Sonnier v. State

5H judgment entering Appeals “erred” of the appeals of the court and remand ment 80(b) enter; Rule fully entitled of cause to that court for consideration therefore, and, not mandate does permissive the first question in instance. judgment in such circumstances. particular ac- argued that an J., Bigley, In the defendant WHITE, result. concurs the of judgment the Court only quittal was MeCORMICK, P.J., dissents. argu- rejected that enter. We Appeals could the courts empowers held “Rule ment and OVERSTREET, J., participating. not to reflect judgments” reform appeals to of BAIRD, concurring Appellee’s Judge, Consequent- for lesser offenses. convictions Discretionary for Review. Petition Farrell no conflict between ly, there is by the not be created Bigley, and one should majori- separately I write to address simply for majority. stands Farrell ty’s v. 864 S.W.2d treatment of Farrell partic- parties if desire proposition that (Tex.Cr.App.1993), which is neither an Bigley for it.1 they should ask ular result anomaly Bigley by nor undermined appeals the courts holds that (Tex.Cr.App.1993). acquittal or rendering judgments of option of As Farrell: stated judgment re- court’s reforming the trial In [the order to ensure that Court for a offense. flect a conviction lesser Appeals] only decisions reviewfs] Criminal comments, join only judg- I With these appeals, we insist that the of the courts ment of the Court. fashion, parties, orderly timely in an provide appeals with the first courts of

opportunity various issues to resolve the orderly appeal. This

associated with the by timely presentation accomplished points

requiring parties to raise their responses in their

of error and the thereto

original appeals. briefs the courts of SONNIER, Appellant, Derrick Id. 864 at 503. This has been law at least Tallant v. since (Tex.Cr.App.1987), presumably since Texas, Appellee. The STATE of acquired appeals when the courts No. 71698. jurisdiction. This is also true when criminal result, e.g., parties particular desire Texas, Appeals Court Criminal trial, entirely punish- acquittal, an new new En Banc. hearing deadly ment or the deletion of a Farrell, weapon finding. the State asked Nov. 1995. Appeals us to find that the Court of erred Rehearing 1996. Overruled Jan. reforming judgment the lesser acquittal. offense rather than an ap-

At time of Farrell the courts 80(b), had the

peals, Tex.R.App. under P. judgment or

authority to reform the either Consequent- judgment acquittal.

render a Court of

ly, we could not have held the Appeals gratuitous that the State never asked the Court majority swipe at n. 3 of The takes a 1. majority Majority op. request judgment. n. been Farrell. Had that to reform the expresses misquotes confusion the note and then made, original Appeals, either on the Court of correctly, quoted meaning. states: at its Note rehearing, reformed could have submission or requested the State "A reformation event, this Court judgment. In such an rehearing." original in motion brief Bigley, not have disturbed that decision. (The majori- portion was omitted italicized The footnote supra. ty.) it clear was included make

513 judge weight the evidence all, some, choose to believe of it. none (Tex. Chambers Crim.App.1991). Reconciliation of conflicts Cochran, Jr., Houston, E. ap- Winston prov evidence within exclusive pellant. jury. ince of the Losada 305, 309 (Tex.Crim.App.1986). Because the Keel, Mary Lou Assistant District Attor- arguments raised are best understood con Houston, Huttash, ney, A. Robert State’s text presented of the evidence at appellant’s Austin, Atty., for State. trial, briefly the facts the of review light

fense as established at trial and in the most favorable to the verdict.

