Appellant points last time.” caught the However, he fails meet the prong. to sec- raising the lesser offense of no evidence prong. ond possible the three robbery through any of considering In whether there is some case, it in ways have raised this could been defendant, if evidence the record that a our- any nor have we found such evidence offense, guilty only is of the lesser guilty, mur- indicates that a selves. No evidence may not enough jury “[i]t is disbe- der not occur. There is no evidence did crucial to pertaining lieve evidence victim’s death was not in further- Rather, must greater offense. there be robbery. conspiracy ance of a to commit germane a directly some evidence less- that the finally, And there is no evidence er-included offense for factfinder anticipated, was much victim’s death not consider before an instruction on a lesser- not less that the death should any evidence included offense is warranted.”36 Because anticipated. Appellant have been was appellant charged with a conspiracy an on lesser entitled to instruction theory liability in the course murder robbery. is offense of Point of error six robbery, prong only the second is met overruled. if there is showing the record (1) (2) murder, no either there was Charge D. Anti-Parties murder was not committed in furtherance seven, appellant In of error (3) of a conspiracy, or the murder should failing claims that the trial court erred in anticipated. not have been anti-parties in the submit an instruction brief, appellant his does not Appellant punishment jury charge. con directly theory address the State’s special issue “anti-parties” cedes that Instead, appellant simply offense. con 2(b)(2) Article found in 37.071 was sub possibili tends that the evidence raises contends, however, jury. mitted He ty robbery that he only committed be sponte trial court have sua should accomplices cause Wood and Davis were telling an additional instruction submitted Young’s testimony indicated ignore parties jury instructions intended to rob the victim. previ in the guilt charge.38 We have However, whether to ously adversely appel intended this decided issue robbery kill the victim before the error position.39 took lant’s Point of seven place liability is irrelevant the relevant overruled. State, 666, request Appellant

35. Rousseau v. 855 S.W.2d 673 38. did not such an instruc- denied, 919, (Tex.Crim.App.), cert. U.S. 510 tion. 313, (1993). 114 S.Ct. 126 L.Ed.2d 260 482, State, 39. 928 S.W.2d 516-517 McFarland State, 532, (Tex.Crim.App.1997), 36. 956 S.W.2d 543 Skinner v. (Tex.Crim.App.1996), denied, . 519 rt ce 1079, U.S. t. cer 966, 136 U.S. 117 S.Ct. L.Ed.2d (1998). 118 S.Ct. 140 L.Ed.2d 677 Fuentes, at 991 S.W.2d Finding error, no ness, reversible we affirm assuming the defendant was un judgment of the trial aware, court. crime, the time of the victim’s character or of impact that the MEYERS, J., filed a concurring opinion victim’s deaths would on others. Id. JOHNSON, J., in which joined. Thus, at 261 n. 16. impact “[v]ictim character evidence of which defendant is PRICE, HOLLAND, JOHNSON, aware at the time he commits the crime is JJ., concurred in the result. necessarily relevant danger to his future MEYERS, J., filed this concurring ousness and moral culpability.” Id. This opinion, joined by JOHNSON, J. discussion became a holding Jackson v. (Tex.Crim.App. At punishment phase of appellant’s 2000). The explain Court did not how trial, the State admitted photographs of such victim-related evidence is relevant to the wedding, victim’s the victim in his sail- future dangerousness, except to state: uniform, or’s children, the victim’s and of It is imagine appel- how the victim swimming with his children. difficult lant could not have reasonably Appellant photos claims the are not rele foreseen impact the that the victims’ deaths any vant of the three issues at the luould have on others. The victim im- punishment phase. majority says the pact evidence, therefore, photos was relevant to are relevant to the mitigation issue. the dangerousness” “future issue. Majority opinion at 365. The majority precedent follows in holding photo the added). (emphasis Id. (although So we graphs relevant to the mitigation issue. don’t why know or how this makes it rele- State, Mosley v. 249, 262 vant), we know that if the defendant could (Tex.Crim.App.1998)(“victim impact and reasonably impact the foreseen that victim admissible, character evidence are others, the victim’s death would have on in the context of mitigation special then victim related evidence is deemed issue, to uniqueness victim, show the of the relevant to danger- the defendant’s future defendant, the harm caused and as case, ousness. In this there was no evi- evidence”), rebuttal to the defendant’s mitigating dence knew the victim or denied, t. 1070, 526 U.S. 119 cer the victim’s family at the time he commit- 1466, (1999). S.Ct. 143 L.Ed.2d 550 But Therefore, ted the crime. im- the victim majority does not address the rele pact and victim character evidence is vance of the photos to the other two pun “patently irrelevant” question to the of ishment issues—future dangerousness and appellant’s future danger. See Mosley, anti-parties. precedent While there is 983 S.W.2d at n. 261 support that, a holding in certain circum The jury was also given anti-parties an stances, victim impact and victim character punishment instruction at in this case. evidence is relevant question of They were asked to determine whether dangerousness, future those circumstances “appellant himself actually, caused the presented are Moreover, not in this case. deceased, death of ... on the occasion authority there is no on question or, question, if he did not actually cause relevance of victim impact evidence to the death, deceased’s that he intended to kill anti-parties issue. the deceased or another or that he antici- stated, dicta, Mosley im- pated victim that a human life would be taken.” pact and victim character evidence was See Tex.Code CRiM. PROC. art. 37.071 “patently 2(b)(2). irrelevant” to future dangerous- An anti-parties charge appro- is

