*1 or combination hoi, other substance any or TEMPLE, Appellant, Mark David of “intoxicated” the definition
falling within Code, 49.01(2) the Penal could of in Section it because of intoxication probative be Texas, Appellee. of STATE appellee that the provide evidence would into his such a substance had introduced No. 14-08-00074-CR. of intoxi- symptoms Given the body.27 Texas, affidavit, Appeals of of we hold Court in the described cation (14th Dist.). Houston had a substantial basis magistrate that evidence of intoxication that to determine Dec. 2010. appellee’s in the be found probably would stop. Rehearing four hours En Banc Denied blood within May 2011. that “if the argues also appellee that just being taken show sample is alcohol[,] consumed that appellee] had
[the merely cumulative evidence” be- would be already had determined police cause alcohol. The had consumed appellee of, cite, do we know fails to nor appellee evi- proposition for the any authority merely cumula- a blood test is dence from tests, sobriety prop- or for the tive of field potential collection osition that invalidate a evidence should of cumulative probable magistrate’s determination cause. judgment of the reverse the
We to the trial and remand Appeals Court not inconsis proceedings court for further opinion.28 tent with this Mechler, knowledge' per- 440-42 'veracity' State and 'basis of information, (breath-test hearsay supplying (Tex.Cr.App.2005) sons there is a were results probability fair that contraband or despite prejudicial probative than not more particular a crime found in a will be retrograde testimony). extrapolation lack of place.”). holding, Despite our we note that the bet- 93, 96 27. See Stewart v. practice specify the times ter is for affiants (breath-test were (Tex.Cr.App.2004) results magistrates of critical events described so that despite retrograde extrapola- relevant lack of precise information with which to have more they provided testimony tion evi- because probable determine cause. alcohol); had consumed dence Stewart *9 DeGuerin, Schneider, Dick Stanley G. Houston, appellant. for Houston, Curry, Alan appellee. YATES, Panel consists of Justices SEYMORE, and BROWN.
MAJORITY OPINION SEYMORE, CHARLES W. Justice. Appellant, Temple, David Mark was con- wife, victed of the murder of his Belinda Temple, imprison- and sentenced to life ment. Appellant challenges his conviction issues, eighty which are grouped into *10 following categories: coaching Living- in (1) teaching SFA and legally factually and and ston. support jury’s verdict to insufficient (issues two); one and to In and Belinda moved appellant (2) rights were due-process Katy. employed as an assis- was Appellant Brady State’s because
violated High Alief Hastings tant football coach at four); (issues three and violations School, High at taught Katy Belinda and (3) by allowing erred court the trial eventually bought a home They School. appellant cross-examine to prosecutor subdivision, south 1-10 in the Cimarron veracity wit- of other regarding the drive approximately an fifteen-minute fourteen); (issues through five nesses At from Maureen’s home. Kenneth and death, (4) appellant and by the time of Belinda’s allowing erred trial court son, E.T., three-year old and unsupported in- Belinda had a inject and prosecutor to eight-months preg- Belinda was almost during facts cross-examina- flammatory nant, (issues girl. a through expecting tion fifteen appellant twenty-four); 11, 1999, Monday, January On Belinda (5) by allowing court erred the trial E.T. was at when she was informed work im- prosecutor engage repeatedly in daycare. running During was a fever at (issues argument twenty- proper jury lunch, E.T. took him Belinda retrieved and sixty-seven); five through and p.m., 12:30 approximately appel- home. At (6) overruling erred by the trial court E.T., allowing watch lant arrived home to (issues hearsay objections six- numerous Belinda to her school until to return eighty). ty-eight through Between and 3:45 p.m. around 3:30 3:30 at Kenneth Mau- p.m., Belinda arrived and We affirm. soup. briefly reen’s home to retrieve She Background I. spoke and then drove home. with Kenneth Belinda home sometime before arrived Appellant Katy by raised Ken- was that, p.m. 4:00 claims after Be- Appellant Temple. neth Maureen Interstate 10 and home, linda he and E.T. left so arrived (“1-10”) through Katy. runs east-to-west rest. Belinda could Maureen lived in house Kenneth and a north of 1-10 and surrounded fields he his According appellant, drove brothers, which his and Darren appellant blue, truck to the small pickup short-bed Kevin, At the Belin- and hunted. time of park in Cimarron Park. neighborhood, death, da’s Kenneth and Maureen still shortly arriv- Appellant testified after lived house. in that ing go at the he and E.T. decided to park, Park, mid-1980s, appellant park, to a Peckham several
During larger miles of 1-10. Katy High away, Appellant star on the School north linebacker school, high stopped After claimed he at Brookshire Broth- football team. played Stephen grocery F. ers north of 1-10 where he football Austin State store (“SFA”) cat food. University Nacogdoches. purchased Appellant Dur- drinks and videotaped met ing college, appellant began entering dat- E.T. were ing dating, leaving Appel- store at at 4:38. Belinda. While 4:32 go lant he then decided to acquired dog they Belinda Chow-mix testified shelving Home to look at for the Appellant Depot named Shaka. and Belinda spent baby’s Appellant E.T. were married in 1992 and the next two room. Depot years videotaped entering Home at 5:14 earning post-graduate degrees from *11 p.m. videotaped exiting but were not placed patrol in the back of a car. Ken- store. neth and Maureen later arrived at night, appellant scene. That par- and his E.T. home
Appellant and returned and questioned ents were at a local substation pulled garage. Temples’ ga- into the by detectives with the County Harris rage was detached from their home and Sheriffs Office. Appellant gave a written had a door into their leading backyard. statement regarding his and Belinda’s ac- Appellant testified that he left E.T. in the day. tivities that Detective Charles Leith- garage, backyard, went into the no- and questioned ner appellant about open, ap- ticed the back door to the house was several parent and the door’s window was broken. Ac- inconsistencies in his statement. cording to appellant, immediately Appellant he and his parents were informed grabbed E.T. and took him across the that appellant was a suspect Belinda’s Peggy street to the home of Michael and Early murder. morning, next appel- Ruggiero. Appellant banged on the door lant left the substation and went to his “Mike, Mike, me, yelled, it’s David. parents’ Appellant home. and E.T. resid- Let me in.” Peggy opened Michael and ed with parents until the sum- door, E.T., appellant handed them 2001, mer of when he remarried. burglarized, told them his house had been 2005, In appellant was indicted Be- and asked them to call then Appellant 911. linda’s murder.1 In November ran back to his house with Michael follow- appellant found guilty charged as ing. Appellant through entered the back the indictment punishment and assessed at gate and went into his house. Michael imprisonment. life The trial court denied stopped gate by at the when confronted appellant’s timely filed motion for new tri- Shaka, appellant but saw enter his house al. and the back door close behind him. Appellant testified that he went upstairs II. Sufficiency the Evidence body and found Belinda’s in the closet of the master bathroom. It is undisputed issues, In his first appellant and second shotgun Belinda was killed blast argues legally factually the evidence is her p.m., back of head. At 5:38 insufficient to support his conviction. dispatcher called 911. The 911 appeal While this was pending, judges five perform instructed CPR on on the Appeals Texas Court of Criminal Belinda, but he “I responded, can’t. Her only held that one standard should be used just gone.” head is to evaluate whether the evidence is suffi holding While Michael was still the back support cient to a criminal conviction be gate prevent escaping, Shaka from law- yond a legal sufficiency. reasonable doubt: enforcement personnel began arriving at See Brooks v. 905- Temple Appellant home. exited his 07 (Tex.Crim.App.2010) (plurality op.); id. through house the back door and an- (Cochran, J., concurring). 926-28 Ac nounced that Belinda was dead. He then cordingly, apply legal-sufficien we will placed garage. Shaka in the cy addressing appellant’s standard when legal-sufficiency factual-sufficiency More law-enforcement ar personnel ar- rived, investigators began guments. crime-scene See Pomier processing Appellant (Tex.App.-Houston scene. 378-79 [14th Dist.] April grand jury In appellant. failed to indict
584 Our (Tex.Crim.App.2007). h.) 772 standard S.W.3d (applying single 2010, pet. no Brooks). ensure that reviewing court is to duty as a by required of review actually supports a presented
the evidence
Re-
and
of
Applicable Law
Standard
A.
committed
the defendant
conclusion
view
State, 235 S.W.3d
crime.
v.
Williams
742,
(Tex.Crim.App.2007).
750
if he inten-
murder
commits
person
A
the death of
knowingly causes
tionally or
is as
evidence
Circumstantial
cause serious
intends to
person or
another
establishing
in
direct evidence
probative as
clearly
an act
and commits
bodily injury
actor,
circumstantial
guilt of an
that causes the
human life
dangerous to
to estab
alone can be sufficient
evidence
Ann.
Tex. Penal Code
of another.
death
State, 214 S.W.3d
Hooper v.
guilt.
lish
2003).
(2) (West
19.02(b)(1),
person
A
§
The Court
(Tex.Crim.App.2007).
13
na-
respect
to the
intentionally with
acts
murder
Appeals has affirmed
Criminal
of his
or to a result
his conduct
ture of
solely on inferences
convictions based
objective
it is his conscious
when
conduct
See,
evidence.
by
raised
circumstantial
or cause
in the conduct
engage
or desire
778-82;
at
Gue
e.g., Clayton, 235 S.W.3d
2003).
6.03(a) (West
§
A
the result.
Id.
(Tex.
State,
45, 49-52
vara v.
152 S.W.3d
to the
knowingly
respect
person acts
State,
King v.
Crim.App.2004);
to circumstances
of his conduct or
nature
An in
(Tex.Crim.App.2000).
564-65
aware
when he is
surrounding his conduct
by
reached
consid
ference is a conclusion
conduct or that
nature of his
of the
logical
deducing
facts and
a
ering other
6.03(b).
per-
§
A
Id.
circumstances exist.
Hooper,
from them.
consequence
knowingly if he is aware his
also acts
son
mere theoriz
Speculation
at 16.
is
S.W.3d
reasonably certain to cause the
is
conduct
meaning
possible
about the
ing
guessing
or
result.
Id.
AId.
presented.
of facts and evidence
may not
by speculation
reached
conclusion
sufficiency of
reviewing
When
unreasonable, but it is not
completely
be
in
evidence,
evidence
we view all
based on facts or evidence to
sufficiently
to the verdict to
light
most favorable
a
finding beyond
a
reasonable
support
rationally
was
determine whether
point
di
Id. Each fact need
doubt.
guilt beyond a reason
justified
finding
guilt
to the
rectly
independently
Brooks,
Appellant reunion. According Quinton, to appellant solely him against premised case was him told that he met a former girlfriend at opportunity evidence of motive and and the reunion “[t]hey and were on the couch actually supporting on evidence not they and kissed. And I him if asked he correctly *14 Appellant intentions with Heather. verdict, their light most favorable to wife Quinton if he would leave his asked in a sexual relation appellant was involved Heather, Quinton responded, to which for Heather, if he was with was unsure ship ap- question, asked the same “No.” When Heather, Belinda for willing to leave responded, “I don’t know.” pellant than a week Heather he loved her less told evidence, Belinda’s death. This before 1998, appellant invited to a In Heather appel regarding with evidence coupled her townhouse. party Year’s Eve New Belinda, supports rea lant’s treatment of party spent Appellant attended un appellant inferences that was sonable Heather, returning home nights two marriage and had a motive happy with his that January 1999. Heather testified However, “although killing Belinda. 1; January sex on appellant she and had marriage may during of an affair evidence he remember appellant testified does not motive, is not a an affair alone alibi, provide day. appellant that As an having sex or her enough person to connect that to his hunting. he was told Belinda spouse’s death.” Smith initially police investigators Heather told (Tex.App.-Corpus Christi that, January she informed on struck). 2008, pet. appellant not want their “relation- she did supporting an way it had been.” In There was also evidence ship to continue statement, could have been appellant Heather stat- inference that police her second that, 8, 1999, murdered. Af- present when Belinda was January appellant ed told her, home to care for totally you.” appellant in love with ter arrived “I have fallen 1999, E.T., Furthermore, returned to school for a grand jury Belinda before p.m. between 3:20 meeting told her he that lasted until appellant Heather testified that her, p.m. and 3:30 Phone records indicate falling was in love with and she re- trial, p.m. Appel- home at 3:32 plied, way....” “I feel the same At Belinda called father, Kenneth, Belin- interview- lant’s testified that police Heather testified that the soup at his home to retrieve extremely ers were abrasive and coerced da arrived had and left at around prepared her to add this information to her second Maureen par- p.m. appellant’s own 3:45 The drive from phrased statement and it their Temples’ home to the home ordinari- explained appellant words. She that when ents’ her, fifteen minutes. In his playfully ly told it was took around her that he loved appellant indicated police, moment.” statement to I-love-you-ah-ha-big “not an p.m. home at 3:45 At Appellant that he never told that Belinda arrived testified trial, arrived home Tracy he testified that she Heather he loved her. Detective Several witnesses testi- Shipley police p.m. second closer to 4:00 drafted Heather’s often tired and had fied that Belinda was Shipley agreed statement. Detective Appel- her pregnancy. swollen feet due to sign Heather did not want to the state- rest, testified, I Belinda to lant “I told ment because it included that and we park gunshot. According would take [E.T.] their testi- supper.” mony, would be back in time for Belin- the time of gunshot was around planned girl- p.m. da had to meet with her 4:38 same time that —the evening play videotaped friends later that Bunco. was leaving Brookshire Broth- Although ers. the Roberts brothers’ testi- Appellant testified he and E.T. drove his mony supported defense, Park; however, nearby truck to Cimarron jury was free to rationally disbelieve it and testimony. no evidence corroborates this could have done so because the Roberts within minutes of According appellant, brothers were children and no other wit- Park, arriving at Cimarron he and E.T. ness testified that gunshot was heard Park, decided to drive to Peckham located day. Accordingly, viewing the evi- Appellant north of 1-10. testified that he light dence most favorable to the E.T. stopped then at a Brookshire verdict, we conclude the supports Brothers north of to purchase I—10 drinks. a reasonable inference that appellant could At p.m., appellant 4:32 and E.T. were have been in his home when Belinda was videotaped entering Brookshire Brothers. *15 murdered. Hence, thirty elapsed at least minutes be- tween the time Belinda arrived home and impeaching Evidence appellant’s appellant the time entered Brookshire purpose stated for north driving of 1-10 on Brothers. A detective the Harris the afternoon of Belinda’s death was also a that, County Office testified Sheriffs guilt. Appellant circumstance of his main 1999, it was a twelve-minute drive from that, leaving tained after Brookshire appellant’s home to Brookshire Brothers. Brothers, he drove directly Depot to Home If appellant the disbelieved that took to look at shelving baby’s for the room. Park, eigh- E.T. to there were Cimarron Appellant testified he drove eastward to teen unaccounted-for minutes between ward Depot. Notwithstanding Home ap appellant when Belinda arrived home and pellant’s testimony that traffic was con According entered Brookshire Brothers. afternoon, gested that several witnesses appellant’s to the medical examiner and testified that the drive time from Brook- expert, many medical there were too un- shire Depot Brothers to Home was ten to known variables to the determine time of fifteen Appellant minutes. and E.T. were only certainty Belinda’s death. The is that videotaped leaving Brookshire Brothers at she was killed sometime after her school videotaped 4:38 and entering Depot Home meeting ended between 3:20 and 3:30 p.m. Thus, p.m. at 5:14 thirty-six- there was a
Notably, appellant presented gap appellant evidence minute between when left gun that a was neighborhood fired his at the Brookshire Brothers and entered a videotaped time when he was at Brook- Depot. significantly, Home More Bernard January shire Brothers. In Alexan- Bindeman testified that between 4:50 and elementary der Roberts had three sons in p.m., stopped 5:00 he was in his truck family school. The Roberts shared a back the intersection of Morton Ranch Road west) fence with appellant. January (running Hockley On Katy east and and south) Roberts brothers arrived home from (running Cutoff north when he school at p.m. According appellant around 3:57 to saw in a pickup blue truck head brother, ing Katy eldest fifteen minutes Hockley Appel south on Cutoff. after home, arriving they began watching heading a lant was from a location near to Twenty-six movie. parents minutes into the mov- where his and other relatives lived ie, they evidence, the brothers what heard believed and where he was raised. This murder, that the bur- to time of the testified light favorable in the most
viewed
staged.
been
glary appeared
a
inference
to have
verdict,
reasonable
supports
concerning
police
lied to
appellant
that
appellant’s
The back door of
house
Lying
1-10.
to
driving north of
purpose
Directly beyond
a
foyer.
small
opened
guilt.
See Gue-
police is a circumstance
couch,
to the
foyer was
left
vara,
at 50.
A
foyer
living
was
room.
wooden
an
supporting
directly
was also evidence
against
There
was
the wall
hutch
appellant
when he said
that
lied
inference
the door.
found consider-
left of
Officers
they
E.T.
a car seat before
living
placed
glass
he
in the
room
ably more
shards
1-10.
Holtke tes-
north of
Detective
drove
foyer
and found none on
than in the
area
in appellant’s
was no
seat
there
child
tified
Sergeant Holtke testified this
the couch.
processed
Photographs
he
it.
when
truck
being
with the door
finding was consistent
truck did not show a
appellant’s
taken
glass
broken.
open when
was
Detec-
where
asked at trial
car seat. When
damage
also did not
hutch
tives
see
testified,
was,
“I have
no
car seat
door,
back
on the inside of the
or dents
always
Appellant
testified he
idea.”
theo-
which tended
discredit
they
placed E.T.
in his car seat when
into the
ry
glass
living
that
thrown
was
Tammy
together,
Quinton
drove
slammed into
room when
back door
they
put
never saw
testified
opined
Holtke
Sergeant
the hutch.2
using a car
in his truck without
seat.
E.T.
its
dragged
television
off
stand
appellant always
used
car
Evidence
ground
placed carefully on the
be-
*16
seat,
on
day
did not
the
of Belinda’s
but
scrapes
the stand
fresh
and the
cause
had
murder,
supports
reasonable inference
the
plugged
was still
into
wall.
television
away
hurry
was in a
to drive
appellant
drawers
open
The contents
the
were
his house.
from
undisturbed,
jewelry
appellant’s
and
was
tray
found on
in the master bedroom
was testi-
guilt
Another circumstance of
that,
Appellant agreed
view.
plain
appel-
evidence that
mony
physical
and
knowledge,
burglar
of his
the
“didn’t
best
im-
“staged”
give
to
the
lant’s house was
single
belonged to
thing
take one
Appellant
pression
burglary
occurred.
jewelry
Additionally, the
Belinda
[him].”
on
that he noticed the window his
testified
the
wearing
Finally,
was
was not taken.
he re-
had been broken when
back door
timing
alleged burglary
location and
Home
The television
Depot.
turned from
Temples lived in a
suspicious:
were
the
living
lying side-
room was
appellant’s
home,
burglary allegedly
the
corner
ground,
the
and a buffet
the
ways on
at a time
during
day
occurred
when
open.
had
drawers
dining room
several
typically return home from work
persons
Further,
mother later deter-
appellant’s
Routier v.
and school. See
pieces
jew-
mined that several
of Belinda’s
(in-
(Tex.Crim.App.2008)
necklaces, S.W.3d
elry
missing, including
were
two
cluding
supporting “stag-
in list
factors
watches,
earrings.
two
three sets
“house
ing” that defendant’s
would
Accordingly, appellant argued his house
for a
inviting target
have been an
home
sometime while he was
burglarized
was
at
invader”).
viewing
However,
Accordingly,
the evi-
park
Sergeant
and stores.
light
favorable
Holtke,
in the
most
to
investigator
Dean
who
with
dence
was an
verdict,
County
at
could have concluded
the Harris
Sheriffs Office
house,
hearing
he
remember
Additionally,
Ruggiero testified that
but
does not
Michael
glass "tinkling.”
appellant ran into
sound of
the back door shut after
and, thus,
cried,
be- never
burglary
staged
and was hesitant
in his an-
jewelry was
missing
lieved that Belinda’s
Additionally, Quinton
swers.
testified
burglary.3
of a
not the result
that, a few
funeral,
weeks after Belinda’s
appellant
he asked
if he would like to find
Next,
behavior
appellant’s
murderer,
to which appellant respond-
murder, when
following Belinda’s
viewed
ed,
difference is it going
“[W]hat
to make.
verdict,
light
in the
most favorable to
going
bring
It’s not
her back.”
guilt.
an inference of
See
supports
Gue-
vara,
50; Hinojosa
S.W.3d
Second, appellant resumed his relation-
(re-
(Tex.Crim.App.1999)
ship
shortly
Heather
after Belinda’s
lying
suspicious
on defendant’s
behavior
January
murder. On
appellant’s par-
following murder as a circumstance of
ents hosted a visitation at
their house.
First,
guilt).
personnel
law-enforcement
Quinton
Tammy
attended
recep-
appellant’s
on
lack of emotion
commented
Quinton
that,
tion.
testified
when he and
day
Deputy
on the
of the murder.
Virgi-
alone,
appellant were
the first thing appel-
nia
partner
Kathleen Johnson and her
was,
lant asked
“How’s Heather?” and “Is
personnel
were the first law-enforcement
doing okay?
she
How is she holding up?
According
to arrive at
house.