OPINION The Evidence MEYERS, Judge. Shortly 16, p.m. September on before 2:00 1991, Melody telephone Flowers received a February appellant In was tried and apartment, call at her number from her § convicted under Texas Penal Code 19.03 Melody sister. her informed sister that she offense, murder. The a double mur- just had returned from an and errand was der, September was committed 1991. preparing herself and her two infant children jury affirmatively The special answered the Patrick, old, years Morgan, year two and one issue submitted under Article 37.071 old, nap. p.m. Morgan for 3:00 a Around 2(b)(1).1 § Appellant was sentenced to death crying discovered the door her 2(g). § as mandated Article 37.071 Arti- apartment neighbor, a Henderson. 2(h) § provides appeal cle 37.071 direct thought Henderson the situation odd points court. raises thirteen attempted Melody. to find Unable to find of error. We affirm. her, peeked he into her window and saw apartment get blood. He went to man- Sufficiency I. of Evidence ager. manager apartment, The entered the appellant In his first of error chal- everywhere immediately saw blood lenges sufficiency of the to es- arrived, police. police called When guilt beyond a tablish doubt of reasonable Melody discovered the bodies of capital murder. four appel- submerged Patrick Patrick the bathtub. challenges sufficiency lant of the evidence Melody had been stabbed to death. had affirmatively special the first answer issue hammer, strangled, bludgeoned been with a 2(b)(1).2 (continuing danger). § Art. 37.071 stomped, and stabbed. Sufficiency guilt-inno reviews either the Thomas, neighbor, Another who had been sentencing stages require cence or of a trial outside, sitting police informed that be- that, viewing light while the evidence in the p.m. tween 2:15 and 3:00 he had seen verdict, most favorable to the we ask wheth apart- walking lant toward a field near the er evidence exists from which rational ment complex. appellant Thomas stated that trier fact challenged could have made the bloody wrapped had towel around one hand beyond finding a reasonable Jackson doubt. carrying grocery a “Fiesta” store 307, 319, v. Virginia, 443 S.Ct. bag sticking with a cardboard soda carton (1979); Nelson greet- out of it. When Thomas called out in him, appellant ignored him contin- — U.S. -, 100, 126 cert. pace. ued in a hurried Thomas told (1993). police is the appellant L.Ed.2d sole that when reached the cor- September 1. All article references to the Texas Code of éame delib- effective 1991. The Criminal Procedure unless otherwise replaced indicated. special erateness issue was continuing danger society special issue. days sixteen committed offense after amended 37.071 be- version Article Knowles, Melody boy-friend, peeked T. Flowers’ building, stopped, ner of the he Melody kept corner, a set Garfield testified behind him around the and looked Mosley’s apart- towels like the one found continuing. before given he had ment. He testified that after the Henderson testified that soon Mosley’s L. bloody closet blouse found discovered, he were saw bodies Melody. bloody walking apartment with a toward apartment Searching the field between Henderson wrapped towel around his hand. school, police the middle complex and Melody him if he asked had heard about grocery sack with a “Fiesta” discovered “no.” answered Flowers. sticking it under a bush. out of soda carton testified that told Henderson cord, bloody pair piece It contained Melody “something” happened had socks, shoes, bloody bloodied bloody pair specified that “some- Flowers. Henderson Mosley L. testi- shirt. shorts and bloodied happened he did not thing” had because around fied she had left work that when happened. what know at that had offense, day p.m. 2:00 on the wearing had unsoiled clothes identical been Mosley school D. testified that her middle bag. identi- in the She to those discovered walking p.m. let out at 2:40 and that when given had fied the shoes some she home, along appellant walking she saw appellant. adjacent apartments open road and anything. Appellant carrying Flowers, eighteen-year-old field. was niece of A. apart- Mosley Flowers, D. into her allowed herself that when she had Melody testified aunt, ment, number she lived her there had spent where with with her summer appellant a appellant. mother and arrived between been several encounters appellant had wrapped few His one occasion minutes later. hand was and her aunt. On bloody and her aunt with lewd Mosley a D. asked A. Flowers towel. When accosted On another ignored ques- about their attire. injury, appellant about comments in the yelled aunt had been tion, occasion she her appellant a few minutes later but they heard a noise living-room when he that moment from the kitchen that had at appellant They discovered Mosley bedroom. cut D. his hand. told Melody, naturally upset bedroom. When thought something wrong Pat- he was with intrusion, to know what demanded Melody rick and Flowers. home, laughed doing in her lant was door, police knocked at the front When the A. Flowers responded that she was scared. immediately appellant answered the door her that on another occasion also recounted police stated “I didn’t hurt her.” When the nephews, aunt, and she were her nieces and happened him what had his hand asked watching television. on her aunt’s bed lying appellant that he cut it while answered had hours, p.m., they at about 11:00 After a few she, sausage. Mosley D. slicing testified that To rapping on the wall. startled were sausage, had appellant, sliced hiding horror, appellant they their discovered cooking police Appel- when arrived. He had been of the in the closet bedroom. required cut nine stitches. lant’s Again hours. at least three there an- and verbal responded Melody’s visible home, Mosley she con- L. arrived When remarking that she was seared. ger by apartment. police search of her sented to Flowers, eight-year-old daughter bloody teddy-bear S. police discovered birthday, she towel, bloody Melody, that on her towel, testified bloody and a Garfield hiding in her mother’s balloons Mosley’s closet. had been bag in a hall blouse trash by appellant teddy-bear closet and was startled towel as bedroom Mosley L. identified sliding door of standing just outside hers, ownership of the Garfield denied looking into the bed- Mosley He was informed the bedroom. L. towel and the blouse. mother, her Flowers, friend, Melody When she returned room. her police closet. appellant in the bedroom found like the towels and blouse owned Garfield Melody Flowers T. Knowles testified in her trash. one found expressed had fear Evidentiary Sufficiency that he of Guilt stay had away warned her to from him. one, al leged the