371 complains the rele- about given The defendant in which the was priate cases all evidence to of the victim-related vance portion of parties guilt instruction at the issues, just not punishment of three anti-parties charge given Id. is trial. An ad- majority mitigation issue. The of punishment purpose “ensur miti- as to the the relevance dresses jury’s punishment-phase that a deliber ing in the I nonetheless concur issue.1 gation solely upon the of ations are based conduct preserve appellant did because result of another defendant and not that any relevance as to an issue of of 899 party.” Martinez S.W.2d objection Appellant’s issues. punishment cert. (Tex.Crim.App.1994), Therefore, Rule 403.2 based on 138 L.Ed.2d 516 U.S. S.Ct. Rule correct to address the majority was impact The relevance of victim issue, opinion not be its should anti- and victim character evidence bearing on issue relevance read as parties has never been addressed issue anti- dangerousness as to future if it has this Court. Evidence is “relevant” parties issues. tendency to “any make existence comments, I concur. With these fact any consequence probable determination of the action more probable less than it would without

or be Tex.R. Evid. 401.

the evidence.” anti-parties is charge to direct jury’s or mental focus the conduct Helena Melvin HARRIS and G. opposed state of the defendant as to that of Harris, Appellants, M. or or accomplice. a Whether co-defendant of defendant knew or was aware COMPANY, TITLE impact the would have HARBOUR victim’s death Appellee. any tendency on others does not have it or probable make more less 14-99-00034-CV. No. himself, than an accom defendant rather Texas, Appeals of Court of co-defendant,

plice “actually or caused the (14th Dist.). Houston actually of death the deceased or did not April 1999. of in cause death the deceased but to kill the or tended deceased another

anticipated that a human life be would

taken.” before, Granted, may as to this. As I indicated admission of the evidence answered punish- great to the other of maybe improperly, have been harmless as I deal given mitiga- its ment issues relevance probative sympathy, I don't it's think tion issue and failure of defendant has decide. to the issue that now light request limiting Mos- instruction in objection on Appellant's was based Rule ley. nearly year Mosley was decided before may under relevant evidence nonethe- which appellant’s trial. probative be if "its value less excluded danger outweighed by un- substantially Appellant objected fol- to the evidence as prejudice....” Tex.R. Evid. 403. Rule fair lows: evidence,” defines "relevant which stage just We state this the trial would "probative” value or no makes reference probative, prejudicial it’s the effect versus probative" "prejudicial value. versus any question here to be and we're not

Case Details

Case Name: Solomon v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 20, 2001

Citation: 49 S.W.3d 356

Docket Number: 73,459

Court Abbreviation: Tex. Crim. App.