Has she
anything?” Quinton
said
testified
Johnson,
Deputy
while she and her
that appellant later called him
apolo-
partner
standing
gate
were
outside the
gized that he and Heather
“go
had to
appellant’s backyard,
appellant
exited
through this” and
him
asked
to tell Heath-
through the back door of his house and
sorry.
er he was
Heather
testified she
calmly, “My
said
wife has been shot.
received flowers from
appellant
Valen-
Deputy
She’s dead.”
further
Johnson
tes-
tine’s Day month after Belinda’s mur-
appellant
appear
tified that
to be
did not
—a
Tara
der.
also testified that
vis-
upset
cry.
and she did not see him
Detec-
ited Heather several
that,
spring
times that
tive
Leithner testified
when
Charles
he
planted
and Heather
flowers on the
he interviewed
later that eve-
*17
Scott,
Appellant’s
ning, appellant
“shaking
patio.
neighbor,
was
and bounc-
Natalie
ing,”
eyes,
did not look the detective in the
that
appellant
testified
she saw
at a steak-
acknowledge
expended
Angela
only
We
3.
that the State
Vielma was the
witness who
appellant
garage upon
saw
enter the
his re-
appellant's
substantial effort to establish that
Depot.
turn from Home
Shaka,
She testified that she
dog,
backyard
was in the
at the time
dog
garage.
did not see a
in the
Neverthe-
sup-
Belinda was
fact
murdered. This
would
less, Vielma also testified she did not see
port
burglary
the State’s contention that the
that,
garage
another car in the
and
if there
staged
was
because Shaka was ferocious and
been,
had
she
have
would not
been able to see
burglar
would not have allowed a
to access
what was on the other side of the car. Be-
Appellant
the back door.
testified that he
undisputed
cause it is
in
Belinda's SUV was
placed
garage
leaving
Shaka in the
before
garage
the
and Shaka’s blanket and bowls
park. Although
the
several of the State’s wit-
SUV,
were on the other
no rational
side
they
dog in
nesses testified
never saw the
testimony
could credit Vielma's
that
garage,
appellant’s
photographs
by po-
taken
dog
garage.
only
there
no
in
was
the
night
clearly
lice on the
of the murder
show a
arguably supporting
finding
evidence
a
that
dog
garage
blanket and bowls in the
on the
backyard
Shaka was in the
came from Detec-
Further,
left side of Belinda’s SUV.
several
Leithner,
appellant
tive
who testified
was un-
they
witnesses testified
did not hear Shaka
responsive and irritated when asked how a
murder,
barking on the afternoon of Belinda's
burglar could have avoided Shaka. Neverthe-
just
being
less,
which is
as consistent with Shaka
support ap-
the evidence is sufficient to
garage
burglar entering
in the
finding
as it is with no
pellant’s conviction
a
that
without
backyard.
backyard.
the
Shaka
in the
was
sup-
had
that no
Appellant argues
in
1999 and he
his
September
house
he
a 12-
“thin,
ports
finding
a
ever owned
woman
a
blonde-haired
arm around
a
or re-
gauge shotgun, owned
reloader
explained
...
in a
dress.” Natalie
red
shells, or
double-ought shotgun
loaded
appellant,
to talk to
but
attempted
that she
day
a
on the
of the shoot-
weapon
handled
away. Kenneth testified he
he looked
trial,
family
At
his
ing.
appellant and
after Belinda’s death
learned six months
they
shotguns
testified
the
regarding
dating
Kevin
appellant was
Heather.
ada-
during
They
owned
the 1980s.
were
they
very
his
testified that
were
and
wife
12-gauge
mant Darren and Kevin owned
upset
they
appellant
when
learned
was
20-
shotguns
only
owned
a
appellant
but
did
to him
dating
speak
Heather and
not
gauge
Kevin testified that
shotgun.
Appellant
for several months.
and Heath-
20-
1988 or
the barrel
married in June 2001.
er
it
gauge
clogged
split
became
and
when
Third,
Quinton
appellant confronted
fired,
appellant.
was
Kevin testi-
injuring
Tammy
their
regarding
statements
split
fied that he later sawed off the
barrel
grand jury
April
police
eventually
gun.
discarded
grand jury,
before
testifying
After
Kevin’s
Clint Stockdick was
telephone
appel-
from
they received a
call
during
friend
He testified
best
1980s.
answered,
Tammy
appellant
lant. When
began hunting
Temples
that he
with the
grand
her
she had
asked
what
told
Kev
frequently
1984 or
hunted with
sup-
jury. Tammy responded, “We’re
in,
“[j]ust a
appellant
with
hunted
posed
appellant
to talk about this.” When
that he
couple
times.” Clint testified
posed
question
Quinton,
he
same
Temples
20-gauge
never saw the
use
Later, ap-
responded, “I told
truth.”
shells,
12-
appellant
both Kevin and
used
Quinton
he was
pellant
telling
asked
what
gauge shotguns,
never saw either
Clint
grand jury
police.
and the
When
20-gauge shotgun,
them shoot a
and Kevin
answered,
Quinton
just telling
“I’m
them
12-gauge shotgun
showed Clint a
truth,”
replied,
know,
appellant
“You
split
Additionally,
barrel.
testified
Clint
you
keep your
need to
mouth shut.” Af-
gun
that the
he saw Kevin use most fre
terwards,
Quinton
driving on 1-10
Mossberg 12-gauge shot
quently was a
he
following
when
noticed
him.
Kevin, however,
gun;
testified
they
stop,
When
to a
came
exited
shotgun.
Temples
Mossberg
never owned
truck,
asked,
Quinton,
approached
*18
Although
appel
evidence did not tie
saying
you
police?”
“What are
to the
a specific
weapon,
lant
to
murder
when
Quinton
Again,
responded,
just
“I’m
telling
in
light
viewed
most
to the
favorable
truth,”
ordered,
appellant
and
“You verdict,
appellant
it
an inference
supported
keep your
Similarly,
mouth
damn
shut.”
family
concealing
and his
information
were
appellant
Tammy
evening
followed
one
in
concerning
shotguns. Concealing
their
driving
when she was
to
of busi-
place
her
a
criminating evidence is
circumstance
Tammy
appellant,
ness. When
noticed
she
See,
State,
guilt.
v.
e.g., Wells
business,
sped
grabbed
gun,
her
118, 119
Tezino v.
(Tex.Crim.App.1979);
pulled
ran
in
Appellant
inside.
front of State,
(Tex.App.
S.W.2d
d).
stop.
business but did not
These three
pet. ref
Fur
[1st
-Houston
Dist.]
examples
thermore,
following
supported
behavior
no evidence
although
finding
any
Temple
Belinda’s
are
member
death
circumstances indicat-
a
re
ing guilt.
family
double-ought
used
or
buckshot
shells,
shotgun
four,
the State Additionally,
loaded his own
in issue
appellant con
appellant
specific
not connect
to a
tends the trial court
by denying
need
erred
his
ammunition;
motion for
in
continuance which he
weapon
sought
murder
or
a convic
a reasonable time to utilize the untimely
may
entirely
tion
be based
on circumstan
Brady
disclosed
material.
See
Hooper,
tial evidence.
S.W.3d
A Brady complaint must be made
sum,
grounds
In
as soon as
viewing
light
apparent
its
become
or
verdict,
should be apparent.
favorable to the
we
See
most
conclude
Wilson
136, 146 (Tex.Crim.App.1999);
legally
factually
the evidence is
suffi-
see
33.1(a)(1).
Tex.R.App.
also
P.
support beyond
cient to
a reasonable doubt
appellant
murdered Belinda. See
Appellant asserted that he first learned
Brooks,
III. Violation *19 State, 603, 612 (Tex.Crim.App. issue, In appellant 2002). his third con The defendant bears the burden of due-process rights Brady tends his under that, evidence, showing light in of all the it 83, Maryland, 1194, 10 v. 373 U.S. 83 S.Ct. reasonably probable is the outcome of the (1963), L.Ed.2d 215 were violated because trial would have been different had the the State exculpatory did not disclose evi timely made a prosecutor disclosure. Id. regarding neighbor, dence his next-door possibility The mere that an item of undis R.J.S., teenager begun. until after trial might helped had closed information have the 592 the trial it was not as simply the outcome of because disclosed or
defense affected been.”). materiality in the consti as it or early might not should have does establish Id. third Accordingly, tutional sense. we overrule appellant’s and fourth issues. 1999, high was a R.J.S. January In parents lived who with school student Evidentiary Jury- IV. Temples. and In his motion the next door to Argument Rulings continuance, appellant complained that for timely the fol to disclose the State failed Appellant presents seventy-five issues (1) skipping R.J.S. lied about lowing facts: complains which he about the trial court’s murdered; day Belinda was on the school rulings prosecutors’ alleged and the mis- (2) conflicting gave three statements R.J.S. jury- during evidentiary conduct the polygraphs; failed three police to the phases of trial. deter- argument We first (3) appel his friends were R.J.S. and er- rulings mine whether the court’s were time of around the the neighborhood lant’s then determine the cumula- roneous. We murder, marijuana after had smoked any jury’s effect errors tive on noon, looking marijua for more and were begin per- verdict. We those issues (4) na; appellant driving R.J.S. saw taining to admission evidence. 4:30; before neighborhood sometime (5) shotgun containing spent a 12-gauge Evidentiary Rulings A. double-ought shell and belonging buckshot We review a trial court’s decision the mur was found after to RJ.S.’s father to admit under abuse-of-dis exception poly an With the of R.J.S.’s der. State, failures, the remainder of these cretion standard. v. graph Shuffield jury. 782, presented During (Tex.Crim.App.2006). facts were S.W.3d redirect-examination, standard, defense counsel if trial court’s Under asked whether he believed R.J.S. ruling was within zone of reasonable have involved in Belinda’s mur could been will not rul disagreement, we disturb the ques Through der. a methodical series of State, ing. Bigon v. S.W.3d facts, emphasizing appel the above tions (Tex.Crim.App.2008). affirmatively. The lant answered State To preserve appellate error witness, its sole rebuttal called R.J.S. as review, timely object must defendant thoroughly cross-examined P. during Tex.R.App. the error trial. See Further, dur regarding him these facts. 33.1(a). overruled, objection If is appellant focused ing closing argument, preserved defendant has error. When Therefore, participation. alleged RJ.S.’s sustained, objection is and the defendant considered aforementioned preserve argument the er desires Considering untimely facts. disclosed incurably ror infected his to a fair right heavy emphasis placed during he on R.J.S. trial, request he should an instruction trial, appellant has established that disregard move for See a mistrial. probability the out there is reasonable State, v. 353-54 Jackson would been come of the trial have different 2009, no (Tex.App.-Houston [14th Dist.] had the these facts earlier. State disclosed pet.). request Failure to additional relief Shpikula, See preserves an pet. objection after sustained (Tex.App.-Houston [1st Dist.] ref'd) (“If nothing for review. See received the ma Caron the defendant *20 614, (Tex.App.-Houston 162 S.W.3d 617 put terial in it to effective use at time to 2005, trial, pet.). be no [14th Dist.] his conviction should not reversed
593 thirty pertain issues times Belinda’s routine Several when re- of appel turning cross-examination home prosecutor’s and that Belinda would re- parameters lant. The of cross-examina move her shoes when she arrived home. discretion, trial court’s tion are within the Brenda Lucas Temples visited the from subject to reversal and its decision is 27, 1998, 1, December January until 1999. a clear abuse of discre appeal on absent appellant Brenda testified that “was mak- State, 866 S.W.2d tion. Chambers ing fun of big during Belinda’s butt” (Tex.Crim.App.1998). A defendant who evening first of the visit. On December right testify subject his exercises 30, Brenda and Belinda celebrated their and governing the same rules examination birthday. thirtieth Brenda testified she any cross-examination as other witness. appellant give did not see Belinda birth- (Tex. Felder v. S.W.2d day that, gift. Brenda further testified Crim.App.1992). scope of cross-exam during home, her Temples’ visits to the the defen open, ination is wide and once she observed Belinda remove her shoes trial, opens up dant testifies at he himself when she arrived home. questioning by prosecutor any Caron, subject matter is relevant. Appellant vehemently denied ever call- at 617. ing making derogatory Belinda “fat” or Questions Regarding 1. statements about family. Appellant Witness Ve- her racity explained that he and jokingly Belinda re- “butt,” ferred to her but “for no stretch of five, seven, nine, In issues imagination would I ever seriously call eleven, thirteen, appellant and contends ever, my wife fat without a doubt.” He by allowing prose the trial court erred testified that he gave perfume Belinda and question appellant regarding cutor to pajamas for her birthday, gifts as well as veracity testimony.4 of other witnesses’ anniversary. Christmas and their Fi- testimony We first describe the about nally, he testified that Belinda did not take appellant which was asked to comment. her shoes off when she arrived home. Tammy call appellant testified she heard day On the first cross- “fat,” her clothing, Belinda criticize house examination, prosecutor asked appel- work, E.T., and how raised and ex- she Tammy “just lant whether made all that press family “crazy, that her white trash, fat, up” regarding ridiculing his Belinda’s ... and he didn’t ever want her weight. appel- The trial court overruled Quinton or around them.” [E.T.] testified objection question, lant’s to the form of the appellant he heard call Belinda fat and answered, “I appellant appellant him Belinda used to be know she made told up.” an it continued the good” aerobics instructor and “looked Cross-examination Tammy day, following exchanges but she’s fat.” also testi- next and the oc- “[n]ow twenty fied she witnessed between curred: six, ten, twelve, eight, timely specific objection pre In issues four at trial to teen, review); ques appellate contends that the State’s serve issue for State, Broxton v. veracity abrogated (Tex.Crim.App. tions relative to witness 1995) ("[Ejven rights. objecting due-process may When to these constitutional errors be trial.”); questions, appellant object object did not on the waived failure to Boul (Tex.Crim. questions due-pro that the basis violated his ware v. Thus, 1976) (same). rights. Accordingly, App. cess has waived his we overrule sixth, tenth, twelfth, due-process complaints. Tex.R.App. appellant's eighth, See P. (general party 33.1 rule is that must make fourteenth issues. *21 That’s overruled. try Brenda to mis- [Court:] So did
[Prosecutor:] them that when she told jury this lead Quin- you saying Are that [Prosecutor:] her you give sister never saw she anything, Mr. Tem- ton Harlan lied birthday present? ple? Object the form of to Counsel:] [Defense you single- If could ask me [Appellant:] question. you I tell which ones are by-single, could sustained. That’s [Court:] Him are not. truth and which ones lie? Did Brenda [Prosecutor:] Heather, I for a fact that kissing know object And I Counsel:] told me about it happened [Defense and he question. form of the himself. That’s overruled.
[Court:] asking one wit- It’s Counsel:] [Defense things that Tam- And the [Prosecutor:] ... the truth of the comment on ness to my jury Harlan this the names that told another. testimony of wife, fun of you your making used to call That’s overruled. [Court:] how she weight, making her fun of Brenda Temple, Mr. did [Prosecutor:] truth, looked, wer- things those were the lie? they? en’t ma’am, she [Appellant:] Yes did. They were not. I answered [Appellant:] yesterday. question Well, you Quinton recall do [Prosecutor:] lied Tammy So Harlan [Prosecutor:] admitting telling the truth and to Harlan that? about he went over to Heather’s this object terming it I [Defense counsel:] kissed her? house and a lie. object I form Counsel:] [Defense That’s overruled. [Court:] the truth and question, telling of the Quinton [Appellant:] Tammy and both something. admitting to times. lied several That’s sustained. [Court:] lying, got Tammy So we’ve you Quinton [Prosecutor:] Do remember [Prosecutor:] lying, Lucas Quinton lying, that he went Brenda telling Harlan right? house and kissed her? over to Heather’s that, Quin- I remember
[Appellant:] that, [Appellant:] agree I would I that. ton told me that himself. knew yes. And so he told the truth?
[Prosecutor:] object I to the form [Defense Counsel:] you a wife who And had [Prosecutor:] question. the minute liked to take her shoes off That’s overruled. [Court:] you? anyway, she hit the door didn’t statement, yes, [Appellant:] On that agree I with that. [Appellant:] would ma’am. So when Brenda Lucas [Prosecutor:] you saying Are he lied on [Prosecutor:] that, Tammy they Harlan said lied ones, Temple? other Mr. that, about too? object asking I Counsel:] [Defense object I Excuse me. [Defense counsel:] to use the term There witness “lied.” question. to the form of the for incorrect testimo- many are reasons that’s overruled. ny. And [Court:]
595 if I don’t know that’s what In issues seventeen and [Appellant:] eighteen, they they calling appellant complains think saw.... I’m not prosecutor’s about the I and questions regarding them a liar about that. know his unborn daughter. direct-examination, On spent every day my with wife. I know testified door, that he daughter she came in the she loved his unborn when anything.” not her shoes off. “wanted her more than flip would On cross-examination, prosecutor asked attorney may that an It is well-settled appellant whether he argued and Belinda impeach testimony one witness’s with regarding his not wanting daughter. testimony of other witnesses. See Lo you And all had many, [Prosecutor:] State, (Tex. 246, v. 200 257 pez S.W.3d many arguments about the you fact that 'd) 2006, App.-Houston pet. ref [14th Dist.] baby didn’t want a daughter, you, didn’t McFarland, Ex (citing parte S.W.3d Temple? Mr. (Tex.Crim.App.2005)). 755 n. 37 That’s a lie [Defense counsel:] and I Thus, we hold that the trial court erred object to it and it’s improper. There’s overruling appellant’s objection to the support no evidence to that. prosecutor’s veracity questions and will [Court:] That’s sustained. analysis. consider error in our harm you arguments [Prosecutor:] Didn’t have Appellant’s Cross-Examination that, about Mr. Temple? [Appellant:] Absolutely not. through twenty-four, In issues fifteen you argue Didn’t [Prosecutor:] about the appellant contends the State asked him you fact that were not about excited inflammatory questions irrelevant and baby daughter idea of a when Brenda attempt an to demonize him in front of the visiting your Lucas was house? jury. Appellant argues ques- these abrogated right tions to a fair trial. This is improper [Defense counsel:]
cross-examination, injecting facts. cross-examination, During That’s overruled. [Court:] prosecutor asked whether I [Appellant:] argued my never with wife “stopped being you reason the Harlans wanting my daughter. about not It was all’s best friends was Har Tammy because planned very beginning from the got you lan tired of the way treating were day. the first prosecutor ap Belinda?” The also asked Appellant request did not that the pellant how the night high second of his disregard be instructed to the prosecutor’s school reunion could have been a “wonder question initial after the trial court sus- night” Tammy ful when “had to tell Belin objection object tained his and did not da okay, afterwards ‘It’s Belinda. You’re the prosecutor ignored when the court’s girl. beautiful Don’t let all that bother However, ruling. appellant preserved his ”
you.’ The trial court appel sustained complaint regarding prosecutor’s ques- objection questions, lant’s to these ap but concerning appellant’s argument tion pellant request did not an instruction when visiting. Belinda Brenda was Thus, disregard or move for a mistrial. the trial prosecution court committed no error because cannot at “[T]he granted appellant it all tempt theory appellant’s the relief he re to establish a State, alone, quested. Young See v. by questions 137 S.W.3d action with no basis of (Tex.Crim.App.2004). overrule We fact.” Hartman S.W.2d appellant’s fifteenth (Tex.Crim.App.1974); and sixteenth issues. see also Keener 439, 442, Accordingly, we anything.” 300 “more than Tex.Crim. (“[UJnless 87(1957) eigh- ques- overrule seventeenth and *23 faith, in the good propounded
tions are
teenth issues.
should refrain from
attorneys for the State
theory by
twenty,7 appellant
their
In issue
com
attempting to establish
alone.”).
Prior to
[questions]
following question:
about the
plains
presented
had
testimony, no evidence
been
give
flip
didn’t
[Y]ou
[Prosecutor:]
not want his
indicating
appellant
did
Lucases,
you?
about the
did
Nevertheless,
court
daughter.
trial
object
I
to the form
counsel:]
[Defense
going
“I’m
parties:
informed the
had
injecting unsworn
question
you lawyers
asking
are
assume both of
testimony
prosecutor.
from the
questions
good
faith until someone
your
hearing on
During
tells me otherwise.”
That’s overruled.
[Court:]
trial,
appellant’s motion for new
defense
overruled,
objection
appel-
After the
was
questioned
prosecutor regard-
counsel
answer,
the prosecutor
lant did not
The
ing
questions.5
her basis for these
There was
posed
question.
different
in-
prosecutor testified that she received
testimony that
called Belinda’s
appellant
Temple
from members of the
formation
(the Lucases)
trash,
family
“crazy, white
family
girlfriends
and Belinda’s
fat, and ... he didn’t ever want her or
daugh-
about their unborn
Temples argued
Thus,
around them.”
there was an
ter;
[E.T.]
prosecutor
was
asked whether
evidentiary
question.
basis for this
Fur-
group.
Brenda was included
this
Con-
thermore,
ques-
whether the form of this
from
rec-
sequently, we cannot discern
actually argumentative may
tion was
have
prosecutor
ord whether the
asked
sub-
ject
prosecutor’s
in fact. See
turned on the
tone and de-
question without
basis
Hartman,
556; Keener,
Nevertheless,
it.
[Prosecutor:] ry, and we object to it. garage that Shaka was in the and that’s burglar got past how the him? Well, your objection [Court:] was sus- tained, asking Is she what he and I will certainly [Defense counsel:] admonish the *24 I jury they said to me. want to know what she’s that can’t any consider it in trying way. to— That’s overruled.