State’s evidence did not establish Brown, Dr. T.J. pathologist, testified that beyond a reasonable doubt that he commit Melody injuries, Flowers suffered four fatal ted the offense. In re Winship, 397 U.S. each of which could have her caused death. (1970); She sustained blunt trauma to the head. A § Tex.Penal Code 2.01. acknowl hammer head with human hair was found in edges that Geesa v. 820 S.W.2d 154 apartment. the victims’ The victim suffered (Tex.Crim.App.1991),we abandoned the rea bones; blunt trauma which crushed her neck hypotheses analysis sonable alternative stomped she was on the chest and neck. She reviewing sufficiency of circumstantial asphyxia suffered due to both manual and evidence, urges but nevertheless us to return ligature strangulation; bloody cord analysis reviewing when circumstan grocery bag. found in the Melody “Fiesta” argues tial evidence. He that the reasonable fatally was also stabbed twice the chest. hypotheses analysis alternative is more work The bloodied apart- condition of the victims’ able, meaningful, and accurate than the Jack multiple ligature ment and the marks on son appel standard. After careful review of Melody’s neck indicated that strug- she had arguments lant’s we remain convinced that gled fiercely strangulation, for her life. The our hy decision to abandon the alternative head, beatings, blunt trauma to the and the potheses analysis ap was correct refer stabbing all Melody occurred before Flowers pellant thorough our discussion of our died. Geesa, decision. 155-161. Though against the appellant evidence was Patrick by Flowers’ death was caused two circumstantial, entirely it was nevertheless chest, stab wounds to pen- the one of which extremely incriminating: Appellant had profuse etrated the heart. Because of the victim, entering stalked the several times her bleeding heart, caused the the wound to apartment hiding and for hours in her closet. probably Patrick within died a minute of apparently delight He frightening took receiving the wound. her. He at the was scene the crime at the splatter expert A blood testified there time of the offense with a serious cut on his hand, was splatter acting peculiarly. no evidence of blood and The victim’s master-bedroom, apart- bloodied clothes were found in his only a blood soak the ment, clothes, and his own blood stained having bed consistent with someone been blood, soiled with the victim’s were found stabbed on bed. the childrens’ bed- apartment. Appellant a vacant lot near his room there was blood a soak a drag and was discarding bag seen in which his mark body consistent a small having bloodied clothes were discovered around the been dragged stabbed the bed and then supports time of the murders. evidence living-room off. In the stains blood indi- finding, beyond a rational a reasonable fallen, bleeding, cated that someone had and doubt, appellant charged committed the splat- there beaten or stabbed. Blood Jackson, offense. 443 U.S. at 99 S.Ct. tering in the bathroom was consistent with Appellant’s at 2789. first of error is having bludgeoned someone been there. overruled. Blood, testing semen DNA was mostly and Evidentiary Sufficiency Sentencing Appellant pos- inconclusive. could neither be itively through connected to the offense 2(b)(1) § requires Article 37.071 positively scientific evidence be nor ruled out jury probabili to answer “whether there is a However, suspect. testing as a DNA did ty that the defendant would commit criminal establish blood taken from one of the acts of violence that would a con constitute grocery bag socks in the store matched the tinuing society.” pre threat The State Flowers, Melody blood of but could appellant’s danger sented no evidence of society offense; been own blood. besides facts State, 724 society. Keeton of the threat the circumstances have held that may (Tex.Crim.App.1987). surrounding and the facts offense greater probative than furnish evidence argues most Next, that at probability of regarding the other evidence only inci an isolated presents the evidence may alone estab future acts violence nothing about rage proved dent of is special lish an affirmative answer Appel of violence. potential for future acts 714, 716 Flores v. sues. brutality and extreme ignores that the lant — denied, (Tex.Crim.App.1993) cert. betray a “most dan offense of his violence (1994). -, 130 L.Ed.2d gerous of character aberration First, argues precedent, that our finding” jury’s support a affirmative alone the offense holding that the facts of State, 771 continuing danger. Tucker v. is a may establish an affirmative be sufficient to cert. issues, special dangerousness answer to 492 U.S. corpse. He was his mother’s atop an indi- bathtub given particular to evidence is within ration eight times. The could juror’s appro- not an stabbed prerogative and vidual appellant’s results of reviewing ally from the in the suffi- conclude priate consideration is rage of Chambers, rage of that isolated incident ciency of 805 S.W.2d evidence. nature extreme may an uncontrollable and appellate prop- such 461. Since an court evidence, danger society. to continuing erly weight particular he is a assign to State, See, 704 825 S.W.2d inappropriate for us to hold Joiner would have been — denied, (Tex.Crim.App.1992), cert. an committed with that evidence of offense (1993) -, 125 L.Ed.2d 729 113 S.Ct. support finding of future deliberation can (One to have been stabbed merely assumption victim was found dangerousness on the dangerous- in the chest and further received four times probative it is more of future her The other on neck. series of lacerations than of an offense committed ness evidence forty-one to her Moreover, nothing stab wounds only intentionally. in that victim suffered head, chest, her lacera force trauma to finding of delib- blunt precedent indicates that the head, and, her throat had been our to the significant tions consideration eration was State, slashed); 676 S.W.2d Cass v. deny that evidence of a holdings. do not We (Shocking circum calculation, (Tex.Crim.App.1984) delibera- committed with murder continuing offense established stances of the tion, of future premeditation or is evidence State, society); King danger reject sug- merely dangerousness. We denied, 459 U.S. (Tex.Crim.App.), cert. finding of a formal gestion the absence (1982) of the facts itself renders of deliberation (remorseless of the manner brutality incapable supporting alone the offense human life he another continuing which obliterated finding that a defendant continuing danger society). Ap evinced in the bathtub. When exhibit contains pellant’s point fourth of error is evidence, overruled. both admissible and inadmissible objection specifically must refer to the

Jury Selection challenged apprise material to the trial court objection. of the exact Brown v. two, appellant argues that (Tex.Crim.App.1985). More- the trial court committed reversible error in 50(d) over, under Rule Texas Rules permitting him question the venire Procedure, Appellate it is burden regarding mandatory imprisonment presented “to see that a sufficient record thirty-five years given if he was a life sen requiring show error This reversal.” Appellant argues tence. appeal designate means that must question was proper necessary to the appeal necessary all record that is for our intelligent challenges exercise of for cause Tex.RApp.Proe. review. See also peremptory However, strikes. we original The record does not contain the or recently held “[a]bsent a federal consti copy recording. certified of the video Hav- requirement contrary, tutional to the it will ing objection failed to enter a definite at trial policy remain the officially Texas not to designate comply and to a sufficient record to jurors consequences inform of the actual of a appellate procedure, the rules life sentence.” Smith v. presents lant regard- no error for our review Broxton v. recording the video com- 912 (Tex.Crim.App.1995), plains. Reh’g 71,488 Broxton v. No. (Nov. 15,1995). jurors Accordingly, because The Texas Rules of Criminal Evi are not entitled consider these conse dence, provides although Rule 403 rele verdict, quences in deliberating their their vant, if may proba be excluded mandatory attitude toward imprisonment substantially outweighed tive value question law which appellant about wished danger prejudice, confusion of the unfair them intelligent was irrelevant exer issues, misleading jury. Several fac challenges cise of peremptory in the case. determining tors be considered Appellant’s second of error is over danger prejudice whether the of unfair sub ruled. stantially outweighs probative value photographs including Tape Photographs