[Court:] Yes, [Defense counsel:] sir. And I don’t think any admonishment —with all due Temple, you just Mr. [Prosecutor:] said I respect, don’t think Well, any you have. admonishment you who have told? can cure the harm. What we have is a [Appellant:] I’ve told [Defense counsel]. prosecutor, who holds the office of assis- It was not something that was dreamed tant district attorney, making a state- up. ment about a lie in front of jury. this No, just it’s lied about. [Prosecutor:] Now, jury may put far weight more [Defense Excuse me. Now counsel:] due, on that than it is far more than it Judge, you’ve got to stop that that’s— deserves. It deserves absolutely no kind of stuff. weight at all. She can holler and jury, Members of the remember [Court:] in argument, scream it improper but your admonitions. Step your jury to and clearly improper and she knows bet- moment, room for a please. ter cross-examination; to do that in a (Outside presence jury) and, therefore, we move for a mistrial. Everyone All right. [Court:] be seated. denied, Okay. And [Court:] that’s sir. [Prosecutor], question that last was un- Do I [Defense counsel:] need to do all called for. cannot type We have that that in front of jury? conduct. No. The you [Court:] record has exact- Yes, you sir. please [Prosecutor:] Could motion, ly your go up and it can — instruct the my ques- witness to answer appeal Bring on that issue. me tions. and I will totally admonish them to dis- I will [Court:] do that also. regard. [Defense Now— counsel:] seated) (Jury minute, just Now [Court:] [Defense right. Everyone All [Court:] be seated. Mr. I Temple, you counsel]. want jury, Members of the the last question questions listen to the that lawyer each by prosecutor] you totally [the will disre- you, question, asks answer the answer it gard and not any purpose consider it for directly. Most of them can be answered whatsoever. yes or no. You don’t any volunteer ad- added). (emphasis information, ditional but listen to the questions Now, and answer them. [De- Accordingly, the prosecutor ap- accused fense counsel]. liar, pellant being indirectly Judge, [Defense ques- through question, counsel:] last but as a matter-of-fact tion cannot be attrib- clearly prosecu- [Prosecutor] assertion. This action was uted to experience, lack of it can’t be torial misconduct. See Stein (ex- questions, nothing in the (Tex.Crim.App.1978) Prior these Temple men dis- not make im- record reflected
plaining prosecutors should January shotguns cussed at their or sidebar remarks be- arguments proper Instead, meeting. all evidence indicated upon be convicted should cause defendant subject meeting matter of the con- attempts to without presented, to Belin- cerned unfaithfulness ju- the minds of prejudice inflame or However, has not estab- rors). da. appel- sustained The trial court were asked questions lished objection and instructed lant’s comment, bad faith without factual basis. At the disregard appel- but denied questions posed, time the were he did not We will con- request lant’s for a mistrial. on voir dire. request prosecutor to take the analysis whether the sider in our harm Further, at the motion-for-new-trial hear- by denying mistrial. court erred if ing, prosecutor was not asked she that, on Janu Appellant testified making inquiry. had a factual basis for 13, 1999, *25 ary he and his father and Hence, from the rec- we cannot determine family meeting at brothers convened a prosecutor ord whether asked the house, during which appellant’s parents’ question in bad faith without a basis in family that he had appellant informed his Keener, 87; fact. See 300 S.W.2d at Gal- unfaithful to Belinda. In his twen been ley, ap- at 124. overrule We issue, ty-third appellant complains that pellant’s twenty-third issue. following questions were without fac In twenty-four, appellant issue ar tual basis: by gues denying the trial court erred the real discussion [Prosecutor:] [W]as prosecutor motion for mistrial after the about all family meeting in the those expressed appellant’s family entire shotguns, Temple? Mr. stopped speaking with him after the mur know, You that’s bad counsel:] [Defense “Becky” Temple der. Kevin and Rebecca faith. There’s no— following that there a period testified was That’s overruled. [Court:] they speak Belinda’s murder when did object to it. It’s counsel:] We Later, [Defense appellant. prosecutor with testimony from the injecting unsworn posed following question appellant: prosecutor. Why your family did own [Prosecutor:] you? Judge, speaking quit speaking that’s a [Prosecutor:] objection. Now, wait a minute. [Defense counsel:] That’s overruled. [Court:] That’s [Court:] sustained. Winchester, You heard— got [Prosecutor:] We’ve [Prosecutor:] Mossberg, Savage Remington. and a Please, Judge, please [Defense counsel:] your family meeting you In had control her. brothers, your Temple with the Judge— [Prosecutor:] men, 13th, January you did all jury, Members of the remember [Court:] talk shotguns? about those your jury your Step admonitions.
[Appellant:] Absolutely not. There room for a moment. no reason to. (Outside presence jury) you Did all talk about the [Prosecutor:] [Prosecutor], you’re going to [Court:] shotgun? sawed-off continuing refrain from to ask have to You can [Appellant:] legally objectionable questions. There’s—no. your question, you ask that did fam- the record when she asked appellant why go family, and then into the his entire ily stop speaking, just instead of Kevin and Rebecca, why, you’re interjecting things stopped speaking but into to him follow murder, just ing aren’t in evidence. Belinda’s the case the error was quick ly by remedied the court’s instruction to Judge, Becky Temple tes- [Prosecutor:] disregard presume and we the jury fol there came a time where she tified that lowed the instruction. See Colburn v. quit speaking her husband 520 (Tex.Crim.App. and Heather. in evi- defendant That’s 1998). Thus, we conclude the trial court dence. did not by abuse its discretion denying question family. Your was the [Court:] appellant’s motion for mistrial See Archie you Becky Temple, If want to talk about (Tex.Crim. that, your you question can do but said App.2007). We overrule twen family. ty-fourth issue. Yes, sir. [Prosecutor:] Hearsay-by-Inference Conten- Bring jury. me a [Court:] tions I ask that the be [Defense counsel:] disregard. instructed to next sixty- We consider issues eight through eighty, in which appellant I will. [Court:] contends the trial court erred overrul And because it was [Defense counsel:] ing objections *26 his to certain “back-door” deliberate, we ask for a mistrial. hearsay.8 Bring That’s denied. me a [Court:]
jury, please.
“[Wjhere there is an inescapable
seated)
(Jury
piece
conclusion that a
of evidence
being
prove
offered to
statements made outside
jury, you
Members of the
will
[Court:]
courtroom, party may
not circumvent
totally disregard
question
the last
the hearsay prohibition through artful
prosecutor
any
and not consider it for
questioning
to
designed
hearsay
elicit
indi
purpose whatsoever.
State,
rectly.”
Schaffer
Thus, the trial
appel-
court sustained
(Tex.Crim.App.1989).
Whether
objection
lant’s
prosecutor’s overly
disputed testimony
hearsay
violates the
family,
broad reference to his entire
in-
prohibition necessarily turns on how
disregard
structed the
to
the ques-
strongly the content of the out-of-court
tion, but denied appellant’s motion for mis-
statement can be inferred from context.
trial. We conclude the foregoing question
(Tex.
State,
Head v.
S.W.3d
261-62
“clearly
was not so
calculated to inflame
Crim.App.1999).
jury”
minds of the
that the instruction
disregard
to
was futile.
In
sixty-ninth
seventy-
Huffman
issues,
(Tex.Crim.App.1988)
appellant argues
S.W.2d
first
the trial court
(quoting
by
Carter v.
allowing
erred
Detective Leithner to
824-25 (Tex.Crim.App.1981)). Although
testify regarding
statements made
prosecutor
referred to matters outside Heather Scott.
sixty-eight, seventy, seventy-two,
In
process.
issues
trial on the basis of
of due
violation
seventy-four, seventy-six, seventy-eight,
33.1; Broxton,
Tex.R.App.
See
P.
eighty, appellant
due-process
918;
contends his
Boulware,
at
[Prosecutor:]
day you
appellant’s presence]?
took her
in the
Scott
ing Heather
statement,
any
she have
other
did
first
[Tammy
Yes.
Harlan:]
she voiced
all
this that
concerns about
you
anything
ever say
Did
[Prosecutor:]
no?
you? Yes or
to
her
to
about that?
me.
Excuse
This
counsel:]
[Defense
[Tammy
Yes.
Harlan:]
hearsay.
calls
Again,
going
I
counsel:]
am
[Defense
That’s overruled.
[Court:]
obviously hearsay
object because this is
Yes.
[Sgt. Leithner:]
by implication.
you try to reassure
Did
[Prosecutor:]
overruled.
That’s
[Court:]
her?
understand, because
You
[Prosecutor:]
Yes.
[Sgt. Leithner:]
this, you
we have talked about
are not
you
did
tell Heather
What
[Prosecutor:]
Belinda
anything
allowed
tell this
Scott?
You
that?
you.
ever said to
understand
Well,
hearsay
that’s
counsel:]
[Defense
do,
[Tammy
yes,
I
ma’am.
Harlan:]
by implication.
you’re
going
And
not
[Prosecutor:]
That’s overruled.
[Court:]
in in
try
my ques-
one of
slip
I told
that we were
[Sgt.
her
Leithner:]
his,
you?
or
are
tions
one of
information
to disclose this
going
No,
[Tammy
ma’am.
Harlan:]
employers.
with her
who?
You understand the rules?
[Prosecutor:]
With
[Prosecutor:]
Her
[Sgt.
employers.
Leithner:]
[Tammy
Yes.
Harlan:]
At the school?
[Prosecutor:]
you say
What did
to Belin-
[Prosecutor:]
Yes, ma’am.
[Sgt. Leithner:]
change
inda
those discussions about the
you
saw in
from when
personality
her
Because
worked there?
*27
she
[Prosecutor:]
she was with her husband versus when
Because she worked at
[Sgt. Leithner:]
she was not?
Temple
that Coach
did.
same school
necessarily
And that
[Defense counsel:]
by over-
Assuming the trial court erred
to
implicates
response
object
and we
objection, we conclude
ruling appellant’s
hearsay by implication.
it. It’s
testimony
substantially
did
this
not
verdict;
jury’s
notwithstanding
affect the
Overruled.
[Court:]
against
appellant,
the accusations
[Tammy
I
tell her to
Harlan:] would
there were other
could have determined
up
to
she
stand
to him and
tell him how
why Heather would not
obvious reasons
felt and
allow him to treat her that
don’t
her
to
about her
employers
want
learn
way.
relationship
appellant.
with
extra-marital
exchange
The above
does not lead us to
Thus,
appellant’s sixty-ninth
we overrule
inescapable
ques
an
conclusion that
issues.
seventy-first
prove
tion was
in an effort to
asked
issue,
seventy-third
appel
In his
Schaffer,
hearsay
truth of
statements. See
tes
complains
Tammy
lant
about
Harlan’s
Immediately before
[Prosecutor:] trial presence. sions was in appellant’s and conversations with Belinda she change reasonably about or her court could have determined [in that difference purpose question simply go get of this to to a dress and that she needed to Tammy brought whether ever Be be there. inquire change linda’s behavior to her attention or The same evidence was earlier admitted Furthermore, Tammy offered her advice. without objection Quinton when testified appellant later testified that ridiculed Be that Belinda did not attend the night first work, appearance, linda’s house and chil- of the reunion and did not want drearing. Tammy expressed, also “[W]e Hence, her to night. attend the second game
would be
the middle of a
and he
any error was rendered harmless. See
say
snap
things
would
her and
to her Anderson,
proves the same fact that the inadmissible That’s [Court:] overruled. sought prove.”). We overrule [Tammy I told her that Harlan:] she was appellant’s seventy-third issue. an incredible woman and beautiful and happened not let what there—
In seventy-five issues and seven ty-seven, appellant complains about Tam me. [Defense counsel:] Excuse testimony my’s regarding appellant’s class Now, [Court:] that’s sustained. First, prosecutor reunion. Tam asked The trial court sustained ob- my regarding whether she advised Belinda jection, but did request an the reunion: instruction to disregard or move for a mis- change gears I want [Prosecutor:] Thus, trial. the trial court committed no bit, you just a little Ms. Harlan. granted appellant error because it all the you Do recall in the summer of 1998 requested. Young, relief he See having a conversation with Tem- Belinda S.W.3d at 69. overrule appellant’s We ple about David Temple’s class reunion? seventy-seventh issue. *28 [Tammy Yes. Harlan:] issue, seventy-ninth In appel his you give Did some advice [Prosecutor:] argues prosecutor injected lant the hear Temple regards to Belinda in say when Temple she asked Rebecca class reunion? period whether she remembered a when [Tammy Yes. Harlan:] appellant and Belinda discussed divorce. you What did tell Belinda? [Prosecutor:] youDo remember the time [Prosecutor:] in 1998 when David and Belinda started necessarily That im- [Defense counsel:] talking getting about a divorce? plies party’s the other conversation. It’s hearsay by implication. Well, that’s not true. [Defense counsel:] place, In the first it’s not true. That’s overruled. [Court:] Judge, arguing. [Prosecutor:] he’s [Tammy yes, I told her that Harlan:] she going go was to the reunion and that In the it place, [Defense second counsel:] I keep hearsay. would and that she needed for [E.T.] calls
602 Jury Argument B. is a objection An one-word
[Prosecutor:] you, Your Honor. response twenty-fifth sixty-seventh In through his objection? you have an Do [Court:] issues, argues the trial court appellant object. I I do. counsel:] [Defense overruling objections to the erred grounds? Okay. Wbat [Court:] argument the State en- State’s object I it’s because counsel:] [Defense during gaged prosecutorial misconduct rec- statements into the injecting false According the im- argument. appellant, basis for. If it had that there’s no (1) ord injecting un- proper argument included true, only way she would know (2) been facts, supported lessening the burden hearsay. it is (3) about on proof, commenting of witnesses’ (4) Temple credibility, accusing that’s a Judge, speaking [Prosecutor:] family perjury. objection. That’s overruled. [Court:] purpose closing argu The that, you Do remember [Prosecutor:] analysis ment facilitate jury’s is to Temple? Ms. arrive at presented evidence trial to you Temple:] repeat Could [Rebecca just based and reasonable conclusion question? alone on facts that evidence and not Yes, you ma’am. Do re- [Prosecutor:] were Camp not admitted into evidence. when David and Belin- member (Tex. State, bell getting about a di- speaking da started 1980). Op.] The four Crim.App. [Panel
vorce? (1) permissible are jury argument areas No. Temple:] [Rebecca (2) evidence, summation reasonable asked Rebecca whether prosecutor The (3) evidence, deductions drawn from the when and Be- she remembered opposing argument, answer to counsel’s divorce, necessarily inquir- linda discussed (4) plea law enforcement. statements; thus, the ing about Belinda’s (Tex. State, Brown v. S.W.3d implying an answer prosecutor sought is Crim.App.2008). State allowed Head, 4 hearsay. See S.W.3d 258. Never- drawing wide latitude in inferences from theless, presented hearsay no because long as as inferences answered, The prosecutor Rebecca “No.” in good drawn are reasonable offered without appellant, objection, later asked faith. Cantu v.
whether he and Belinda ever “had discus- prosecutor may A (Tex.Crim.App.1997). getting about arguments sions and di- argue opinion concerning her issues ma’am, replied, ...” Appellant vorced. “No opinion case as the based on long so Finally, during jury at all.” argument, evidence in the record and does not consti any did not make reference to State tute testimony. McKay unsworn discussions between Belinda 37 (Tex.Crim.App.1985). *29 regarding Accordingly, divorce.9 we con- argument prosecutor’s improper question jury
clude the Even when a areas, will approved was harmless. We overrule exceeds these it not seventy-ninth argu- reversible issue. constitute error unless prosecutor during question basis 9. We note admitted was not without factual but hearing was, that suspected, motion-for-new-trial her basis for appellant based on hear- as question told this was "someone Belinda [her] say. Hence, they said had divorce.” this discussed
603
manifestly improper,
ment is extreme or
side
during
the record
argument
in an
statute,
mandatory
or injects
violative of
attempt
vilify
appellant.
In
twenty-
his
harmful to the accused into the
new facts
issue,
sixth
appellant argues the trial court
State,
v.
29
proceeding.
trial
Wesbrook
erred
overruling
objection
his
to the
103,
(Tex.Crim.App.2000).
115
S.W.3d
prosecutor’s reference to certain inadmis-
in
reviewing alleged
allowing
When
error
hearsay
sible
statements.10
jury
improper
argument,
appellate
you
And
got
[Prosecutor:]
a small
analyze
light
court must
the statement
glimpse
marriage.
into their
got
You
argument
of the entire
on
and not
isolated
because,
glimpse,
see,
small
Belinda’s
State,
sentences. DeLarue v.
102 S.W.3d
not
you,
here to tell
is she? And the
388,
(Tex.App.-Houston
405
[14th Dist.]
rules
prohibit
of evidence
girl-
Belinda’s
refd).
2003,
im-
pet.
allowing
Error
from telling you
friends
anything Belin-
proper argument
generally
non-constitu-
da ever told them. That’s the way—
tional error that must be
un-
disregarded
[Defense
Excuse
counsel:]
me. That’s
less it affects the defendant’s substantial
implying
evidence,
that there’s other
44.2(b); Brown,
rights. See
P.
Tex.R.App.
object
we
to it. That the evidence is
waives his of how attempts ment that to introduce matters egregious argument. See Valdez v. clearly the record is improper. See State, 518, (Tex.App. S.W.3d 521-22 State, (Tex. Berryhill 86, 1999, ref'd); Houston pet. [14th Wil Dist.] Crim.App.1973). Argument inviting the State, (Tex. son v. jury to speculate about possible evidence App.-Texarkana pet.). no In examin is not in the record is even more ing challenges argument, we con dangerous because “it imagi leaves to the prosecutor’s sider a remark in the context juror nation of each whatever extraneous in which it appears. Gaddis v. may ‘facts’ be support needed to the con (Tex.Crim.App.1988). Here, viction.” Id. argument “[t]he Unsupported-Argument Conten- prosecutor entered impermissible area tions of conveying there was
Appellant contends that evidence of guilt other than that which was prosecutor persistently injected facts out- before jury.” Boyde issue, refd) twenty-fifth 10. In App.-Houston pet. con- [1st Dist.] prosecutor tends the committed misconduct (recognizing prosecutorial misconduct is an by making argument. Because independent objection basis for be must *30 object prosecutorial did not on the basis of specifically urged in order for error to be misconduct, preserved he has not this issue. preserved). twenty-five. We overrule issue (Tex. Hajjarv. See twenty- twenty-eighth and Ac In his (Tex.Crim.App.1974). issues, the trial appellant ninth contends by erred overrul trial court cordingly, the by allowing prosecutor we will con court erred objection, and ing appellant’s expert, Max Court argue appellant’s that analysis. in our harm error sider shot ney, none of the recovered opined issue, appel twenty-seventh In his weapon. the murder guns was engaged prosecutor lant contends Courtney, their own Max [Prosecutor:] nev arguing appellant misconduct shotguns the five expert, agrees that of day of the park er took E.T. recovered, not of them that were one However, following murder. shotguns. on the had blood or tissue appel inference that a reasonable supports Not one. park. E.T. to the did not take lant I a minute. counsel:] Wait [Defense (cid:127) from school around retrieved E.T. was testimony. not his object to that. That’s fever, he was sick with a because noon that. shotguns examine the He didn’t that he bathed testified That’s overruled. [Court:] shortly before Belinda arrived E.T.
home. only Holtke testified Dean [Prosecutor:] shotguns, yesterday, thing, the same (cid:127) he and E.T. According appellant, blood, no tissue. There is no blood no from rapid succession Ci- traveled Courtney about or tissue. Max talked Brookshire Brothers Park to marron exhibits, the one of the defense shell house, to his Depot and back to Home weapon right in this that was found to Peekham Park. never went but him, here, I had—I said to “Is that (cid:127) saw Bindeman testified he Bernard we wadding consistent with the shell from an area driving south found?” He said “No.” He examined house, which appellant’s parents’ near to all different separate shells related appellant’s testi- was inconsistent cases, types you and I asked him “Did directly to Home that he went mony shell, any any any waddings, of the find leaving Brookshire Broth- Depot after you open cut of the shells that ers. wadding in this case?” matched (cid:127) testified, “So I basi- Leithner Officer It not.” The fact And he said “No. did identify him if can asked he cally just is, agreed expert their own has initially he went and he parks to] [the weapons none of the recovered come Park, County guess, I Peekham said weap- about a murder anything back to seconds, within he long, it wasn’t but weapon? on. Where is the murder said, was, it I that and changed [’] not correct. That’s [Defense counsel:] Park,[’] think, which is [Cimarron] in his subdivision.” neighborhood park That’s overruled. [Court:] (cid:127) testified that offi- Detective Schmidt evidence, During the presentation parks photo- with a cers went to both that, Courtney agreed every single “[i]n truck, nobody but graph appellant’s shotguns one of the that we’ve talked Mon- seeing the truck on remembered weeks, four-and-a-half about for the last day. glass no or no found in there was blood Thus, prose- any shotguns.” of those argu- conclude the State’s Accordingly, we argument cutor’s none shot- reasonably deduced from ment was —that weapon— the murder twenty- guns stands out as overrule evidence. We evidence. We overrule was based on the seventh issue. *31 appellant’s twenty-eighth twenty-ninth story and back April [in when they testi- issues. fied grand before the jury].” ap- Because pellant object failed to each time the thirty-first his thirtieth and is In prosecutor argued that the Temple family sues, appellant contends the trial court conspired behalf, to lie on his appellant by allowing prosecutor argue erred to has any Valdez, waived error. See family that appellant’s made a conscious S.W.3d at 521-22. We overrule appel- forgive decision to him for murdering his lant’s thirty-first thirtieth and issues. wife. Temple family, The [Prosecutor:] what’s thirty-second In his and thirty- here, out, really going you figured it issues, appellant third contends the trial you your sense, if use common like court erred overruling his objection to said, Craig you never check at the the prosecutor’s argument that he hid the you juror. door when become a What’s weapon. murder going family on here is that has decided You knew from get-go [Prosecutor:] they right grant have the to absolution in this case that there were going to be to this defendant. problems you’ve and heard all prob- [Defense Excuse me. That’s counsel:] lems. Do we have the weapon murder ? an assertion of fact not based on evi- No. Did we ever try to hide that from object dence. We to it. you? Why No. don’t we have the mur- overruled, That’s sir. [Court:] der weapon? Because he got rid of it. Immediately following ruling, the court’s Now, [Defense counsel:] that’s—that’s the prosecutor explained what she meant not a reasonable deduction from the evi- by “grant absolution.” dence. It is an assertion of fact. family That
[Prosecutor:] has decided [Court:] That’s overruled. that in their they’re mind going to over- improper. [Defense It’s counsel:] look, forgive, forget deny and that he That’s overruled. [Court:] pregnant executed his wife because he The following syllogism illustrates might [E.T.], a good be father to argument how this was reasonably de they’re going forget about it and a) duced from the evidence: they’re going to lie about they it and shotgun by shooting killed Belinda her with a you want thing. do the same b) ; shotgun no was identified as the 11 is, problem with that it overlooks the c) therefore, murder weapon; justice truth and it denies to Belinda “got rid of’ the murder weapon. We over unborn daughter]. [her rule appellant’s thirty-second thirty- Appellant object did not argu- to this third issues. ment. appellant object Nor did when the prosecutor argued, why “And thirty-fourth did In thirty- [the Temple family] deny issues, everything? You fifth appellant contends the trial why. know Because that family knows court by allowing prosecutor erred him family and that knows hap- argue what the jury should not underestimate pened” Temple family] “[the had al- appellant’s ability to have committed the ready committed to their lies and their murder. evidence, diet,
11. At least the
taken
support
as a whole and
finding.
is sufficient to
such a
light
viewed in the
most favorable to the ver-
*32
thirty-seventh
thirty-
and
think
Tem-
In his
you
David
[I]f
[Prosecutor:]
it,
issues,
the
eighth
appellant contends
trial
capable
you
of
underesti-
not
ple is
by
prosecutor
the
to
allowing
court erred
mate him.
argue
appellant was the “stud” of
that
Object
that.
to
counsel:]
[Defense
Katy
and
High School
SFA.
beyond the record.
That’s
you
Temple
Mr.
told
he
[Prosecutor:]
That’s sustained.
[Court:]
young
discipline
age.
to
at
was difficult
of
Assertion
fact.
counsel:]
[Defense
sense, you know he
Using your common
That’s sustained.
[Court:]
Katy High
School and he
was the stud
jury
And ask the
counsel:]
Stephen
[Defense
F.
went on to be
stud
the last statement.
disregard
University.