Video offered, avers of error three that ... the number of exhibits them admitting detail, size, the trial gruesomeness, court erred into evi- their their recordings color, photographs dence video whether are black and white or they the of bodies the victims as were close-up, discov- whether are the whether Appellant argues [, ered. prejudicial body that the is or and] naked clothed ... the photographs greatly nature of the availability proof out- of other means of the weighed probative their unique value. Tex. circumstances to each individual argues 403. The R.Crim.E. State that error case. preserved was not for review and alternative- State, 702, (Tex. Emery v. 881 710 ly that the trial court did not its abuse dis- added), Crim.App.1994) (emphasis cert. de prejudicial cretion because the value of the —nied, -, 1257, 115 131 U.S. S.Ct. outweigh probative

evidence did not its value. (1995) Long quoting L.Ed.2d 137 259,

Regarding recording, the (Tex.Crim.App.1991), video 272 denied, 1224, 3042, apparently depicts of which the scene cert. 505 112 U.S. S.Ct. (1992). discovered, agree Ultimately, crime as it was 120 L.Ed.2d 910 the ad preserved missibility photographs any challenge has not error. of When over recording the video introduced within the sound discretion of the trial only general objection 487, judge. offered to the entire Jones v. 500 recording; appeal complains only cert. 507 U.S. bodies, found, 1035, (1993). 1858, depiction of the victims’ 113 479 as S.Ct. 123 L.Ed.2d of which 415, recording photographs eo or 428-430 Narvaiz Appellant’s third (Tex.Crim.App.1992); complains. Burdine v. lant 309, (Tex.Crim.App.1986). error overruled. appel photographs The four of which appellant ar point of five error In complains depict the victims’ bodies lant is viola- 37.071 as amended gues that Article in the filled with bloodied discovered bathtub Amend Fourteenth Eighth tive of body focuses on the water. Exhibit 99-MM Constitution. States ments to the United Flow Melody part with of Patrick Flowers argues the deliber the deletion of body picture. Exhibit 99- ers’ visible in regresses from the special issues3 ateness depicts corpse P. Flowers thrown NN against and “freakish” safeguards “wanton” atop corpse his head sub his mother’s with penalty found application of the death merged bloody in the water. Exhibit 88-00 37.071, with the result over former Article depicts the which was thrown blanket once And, penalty has close-up of the death 88-PP is a the assessment the bodies. exhibit arbitrary and er again unacceptably wound corpse; M. Flowers’ nude a stab become Texas, According to the briefs Branch v. decided the chest visible. ratic. See x pho Georgia, 408 92 S.Ct. original were 8 color exhibits Furman v. (1972). single Acknowledging ex tographs presented together as a 33 L.Ed.2d photo Texas, Nothing depicted in the hibit. 428 U.S. Jurek v. (1976),

graphs which was not also included the United 49 L.Ed.2d testimony capital of various witnesses. Supreme held that our Court States enhancement, unconstitutional, allege any tampering, does not punishment scheme was confuse, inflame, attempt by erratic, argues or the State arbitrary or presentation mislead the its controlling longer is no because Jurek photographs. Article 37.071. amendments to gruesome. photographs The are focused on Supreme Court Jurek say, they disagreeable to look That is are sentencing First aspects of our scheme. two at, nothing they depict than the more statutory on the narrow the court focused reality crime committed. of the brutal murder found Section definition evidence, photographs powerful are visual Id. at 270- of the Texas Penal Code. 19.03 probative aspects of various of the State’s Thereafter, Jus- 2955-2956. at S.Ct. theory brutality including the of the offense Stevens, Court, writing focused for the tice and heinousness of the offense. asking provided it whether on Article 37.071 quality precisely must that it is realize mitigating evi- for consideration vehicle gives “powerful” describe as which we dence; entirely spe- focusing on the second photographs arguments rise to (future it dangerousness), he found cial issue inflammatory. But prejudicially when con- provide sufficient vehicle could power emanates of the visible evidence at 271- mitigating evidence. Id. sideration nothing from more than what the defendant court 2956-2957. The Jurek himself done we cannot hold that has question of way suggested that in no merely court has abused discretion trial decision; pivotal to its deliberation was evidence. A trial admitted the because contrary, reading opin- of an honest the the merely it err because admits court does not suggests question the of deliberation ion that grue photographs which are into evidence Court’s concerns and irrelevant Burdine, 316; Nar 719 some. S.W.2d analysis under Furman. vaiz, trial court did at 429. The Jurek, Supreme Court held: admitting vid- In the the not abuse its discretion 1991, anoth- death of the deceased or tation that the September Article to 3. Prior 37.071(b)(1) required answer an affirmative er result. would offenses, question the For like also Art. 37.0711. See the defendant that lant’s, whether the conduct of September 1991 committed on after of deceased commit- caused the death special deleted. this issue was deliberately expec- and with the reasonable ted Thus, essentially requires Texas law authority that That we find aggravating one of five protections circumstances be that offered the Texas found before a defendant can be corresponding found Constitution are than broader murder, guilty capital constitution, of protections and that con- of the federal does sidering impose that, whether to death prove sen- not in fact are so. Before tence may be asked consider we authority, appellant exercise our must whatever mitigating present argument evidence of circum- authority convincing and bring stances the defense can greater protection before it. It us his of that assertions that, appear in Georgia bar, as Flori- are in fact correct. In the case at da, capital-sentencing procedure the Texas appellant proffers argument no such or au guides jury’s objective and focuses the thority. argument con- such Without or authori of particularized ty, only sideration argument unconvincing, circum- not stances of the individual offense and inadequately is also briefed. Narvaiz v. impose individual offender before it can 415 (Tex.Crim.App.1992); sentence of death. Robinson 222 n. 4 (Tex.Crim.App.1991); Morehead v. 273-274, 428 U.S. at 96 S.Ct. at 2957. There n. 1 (Tex.Crim.App.1991); nothing amendments Article McCambridge v. 501- change 37.071 holding. which would In- 9 (Tex.Crim.App.1986); Tex.R.App. n. deed, the addition special of the new issue pursue Proc. and 210. We decline to regarding mitigating brings Article appellant’s arguments Appellant’s for him. 37.071 into further compliance with the con- point sixth of error is overruled. Eighth cerns of the Amendment as ex- pressed by Supreme Court Jurek. points eight, In of error seven and Point of five error is overruled. appellant argues that the amendments to points eight, six ap error 37.071, particularly Article elimination of pellant respectively challenges the constitu (deliberation), special the first issue are viola- tionality I, of Article 37.071 under Article equal protection guarantees tive of the Constitution, Section 13 of the Texas constitutions, respectively. federal state punishment states that cruel or unusual shall Appellant argues equal protection that the inflicted, I, be not and Article Section procedures law entitles him to the same as guaranteeing equal protection Appel of law. defendants, i.e., similarly all situated all arguments lant raises the same being capital those tried for murder at the error six that he under raised error Appellant argues pecu same time. five, point eight arguments and in identical liar effective date Article 37.071 creat has raised under seven. adds ed a situation in which two trials prevail that even if he under does day differ conducted the same follow constitution, prevails federal under the procedure depending ent on the date protections broader Texas Constitu offense was committed. This situation tion. appellant’s right equal protec violative arguments provides no or au- tion. supporting position thorities Tex- greater as Constitution protections Equal offers Protection clause against punishment requires persons cruel unusual federal constitution “all protection understanding equal similarly broader un situated shall be treated alike” 202, 102 Doe, Plyler than does the United States der law. Constitution. (1982). Thus, Appellant argues hold should greater protec- the Texas Constitution offers his claim initiate must establish merely authority being tions because we have the he is not treated the same as Appellant argues “similarly to do so. that we have a others See v. situated.” Dobbert Florida, 282, 2290, 302, in responsibility to of an 432 97 do so faee U.S. S.Ct. (1977). 2302, But, increasingly conservative United States 344 Su- 53 L.Ed.2d preme Court. in was treated the same manner as all those