Austin
disregard
last
jury
will
[Court:]
I object
Excuse me.
[Defense counsel:]
any
not consider it for
statement and
language
to that
and to that assertion.
purpose.
ask
That’s not
the record. We
that
stay
she
in the record.
improper
And that’s
[Defense counsel:]
and we move for a mistrial.
argument
That’s overruled.
[Court:]
That’s denied.
[Court:]
that
Multiple
appel-
witnesses testified
that
was
Arguing
appellant
capable
player
lant
a standout football
both
was
“clearly
his
was not
murdering
wife
so
high
example,
and in
For
college.
school
jury
the minds of
calculated
inflame
football ca-
appellant’s
when asked about
suggest
impermissibility
... as to
SFA,
testified,
appellant’s
reer
father
at
produced.”
withdrawing
impression
team
“He was a true asset
to the
Huffman,
at 219 (quoting
See
publicity.” Accordingly,
received a lot of
824-25).
Carter,
According-
at
S.W.2d
notwithstanding
colloquialism, arguing
ly,
presume
we
adhered to the
high
that
“stud” of
appellant
instruction,
Colburn,
trial court’s
see
college
school and
was a reasonable deduc-
at
conclude the trial court
S.W.2d
ap-
tion from the evidence. We overrule
denying
did not abuse its discretion in
pellant’s thirty-seventh
thirty-eighth
for mistrial.
Ar-
appellant’s motion
See
issues.
chie,
dence. We forty-third In his and forty-fourth And that’s overruled. [Court:] issues, appellant contends trial court by you Tammy allowing prosecutor argue think erred Why do [Prosecutor:] Harlan, appellant began that was under “a lot of they pres when out—started sure.” being out friends David and best David grew Temple
Belinda to dislike so Heather Scott also told [Prosecutor:] anything much? He didn’t to Tam- do you back at that time her life she my. anything Quinton. He didn’t do words, craved attention. Her not mine. It was how he saw—she saw how he So you where all do think the sources of you think Tammy treated Do Belinda. pressure coming were from on David got up up Harlan there made that Heather, Temple? A little bit from a lot Temple David called Lucases white Belinda, baby from coming, new was if call trash? And he could Belinda’s arguments in the household. There was family white front of Tammy trash in a lot pressure Temple. David Quinton, you think what do he said [Defense Excuse me. counsel:] That’s they about the Belinda when Lucases to beyond the record. There’s no evidence you were home alone what do think of that. And, that did to her self-esteem? more That’s sustained. [Court:] importantly, that— what does Ask that the jury [Defense dis- counsel:] There’s no [Defense evidence counsel:] regard it.
of that. disregard The will that last [Court:] That’s overruled. portion [Court:] any pur- and not consider it for pose. say that What does about [Prosecutor:] Judge, [Defense that’s the kind counsel:] really
how he Belinda? felt about improper assertion of fact that’s are questions generally Rhetorical we move for a mistrial. argument within scope long as That’s denied. [Court:] they as are upon based reasonable de Berger [Defense Under counsel:] duction from the See evidence. Wolfe United States. 280 (Tex.Crim.App. S.W.2d [Court:] That’s denied. 1996). prosecu It was reasonable tor argument appellant to infer that if derided Belin The that was under appellant family pres evidentiary da and her others were “a lot of pressure” sup- when had ent, he did so to a extent when there was evidence was greater port; he alone; Quinton struggling and Belinda were with an relation- testified extra-marital ship daughter that he was “in weeks before would be boasted control” Furthermore, Quinton of his house. and that he had told Harlan prosecu born willing tor’s statement he was not sure if to leave appellant’s comments he was affected his wife in this extra- Belinda’s self-esteem was also a order to continue Furthermore, evidence; relationship. reasonable from the marital even if deduction erroneous, Tammy argument egre- Belinda was not so testified that when appellant’s it presence gious she “was could not have been disre- submissive by person garded jury. Huffman, and meek and wasn’t the See she Carter, exhibited me.” at 219 (quoting to be around We overrule S.W.2d 824-25). somebody inside? But trial court in case there’s Accordingly, the shut the door. denying Temple David its discretion not abuse did mistrial. See Ar- motion for appellant’s Judge, that’s No. [Defense counsel:] overrule chie, at 699. We not the evidence. forty-fourth is- forty-third It the evidence. [Prosecutor:] sues. Rug- [Defense counsel:] *34 giero— next contends that Appellant by argu in engaged misconduct prosecutor That’s overruled. [Court:] jumped always barked and ing that Shaka argu- conclude that both of these We someone fence whenever against reasonably from the ments were deduced However, house. past appellant’s walked that re- undisputed evidence. It is Shaka testimony supported several witnesses’ backyard appellant in the when mained appellant’s overrule argument. We Further, Ruggie- entered his house. Mike issue. forty-fifth that, the back although ro testified door because it “bounced off of could have shut forty- forty-sixth through In his slammed shut and he something,” the door issues, contends the trial appellant ninth glass breaking, not hear the sound of did allowing prosecutor to by erred court Thus, tinkling. overrule shattering, or we in failed to let Shaka argue appellant that forty-sixth through forty-ninth behind him and closed door the house issues. burglar was in the thought when he
house. issue, appellant his fiftieth con In any- he Why didn’t take [Prosecutor:] prosecutor engaged that the in mis tends him? If he ran across thing inside with by explaining why and how bur conduct to help Ruggiero drop from get glaries are committed. Because off, why anything he take in didn’t [E.T.] object prosecutorial on the basis of did Nothing ga- him? from the there with misconduct, preserved he has not these not the Ruggiero not Mike rage, Hajjar, at 566. issues. See their dog, protective The who was dog. Nevertheless, we would overrule this issue protect, who was there to dog, watch merely preserved. prosecutor even if The something, he had to do one chance following common-sense state made let him in the Temple David didn’t (1) burglaries: persons ments about com things you little tell house. The (2) steal; burglaries burglars mit act truth. quickly they “get caught”; so do not Excuse me. There’s counsel:] [Defense (3) burglars everything they possibly “take evidence, Judge. object I
no such Wright can that’s valuable.” See that. 905, 932 (Tex.App.-Houston 'd) ref that pet. (holding [14th Dist.] overruled. And that’s [Court:] appeals knowledge during jury to common An assertion without [Defense counsel:] argument improper). are not We overrule basis of evidence. appellant’s fiftieth issue. That’s overruled. [Court:] issue, fifty-second appel In David Tem- his why And did [Prosecutor:] trial court erred over ple if he lant contends the close the door to the house ar objection prosecutor’s might ruling be inside? thought burglar jewelry removed his open gument wide you Wouldn’t leave the door killing after Belin- and washed his hands didn’t hear any- [Prosecutor:] [E.T.] thing. da.12 There’s no [Defense counsel:] such evi- Why jewelry is that
[Prosecutor:] dence like that. jewelry tray is in that tray? That be- Temple got cause when David finished didn’t hear any- [Prosecutor:] [E.T.] Belin- firing shotgun thing, the back of Judge. head, blood on his
da’s he had some Overruled. [Court:] hands and he washed his hands and he prosecutor did not assert as fact jewelry took all of his off. that E.T. garage or the back- There’s no evidence [Defense counsel:] Instead, yard. point her was that E.T. that, Judge. was not in the house at the time of the That’s overruled. murder. The State appellant stipu- [Court:] *35 lated that the doctors who interviewed object to that. We [Defense counsel:] following E.T. the murder “found no evi- of fact. pure That’s assertion dence that had been a [E.T.] witness to the overruled, That’s sir. [Court:] murder,” and this stipulation present- was presented The State jury. ed to the It was therefore reason- in jewelry tray, damp was found and argue able to that E.T. neither saw nor in the bathroom. How- towels were found However, gunshot. heard the fatal it was ever, evidence, more, this without did not argue also reasonable to E.T. must have support appel- a reasonable inference that nearby been no because evidence indicated lant washed Belinda’s blood from his that E.T. was with someone other than hands; thus, prosecutor’s argument Belinda or from the time Belinda merely speculative. was We hold that the arrived home from school until appellant by overruling appellant’s trial court erred arrived Depot. home from Home Conse- objection and will consider the effect of quently, prosecutor stray did not from analysis. in harm this error our by arguing the record that E.T. in was not probably backyard the house but or Finally, fifty-three issues garage at the time of Belinda’s murder. fifty-four, appellant contends the trial appellant’s fifty-third We overrule and fif- by allowing prosecutor court erred ty-forth issues. argue backyard that E.T. was either in the garage Argument Regarding or when 2. Belinda arrived home Burden of shortly before her Proof murder. you [Prosecutor:] But do know that In fifty-five through fifty- issues got day,
when she
home that
was
[E.T.]
seven, appellant
following
contends the
ar
probably
not
the house. He was
in guments
jury
from the State invited the
garage
backyard.
inor
And as
“beyond
convict him on less than
a reason
soon as—
able doubt”:
[Defense
There’s no such evi-
counsel:]
you
picked
all
got
When
[Prosecutor:]
dence like that.
[,
put
ago
be
on this
a month
....
That’s overruled.
the fact that problems
[Court:]
talked about
we]
duct,
fifty-one, appellant
preserved
12.
In issue
contends
he has not
this issue. See
prosecutor
by making
Hajjar,
committed misconduct
first statement Finally, sixty-fourth and six many undisputed detectives and offi issues, ty-fifth pros contends the of law cers from several branches enforce engaged ecutor in inflammatory argument ment investigating had been Belinda’s asserting the whole Temple family The prosecutor murder since 1999. later aggravated perjury. committed argued objection, without “There is no Because no matter [Prosecutor:] how thing perfect investigation. such as a You you try much to deceive manipulate already They already know that. know lie, nobody can do it perfectly. They their for the that. tried hardest last evidence, why That’s circumstantial all Moreover, years nine appel this case.” things go together the little and tell any complaint regarding lant waived story are what the truth is. And prosecutor’s argument investigat that the you family when have a like the Temple ing officers wanted the to “be told all family pretend who to be the paragon of the little details of the truth” because he Texas, Katy, they get one, up here — 33.1(a); object. Tex.R.App. failed to See P. two, three, four, five of they them—and Valdez, 2 at 521-22. We overrule mockery make a justice the criminal sixty-first sixtieth and issues. system they aggravat- commit more sixty-second sixty-third In his perjury ed in this trial than this building *37 issues, appellant argues the en prosecutor has heard a decade. gaged by in misconduct improperly vouch me, Judge. [Defense Excuse counsel:] credibility. for
ing Clint Stockdick’s inflammatory, That’s an improper argu- What did Clint Stockdick
[Prosecutor:] ment. you, tell circumstantial evidence that he overruled, That’s sir. [Court:] They is? never even had a 20-gauge. We hold that the trial court yellow There was never a hull shot by overruling appellant’s objection erred They Temples. around the were all 12 prosecutor’s argument. Although gauges. Stockdick has more Clint honor there was supporting evidence an infer family in his little that finger than has in Temple family ence that the con witnesses the whole mess of them. lie to spired protect appellant, arguing object Excuse me. I [Defense counsel:] that Temple family the committed “more to that. inflammatory. That’s—that’s aggravated perjury this trial than this That’s overruled. [Court:] building has heard in a decade” was a Although Temple family Clint’s and the theatrical statement intended to inflame testimony regarding shotguns jury. members’ the the reassert critical im “[We] points, argument contradicted at portance convicting only of an accused unnecessarily exaggerated. great upon presented, Because that evidence without at importance placed is convicting tempting prejudice on the ac- to inflame or the minds Id.; jurors.” cused based on the evidence and not on of the see also Elliott v. emotion, State, 180, 182, agree we that the trial court 117 Tex.Crim. 36 S.W.2d
612 514(1931) differently, if we have 513, (“Complaint grave made of Stated “a free ... doubt” that the result was from the of counsel the state remarks some error, influence of the must appel- witnesses for the substantial we of the that some themselves, accordingly. the v. which re- treat error Burnett perjured lant had (Tex.Crim. State, 633, 88 637-38 been at the S.W.3d have withdrawn should marks omitted). (citation Thus, App.2002) we will “Grave appellant.”). request of the mind, judge’s in our doubt” that “in the analysis.13 harm means this error consider the balanced he evenly matter is so that Analysis C. Harm equipoise feels himself in virtual as to (citation harmlessness of the error.” Id. the trial Having determined that omitted). errors, now several we court committed these er cumulative consider the effect assessing In likelihood that State, 826, 749 S.W.2d rors. See Stahl adversely jury’s decision was affected State, (Tex.Crim.App.1988); Martin v. errors, we consider in the everything 236, 242 (Tex.App.-Texarkana record, any testimony or including physical ref'd); State, 2004, Harris v. pet. admitted, the nature of evi (Tex.App.-Houston [14th S.W.3d verdict, dence the character supporting refd). We pet. will not consid Dist.] and how it alleged might error be any waived er effect of errors. Cf. in connection with evi considered other Chamberlain dence. Motilla v. (“[W]e are aware of (Tex.Crim.App.1999) (Tex.Crim.App.2002). may We also holding may authority no non-errors dire, during consider statements made voir error.”). effect cumulative cause their instructions, theory, any the State’s Review 1. Standard theories, closing argument, defensive whether emphasized the State errors. er review trial court’s We cognizant Id. at are 355-56. We also evidentiary and jury-argument roneous a trial of a overruling court’s defendant’s 44.2(b) under rule harm rulings for objections approval” puts “stamp Tex. Appellate Rules of Procedure. Texas prosecutor’s improper cross-examina 44.2(b). We disregard P. must R.App. tion or jury argument, increasing the risk errors do not affect non-constitutional *38 State, of harm. See Lee v. S.W.2d rights.” a defendant’s “substantial criminal 131 (Tex.App.-Houston [14th Dist.] reverse for may Id. non-constitu We ref'd). pet. if, examining after the record tional errors whole, have fair assurance that the as a we Analysis 2. inju a not have substantial and errors did supra, influence in the determining or As determined the trial rious effect verdict, prosecutor but a court the jury’s slight erroneously or had effect. allowed (Tex. appellant improper ques to ask several Casey v. tions improper jury argu Johnson v. and to make Crim.App.2007); 410, 417 ment. these errors (Tex.Crim.App.1998). Although pre- were S.W.2d sixty-six sixty-seven, appel- just prosecutor’s and court had overruled ar- In issues prosecutor gument family complains Temple that the accused committed lant aggravated perjury; perjury, to conclude family conspiring commit we he waived Valdez, any object argument. by failing object. See appellant did not error to Thus, appellant’s objec- we overrule issues Despite contention that an at 521-22. sixty-six sixty-seven. have been futile the trial and tion would because (cid:127) eipitated prosecution, Appellant’s overzealous we untruthfulness regarding that, record, light conclude of the whole taking E.T. to a park and placing E.T. they injuri- did not have a substantial and in a child seat.
ous effect or influence in (cid:127) determining the Testimony Quinton from and Tammy jury’s verdict. that, following death, Belinda’s appel- lant aggressively confronted them re- begin by considering We the nature and garding their statements to the police amount of presented by evidence both grand jury, even following them in eyewitness, DNA, sides. There was no or his truck. physical other directly connecting evidence total, When appellant to viewed Belinda’s murder. Nonethe- circumstantial less, supports evidence despite finding that appellant absence of direct evi- dence, had a motive for present- killing circumstantial evidence Belinda and at- tempted to conceal negligible. by staging ed was not facts a bur- glary lying. We cannot conclude the (cid:127) Appellant involved an extra- was prosecutor’s speculative argument that the Heather, marital affair with had left tray holding appellant’s jewelry indicates pregnant his wife and son during he washed Belinda’s blood from his hands New holiday spend Year’s two significant was enough to substantially af- Heather, nights with and resumed his Moreover, fect the jury’s verdict. relationship relatively with Heather a prosecutor’s exaggerated question “[Y]ou death, short time after Belinda’s in- give flip Lucases, didn’t about the did cluding sending Day Valentine’s flow- you?” merely emphasized evidence already ers month later. before and did not affect whether (cid:127) There was evidence supporting a find- Tammy Quinton believed ing criticized Belinda’s (who testified that derided Belin- weight, housekeeping, and childrear- da and her family) or appellant’s family ing, and that he detested Belinda’s (who testified appellant disparaged never family. family). Belinda’s (cid:127) There was supporting evidence a find- Appellant prosecutor contends the in ing that the burglary staged. jected harmful unsupported (cid:127) There was evidence supporting a find- by arguing that girlfriends Belinda’s were ing family that the Temple conspired prevented by rule from revealing what Be protect appellant, including conceal- linda had told them marriage. about her ing family’s truth about the shotguns Appellant relies on Fant-Caughman affair. State, in which the Ap Amarillo Court (cid:127) Appellant’s explanation for trip to peals reversed the aggravated defendant’s Brookshire Brothers and then east- *39 sexual-assault conviction because of the ward to Home Depot by was refuted prosecutor’s improper jury argument. 61 length the of time it took him to enter 25 (Tex.App.-Amarillo pet. Depot Home after leaving Brookshire ref'd). We believe this case is distinguish Brothers and Bernard Bindeman’s tes- able. In Fant-Caughman, the complain timony that he appellant saw heading ant a thirteen-year-old girl was who was south from an appellant’s area near allegedly sexually-assaulted by the defen parents’ house. dant. Id. at 27. The appeals court of (cid:127) Appellant’s behavior and demeanor prosecutor’s concluded the argument that
immediately following Belinda’s death. “I could have been here with witnesses H R as the shotgun a lot missed the & murder days, because there are more
several Further, weapon. jury the could have also allega who know about these people of that the evidence relative concluded motive jury’s effect on had a substantial the tions” (Belinda parents his to R.J.S. confronted credibility at the Id. 32. Because verdict. his non-attendance regarding several times minor who claims sexual assault of a house) paled in pranking and her cases, school significant issue such always a impli- comparison motive prosecutor inject to this un allowing the Moreover, jury the could cating appellant. subject not to cross- testimony, supported testimony the of directly appel- evaluate examination, unfairly the victim’s bolstered lant R.J.S. both testified. and because outcry. evidence, jury the Succinctly, based the Here, question appellant of whether the reasonably have concluded R.J.S. could al- strong marriage, Belinda and had was not the murderer. quite important, was different. though that, if the recognize jury We also be- fact undisputed strongly an that There was lieved the three Roberts brothers’ testimo- Belinda were hav- appellant inferred and ny heard a blast they shotgun around appellant was in- ing marital difficulties: appellant the time was at Brookshire in an affair Be- volved extra-marital while Brothers, substantially it affect- could have Additionally, Tammy pregnant. linda was jury ed the had a reasonable whether Quinton appellant ridi- testified regarding culpability. appellant’s doubt Belinda, controlling, was culed was However, substantially none of errors the willing if he to leave Belinda unsure was credibility affected the Roberts Moreover, most of wit- for Heather. testimony. brothers’ appellant who testified that nesses have a mar- appeared happy Belinda credibility was Admittedly, witness cru- Temple riage family per- were members or cial of direct evidence. because lack Temples not as familiar with the as prosecutor’s improper sons ques- Several of the evidence, Harlans. In of this we light pertained and comments truth- tions prosecutor’s in- hold that the reference to appellant family. fulness possibly by Belinda’s possessed formation prosecutor persistent asking was appel- did affect girlfriends substantially not veracity. lant to comment on witnesses’ jury whether the believed and She overzealously argued also Further, problems. Belinda had marital perjurers. were Temples liar prosecutor during called evi- acknowledge We there some cross-examination, the trial after which supporting dence an inference that R.J.S. disregard court instructed murder, most was involved in Belinda’s comment but denied motion for H significantly 12-gauge that a & R shot- Nevertheless, considering a mistrial. gun owned father was recov- R.J.S.’s improprieties light these whole spent, ered and contained a reloaded dou- record, they we conclude did substan- (a ble-ought buckshot shell shell was never tially require influence or mis- scene). However, recovered at the crime trial. that, shortly R.J.S. testified Belin- before murder, argues repeated da’s he went that “he was Appellant and several friends shotguns, ly veracity to a field to he to comment on the shoot asked *40 [, jury] H brought shotgun giving the & R and reloaded other witnesses the choice Appellant believe that he was double-ought buckshot shells. Based on believe or testimony, this and therefore a murderer.” He could have dis- liar
615 primarily relies on States v. prosecutor’s United Ge The questions, albeit improp stan, in which the Ninth er, Circuit Court of served primarily to stress contradic Appeals concluded that similar questioning tions in the testimony. prosecutorial impacting
was misconduct Similarly, we conclude prosecu- that the due-process rights the defendant’s and re tor’s inflammatory arguments that sulting in reversible error because “wit Temple family committed “more aggravat- credibility paramount.” ness was 299 F.3d perjury ed in this trial than building (9th 1130, 1137 Cir.2002). has heard in a decade” and “Clint Stock- however, precedent, Under Texas dick has more honor in his finger little improper veracity questions generally are than Temple] family [the has in the whole held harmless because they merely empha them,” mess did substantially not influ- size obvious: that the defendant dis jury. ence the The prosecutor aggressive- agrees with the State’s witnesses’ factual ly cross-examined Temple witnesses See, State, assertions. e.g., v. 890 Streff regarding inconsistencies between their 815, S.W.2d 820-21 (Tex.App.-Eastland trial and grand-jury testimonies. For ex- 1994, 'd) pet. ref (holding error caused by ample, despite meeting 13, January State’s improper veracity question was 1999 at appellant which informed his fami- harmless because contradicting there was ly that Belinda, he had been unfaithful to State, testimony). In Creech v. the Court the April grand jury hearings, agreed of Criminal Appeals prose that the appellant’s brothers and mother denied question regarding cutor’s whether the ar knowledge trial, of an affair. At resting lying appel- officer was improper, was but lant’s explained brothers they concluded that such error was did harmless lie to grand jury because they “[w]hen said that the because believe officer lying, merely he was “affair” saying long-term means unfaithfulness. that his version of the fact, affair was correct In although they they testified were and that of the officer incorrect. We see by appellant’s devastated revelations at nothing in such answer which would tend family meeting, appellant’s brothers bring him disrepute jury.” into with the they testified that were not sure what 422, 424, 290, 168 Tex.Crim. 329 S.W.2d appellant’s entailed, unfaithfulness includ- (1959); State, McKinney see also ing whether he engaged in sexual infideli- 404, 491 S.W.2d 408 (Tex.Crim.App.1973) ty. types These prevarica- semantic (concluding error caused State’s im tions, along Temple with the witnesses’ proper veracity questions was not revers testimony had a wonderful ible); State, Mason v. 49 marriage and 12-gauge never owned a (same); (Tex.Crim.App.1970) Ayala v. shotgun despite contrary, evidence to the State, 687, 689, 171 Tex.Crim. 352 S.W.2d supported an Temples inference that the (1962) (same); Salcido conspired misrepresent the truth in or- 572, 574, 170 Tex.Crim. protect appellant. der to (1961) curiam) (same). (per By deny By arguing that members of the ing Temple that he ever derogatory made state family aggravated ments were regarding perjurers, Belinda’s appearance or family, appellant necessarily prosecutor implied inject unsupported did not Tammy, Quinton, facts,14 and Brenda were lying. harmful comment on error, 14. See Jackson v. argument 673- versible must be mani- ("To (Tex.Crim.App.2000) constitute re- *41 grand jury it And to the over testify,15 [Prosecutor:] or attack to failure and it counsel,16 little inconsistencies sug wasn’t about but of defense shoulders the lapse years. of nine about a time inference from the wasn’t a reasonable gested deliberate, a—a collabora- It was about inflammatory man evidence, in an albeit tive, Temple family the conspiratorial lie pleas were not statements ner. These told, never trying say Temple and con to David objectivity jurors to abandon the story the 12-gauge shotgun, their emotions. See based on had vict (Tex. 911, State, only the one up justify 92 S.W.3d they v. dreamed Torres ref'd) 2002, pet. day got he Dist.] had was about the App.-Houston [14th he ever State, 691 S.W.2d in the barrel. (citing Brandley got hurt when mud stuck Furthermore, (Tex.Crim.App.1985)). injuries consistent They get didn’t their statements, pros the making jury, these and it way grand before back then to the objection: without argued ecutor Stockdick only because Clint was talking about the coming forward and Temples less than five heard no [Y]ou Temple in the reality shotguns of the relationship. The you loving tell we know for sure that family that Ev- marriage. problems. No perfect they’re liars. just fine.... The truth is erything was untrue. being said that is in what was Hence, prop- prosecutor made several light a false that’s picture, a false It’s fami- regarding Temple arguments er you. being given to supported that were ly’s deceitfulness unlikely it Accordingly, the evidence. without ob- argued later prosecutor The inflammatory arguments prosecutor’s jection: substantially jury. influenced the family That has decided [Prosecutor:] they’re going mind to over- that in their whether the Finally, we consider look, deny that he forgive, forget by denying appellant’s erred trial court wife because he pregnant executed his prosecutor when the motion for mistrial [E.T.], father to good might be commented, “No, about.” The just it’s lied forget about it and going to they’re ap after prosecutor uttered this statement they lie about it and they’re going to Shaka pellant testified that his assertion thing. the same you to do want garage in the at the time of the mur is, it with that overlooks problem dreamed something der was “not that was to Belinda justice it denies truth and The trial court instructed the up.” daughter]. unborn [her motion for disregard but denied
mistrial. new, inject See Davis v. 329 S.W.3d festly improper or harmful facts added)). ("We (emphasis consistently (Tex.Crim.App.2010) have into the case.” argument that strikes at a defendant held that 15. See Bustamante counsel is im- over the shoulders of defense ("Neither (Tex.Crim.App.2001) trial Cockrell, ("For at 101 proper.”); judge prosecutor can comment on nor recognized prose- many years this Court has testify. an accused to Such com- failure of arguments personally attack de- which cutor's privilege against self-in- ment violates manifestly improper be- counsel are fense being from crimination and freedom they serve to inflame the minds cause testify compelled contained in the Fifth prejudice.”). to the accused's Amendment of the United States Constitution I, § the Texas Constitu- and Article (citations omitted)). tion.”