521 that re legal or distinctions no factual capital Sep murder after ents committed who authority of this 1, 1991; is, he is treated the case from move his tember “similarly presents no reversible all situated.” See precedent. same as those also, State, 380, error; 341 is overruled. v. 894 error Dinkins his ninth equal (Tex.Crim.App.1995). Regarding his ten, alleg of error I, protection Sect. 3 of claim under Article reversible court committed es that the trial Constitution, appellant concedes the Texas jury with an failing charge the in error Article that to the extent we have addressed We deduce “application paragraph.” I, pro 3 we have found no broader Section punishment challenge is to the Four than those contained in the tections argue that an charge. Appellant does State, 170 teenth Amendment. Rucker v. necessary made paragraph was application (1961). 487, Ap 342 325 Tex.Crim. He particular in his case. by a issue raised pellant presents compelling no reason di paragraph is al application argues that an precedent. from this His seventh and vert jury charges, in and that ways required eighth points are overruled. of error always Appel reversible error. exclusion error, In his ninth State, 547 S.W.2d lant relies on Williams v. in argues that the trial court erred instruct (1977). 18, 19 jury ing that was not to consider or proposition for the Williams stands parole discuss the ramifications of a life- para- application must include an trial court failing jury in sentence and to instruct guilt-inno- jury charge at the graph in its mandatory that a life-sentence mini carries But, appellant’s case phase cence of trial. years thirty-five imprisonment. Appel mum capital punishment-charge involves authority supporting argu no lant cites sought the murder trial in which the State general allegations ments other than vastly presents different penalty; death against proscriptions violates the sentence legal ad- concerns from those factual federal punishment cruel and unusual in the dressed Williams. and state constitution. statutory authority requires an Appellant ignores body juris Firstly, strong no punishment holding parole prudence proper application paragraph not a capital charge capital murder trial. Article consideration in murder delibera of a jury charge guilt- repeatedly governs “in at the tions. We have held that 36.14 Texas, trial, phase punish parole jury’s for a innocence of a but the not matter capital governed by phase consideration in a murder trial.”4 ment of a trial is State, speak, “so e.g., 37.071. Article 37.071is See Smith v. 898 S.W.2d 838 Article — (Tex.Crim.App.1995), presentation of that which must cert. denied a formbook (1995). -, 131, jury” without “mention 116 L.Ed.2d 80 submitted to the 133 be objections Recently, rejected requested to or instructions for arguments Smith we charge, against nor reference prohibition the consideration inclusion v. parole prohibitions procedural to other rules.” Johnson violates constitutional back (Tex.Crim. State, 731, 733 n. 16 against punishments. cruel and unusual 629 S.W.2d Smith, dissenting).5 pres App.1981) (Judge at 846. Clinton S.W,2d 487, (Tex.Crim.App.1992),governing the conduct of the trial shall be rules 4. Jones denied, 1035, guilt applicable as or t. 507 U.S. 113 S.Ct. the same on the issue of er c (1993); comparable Ellason v. no innocence.” Article 37.071 has 656, 665, (Tex.Crim.App.1991); provisions n. provision. 815 S.W.2d The absence of for addi required Stoker tions to instructions Article denied, cert. 498 U.S. 111 S.Ct. objecting preserving or error 37.071 (1990). 112 L.Ed.2d by analogy has necessitated citation instructions resolving procedural to Article 36.14 in some arising e.g., questions 37.07, under Article 37.071. See gov- example, 5. Contrast for Article (Tex.Crim.App.), trials; Miniel v. non-capital punishment charge erns 3(b) rt. 506 U.S. § "the shall Article 37.07 states that court ce (1992) (preservation 121 L.Ed.2d give such additional written instructions requirements). necessary procedure and be and the order of Secondly, noting purpose impartial and the consideration of all the evi- structure, 37.071, prescribed as in in Article of a It is the dence case. kind of doubt punishment charge capital in a trial person that would make a reasonable hesi- unique guilt-innocence important from to act in distinct tate the most of his charge, beyond affairs ... we conclude that in own Proof a reasonable rationale doubt, therefore, proof must be applicable present Williams is to the of such case. Judge Onion, convincing you that writing character would be for the court in Williams, willing rely upon to act it explained without properly apply that to your facts, important in the most hesitation necessary law to the it is for a affairs. court, own party, neutral guide jury to “application with an paragraph” which ex- Assuming argument, appli- for that Geesa is plained jury to the what conduct must to punishment charge capital cable of a find alleged establish accord- offense trial, our own of the review record reveals ing legal to the definition of that offense. given in that instruction was substantial Williams, 547 at 20. Geesa; This rationale compliance appropriately is not applicable punishment phase to the punishment phase amended fit the capital jury trial. murder aWhile needs capital giv- murder In the trial. instruction guidance recognize en, evidence relevant paragraphs some of the contained legally particular deleted, defined elements of a Geesa instruction were but these offense, readily grasp it can the relevance of paragraphs designed guilt-inno- were for the special charge evidence to the inappropriate issues. cence and therefore punishment charge under Article 37.071.6 Thus, we punishment conclude that for a Appellant’s eleventh of error is over- charge in application murder an ruled. paragraph necessary is neither nor autho- appellant of error twelve course, rized. Of we do not foreclose the that alleges denying the trial court erred in possibility may a situation arise which trial, his motion for a “in bad new that a necessary. such be instructions What decision had such severe today simply we hold has that, fairness, consequences in all trial coun presented not such a situation. Point of acquiesced appel sel not to the error ten is overruled. legal consequences if lant’s wishes had avers, gravamen been understood.” The of this eleven, reversibly that the trial court erred in argument decision not to allow incomplete providing an Geesa instruction present any “mitigating” his counsel to evi punishment charge. 162. during sentencing dence trial. His attor Appellant alleges explanation without ney testified as follows: incomplete meaning instruction on the present- Mr. Morris and I have discussed beyond a reasonable doubt violated the due Sonnier, witnesses on behalf Mr. process equal protection clauses family being those witnesses various mem- Fourteenth Amendment of the States United of Mr. bers Sonnier. We have advised Mr. provi Constitution the corresponding present of our Sonnier desire those sions the Texas Constitution. interest, witnesses on his behalf best record, trial, According especially part punish- the trial court at this phase on special instructed the the first issue ment of trial. Mr. Sonnier ad- has required by put Article 37.071. The trial us that vised he does want us to prove put any court added forth State must witnesses or beyond testimony regards this affirmative answer a reasonable to the defense at stage of the explained doubt and trial.