617
State,
139, 146-48,
A mistrial is the trial court’s
107 Tex.Crim.
295 S.W.
(1927)
remedy
609,
conduct that
is so
improper
(op.
reh’g)
(reversing,
expenditure
of further
prejudicial
despite instruction to disregard
apolo
expense would be wasteful and
time and
gy
prosecutor,
from
prosecutor
because
State,
880,
futile.
v.
284 S.W.3d
Ocon
called defendant a “damn liar” when defen
(Tex.Crim.App.2009). The standard of re
dant testified he had previously told the
view for the denial of a motion for mistrial
prosecutor that
gun,
victim had a
a
Archie,
is abuse of discretion.
221 S.W.3d conversation about
prosecutor
which the
reviewing
uphold
court should
personal knowledge);
had
but see Seaton
ruling
the trial court’s
if it was within the
State,
(Tex.
v.
564 S.W.2d
724-25
(cit
disagreement.
zone of reasonable
Id.
1978)
Crim.App.
Op.]
(affirming, de
[Panel
State,
ing
129 S.W.3d
Wead
comment,
spite prosecutor’s
is a lie
“[T]hat
(Tex.Crim.App.2004)).17
it,”
you
know
in response to defense
testimony
witness’s
that prosecutor was
have
Whether
mistrial should
present
not
when witness’s statement was
most,
all,
if
granted
been
involves
not
notarized, because instruction to disregard
the considerations that attend a harm anal
material),
cured error and witness was not
Therefore, a
ysis.
reviewing
Id. at 700.
grounds
overruled on other
by Rucker v.
court balances the three factors first enun
State,
We
side
question,
not a
but a sidebar comment that
bar
comment that
defendant or a wit
appellant’s objection.
necessitated
Never-
may
ness is a liar
be incurable error. See
theless,
immediately following
improp-
214, 215-16,
Wright v.
112 Tex.Crim.
(1929)
comment,
objected,
er
defense counsel
(reversing
be
cause,
Judge, you’ve
“Excuse me. Now
objected
prosecu
after defendant
that’s—
stuff,”
got
stop
that kind of
and the
asking major
tor’s
defense
if he
witness
station,
room.
gas
prosecutor
had robbed a
re was sent out
When the
back,
“I
the court
in-
sponded,
brought
gave
want to show that he is not was
its
thief’);
Thus,
only a liar but also a
Roberts v.
struction.
it is reasonable to assume
prose-
17. We note that
the trial court
contends
constitutional error because
abrogated
right
cutor’s outburst
to a fair
appellant’s objection
sustained
and denied his
Presumably, appellant
arguing
mistrial;
trial.
motion for
the Court of Criminal
prosecutor's
egregious
misconduct
so
Appeals recently explained that denials of a
right
that it violated his constitutional
to due
subjected
are
motion for mistrial
and,
thus,
process,
harm should be deter-
analysis
harm
but are reviewed for abuse of
44.2(a)
mined under a Rule
harmless-error
Archie,
See
jurisdictional prerogatives
pet.). Notwithstanding
imperatives
of
Romero,
in
sufficiency of the evidence
tual
vertical stare decisis and whatever extent
J.,
(Seymore,
concur-
331
at 84-87
S.W.3d
plurality
concurring opinions
and
in
had not followed
ring).
If this Court
Court, it
binding
my
Brooks are
on this
is
opinions, I would em-
previous
Brooks in
opinion
duty-
considered
that this Court is
factual-sufficiency re-
ploy the traditional
disgorgement
bound to contravene
of its
in
weigh all of the evidence
view and
jurisdiction
ques
exclusive
to determine
the cir-
light
neutral
to determine whether
tions of fact.
It is true that the
of
Court
supporting conviction
cumstantial evidence
appellate juris
has final
Appeals
Criminal
against
great weight
prepon-
is so
and
in crim
questions
diction relative to
of law
Const,
jury’s
derance of the evidence that
V, §
inal cases. Tex.
art.
5. How
clearly wrong
manifestly
verdict
ever, only the four
judges
Brooks
Clewis,
unjust. See
922 S.W.2d
134-36 plurality expressed
they
would elimi
plurality
&
The Brooks
and concur-
n. 16.
factual-sufficiency
pur
nate the
standard
require
ring opinions purport
this
V,
suant to Article
section 5 of the Texas
Court,
reviewing evidence for factual
when
Brooks,
Constitution.
621
passed
constitutionally
constitution
tual-sufficiency
duty
review
delineated
under the
V,
clause,
factual-conclusivity
Article
section 5.
al muster under
and its statuto
rily
duty
delineated
under the Texas Code
Considering
question
the fundamental
44.25,
of Criminal Procedure article
subject-matter juris
whether a court has
neutrally
Court should
consider
weigh
diction,
surprising
it is
the Brooks
all the evidence in the record to determine
concurring opinions
do not
plurality
whether a rational
justified
Ap
adhere to several Court
Criminal
finding guilt beyond a reasonable doubt.
wherein more than a
peals opinions
plural
State,
404,
See Watson v.
414-
ity acknowledged
imper
the constitutional
(Tex.Crim.App.2006).
Query, how
appeals
ative that
intermediate courts of
appeals
could a court of
ever decide a
jurisdiction
have conclusive
over factual-
question of fact and remand a case for a
State,
sufficiency issues. See Laster v.
pursuant
new trial
to the Texas Constitu
(Tex.Crim.App.2009);
S.W.3d
518-19
tion and
Code Criminal Procedure arti
Bigby v.
872-75 &
cle 44.25 if it is
reviewing
limited to
legal
(Tex.Crim.App.1994);
parte
n. 8
Ex
sufficiency of the evidence ? Actually, the
(Tex.Crim.
Schuessler,
S.W.2d
Appeals previously
Court
Criminal
cau
App.1993);
Meraz
against
tioned
happened
what
in Brooks:
(Tex.Crim.App.1990);
see also
*46
appropriate
not
for
[I]t [is]
this Court to
Brooks,
(Price, J., joined
factual
factual-sufficiency
purport
to resolve their conun-
right
opinions
constitutional
ele-
supporting
of the evidence
a criminal defendant’s
by eliminating
review
drum
has been abolished.
the offense
ments of
review of
right
appellate
constitutional
of fact.
questions
decision,
plu-
the Brooks
its
reaching
In
deep concern2
rality expressed
in Brooks and
agree
I
with the dissent
evolved articu-
Appeals’
Court Criminal
contem-
acknowledge that
the deference
review for factual
lation of
standard
factual-sufficiency
in a
review is
plated
indistinguishable
sufficiency in Texas
qualified
but a
deference
absolute
legal
of review for
suffi-
from the standard
jury’s apparent
weight,
assessment of the
by the United States
ciency prescribed
credibility,
reliability
admittedly
or
Virginia,
in Jackson
Supreme Court
Brooks,
evidence.
legally-suffieient
Brooks,
(plurality
at 901-02
J.,
(Price,
dissenting).
S.W.3d at 928
(Cochran, J.,
id. at 913-15
op.); see also
in a neutral
viewing
When
the evidence
legal-suffi-
concurring)
(expressing
court need not resolve
light,
appellate
an
only “logical”
suffi-
ciency review is
evidence,
every conflict in the
or draw
review). Under
ciency-of-the-evidence
ambiguous
inference from
every
Jackson,
the evidence is viewed “in the
all
guilt just
in favor of the defendant’s
be-
prosecution,”
light most favorable to
a rational
could have drawn
cause
to defer
reviewing
required
and a
court is
inference; qualified
an
deference
such
credibility
jury’s
to a
determination
factual-sufficiency review
does not convert
2781.
weight. 443 U.S.
S.Ct.
legal-sufficiency
into
review. See id. at
referred to its deci-
plurality
The Brooks
Accordingly,
there is no conflict
623 judgment for that of the substituting finding guilty its the defendant beyond a challenge to a jury by sustaining ques- sum, reasonable doubt.” In we noted fact, simply remanding tion of but is the rule barring retrial would be (quot- case for a new trial. Id. at 651-52 “confined to cases where the prosecu- 1, Corp., 150 Tex. ing Hopson Oil tion’s failure is clear.” Gulf (1951)). 358 .... Jeopardy [T]he Double Clause plurality I also submit that the Brooks special weight attaches judgments of unnecessarily is concerned about risks of acquittal. A verdict of guilty, not First, jeopardy. double stan Jackson by whether rendered or direct- incorporate dard does not the constitu by ed judge, absolutely trial shields duty tional of an intermediate of courts the defendant from retrial. A reversal appeals by to decide fact questions of con [legal] based on the insufficiency of the sidering weighing all the evidence be evidence has the same effect because it “impinges cause the Jackson standard means that no rational factfinder could upon ‘jury only to discretion the extent have voted to convict the defendant. necessary guarantee the fundamental Tibbs, 40-41, 457 at U.S. 2211 S.Ct. of law.” protection process due Jack (citations omitted) and footnotes (emphasis son, at 2781. U.S. S.Ct. Un added). Succinctly, evidence legally is in- standard, der the Jackson the evidence is sufficient where “only proper verdict” weighed, challenge and a successful acquittal. Id. S.Ct. legal sufficiency of the evidence results in Conversely, acquittal, not a new trial. See Tibbs v.
Florida,
31, 41-42,
457 U.S.
102 S.Ct.
A reversal on
factual-sufficiency]
[a
(1982).
2211,
government’s lacking case was so that it evidence, moreover, only can occur should not have even been submitted to after presented [legal- the State both has the A jury.” conviction will survive re- ly-] support ... evidence to view whenever “the evidence convic- and sufficient persuaded tion and jury inferences therefrom most to has to con- favorable prosecution jury’s simply would warrant the vict. The reversal affords concurring Justice BROWN filed opportunity to seek a second defendant rehearing, denial of en banc appellate opinion An to the judgment. a favorable give joins. to the defendant in which decision Justice BOYCE court’s not create “an chance does this second dissenting Justice McCALLY filed a high risk that the Govern- unacceptably opinion rehearing. to the denial of en banc resources, ment, superior [will] with its defendant” and obtain [the] wear down dissenting Justice SEYMORE filed a through its solely persistence. conviction rehearing, to the denial of en banc opinion (citations 42-43, Id. at 102 S.Ct. joins. in which Justice ANDERSON added). omitted) (emphasis footnotes Rehearing En Banc Denied. Thus, Supreme Court the United States argument posited rejected the expressly concurring opinions BROWN, Justice,
by plurality JEFFREY V. between the that a “distinction Brooks concurring rehearing to denial of en banc. (factual sufficiency) [legal] weight ] [ original panel a member of the Both as unworkable,” sufficiency of the evidence is court, I have and of the en-banc voted appellate judges “trial and noting that against rehearing sepa- I write this cause. distinguish weight between the commonly rately my colleagues who respond (factual sufficiency) [legal] sufficien- ] [ have dissented from our refusal to rehear. and the Due Process cy of the evidence” I will each in turn. address appellate a lower limit on an Clause “sets evidentiary sufficien- court’s definition I 44-45,
cy.” (empha- 102 S.Ct. Id. added). Tibbs, In States sis United rarely courts overturn Appellate provided ample support Supreme Court do, they verdicts. the reason for When judiciary pro- in Texas to appellate for the reversing often has more to do with trial- V, Article section 6 the tect and judge error than a conclusion that the defend appellate The Texas Texas Constitution. just got wrong.1 it Yet this case Justice doctrines, in- judiciary legal should fashion McCally have reverse the convic- would us review, that cluding appellate standards of judgment tion below and render a of ac- and defend the Constitu- “protect, serve to because, in her the ver- quittal judgment, tion and laws of the United States and leap dict is “irrational.” Such a would this State.”3 jury’s evaluation of the evi- supplant conclusion, gross by ex- dence with our own—a separately
In I write invasion judiciary upon right our un- to trial press my frustration with Court’s necessary plu- jury, right that Texas has held “invio- acquiescence Brooks days rality concurring opinions. Republic.2 late” since *49 Quote 1981) (inadmissible excerpted Crim.App. Op.] [Panel 3. from the oath of office for State, 85, confession); judges. Fox v. 283 S.W.3d 95 Texas 2009, (Tex.App.-Houston pet. [14th Dist.] juries Trial-judge re 1. errors that lead into ref’d) (inadmissible evi extraneous-offense range submitting versible verdicts from dence). wrongful-death simply when there no cases Const, see, 1836, causation, e.g., Repub. Tex. of Declaration of evidence of Merrell Dow Ninth, Gammel, Pharm., Havner, 706, reprinted Rights, in 1 H.P.N. Inc. v. 953 S.W.2d 730 1822-1897, 1069, (Tex. 1997), allowing The Laws Texas at 1083 inadmissible confes of 1898) ("the (Austin, right Book Co. sions or in criminal cases. Gammel extraneous offenses inviolate”); State, 142, (Tex. by jury of trial shall remain ac- Pitts v. 614 S.W.2d 143-44 2011, quarrel I not write to with Jus- pet.) [14th But do no And Dist.] indeed it Brooks, McCally tice over the merits. Like Justice does not. Under “[t]he Jackson panel ap- I Seymore, opinion Virginia legal-sufficiency believe standard is the upon only addresses the evidence propriately standard that a reviewing court apply which a rational could have rendered should in determining whether the Instead, I verdict rendered below. evidence is sufficient to support each ele- dispel MeCally’s (cid:127)write to Justice conten- ment a criminal that the State is of offense required tion that this court has issued inconsistent prove beyond a reasonable messages Brooks, meaning about the of Brooks v. doubt.” (plural- S.W.3d at 894 added). Respectfully, wrong ity op.) State. she is when (emphasis Brooks does say she contends that the court has stated appeals’ the courts of authori- arising ty “two different standards of review” to review cases for factual sufficiency is case, others, rather, says, from Brooks. In this as in dead. It that the Clewis v. “only we held that after Brooks one stan- State factual-sufficiency standard is indis- dard should be used to evaluate whether tinguishable properly from a applied Jack- support Virginia evidence is sufficient to a crim- son v. standard. Id. at 898-902.3 inal beyond conviction a reasonable doubt: That still leaves a lot of factual review State, legal sufficiency.” No. Temple appeals. courts of We review for 14-08-0074-CR, 572, at 583- cases, course, sufficiency factual in civil of 84, 5175018, (Tex.App.- 2010 WL at *2 but also in criminal cases where the bur 21, 2010, pet. Houston Dec. no [14th Dist.] den of proof beyond is less than a reason h.) State, on (relying Brooks v. See, State, e.g., able doubt. Ulloa v. No. 905-07) 893, (Tex.Crim.App.2010) (plurali- — 14-10-00102-CR, 14-10-00101-CR, (Cochran, J., ty op.); id. at 926-28 concur- S.W.3d -, 1283115, 2011 WL at *3 n. 1 State, ring)); see also Pomier v. 5, (Tex.App.-Houston Apr. [14th Dist.] 373, 378 (Tex.App.-Houston S.W.3d [14th filed) 2011, pet. (distinguishing Brooks and (courts 2010, h.) pet. appeals no of Dist.] conducting factual-sufficiency review in apply legal-sufficiency should standard appeal an from a trial court’s denial of addressing when legal-sufficiency and fac- habeas-corpus relief which the burden tual-sufficiency arguments appeals from proof of on the defendant is a preponder convictions). criminal evidence); State, ance of the Bernard v. — 14-10-00044-CR, -, McCally
Justice is correct that in some No. S.W.3d opinions 1375570, this court *2 has also noted that 2011 WL (Tex.App.Houston filed) (dis 12, 2011, Apr. Brooks “does not alter the constitutional pet. [14th Dist.] authority ap- courts of tinguishing reviewing intermediate Brooks and the fac peals questions sufficiency to evaluate and rule on tual jury’s punishment- of a See, e.g., phase negative finding fact.” Muhammed v. a special issue 187, n. (Tex.App.-Houston concerning passion sudden in which the Const, Const, 15; I, Jr., Pumarejo, § cord Tex. art. Tex. of 3. See also Ricardo Clueless over Const, 12; I, 8, Const, §§ art. Tex. Stop Worrying Clewis or: How I Learned to 4, 20; I, 12; § § art. Tex. art. Appellate and WelcomeBrooks v. 23 The Const, 12; I, § Tex. art. see also Appellate Advocate: State Bar of Texas Sec- Repub. Indep., reprinted Tex. Dec. of 1in *50 246, (Winter 2010). Report tion 258 Gammel, supra, (describing right at 1065 the by jury palladium to trial as "that of civil life, liberty, only guarantee safe for the citizen”). liberty, property of the 626 State, there is no reason preponderance is a tion of Brooks v. proof of
burden evidence). panel opin- rehearing for an en-banc of 41.2(c). P. Tex.R.App. ion in this case. See appeals upon is called a court of
When sufficiency on an issue to review factual by prove defendant must a
that a criminal II all the preponderance, it should consider Seymore Justice also has dissented from to determine whether relevant evidence conduct an en-banc the court’s failure to against great weight finding is so of his dissent is rehearing. But the thrust so of the evidence as preponderance deprived has allegation that Brooks State, manifestly unjust. Meraz v. be of their appeals intermediate courts of 146, (Tex.Crim.App.1990). As S.W.2d ability carry out their constitutional this court held in Bernard v. panel of dispute I that the duty to review facts. State, in did not judges five Brooks “[t]he has invaded our Appeals Court of Criminal part of this of Mer- disapprove overrule or province. constitutional I further believe az; fact, concurring judges ex the two dissent, Seymore in his advo- Justice part stated that this of Meraz was pressly of the doctrine of hierar- cates violation — Bernard, correctly decided.” S.W.3d precedent. chical -, 1375570, (citing at *2 at 2011 WL Brooks, 895; at & n. 323 S.W.3d id. J., (Cochran, concurring); Ervin v. A 49, n. 2 (Tex.App. There no factual-conclusiv is doubt—the 'd)). 2010, pet. -Houston ref Dist.] [1st V, ity clause Article Section says
So when this court
Brooks has done
ap
Texas Constitution makes intermediate
away
factual-sufficiency
review in pellate
factual-sufficiency
courts’
decisions
cases,
criminal
it is not inconsistent
some
“final
upon
and conclusive”
Court
say
for us also to
that Brooks has not
Appeals. Roberts v.
Criminal
authority
our constitutional
“to
altered
2 (Tex.Crim.App.
662 & 663 n.
S.W.3d
Const,
questions
evaluate and rule on
of fact.”
6(a)
2007);
V, §
see also Tex.
art.
See, Muhammed,
e.g.,
627 of factual-conclusivity Appeals, clause allows Criminal under its authority to an Appeals of Criminal to review verify Court that intermediate courts adhere to factual-sufficiency court’s de law,” intermediate “rules completely within its necessary cision insofar as to determine Roberts, rights to do so. 221 S.W.3d at “properly whether the intermediate court Seymore’s 663. Justice exhortation not Roberts, 221 applied ‘rules of law.’” withstanding, factual-conclusivity—the (citing at 663 & n. 3 Choate v. San S.W.3d constitutional prerogative of the intermedi Co., 406, A.P. 91 Tex. 44 Ry. Antonio & ate courts—remains intact. 69, (1898); Dyson v.
S.W.
69-80
Olin
456,
(Tex.1985);
457
Corp., 692 S.W.2d
B
Co.,
Pipeline
Harmon v. Sohio
S.W.2d
623
dissent,
In his
Seymore
Justice
does not
(Tex.1981)).
314,
than
314-15
But no more
merely lambaste the constitutional founda-
exactly
that is
what the Brooks court did—
urges
tion of Brooks—he
a refusal to “ad-
legal
proper
it laid out the
boundaries of a
here to” it. He sees Brooks as such an
And
factual-sufficiency
though
review.
“affront to the Texas Constitution” that we
they have
themselves to
jurisdiction
no
no obligation
have
to follow it.
I do not
review,
factual-sufficiency
it has
perform a
agree that Brooks is so sinister. But even
legitimate
been the
realm of our state’s
were,
if it
compelled
we would be no less
courts of last resort
to tell the courts of
it
go where
leads us.
appeals
sufficiency
how factual
should be
Pool,
reviewed. See
I have did Brooks State, interpretation.” Southwick v. 701 away factual-sufficiency not do re 927, 929 (Tex.App.Houston [1st S.W.2d view; it that when the simply recognized Const, 1985, no Tex. pet.); Dist.] see also proof beyond burden of is a reasonable V, 5(a); § City art. Robinson v. doubt, Gal- sufficiency legal factual suffi veston, 292, 297, Brooks, 51 111 ciency Tex.Civ.App. S.W. are one and the same. 323 (Galveston writ) (hold- 1076, 1908, 898-202; 1079 no S.W.3d at see also Watson 404, “if (Tex.Crim.App. ing disposed 415 that even we were S.W.3d 2007) (holding factual-sufficiency re doubt the soundness of Court of Crim- [the decisions, view inal “barely distinguishable” Appeals’] yet is from Jack we would feel standard). them”).5 Virginia son v. And Court constrained follow ” Clawson, sions, disobey (quoting 5. Accord State ex rel. Vance v. or its mandates.' 164, (" (Tex.Crim.App.1971) Briggs, S.W.2d ‘The State ex 171 Tex.Crim. rel. Wilson v. Appeals (Tex.Crim.App. Court of Criminal the court of last 1961)); resort this state in criminal matters. This Gabriel v. so, being (Tex.App.-Houston no other court of this state has n. 5 no [14th Dist.] authority pet.) (stating to overrule or circumvent its deci an intermediate court "[a]s *52 628 Justice, McCALLY, SHARON precedent are not hierarchical
Issues of dissenting rehearing to denial of en banc. are abso- “Inferior courts play. child’s of the to follow decisions lutely bound my I offer dissent to this respectfully revisory juris- or appellate having courts for re- appellant’s denial of motion court’s aspect, prece- In this them. diction over hearing en banc. imper- courts are by higher dents set They sense. are in the strictest ative INTRODUCTION courts, the lower and leave conclusive on scope independent for latter no A convicted David Mark Henry Camp- or discretion.” judgment Belinda Temple murdering of his wife Black, 10 Law of Judicial Precedents bell 11, 1999, January with a 12- Temple on (1912). her shotgun blast to the back of gauge court, Sey- head. This Justice Charles “[Ujnless anarchy prevail” wish we panel, the unanimous affirmed more for justice, of lower courts within our halls however, Seymore, the conviction. Justice precedent “no higher-court must follow opinion criticiz- concurring also authored a judges of those misguided matter how majority abdicating respon- its ing the v. may think it to be.” Hutto courts constitutionally re- sibility perform 371, 375, Davis, 703, 102 454 U.S. S.Ct. factual-sufficiency review. quired (1982) curiam). 706, (per 556 70 L.Ed.2d inferior “must judges courts suggest I that en banc reconsideration is higher authority orders of obey either (1) opinions required this case because: who will.” up posts or their those yield of court conflict about whether Jack- Aluminum, & Chem. v. Kaiser Weber Virginia requires v. a factual-sufficien- son (5th Cir.1980) 132, F.2d 133 Corp., 611 (2) review; cy we should resolve the con- J.). (Gee, rigorous flict en banc and hold that a abomination, v. proper application Virginia, if were an it of Jackson Even Brooks a rational including analysis lower courts to rein in of whether is not the role of they go jury when could have found the elements of the our courts of last resort doubt, Supreme beyond of crime a reasonable embod- ultra vires. When Court (3) review; factual-sufficiency Appeals Texas and the Court of Criminal ies constitution, perform an panel appropriate we must did interpret our state’s system Virginia sufficiency To v. review of That’s how our works. Jackson follow. (4) case; defy authority appellant’s the evidence in do otherwise—to our sufficiency analy- v. Virginia courts—is to forswear the full Jackson highest state’s sis in this case mandates reversal.1 rule of law. State, 383, laws."); by controlling appeals, are bound au Flores v. 883 S.W.2d 385 we 1994, ref'd); thority Appeals”); (Tex.App.-Amarillo pet. Pettigrew Court of Criminal from the State, 204, (Tex. State, 732, 267 S.W.3d (Tex.App.-Dallas Villarreal v. v. 822 S.W.2d 2008, App.-Corpus pet.); 1992, no ref’d). Christi State pet. 857, Stevenson, (Tex.App. 993 S.W.2d suggest I that en banc reconsideration also 1999, pet.); no Fort Worth Horton v. appropriate in the because of the case (Tex.App.-Waco Brady analysis flawed and cumulative-error pet.); no Contreras by Templepanel. Specifically, performed ref'd) ("As (Tex.App.-El pet. Paso suspect” subject "alternate RJS was the court, an appellate we are an intermediate Brady point day of error. On the fifth duty[-]bound the law to follow declared trial, one of the State’s witnesses revealed to Appeals of Criminal on matters Texas Court for the first time that: criminal counsel pertaining to the enforcement of *53 (not just Among all of the evidence the evidence and Conflict Panels Courts: Sufficiency Required? conviction) that favors the light in the Factual (not most prosecution favorable to the of Appeals The Texas Court Criminal light) neutral and affirm if the evidence is recently the of changed appellate standard (not legally sufficient for a rational legal sufficiency review on and factual State, (Tex.Crim. just jury”) Brooks v. 323 893 S.W.3d “a to find all of the elements App.2010). According to the plu Brooks beyond a reasonable doubt. Id. at 899 rality, legal factual-sufficiency the (“It (plurality opinion) is fair to character- “essentially standards had become the ize the v. Virginia legal-sufficien- Jackson same standard” and there was “no mean cy standard as: Considering all of the ingful distinction them that between would evidence in fight the most favorable to the justify them retaining both.” Id. at 894- verdict, jury rationally was a justified in So, beyond it is debate the Brooks doubt.”). finding guilt beyond a reasonable Virginia, court held that the Jackson v. However, this court and other appellate 307, 2781, 443 U.S. 99 61 560 S.Ct. L.Ed.2d applied courts have (1979), standard inconsis- only standard is the standard that a First, tently. this court reviewing has stated two apply court should determin different ing whether the evidence is sufficient to standards of review. According each element of a criminal offense support to the author of the majority opinion in required prove beyond the State is Temple, panel held that Brooks elimi- Brooks, a reasonable doubt. See nated a factual-sufficiency review in Texas 895; (Cochran, J., at id. at 926 S.W.3d State, criminal Temple cases. See v. No. concurring). 14-08-0074-CR, 572, at S.W.3d 619- 20, 5175018, 2010 WL (Tex.App.-
The new In- *38 easily standard is stated: appellate 21, 2010, termediate courts are to review Houston Dec. pet. [14th Dist] no RJS, State, (Tex. Temples’ neighbor, sixteen-year-old See Wilson v. police lied skipping about school on the Crim.App.1999) (holding appel that when the murder; day poly of the RJS failed three exculpatory lant learned of the material five tests; graph 12-gauge RJS had access to a days testimony began, Brady before com (the shotgun gun and reloaded shells plaint preserved by was not his failure to seek Belinda) ammunition used to murder that the testimony began a continuance "before or be recovered; police recently had and RJS had (emphasis he rested his case in fore chief" gun. Temple panel shot that held this added)). Further, minimum, applying at a Brady preserved error was not and was harm State, the cumulative error test of Harris Yet, (1) clearly less. the record reflects that error, Brady along plethora with the prior appellant's to trial the court assured evidentiary jury-argument errors grand jury counsel that he had read tran found, Temple panel specifically has eliminat scripts, testimony, which included RJS’s integrity appellant’s ed in the trial that led to materials, (2) they Brady appel contained no conviction. See Harris v. lant’s counsel did not learn of the new infor (Tex.Crim.App.1989) (holding 587-88 days mation about RJS until several after the reviewing upon that the court must focus trial, (3) beginning counsel at integrity process leading to the convic tempted during to find RJS trial but was "always tion and should examine whether the unsuccessful, sought so he a continuance be one’’); essentially trial was an fair see also denied, resting fore (4) his evidence—it Kelly (Tex.App. State, though it remained silent about However, pet.). Houston I [14th] no as during RJS’s location the continuance hear legally before, conclude herein that the evidence is ing day called RJS as rebuttal judgment acquittal insufficient and that a Regarding is preservation, witness. error appropriate, separately panel’s upon misplaced I do not write on this reliance Wilson is legal its face as met the Wilson standard. error. even J., to disbelieve un-
h.)
concurring).
pan-
jury’s province
Other
(Seymore,
evidence).
contradicted
have concluded
this court
els of
the factual-suffi-
did not eliminate
Brooks
en banc
of mat-
Although
consideration
review,
holding specifically that
ciency
disfavored,
presents
ters
this case
not alter the consti-
decision “does
Brooks
banc-worthy
example
an en
textbook
authority of the intermediate
tutional
Appellate Pro-
issue under Texas Rule of
*54
rule on
appeals
of
to evaluate and
courts
41.2(c): uniformity of the court’s
cedure
State,
Muhammed v.
fact.”
questions
Tex.R.App.
41.2(c). Ap-
P.
decisions. See
187,
(Tex.App.-Hous-
n. 3
381 S.W.3d
191
full and constitu-
pellant’s entitlement to a
h.)
11, 2011,
pet.
no
Dist.]
ton
Jan.
[14th
the evidence in
tionally protected review of
J.).2
(Anderson,
depend upon
this
case should not
murder
randomly
which
of the court is
as-
panel
meaning
opinion
on the
A difference
signed his case.
exists
of Brooks
within
application
and
Appeals,
and
as
First
Second Courts
Proper
Rigorous and
A
Jackson
State,
Mosley v.
Nos. 01-08-
well. See
Virginia Analysis
v.
—
01-08-00938-CR,
00937-CR,
S.W.3d
Factual-Sufficiency
a
Review
Embodies
5395655,
-,
at *15 (Tex.App.
2010 WL
30, 2010, pet.
Dec.
Houston [1st Dist.]
view
Brooks eliminat-
Courts of the
that
filed)
J.,
(Jennings,
concurring) (stating
factual-sufficiency
ed a
review hold that
the Brooks
eliminated factu
plurality
opinion
court unques-
because
Brooks
review);
al-sufficiency
v.
appellate
Ervin
light”
tionably eliminated
“neutral
han-
State,
49,
n. 4 (Tex.App.
67
dling
sufficiency
on
review.
of evidence
2010,
ref'd) (Alca
pet.
Houston [1st Dist.]
However,
plain language
of Brooks
J.)
la,
recent
(disagreeing with
court of
court has re-
belies a conclusion that the
suggest
decisions that
Brooks
appeals’
obligation
appellate
lieved
courts of their
factual-sufficiency challenges);
abolished3
for
to review all of
evidence
factual
State,
(Tex.App.
v.
4. Justice dissent from the denial of dence would be insufficient under a neutral- suggests en banc reconsideration this court light review. likely would conclude the evidence in this factually upon case is insufficient a neutral 5. The command to review all of the evidence evidence, weighing of the which is mandated criminal-sufficiency challenge on a stands in by the Texas Constitution. As I conclude standard, rejected by contrast to the civil that, light when viewed in the most favorable Brooks, reviewing which authorizes court conviction, legally is insuf- disregard contrary evidence unless reason- juror ficient and no rational could have found jurors City able could See not. Keller v. beyond the elements of this offense a reason- Wilson, (Tex.2005). doubt, necessarily agree able I that the evi- however, ciently heavily against the verdict that a we know from Significantly, miscarriage justice may have and Brooks that serious Virginia both Jackson Lincoln, at (citing occurred.” Id. 630 F.2d quality or of evi- quantity there is some 1119). disregard cannot rational dence that a plurality The Brooks
or disbelieve.
Thus,
plain language
of Brooks dem-
point:
about
specific
that,
although
light
onstrates
which
proper
that illustrates
hypothetical
A
changed,
has
we view the evidence
Virginia
of the Jackson
application
requirement
court has not eliminated the
robbery-at-
legal-sufficiency standard
review all of the evi-
appellate
courts
case: The store
a-convenience-store
very
and, “albeit to a
limited de-
dence
A
trial identifies
as the robber.
clerk at
gree,
capacity
to act in the
of a so-called
”
authenticated surveillance
properly
A
juror’
perform
‘thirteenth
a factual-
clearly
of the event
shows that
videotape
Brooks,
sufficiency review.
S.W.3d
But,
robbery.
B committed the
State, 204
(quoting
Watson v.
jury’s pre-
A. It was within the
convicts
(Tex.Crim.App.2006)).
the convenience
rogative to believe
store
Appellant
Rigorous
Did Not Receive a
disregard the video. But
clerk and
Proper
Virginia
Jackson v.
jury’s
on all the evidence the
find-
based
*56
Sufficiency Review
finding.
not a rational
ing
guilt
of
is
majority
provide
The Temple
did not
hypothetical
As the
they heard a noise that sounded like a n. 12 (Tex.App.-Houston gunshot p.m., appel- ref'd) at 4:38 a time when 2010, pet. (“[Disregard [14th Dist.] home, panel lant was not concluded evidence, ing contrary all no matter how that “the was free to disbelieve it and be, mountainous or it compelling may ap rationally could have done so because [the pears incongruous reviewing with the were children and no other wit- witnesses] court’s task deciding whether a rational gunshot ness testified that a heard factfinder could have found a defendant day.” (majority Id. at *6 opinion). guilty beyond a reasonable given doubt analysis analysis This of an falls short it is the evidence contrary to the First, ways. “all of the evidence” in two commonly verdict that injects the element testimony there was no conflict in the for of ‘reasonable jury’s doubt’ into the delib according erations.”). to Detective In deferring jury, resolve— Schmidt, who adjacent interviewed the Temple panel incorrectly disregarded all neighbors, other neighbor no than support evidence that does not the verdict. all, a gunshot Roberts children heard misapplied yet, gunshot; panel B. The we know there was “no-ration- *57 al-jury” pieces standard
and we know from conclusive evidence that to of evi- dence. p.m. it occurred between 3:32 and 5:36 Second,
p.m.
panel
does not even men-
Temple
There is further indication in the
testimony
tion the
of two other wit- opinion
panel
that the
confused the stan
adjacent neighbors
nesses—also
cor-
—who
Virginia
dard.
v.
Jackson
commands that
roborated a disturbance in their location at
determine,
appellate
court
upon review
time;
that
dogs inexplicably
their
“went
evidence,
of all of the
whether no rational
crazy” at
time.
jury could have found the elements of the
Although
appellate
beyond
an
court is not re
crime
a reasonable doubt. The
quired
only
to detail all of the
admit
Temple panel
evidence
two times the
mentions
trial,
at
a proper sufficiency
ted
review
in
jury”
analysis
a “rational
its
of the
evidence,
important
should discuss the most
and rel
whether
panel determines
a
evant
supports
appel
jury
particular
evidence that
rational
could have believed
complaint
lant’s
on appeal.
pieces
Temple,
See Sims v.
of evidence. See
2010 WL
State,
600,
5175018,
*6,
(Tex.Crim.App.
99 S.W.3d
603
n.
“the
(stating
*8
2003) (referring to factual sufficiency
jury
anal
was free to disbelieve
children’s
[the
brief,
ysis).
Appellant,
urges
testimony]
rationally
could have done
so,”
the timeline
it impossible
jury
“made
for him to
and “no rational
could credit Viel
testimony”).
contrary
have committed the crime”
at the
because
ma’s
That is
shots,
neighbors
gun
ap
proper
same time
heard
standard. The court is not to sub
pellant
witness-by-witness
to be in
judgment
documented
another
stitute its
disregard
jury rationally
location. To
the timeline of determine whom the
be
not rest
Instead,
Murder
should
jury,
to A.
convictions
lieves or disbelieves.
evidence, can
than
pieces
upon
on
of
circumstantial
evidence
we defer
less
whom
a review of all
irrational after
only become
contraband-possession convictions.
Brooks, 328 S.W.3d
See
the evidence.
of
1983,
of Criminal
when the Court
Until
at 906-07.
State, 646
Hankins v.
Appeals decided
its
court to abdicate
appellate
an
For
(Tex.Crim.App.1983) (op. on
S.W.2d 191
that the
look at evidence
responsibility
in
trial courts in criminal cases
reh’g),
disregarded
or
may have disbelieved
jury
juries
convict on circum
structed
not to
constitutionally
a
of the
deprives defendant
unless the
excluded
stantial evidence
mandated, minimum-sufficiency review.
except
“every
hypothesis
other reasonable
to confuse “no
appellate court
And for an
(abolish
at 197
guilt.”
Id.
defendant’s
evi-
piece
believe” a
jury could
rational
ing
requirement
of a circumstantial-
requires
exami-
for a standard
dence
v.
charge);
see also Carlsen
rational
could
whether “no
nation of
State,
(Tex.Crim.App.
all of the evidence”
upon
based
convict
1983)
(“[I]f the evidence
(op.
reh’g)
on
proper
the absence of a
stan-
highlights
guilt
an inference other than the
supports
court
in this case. This
dard of review
finding
guilt beyond
appellant,
review to harmonize
grant en-banc
should
is not a rational find
reasonable doubt
of the Jack-
application
its statement
Then,
ing.”).
the Court of Crimi
sufficiency-of-evidence re-
Virginia
v.
son
officially eliminated that same
Appeals
nal
view.
hypothesis”
“reasonable
construct
from
Proper
Rigorous and
Jackson
Vir-
A
review,
sufficiency
the evidence
as well.
Sufficiency
ginia
Re-
Review Mandates
(Tex.
Geesa v.
in this Case
versal
other
Crim.App.1991), overruled
is, according
case
Temple
grounds by Paulson
circumstantial-evidence
panel,
purely
(Tex.Crim.App.2000).
However, an examination of the sta-
case.
Meanwhile, in the context of crimes in
types
for all
of circumstantial evidence
tus
contraband,
volving possession
cases,
context,
as well as the
of criminal
Appeals
coined the
Court
Criminal
by the
specific
upon
homicide cases relied
*58
(and later, just
links”
phrase “affirmative
significant depar-
reflects a
Temple panel,
“links”)
the method for evalu
to describe
analysis Texas re-
rigorous
ture from the
linking
the circumstantial evidence
ating
Further,
rig-
quires of such evidence.
contraband,
drugs or
an accused to
such as
Brooks,
by
analysis contemplated
orous
State,
See,
Evans v.
202
e.g.,
firearms.
directed,
giving deference to the
as
158,
(Tex.Crim.App.
& n. 9
S.W.3d
161-62
upon
that this conviction rests
still reveals
2006);
State,
739,
Haynes v.
475 S.W.2d
permit
no
that would
a rational
(Tex.Crim.App.1972).
742
Stated differ
find,
doubt,
beyond
a reasonable
is not in the
ently, when the contraband
intentionally
knowingly
or
control of the defendant in the
exclusive
Temple.
of Belinda
See
caused the death
(West
found,
19.02(b)(1)
place
premise
§
or
where it is
Ann.
Tex. Penal Code
2003).
showing
State must make a
of links6 be
sug-
present
Ultimately
when a search was
the nonexclusive list of links
defendant
conducted;
(2)
gested
Appeals
whether the contraband was
by the Court of Criminal
has
view; (3)
(1)
plain
proximity to
following:
whether the
in
the defendant’s
evolved into the
and the contraband.
sonable hypothesis except
tween the accused
the defendant’s
(not
Evans,
guilt.
at 161-62 & n. 9
Id. at 748-49.
202 S.W.3d
“merely
is
ing that the term “links”
used
Today,
years later,
more than fifteen
catch-phrase
large
for a
as a shorthand
a circumstantial-evidence case involving
variety
may
of circumstantial evidence that
contraband, the State
bring
must still
evi
knowing ‘possession’
establish the
or ‘con dence that affirmatively links the accused
trol, management, or care’ of some item
See,
to the contraband at issue.
e.g., Rob
contraband”). Thus,
such as
had
State,
(Tex.
545,
erts v.
321 S.W.3d
charged
possession
been
of the fire
refd).
App.-Houston
2010, pet.
[14th Dist.]
Belinda,
arm used to murder
the State The court is not to look for
bright-line
would have
links
had
establish
between
number of links answered affirmatively;
See,
appellant.
e.g.,
such firearm and
instead, the court is to consider all of the
State,
393,
Williams v.
397 links
logical
and determine “the
force of all
(Tex.App.-Houston
pet.
[1st Dist.]
evidence,
of the
direct and circumstantial.”
'd) (“If
ref
firearm not
found on the Evans,
still,
S.W.3d
162. And
posses
defendant or is not in his exclusive
goal
analysis
protect
links is to
an
sion, the evidence must link him to the
bystander
relative, friend,
“innocent
or
—a
firearm.”).
stranger
even
possessor—
the actual
from
merely
conviction
because of his for
hy-
The elimination of the “reasonable
tuitous proximity to someone
drugs.”
else’s
pothesis” construct created tension with
Id. at
All
161-62.
of these affirmative
the line of cases
links to
requiring
elimi-
require
links
a focus on both the existence
hypothesis
nate the reasonable
link
circumstantial
and the absence of
simply
defendant was an innocent
circumstantial link.
State,
wrong place. See Humason v.