A allege any impediment “reasonable is a doubt does doubt” based reason careful and common sense after a the voluntariness of this decision. He mere- Moreover, particu- egregious concedes that it was error. Almanza trial, 1984). complaint argues (Tex.Crim.App. lar not raised at Albiar, argument was that under the State’s ly alleges retrospect, in he realizes nevertheless, to “recommends” proper, not to his counsel but he was mistake allow to over- present mitigating evidence. does decline overrule Albiar. We argue mitigating evidence ex- compelling not that actual reason. precedent rule without trial; merely at he isted the time thirteen is overruled. Point of error he “muster asserts that retrial trial court is affirmed. judgment The Penry be avail- might whatever able.” J., CLINTON, in the result. concurs Life is full of choices in retro however, law, spect regrettable. are BAIRD, J., concurs with note: recognize grounds this truth does BAIRD, J., dispo- I concurs. concur reversal of criminal conviction. To for the point fifth of error sition of the contrary, principle underlying our the basic State, in v. stated Green reasons justice is system criminal is that each citizen (Baird Overstreet, (Tex.Cr.App.1995) choices, if is free to make even the choice JJ, disposition I concurring). concur in the State, clearly a mistake. See Hubbard points eight for reasons of error seven and (Tex.Crim.App.1987) 739 S.W.2d in stated Dinkins v. appellant’s right self-represen (upholding I in the dis- (Tex.Cr.App.1995). concur tation, questioning the for albeit wisdom of position point of nine for the reasons error going expertise prosecuting an counsel’s stated Smith appeal). appel Neither the trial court nor (Baird, J., (Tex.Cr.App.1995) concurring). I attorney appel lant’s was free override disposition concur error choice, authority no lant’s and we have in Almanza v. eleven for the reasons stated choice; appellant’s review a defendant’s I (Tex.Cr.App.1984). 686 S.W.2d 157 knowing and free choices are owed absolute join opinion. the remainder of His deference. twelfth of error overruled. thirteen,

argues that the trial court erred overrul objection to the State’s reference

during closing argument punishment produce

appellant’s failure to witnesses

testify behalf. does part argu specify to which of the State’s Ex Parte Aaron Lee GEORGE. objects, he ment but we surmise that objects following remarks: No. 578-94. if defense] said there were informa- [The Texas, Appeals Court of Criminal past tion about this defendant’s criminal En Banc. And,

you brought I would it. know know, certainly only I you am the one with Nov. here, proof burden of evidence, way responsible bring any no 10, 1996. Discretionary Review Denied Jan. the other side of that coin if there parade say witnesses to character is, you you a fine man this know what those, too.

would have heard It

Appellant’s complaint is meritless. jury argu- permissible

within the bounds for the State to comment on

ment competent to call and material

lant’s failure Albiar v.

witnesses.

(Tex.Crim.App.1987). concedes notes inapplicable to his case. (1989). heinously L.Ed.2d previous Article version of that under the two-year-old and her murdered M. Flowers 37.071, danger when a considered needless murder involved son. M. Flowers’ defendant, they had society by posed stabbed, brutality; Appellant vicious already that he had committed determined the claw strangled, bludgeoned her head with deliberately. argues the murder hammer, crushed her neck of a no finding that since deliberation apartment of the stomping it. The condition 2(b), § longer required, see Article 37.071 followed M. Flow suggested longer alone of the offense no facts her, beating throughout ers, stabbing and doubt, find- beyond a reasonable support, struggled apparently apartment she her danger. a future that a defendant children. life the lives of her for her Flowers, still an infant murder of P. argument some in terms of The This has merit wanton; evidence; the infant speak, weight learning murder com- through heart as he fatally deliberately fu- was stabbed probative is more mitted dragged to body was lay a mur- on his bed and his than dangerousness ture But, it was weight where tossed intentionally. the bathroom der committed

Case Details

Case Name: Sonnier v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 10, 1996

Citation: 913 S.W.2d 511

Docket Number: 71698

Court Abbreviation: Tex. Crim. App.