The circumstantial evidence in this case
(Tex.Crim.App.1987),
nothing
analy-
received
that resembles the
Geesa,
overruled
handprints
murders);7
556,
the
(Tex.Crim.App.2000)
she committed
29 S.W.3d
(the
cigarette
DNA on a
defendant’s
(6)
attempted
the
whether
defendant
scene);
at the
butt found
evidence,
in-
incriminating
made
conceal
(2)
the decedent’s DNA
any of
whether
statements,
implausible
or
or
consistent
tied to
evidence was
forensic
or other
Guevara,
50;
lied,
152 S.W.3d at
see
State,
defendant,
v.
see Gardner
the
(the
Padilla,
at 201
also
326 S.W.3d
(Tex.Crim.App.2009)
285-86
S.W.3d
may
untruthful statements
defendant’s
(fibers
from the decedent’s red
likely
in connection with the
be considered
by the
truck driven
in the
robe found
case); King,
circumstances of the
other
(the
defendant);
Hooper v.
cigarette
evidence from a
butt at the
Then,
Crim.App.2007)).
panel
refer
crime
indicating appellant’s pres-
scene—
enced three cases from the Court of Crimi
(2)
murder,
ence during the
DNA evi-
Appeals
support
proposition
nal
to
dence
linking
sandals —
may
solely upon
murder conviction
rest
(3)
Byrd’s injuries,
to
appel-
inferences raised
circumstantial evi
lant’s false statements to the media—
dence.
Id. (citing Clayton, 235 S.W.3d at
indicating consciousness of guilt and an
778-82; Guevara,
49-52;
at
S.W.3d
(4)
crime,
attempt
up
to cover
appel-
564-65).
King, 29
S.W.3d
Examination
lant’s letter to Brewer —which could be
necessary
of the evidence
to affirm in
construed
anas
admission that appellant
Temple panel’s
these cases reveals the
(5)
participated
crime,
in the
appel-
misapplication
principles
of circum
animosity
lant’s racial
supplies a
—which
stantial evidence.
motive for the murder.
Clayton,
In
the defendant’s conviction
Thus,
gun, childrearing, and he housekeeping, and the murder. used in family. Belinda’s detested friend, (cid:127) told a Paul also The defendant (cid:127) staged of the murder was to The scene Knauss, researching how that he appear burglarized. make it to make a silencer. (cid:127) parents, his and his broth- Appellant, (cid:127) casings the defen- Police found shell by conspired protect appellant ers to that, according to the fire- car dant’s family’s concealing the truth about the probably matched expert, arms shotguns appellant’s affair. weapon. murder (cid:127) trip for his to Appellant’s explanation (cid:127) casings of shell Police found a box and then east- Brookshire Brothers clothes in the defendant’s under some Depot Home was refuted ward to closet, thirty casings matched of which length of time it took him to enter from the murder scene. Depot leaving Home after Brookshire Guevara, Thus, the circum- Id. Brothers and Bernard Bindeman’s tes- linking the defendant to stantial evidence timony appellant heading that he saw casings the murder included shell from the area near south from an in his car and his likely weapon murder parents’ house. closet. (cid:127) behavior and demeanor Appellant’s cases, pre- In of these the State each Belinda’s death. immediately following physical evidence ac- sented circumstantial (cid:127) Appellant’s regarding untruthfulness to tually linking the defendant the murder. park placing E.T. to a E.T. taking case, that the undisputed In this it is State in a child seat. physical evidence offered no circumstantial (cid:127) Tammy Testimony Quinton from to the crime. See Tem- linking appellant that, death, following appel- Belinda’s at *32. The failure ple, WL them aggressively lant confronted re- so is not attributable to a lack of to do police garding their statements blood, evidence. The State had physical them in grand jury, following even matter, guns, and ammunition. brain truck. his None of it linked to the crime. 5175018, at Temple, 2010 WL *32. As- suming With the framework circumstantial that the matters recited above are all, Clayton, King, they in the fall far upon relied circumstantial evidence at cases, Temple quantum decision short of the of circumstantial evi- Guevara harm, analysis necessary falls far short. In its dence a rational support doubt, Temple panel specifically determining, beyond identified the a reasonable presented,” “circumstantial evidence which that caused Belinda’s murder. concluded, the panel negligible”: “was not not, of the matters recited are Some (cid:127) best, however, Appellant in an extra- circumstantial evidence. At was involved Heather, they Temple panel
marital affair with had left are inferences that the testimony from pregnant during attempted wife and son to draw —some- holiday spend example, New two inappropriately. Year’s times For Heather, broadly Temple that the nights panel and resumed his concluded appellant, in- relationship relatively family conspired protect with Heather a death, cluding concealing in- the truth about the fam- short time after Belinda’s is, however, evi- Day ily’s shotguns. flow- There no cluding sending Valentine’s any Temple ers a dence that member of the month later. *62 unreasonable, family shotguns. pletely Members lied about but it is not suffi- (1) Temple family ciently testified that: of based on facts or evidence to owned appellant 12-gauge support never a shot- a finding beyond a reasonable (2) did; gun, though his brothers in the doubt.
mid-1980s,
20-gauge
owned a
appellant
Hooper,
22502 Round any or pellant clothing —none p.m. p.m. between 3:32 and 5:36 wearing that he was and none recov- bathroom, laundry, from the or ered (cid:127) E.T., son of Belinda three-year-old vehicle. not witness the appellant, did (cid:127) murder. analysis Forensic revealed none of Be- or brain matter within linda’s blood (cid:127) shotgun was murdered Belinda Temple either of the vehicles. her head while she blast to the back of (cid:127) window, because it facing the rear of the The backdoor was inside and tempered, was broken with a tool or a closet of the home she shared bedroom not a hand or fist. gun, but appellant. (from thirty-five the one-hundred- video surveil- minutes of The conclusive evidence lance, calls) phones, twenty-four-minute cell and 911 this case window which the away accounts for was committed. crime whereabouts — eighteen from the murder all but scene—for (cid:127) however, analysis glass acknowledges, Forensic revealed no Brooks appellant’s clothing.
fragments
Court of Criminal Appeals has never artic-
precisely
ulated
how much deference
such
(cid:127)
analysis
ap-
Forensic
revealed none of
determinations are due.
Id. (noting that
on the bedroom
pellant’s fingerprints
even the court’s factual-sufficiency deci-
“placed”
television that was
on the
sions
always required
have
reviewing
part
“staging.”
floor as
*64
court to
great
afford a
amount of defer-
(cid:127) An
of the Temple
extensive search
ence “(though this Court has never said
Temple
residence and
vehicles re-
deference)
precisely how much
jury’s
to a
12-gauge shotgun,
vealed no
no 12-
determinations”).
credibility
weight
and
shells,
gauge shotgun
particu-
and in
Nevertheless, it is clear that “total defer-
lar,
12-gauge double-ought,
no
reload-
ence”
required.
is not
See id. at 902 n. 19.
shotgun
ed
shells.
(cid:127)
multiple-day
A
search that
involved
jury
The
weigh
was entitled to
the dis-
officers,
team,
fifteen homicide
a dive
puted evidence of a relationship outside his
trustees,
ten to fifteen
and a DPS
marriage
disrespectful
and
treatment of
plane
heat-seeking equipment
his wife and determine
appellant
had
(in-
scouring over four or five areas
Guevara,
a motive to kill his wife. See
fields, reservoirs, canals,
cluding rice
S.W.3d at 50. Former
Tammy
“friends”
ponds)
and
of interest on the north
Quinton
and
Harlon and Belinda’s twin
Katy,
police
side of
where
believed
sister Brenda testified
appellant
criti-
appellant might
disposed
have
of a
cized his wife’s weight, housekeeping, and
weapon,
nothing.
revealed
childrearing, and he detested Belinda’s
(cid:127) Subpoenaed emails between Heather
family. Heather Temple9 admitted that
appellant
nothing beyond
revealed
appellant
she and
had
relationship
a sexual
a flirtation —no
plot,
murder
no discus-
encounters,
of a few
and Heather
her
weapon,
plans
sions of
no
for the fu-
gave testimony
roommate Tara
that appel-
knowledge
ture that indicated a
Belin-
family
lant lied to his
and spent
nights
two
gone,
da would be
etc.
prior
with Heather in the two weeks
to
jury
Belinda’s death. The
in-
heard from
evidence,
Weighed
including
2.
facts
vestigators
police ap-
that Heather told
inferences,
with deference to the
pellant
Quinton,
said he loved her.
who
jurg
credibilitg
and conñict de-
Heather,
pursued
also had
testified that
terminations
appellant was unsure if he
willing
rigorous
A
and proper application of
leave
Appellant
Belinda for Heather.
con-
Virginia,
by
Jackson v.
as described
relationship
tinued his
with Heather short-
Brooks, requires
appellate
an
court to de-
ly after Belinda’s death.
fer
jury
to the
on determinations of a
credibility
witness’s
was entitled to
weight
weigh
and the
to be
the dis-
given
testimony by reviewing
puted
physical
all
circumstantial
evidence
evidence in
light
glass
testimony
most
at the scene and officer
favorable
Brooks,
staged
conviction.
appear that Brothers, glass park, Brookshire testified broken then to vestigators and the overturned televi- in the back door then home. Bin- Depot, then Home appeared to have been sion in the bedroom demann he an inter- said saw in the glass was not staged because section on the described route home not right appeared and the television place Second, heading and not toward home. the floor. Detective Mark gently set on placed he appellant lied when he said E.T. Temple home was felt that Schmidt they in a car drove north on seat before been appear make it to have staged to photographs Interstate 10. scene Crime agents testified Insurance burglarized. vehicle do not show a car claim jewelry made about the stolen Third, seat the car. confronted precisely did family, which Temple Quinton Tam- his former best friends *65 given police however, to match the list — my grand-jury about their testimo- Harlon Belin- consistently only the listed family ny police, and and he told statements jewelry.12 da’s them to shut. keep their mouths entitled to the dis- jury weigh The was weigh The jury was entitled the dis- testimony appellant to conclude that puted that puted testimony appellant to conclude Here, the an supports was evidence lying. was not about his wife’s death. emotional appellant that on several inference lied Police observed a lack of emotion officers First, supports evidence a con- occasions. appellant following in Belinda’s death.13 did the appellant take clusion that evidence, appropri- 3. All after Depot from Home north across route home ate deference Appellant that he Interstate 10 claimed. above, As a reviewing discussed court by Bernard Binde- “Buck” was observed Brooks, must all of the evidence. consider mann, familiar appellant who was with In the near S.W.3d at 899. one-month (approximately fifteen high from school trial, earlier) guilt/innocence the phase par- the years Katy at the intersection of presented sixty ties than Hockley and Morton Ranch Road more witnesses Cut-Off p.m. including investigators, and 5:00 on Janu- to the p.m. jury, neigh- between 4:50 testimony the 12. and important expert 11.It to note State advanced the Defense defendant’s staged theory appellant must the have testimony dispute own that the scene was or Chow, Shaka, scene because his would never However, staged. could have been as this stranger backyard have allowed a into the conflict, jury evidence the was free to is barking. Temple panel without at least police, viewing resolve it in favor of the concluded, correctly, jury I believe that the light the most evidence in the favorable to the indulge free to this inference because was not conviction, they I did. assume garage evidence that Shaka was in the the Temple, at of the murder. 2010 WL the time history All fact witnesses who had a bed, food, dog’s *8 n. 3. The fresh appellant, appellant even those adverse to garage; were in the latch on and water the Harlons, appellant such as testified that the broken; backyard fence was heard no one was the loss of his emotional over wife and barking; dog no one observed the Shaka However, child. as this is in con- afternoon; backyard during the and the flict, it free to resolve in favor of was dog garage to remain even was known police, viewing evidence in the opened when the door was for vehicles to conviction, light to the I most favorable as- inference, enter. Without this the most the they sume that did. infer, speculation, entitled to was without robbery not the motive for the appellant murder —not committed the murder. bors, family, police respond- and medical dog’s behavior but noticed their ers, records, others, di- custodians of opened. tool shed had been exclusively establishing rected almost (cid:127) p.m., At 4:38 Belinda’s sister called the However, the timeline of events. none of Temple phone home line. No one an- investigators provided any link be- swered, and she left a message. crime tween and the scene. The (cid:127) At some point between 4:38 p.m. at evidence, following falling into the catego- 4:41 p.m., the Roberts (adja- brothers I ries describe as “timeline evidence” and neighbors cent Temples), ages evidence,” “RJS omits all evidence the nine, six, eight, and gunshot. heard a disbelieve, jury was free to as previously They specifically recalled the sound outlined: and comforting one another. They a. Timeline evidence measured the time by they the time (cid:127) at the schools where Belin- Witnesses bus, dropped were off had a worked, da and as well as snack, homework, did a few minutes of enrolled, daycare where E.T. was video, and started a Dr. Dolittle. The confirm that E.T. became ill in the boys pinpoint were able to within the morning, picked up, him Belinda they shot, movie where heard the *66 appellant stay came home to with E.T. another witness confirmed the bus go so Belinda could back to work. Be- day. schedule that No other witnesses stopped by appellant’s parents’ linda gunshot any heard a time. home, soup way house for on the (cid:127) At approximately p.m. 4:55 or 5:00 phoned appellant phone from her cell (a p.m., sixteen-year-old sopho- RJS’s p.m., at 3:32 then arrived home more at Belinda’s school and the Tem- p.m. p.m.. between 3:45 and 4:00 ples’ neighbor) across-the-street dogs (cid:127) Appellant and E.T. were on a video- barking started the house. He was tape at Brookshire from Brothers 4:32 sleeping after having marijua- smoked p.m. p.m. to 4:38 Brookshire Brothers during day, na the the dogs woke was at least twelve minutes from the time, up. him At the same between Temple considering home without p.m. p.m., 4:50 and 5:00 Bernard necessary path his traveled In- across “Buck” Bindemann appellant observed approximately terstate 10 at rush hour Katy at the intersection of Hockley when freeway the was under construc- Cut-Off and Morton Ranch Road. tion. A manager Brookshire Brothers (cid:127) by Temple Natalie Scott drove the recalled having ap- a discussion with p.m. home at 5:10 She did not see or pellant outside the store after 4:38 hear anything. p.m. Appellant put quarter had (cid:127) p.m., At 5:10 Temple Kenneth called to hobby the mechanical horse for E.T. to feeling. see how E.T. was No one ride, but it would not work. answered, message. and he left a (cid:127) Neighbor by Natalie Scott drove the Temple home at 4:30 (cid:127) p.m. but did not p.m., appellant At 5:14 and E.T. were anything. hear or see videotape at Home Depot a few (cid:127) away At about 4:30 Mr. and Mrs. Par- p.m., minutes from Brookshire Broth- (adjacent-to-the-back-fence
ker’s Depot ers. Home is at least twelve neighbors) “crazy” in dog Temple went the minutes from the home with- backyard. considering necessary Mr. Parker went outside to out that his investigate no reason for path and found traveled across Interstate 10 at dispose physical of all evidence. See hour when the rush
approximately Further, 5175018, at *6.14 there under construction. 2010 WL freeway was gunshot that a was heard was evidence (cid:127) Angela p.m., 5:25 Vielma At around appellant time when neighborhood at a home. She had Temple by walked murder, boyfriend was could not have committed her fight ob- gunshot a friend’s house. She was no evidence that a was walking to there and E.T. drive into have appellant during appellant the time could served heard dog did not see a or She garage. committed the murder. garage. in the another vehicle a. RJS evidence (cid:127) p.m., appellant 5:35 approximately At stated, RJS was the six- previously As Peggy of Mike and on the door banged Temples. teen-year-old neighbor adjacent neigh- are They Ruggiero. history: The RJS and Belinda had garage Appellant side. bors on run-ins with Belinda. repeated heard of “Mike, Mike, it’s me screaming, one of his “counselors” at school She was me in.” When Mike David. Let constantly telling get him to and was door, he said opened class-skipper. was a In class because he E.T. his keep them to because needed reported Belinda RJS’s the fall Peggy broken into. house had been horrible school-attendance record phoned p.m. 911 at 5:36 kept E.T. and they grounded him. Belinda parents, and and Mike returned to while about broken bot- parents also told RJS’s Appellant home. ran Temple yard, suspected tles in her for which she backyard and into through watched as his friends RJS. RJS stood and house, stopped Mike was short but Temples’ tore down the outdoor Christmas dog. dog did not Temple’s *67 than a month before Be- decorations less on the fence at jumped like Mike and undisputed These linda was murdered. stayed gate, holding at the him—Mike support a motive for RJS. facts latch, closed because of the broken it went into the house. appellant while family guns owned RJS and his —12- (cid:127) called 911 from p.m., appellant At 5:38 they 12-gauge used gauge shotguns—and inside the home. they shells that re- double-ought shotgun (cid:127) Kathleen Sam Gonsoulin and Johnson days before Belinda’s mur- loaded. Within They were responders.
were the first der, 12-gauge shotgun RJS took and p.m. at 5:45 and arrived dispatched some shells out with his friends to shoot. stayed thereafter. Johnson shortly buddy Casey that had recent- He knew his appellant outside with while Gonsoulin ly 12-gauge shotgun stolen a from his was went into the house. Gonsoulin boyfriend, Casey and RJS de- mother’s so by the time of the trial. deceased Usually, go shooting. cided to after he them, he would guns, the time- shot his dad’s clean According Temple panel, guns he whether these that had but did not know line evidence shows leaving were He recalled 12- eighteen minutes to commit the murder cleaned. his However, panel dispose physical all evi- Temple did not view the murder and thirty-five light dence could have been minutes: the evidence in the most favorable to the p.m. Appellant arriving Appel- p.m. from to 4:20 could conviction in at this timeline. 3:45 p.m. no later than 4:20 trial arrived have left his house lant testified at Belinda twelve-minute commute to Brook- p.m.” to 4:00 but admitted that make the home "closer Brothers, appeared where he on a video p.m., shire his initial estimate to officers was 3:45 thus, p.m. camera at 4:32 the window for to commit However, Casey. gauge shotgun po- RJS talked to the police on several occa- that, days several after lice records show “probably” sions and marijuana smoked murder, voluntarily RJS’s father sur- going before to the station to talk to them. 12-gauge shotguns. two There rendered He was interviewed more than once. RJS no detected on either. RJS’s was blood then provided grand jury testimony but live, father also surrendered reloaded shot- marijuana night smoked before. RJS shells; gun none of those submitted con- unabashedly admitted during wadding tained that matched the murder time parents he lied to his about driving However, undisputed shell. these facts car, smoking marijuana, having mari- of a support possession weapon RJS’s house, juana school, in the skipping ammunition consistent with those used to shooting guns. his father’s Accordingly, kill Belinda. there is direct evidence that RJS lied and sufficiently was marijuana addicted to death, day
On the of Belinda’s RJS cut marijuana he smoked even when it was period school after seventh and was at his likely drug use would be discovered. home, Temple across the street from the home, several times on the afternoon of guilt 4. No rational could find Belinda’s murder. beyond a reasonable doubt However, RJS testified that while he My conclusion about this record is school, he and skipping was his friends First, straightforward. the absence of evi- out, house, hung went from house to dence should be dispositive. A rational marijuana. smoked to being RJS admitted find, beyond cannot a reasonable marijuana addicted to at the time. Fur- doubt, that one individual caused the ther, he though prohibited from driv- (1) solely death of another based upon cir- he ing, nonetheless drove that afternoon. (2) motive, cumstantial evidence of circum- Initially he and his friends arrived at his (3) stantial opportunity, evidence of at approximately p.m. home 8:30 after guilt, inferences of none actually of which home, smoking joint. When he arrived provide an affirmative link to the crime. surprised he was to find one of his front If, herein, as outlined the State calls the So, doors cracked he open. and his mother, says defendant’s who her son did *68 friends around the looked house to be sure crime, permit not commit the and we the burglary. there had not been a jury to disbelieve it infer and from their Later, he and his friends drove around guilty, disbelief that the defendant is we tan, boy’s in one of the car four-door look- Indeed, have allowed the irrational. ing marijuana, for more but could not find Temple panel allowed the irrational. any. Ruggerio’s, taking nightly their Second, through neighborhood, walk saw a car as to the evidence as a whole— matching description, containing deferring jury appellant’s two convic- — teens, speed neighborhood from the at ap- tion should be reversed. A rational motive, proximately p.m. 4:80 RJS he re- opportuni- believed could not hear of RJS’s p.m. p.m. ty, turned home around 4:20 or 4:30 a possession weapon and of and ammu- He then asleep slept fell on the couch. He nition kill consistent those used to stoned; however, and, soundly because he yet, Belinda form no reasonable doubt dogs p.m. his woke him between 4:55 rather than appellant and RJS committed Moreover, p.m., 5:00 as discussed above. These facts the crime. a rational could support opportunity appellant RJS’s to commit the not believe that committed this did, crime. murder in the manner that he whether that Brooks has created thirty-five. In this The unrest minutes or eighteen application allegedly appellate sur- intermediate courts’ appellant period, time short closet, wife, a appellant her into cost his forced of the standard of review prised his hand, her in her made a telephone right. of Brooks eliminated only appeal with a rear, a 12- facing placed around error because factual-sufficiency point turn of head, her to the back of shotgun gauge apply that would is indistin- the standard Appellant cleaned trigger. pulled review. guishable legal-sufficiency from the and brain mat- the blood up. He washed to ease purpose not the of Brooks It was (hair clothing) himself ter from appellate of intermediate the burden in the house or on any sink left no trace a full- is still entitled to Appellant courts. Or, covered the house. he any towel in review, detailing of evidence suffi- record a himself, dispose of required he was so jury’s determi- support cient to a rational in the house because covering, but not convict, and an evaluation of the nation to Appellant drove it was searched. generates used to convict that process clothing and blood and brain-soaked conviction will confidence that outing, without leav- during it dumped of time and and should stand test car, and he did so in a trace in the ing a will continue to technology. This court a massive hunt for the items manner that evidence, and wrestle with circumstantial Appellant transported up nothing. turned inferences, appropriate and how to afford gun leaving without of disposed And, refining in the of Brooks. deference blood, matter, gunshot or brain trace of yet, just as did not receive car, so in a and he did residue in the neutral-light review benefit of a Clewis gun a massive hunt for the manner that to indict in because the State was unable home, he left nothing. Before up turned 1999, appellant will not receive the benefit appearance to create an staged it review if proper of a Brooks standard of He used a tool to break burglary. of a rehearing. grant we do not door, glass in the back without tempered on himself or his shoes. He getting glass SEYMORE, Justice, CHARLES W. away. He slid the television put the tool rehearing en banc. dissenting to denial on it. leaving prints off of its stand without pending, plurality While this case was drawers. He did opened He miscellaneous Appeals issued of the Court Criminal (1) things while: his three- all of these v. State and factual-suffi Brooks abolished him year-old waiting son was some- ciency derogation review in of the Texas (2) house; or outside the where inside statutory right appel constitutional and neighborhood no one in the heard hoping fact in criminal questions late review help. called for It is more the blast and *69 (Tex. 893, 894-912 cases. actually hap- believe this just than hard to J., Crim.App.2010) (Hervey, joined by Kel it. pened; it is irrational to believe Cochran, ler, Keasler, JJ., plurality op.) & CONCLUSION (Cochran, J., joined by & id. at 913-26 Womack, J., concurring); see also Tex. grant appellant’s mo- This court should Const, 6(a). V, fact, § In the Court art. rehearing Temple en banc. The tion for acknowl Appeals recently of Criminal not remain the Four- panel decision should factual-sufficiency edged it had abolished Appeals’ teenth of last word on this Court 137, State, 333 S.W.3d review. Howard v. case; Sey- authoring colleague, our Justice (citing 2 more, (Tex.Crim.App.2011) 138 n. although for different rea- agrees, commenting, “The Brooks and sons. argues factually that the evidence was review of the evidence also for factual sufficien insufficient, cy the brief is a power but since committed exclusively to the appeals.” Regal was submitted we have abolished factual- of court[s] Fin. Co. v. — review”). Motors, I Tex. sufficiency Accordingly, dis Star No. 08-0148 S.W.3d -, (Tex. 3277132, majority’s deny my sent to the decision to 2010 WL at *7 2010) added). request Aug.20, (emphasis for en banc reconsideration of this court’s adherence to Brooks and the con There a plethora is of authority acknowl disregard appellant’s right comitant of to edging the Texas imperative constitutional fact, questions guar seek review of his of intermediate courts of appeals have by anteed the Texas Constitution. jurisdiction conclusive over factual-suffi
ciency cases, issues in criminal but JURISDICTION Brooks plurality disregarded their own precedent derogation jurisdic of that Ostensibly, required this court is to fol- State, 512, tion. See Laster v. low the of vertical stare decisis S.W.3d dictates 518-19 (Tex.Crim.App.2009); acceding opinions Bigby of mandates (Tex. However, of S.W.2d 872-75 & n. 3 Appeals. Court Criminal Schuessler, Crim.App.1994); parte Ex duty this court also has to defend the S.W.2d 852-53 by asserting (Tex.Crim.App.1993); Texas conclu- Constitution its Meraz v. appellate jurisdiction questions sive over of 152-54 Brooks, (Tex.Crim.App.1990); see also fact in criminal cases. (Price, J., S.W.3d at 931 joined by Meyers, ap- decision of courts of [T]he [Texas Johnson, (ex Holcomb, JJ., & dissenting) peals] ques- shall be conclusive on all pressing that the plurality ignored stare brought tions of fact before them on decisis). Actually, the of Court Criminal appeal or error. Appeals previously against cautioned what Const, V, 6(a). § Early Tex. art. in Tex- happened in Brooks: history, as criminal defendants were af- not appropriate [I]t [is] for this Court protections appellate forded the of review create a standard of review which is in questions Supreme of of fact. The Court conflict with the language of our State Republic recognized of Texas “the Constitution. prosecution defendant in a criminal in the Meraz, 152; see also Susan right appeal district court has the to this Bleil, Bleil & Charles The Court Crimi- court from judgment or sentence of Appeals nal Versus the Constitution: below, the court and to have the as facts Question, Conclusivity Mary’s 23 St. L.J. law, election, well opened as the at his own (1991). 423, 424 Smith, Republic re-examination.” (Tex.1841) Dallam 410-11 (emphasis The Court of Criminal Appeals further added). Texas, In appellants may chal- only way preclude declared erroneous, lenge finding as of fact on the appeals “determin[ing] Texas court of from ground jury’s against verdict jury finding against great if a weight evidence, i.e., evidence,” preponderance i.e., and preponderance of the See, fact, factually evidence was insufficient. determining question is for “the *70 e.g., Ry. Choate v. San Antonio & A.P. of people the State of Texas to amend the Co., (Tex.1898). 406, 69, Meraz, 91 Tex. 44 70 S.W. Constitution.” 785 S.W.2d jurisdiction The exclusive and Subsequently, conclusive of con- plurality Brooks appellate recently versely courts was acknowl- concluded: “As the Court with fi- edged by Supreme State, the Texas nal appellate jurisdiction “[A] Court: in this we
648 225, Nobles, 230, stan- States v. 422 Virginia v. United U.S. the Jackson that
decide
(1975).
2160,
95
the evidence a criminal offense of element extraor- presented This court is with an beyond a rea- required prove is to State en dinary necessitating circumstance banc Brooks, 323 S.W.3d at doubt.” sonable whether to the decision review: adhere to omitted). (citation The op.) (plurality Appeals of Criminal to dictate of Court attempts justify to this plurality Brooks sufficiency of factual a standard review for implicit with the incursion jurisdictional ques- review of appellate that “abolishes” authority that their to establish suggestion 41.2(c) (al- fact. See Tex.R.App.P. tions of any trumps appellate of review standards lowing extraordinary en banc review when (cit- impediment. Id. at jurisdictional En banc re- require). circumstances so State, v. ing Clewis necessary view is because this court has vacated, 1994), (Tex.App.-Dallas already opin- in followed Brooks several How- (Tex.Crim.App.1996)). S.W.2d 126 separately I en banc re- ions. called for ever, respectfully that our su- I submit to afford this opportunity view court the to jurisdiction perior court has neither right course and a Texan’s reverse fulfill to authority to create or nor constitutional meaningful factual-sufficiency review. Un- that ei- implement a of review standard fortunately, my colleagues a majority of explicitly implicitly or abolishes a ther disregard choose to affront to this of right appellate review Texan’s Texas Constitution.
questions questions fact of as fact. my previous In concurrence I panel opinion, lamented that I am con- appellate and all intermediate
This court follow strained to this court’s decision to are faced with presently in Texas courts deny appellant’s appellate re- request question relative oath fundamental questions view of I declined of fact. judiciary: for members of the of office review, perform factual-sufficiency con- right, “protect whether to and defend” cluding any regard in effort Constitution, appellate Texas under the contradict precedent. would this court’s questions questions of fact as review below, Accordingly, for outlined I reasons is question fact criminal cases. rejection dissent to this of en banc court’s constitutionally mandat- because rhetorical deny ap- reconsideration the decision to protection ed at stake. Intermediate review of pellate appellant’s questions of have no appellate courts Texas inherent prescribed fact as Article Section 6 of ignore express an constitutional power to Const, the Texas Constitution. Tex. art. Queen mandate. See 6(a). V, § (Tex.App.-Houston [1st Dist.] Moreover, pet.). no consideration THE DOES STANDARD JACKSON public acknowledgements that of recent FULFILL THE TEXAS CONSTI- actually numerous Texans were innocent AP- TUTIONAL OF GUARANTEE convicted, vigi- our courts should be when PELLATE FOR FAC- REVIEW afforded all lant to insure Texans are TUAL OF THE SUFFICIENCY protections against errone- constitutional EVIDENCE? of our criminal goal ous conviction. The to convict In of Criminal justice system should be Clewis Court determining innocent. held that in factual guilty Appeals and exonerate the See
649
evidence,
sufficiency
appellate
dancy,
an
I
my colleagues
of
remind
“
plurality
court should view ‘all the evidence with Brooks
adopted the unexpurgated
prism
light
out the
of “in a
most favorable
Jackson
legal
standard of review for
suffi-
prosecution,”
ciency
to the
aside the
as the
[and set]
standard
reviewing
all
only
contrary
if it is so
to over
challenges
sufficiency
verdict
to
of evidence.
Brooks,
weight of the evidence
whelming
as to be
323 S.W.3d at
(plurality
895
op.).2
”
unjust.’
Jackson,
clearly wrong and
S.W.2d Under
this court must
totally
126, 129
defer
(Tex.Crim.App.1996) (adopting
jury’s weight
to the
credibility
by
Jackson,
prescribed
standard
the court in determinations.
709, 715
above,
acquittal.
verdicts of
under the Jackson stan-
ly, as noted
completely
court
dard,
appellate
the
the
weight
A reversal based on the
of
jury’s weight
the
totally defers
evidence, moreover,
only
can occur
after
Jackson, 443
credibility determinations.
[legal-
presented
both has
the State
13, 326,
2781.
& n.
99 S.Ct.
at 319
U.S.
convic-
ly-]
support
evidence to
sufficient
to con-
persuaded
tion and has
Jackson,
factfinder’s
Second,
“the
under
simply
The reversal
affords
vict.
pre
of the evidence
weigher
role as
opportunity
a second
to seek
defendant
legal
a
conclusion
through
served
An
judgment.
appellate
favorable
a
evidence is
review all of the
upon judicial
give
decision to
the defendant
court’s
light
in the
most favor
to be considered
second chance does not create “an
Id. at
99
prosecution.”
able to
unacceptably
risk that the Govern-
high
weighed,
is not
2781. The evidence
S.Ct.
ment,
resources,
superior
[will]
with its
challenge
legal
suffi
and a successful
obtain
wear down
defendant” and
[the]
acquittal,
evidence results
ciency of the
solely through
persistence.
conviction
its
Florida,
trial. See Tibbs v.
457
not a new
(citations
Id. at 42-43
and footnotes omit-
41-42,
72 L.Ed.2d
102 S.Ct.
U.S.
ted)
added). Thus, the United
(emphasis
(1982).
legal
the evidence is
652
Whether
Supreme
expressly rejected
States
Court
under Jackson “is
course
ly sufficient
of
(accepted
by
the contention
as true
how
question
wholly unrelated
“distinction be-
plurality)
Brooks
a
actually
reached
rationally the verdict
(factual sufficiency)
weight
tween the
[
]
...
today
announced
....
standard
[T]he
evidence is
[legal] sufficiency
of the
scrutiny
reasoning
of the
require
does not
unworkable,” noting
appel-
that “trial and
Jackson,
by the fact-finder.
process” used
judges commonly distinguish
late
between
(em
n.
at 319
S.Ct.
U.S.
(factual sufficiency) and
weight
]
[
[le-
added). Succinctly,
le
phasis
evidence is
gal] sufficiency of the evidence” and
“only proper
where the
gally insufficient
a lower limit on
Due Process Clause “sets
Tibbs,
acquittal.
jury’s
a criminal defendant’s
verdict and
I respectfully submit that each member
right
appellate
constitutional
review of of this court
duty
provide
has
sworn
questions
appellate
of fact. The
court en-
appellate
responsive
review
to David Tem-
jury’s
qualified
tertained
deference
ple’s contention that the evidence is factu-
credibility,
of the weight,
assessment
or
ally
support
jury’s
insufficient to
ver-
reliability
admittedly legally-suffi-
*75
dict of guilt beyond a reasonable doubt.3
Brooks,
cient evidence.
tral (Tex.Crim.App.2000) an Accordingly, after verdict. jury’s (“Unless explains clearly re- court determines the available record appellate legally is sufficient to the evidence an why appropriate, a different result is veals verdict, there is no re- jury’s support jury’s court must defer to the appellate meticulously all re- detail quirement concerning weight what determination inferences. The ab- evidence and maining evidence be- give contradictory testimonial surplus analysis panel of such sence resolution often turns on an evalua- cause not be misconstrued as should opinion demeanor, and those credibility tion of all of the evi- failure to consider panel’s were in attendance when the testi- jurors dence. delivered.”); mony was Jones (“[A] example panel’s (Tex.Crim.App.1998) failure to
As an 5.W.2d evidence, McCally Justice all of the permitted review to believe or disbelieve panel properly did not consider argues the testimony!.]”). In any part of witness’ they testimony that the Roberts brothers’ record, considering the cold we cannot dis- a time when p.m., at 4:38 gunshot heard cern whether the Roberts brothers were not home. undisputedly was nervous, confident, Thus, un- or credible. acknowledged that the Roberts panel The review, we der the Jackson standard testimony supported appellant’s brothers’ precluded attributing are from credence 5175018,at Temple, 2010 WL *6. defense. testimony simply their because it was not However, that “the recognized we also directly Accordingly, contradicted.5 testimony] jury was free to disbelieve [this jury’s deferred to the im- panel properly rationally have done so because could not to plicit decision believe Roberts brothers were children and no the Roberts testimony.6 brothers’ gunshot that a other witness testified disagree McCally’s I also with Justice words, day.” Id. In other al- heard that panel criticism that the reviewed the evi- though was free to believe the piecemeal panel The dence fashion. testimony, there was no Roberts brothers’ sufficiency analysis by noting the began its requirement to do so because their state- conclusively established “that conclusively proved. were not ments *78 credibility intentionally knowingly and jury judge is the sole and someone McCally McCally panel's Additionally, contends the 5. Justice also contends the 6. Justice analysis testimony jury” from the Roberts broth- panel improperly applied the "rational inadequate panel did ers was because the not jury requirement by concluding "no rational testimony from the Parkers who consider testimony,” could credit Vielma's because the that lived next-door to the Robertses their panel purportedly Vielma’s did not consider dogs crazy' inexplicably 'went near the time testimony conjunction with all the evidence gunshot. the heard a Al- Roberts brothers Temple, in the record. See 2010 WL dog though testimony their the Parkers' that agree rationality jury's n. While I of a at *8 barking during the was the time Roberts finding from all the fact is to be determined arguably gunshot supports brothers heard a evidence, panel correctly the concluded it shotgun the that there was a blast contention jury a to believe Viel- would be irrational for time, at the it does not render Roberts testimony dog the ma's that a was inside testimony relative to the brothers’ conclusive Temple’s garage. Vielma admitted she was shotgun appel- exact time a was fired inside dog’s to see or determine the location unable Therefore, lant’s house. under Jackson garage, particular area inside the within a standard, jury we conclude that the cannot rendering testimony dog her that a was inside finding irrationally by acted the Roberts garage speculation. sheer Id. point. brothers not credible on this Temple, caused Belinda’s death.” have appellant concluded that lied Thus, panel at *4. was WL about his activities after leaving legally-suf- whether required determine Brookshire jury Brothers. The could supported jury’s ficient evidence find- have rationally also concluded that the killer. ing appellant was the Viewed thirty-six minute window ap- afforded verdict, in the favorable to the light most pellant ample opportunity to hide a supports following find- gun bloody clothing before arriv- ings and inferences: ing at Home Depot.8 A finding that (cid:127) Appellant could have been in his house appellant misrepresented his activities
when murder occurred.7 during the afternoon Belinda was mur- (cid:127) it staged rationally Someone the house to make dered supported a finding of
appear burglarized. it had been guilt because there explanation is no Appellant ample opportunity had for appellant’s prevarication other a while he stage burglary was watch- than police to thwart from discovering E.T., ing and Belinda was still at his activities. school. (cid:127) Appellant engaged in an extramarital
(cid:127) Appellant testified that he drove di- affair with Heather for several months rectly Depot leaving to Home after before the murder. He told Heather Brookshire Brothers. The drive time he expressed loved her and ato friend between Brookshire Brothers that he was unsure if willing he was Depot approximately Home was ten to leave Belinda for Heather. Within fifteen captured minutes. Cameras very brief period of time after Belinda appellant leaving Brookshire Brothers murdered, appellant resumed his arriving 4:38 P.M. and at Home Heather, relationship with and later Depot During thirty- at 5:14 P.M. they were married.9 window, six minute a witness observed (cid:127) appellant driving opposite police from the di- While were investigating the murder, rection person appellant would choose when threatened certain leaving “keep Brookshire Brothers headed to friends to damn [their] mouth[s] Thus, Depot. jury Home could stop talking police shut” and fact, notes, McCally 7.In prepare quick-cleaning as Justice of the murder scene, rationally could have particularly light believed of other evidence together Belinda were inside their house for staged burglary. that the actor or actors over half-an-hour after she arrived home from Thus, police thorough 8. The conducted searches of rationally school. could have Katy specifically appel- ample the area around concluded there was time for *79 parents’ weap- lant's house but never found a shooting. to commit the linking appellant on or other evidence to the Additionally, agree I the fact that blood However, many murder. of these searches spatter was confined to the closet is odd. murder, days thereby occurred after the al- Appellant’s expert opined there must have lowing jury reasonably appel- the to conclude back-spatter shotgun been because the was dispose lant was afforded sufficient time to of discharged close-range, and Belinda’s blood evidence. appellant, clothing, was never found on his or However, in his vehicle. the absence of blood necessarily jury shocking evidence in the house not A does could have found it rational support appellant's that a contention someone that mere month after his wife was mur- dered, jury appellant Day else committed the crime. A rational sent Valentine’s flowers having could have inferred that had ade- to the woman with whom he had been quate time while Belinda was at work to an affair. 658 guilty have found jury while could them in his car followed
also beyond a reasonable murdering his wife driving. they were doubt.11 through prism the cumulatively, Viewed by Justice Finally, impressed I am jury’s favorable to most light
“in a
the evi-
McCally’s
explication
detailed
sufficiently
appel-
link
verdict,”
facts
these
dence,
reversal
supports
I believe
which
non-specu-
a
support
to the murder
lant
Accordingly,
I
insufficiency.
killer be-
for factual
he was the
finding
lative
abjure the decision
my colleagues to
urge
his
opportunity,
had motive
cause he
factual-sufficiency review
to abolish
appear burglarized,
staged to
was
house
a
court did not create
criminal cases. This
during
activities
misrepresented
he
to the decision
murder,
constitutional crisis relative
quickly
he
re-
of the
afternoon
review;
factual-sufficiency
the woman who
to abolish
relationship with
sumed
by
reviewing
affair,
simply
is identifiable
and he
crisis
of an illicit
object
was
by the
of Criminal
prior opinions
Court
speaking
who were
friends
threatened
acknowledging that
it is without
Appeals,
Admittedly,
the circumstan-
police.10
authority
determine
constitutional
guilt beyond
supporting
tial evidence
sufficient,
factually
is
whether the evidence
great,
not
but it is also
doubt is
reasonable
jurisdiction
not have
admitting
it does
Accordingly, constrained
negligible.
not
review,
of factual
insuffi-
questions
to determine
standard
by the Jackson
the Texas
ciency until or unless
Constitu-
that a rational
correctly concluded
panel
twenty-onedays
he became aware
McCally, there was
until
10. As described
Justice
after
teenage neigh-
Temple,
WL
Temples’
linking the
the nondisclosure.
bor, RJ.S.,
Temple,
Considering
See
the fact that
to the murder.
at *11.
However,
*11,
recognized
whether
Appeals
WL
at
*33.
the Court of Criminal
has
jury
majority panel
another
would have
as
Brady
or
"must be made as soon
violation
reasonable
evidence created
complaint
apparent
believed that this
or
grounds
is
guilt
superflu-
regarding Temple’s
twenty-one-
doubt
appellant's
apparent,”
be
should
inquiry
a rational
is whether
ous—the
the issue.
day
constitutes a clear waiver of
lull
disregarded this evidence. RJ.S.
(Tex.
have
could
See Wilson v.
Belinda. Be-
he did not murder
testified that
differently, appellant
Crim.App.1999). Stated
testimony
rendered this
cause no evidence
delay to
a three-week
was not entitled to
fact,
(in
testimony
sup-
was
unbelievable
belatedly disclosed
determine whether the
the double-
ported by evidence that none of
trial-halting
necessitated a
RJ.S. evidence
family
RJ.S.’s
ought
recovered from
shells
continuance.
matching
near
wadding
that found
contained
analysis, appel-
Regarding
panel’s
harm
free to believe
body), the
Belinda's
argued
seventy-five issues that the
lant
in over
Therefore,
to defer
we were mandated
R.J.S.
erroneously admitted evidence
trial court
finding
jury’s implicit
that R.J.S. was
closing argument.
improper
Most
permitted
Clayton v.
the killer. See
preserved or did not
of these issues were not
(explaining
(Tex.Crim.App.2007)
S.W.3d 772
support
Temple,
WL
error.
jury’s resolution of con-
we defer to the
determining
roughly ten
After
*12-30.
evidence).
flicting
properly pre-
were
non-constitutional errors
served, we
a cumulative-error
conducted
McCally
expresses
also
concern
11. Justice
44.2(b)
analysis pursuant
rule
harm
panel's resolution of
about
light
Appellate
In
Texas Rules of
Procedure.
analysis
Brady
and the cumulative harm
issue
*80
guilt,
supporting appellant’s
of the evidence
evidentiary
jury-charge
er-
pertaining to
errors,
of several of the
the immaterial nature
rors.
many unpre-
particularly
the effect of
errors,
preserved
served
we determined
However,
appellant waived
determined
we
injuri-
have a substantial and
errors did not
failing
complain about
Brady
issue
jury's verdict.
Id. at *37.
Brady
ous effect on the
material
nondisclosure of
State's
Meraz,
See
tion is amended!
Laster,
152;
also
19. This court ignore usurpation not to its conclusive factual-sufficiency jurisdiction over issues cases, in criminal and each member of this duty court is under a sworn to defend Article Section 6 of the Texas Constitu- Accordingly, respectfully tion. I dissent to rehearing denial of en banc. Texas, Appellant, The STATE Jerry HART, Appellee. M. Texas, Appellant, State Wynonne Hart, Appellee. T. 14-09-00658-CR, Nos. 14-09-00659-CR. Texas, of Appeals
Court
(14th Dist.).
Houston
April
2011.
July
Rehearing Overruled
elements of murder. He
notes
said,
No,
had sex with her and he
every-
any
that motive is not an element of
crime.
[’]
779,
thing
Tammy
but that.[’]”
testified that
See Russo
ref'd).
Belinda was
(Tex.App.-Austin
pet.
uncharacteristically
Howev
submis-
sive
er,
when she was in
presence.
generally
evidence of motive is
admissi
Tammy
Quinton
appel-
it
testified that
ble because
is relevant as a circumstance
id.;
lant called Belinda “fat” in front of them.
tending
prove guilt.
to
See
see also
778-81; Guevara, Tammy explained that
Clayton,
appellant made de-
Notes
court
notes
McClure,
(reversing