*1 appellant with or voluntary without his
confession.
IY. TAINTED “FRUIT”
Finally, it should be noted that appellant’s
“fruits” of voluntary confession
are This admissible. is because the Court
decides that appellant’s voluntary confes-
sion was only obtained violation of
prophylactic rule meant to safeguard Sixth Jackson, rights. See 1411; Baker,
S.Ct. at
tained violation of prophylactic rules are And,
admissible. See I id. do not under-
stand the opinion Court’s to decide that
the prosecution is precluded making
this claim on remand prosecution since the
has had no reason to raise earlier. respectfully
I dissent. THOMPSON, Appellant,
Charles Victor
The STATE of Texas.
No. 73431.
Court of Appeals Criminal of Texas.
Oct.
Rehearing Granted Part Denied
Part
Dec. *2 19.03(a).
§ jury’s Pursuant answers special issues set forth in Texas Code of Procedure Criminal article 37.071 *3 2(b) 2(e), §§ and the trial court sentenced appellant to death. Tex.Code CRIM. Proc. § 2(g). appeal art. 37.071 Direct to this Court is automatic. Tex.Code Crim. Proo. 2(h). § art. 37.071 Appellant raises seven error, points including challenges sufficiency of the to support jury’s sufficiency points verdict. will be addressed first followed the remain- der in points they the order which are raised. began
Around June appellant dating Dennise and Hayslip subsequently moved the home into she shared with her son, Gonzalez, her co-worker Lisa and daughters. living Gonzalez’ two While there, increasingly appellant grew jealous, possessive, angry. During and of an- fits ger, appellant things, throw kick the walls, refrigerator, punch or kick and leaving often Appellant holes them. rarely worked, Hayslip on relying and pay Appellant Gonzalez to bills. be- him came irate when Gonzalez asked contribute. occasion, one appel-
On Gonzalez heard screaming calling lant and Hayslip her shaking names saw him her. When stop appellant Gonzalez tried to from hurt- grabbed ing Hayslip, appellant Gonzalez Freed, III, Floyd for Spring, Appel- W. ground. and threw her to the Gonzalez lant. attempted police, to call the but thereafter telephone went dead. later dis- She DA, Houston, Alan Mat- Curry, Asst. telephone covered that the cord had been Paul, Austin, Atty., thew State’s State. ripped out of wall. Appellant eventu- ally Hayslip moved out and moved into her OPINION apartment. own MEYERS, J., opinion delivered the PRICE, WOMACK, Court, joined by 16, 1998, March accompa- On Gonzalez and HOLCOMB. JOHNSON pub. nied Hayslip and local angry during mur- became sullen and
Appellant was convicted April told he evening Hayslip der wanted Tex. Ann. Penal Code warned property. him with the Coker her to sit with and not dance tres- committing criminal Hayslip saw he anyone else. When Gonzalez that would later, days one side of her face was if returned. pass three
bruised, there lip split, her morning, a.m. that same About 6:00 on her neck. bruises he was leav- gunshots heard as Page’s son time, met Dar- point Hayslip At some thereafter, Shortly Page ing for school. ren at a local bar where he worked Cain beating on her door. someone heard they friends. On a bartender and became outside, Hays- Page saw she walked When 29, 1998, evening April called Cain bleeding from the lip sitting ground *4 friend, Alfano, and Tony his best asked Hayslip for gasping and breath. mouth at him meet him the bar to watch the to like someone a with her hands sign made At game, Rockets but Alfano declined. shooting gun. a again called morning, 2:30 the next Cain apart- arrived back When Coker appellant and told him that had Alfano ments, in Hayslip sitting pool a he found telephone. threatened him over the Cain hole in her cheek blood with a bullet appellant beating up Alfano told was great draining and a amount blood he “messing Hayslip with” and was asked her if appellant her mouth. Coker help her her. going apartment over to to she nodded. Coker had shot her and Kathryn Page, Hayslip’s neigh- one of body Hayslip’s apart- found Cain’s dead bors, up woke around 3:00 a.m. on the ment. of her morning April 30th to sound Flight was Life to Hayslip taken dog barking screaming. and someone She Hospital. Hayslip While Hermann voices, including heard loud a female voice her, awaiting her asked surgery, brother and saying, “stop,” “help.” Page called Hayslip do nodded Chuck this?” “[D]id to police and walked outside check in response. emphatically Hayslip’s apartment number. She saw outside, standing but Hayslip and Cain meantime, Di- went to appellant In the hurt appeared neither or wounded getting home. Zernia was ane Zernia’s However, any way. agitated Hayslip was school, so daughter ready appellant for her and “for all of this.” apologizing Cain room; howev- living her in the waited for Appellant Hayslip’s out of then walked er, daughter her asleep. he fell After soon apartment yelling, cussing, calling and school, news for Zernia watched the left Hayslip Page a noticed at that “whore.” watched, As she slept. she appellant while a appellant eye. time that had black Cain shooting. story about When saw “chill,” told re- appellant appellant later, couple of hours up woke appellant die, you sponded, want to mother “[D]o eye stating, joked his black Zernia about fucker?” Ap- guy other worse.” hope “I looks call, I him.” “He shot Dep- pellant replied, the disturbance does. Responding to he Cain, had Hayslip, Appellant told Zernia uty saw William Coker apart- so left the ap- fight all he appellant standing up outside and beaten gun. happened get ments where appel- to be calm. saw that peared Coker return, apart- in the being in a he kicked Upon face swollen from his lant’s Ap- times. and shot Cain four start- ment door fight, appellant but learned that Hayslip shot Zernia that he fight. pellant no one wanted to told ed the Because appellant said also. Zernia testified charges, file told leave Coker too, you “I can shoot Hayslip, he he told complex and followed him as exited bitch,” put and then he gun properly provide competent her medical assis- pulled trigger. cheek and tance.” gun told Zernia that he threw in a In reviewing legal sufficiency leaving creek after the scene. evidence, this Court looks at all Appellant asked if Zernia he could call light most favorable father, and his father picked came and verdict to determine whether rational him up from Zernia’s home. Appellant’s trier fact could have found the essential father police took station beyond elements the offense a reason where he turned himself in for the shoot- Virginia, able doubt. Jackson v. 443 U.S. ing. Appellant later called Zernia from 99 S.Ct. L.Ed.2d 560 jail in an apparent attempt to influence her 6.04(a), § Penal Texas Code Causation: change testimony her why about Results, provides Conduct and apartments.
returned to the
if
criminally responsible
A
person
During surgery, doctors were unable to
result would not have
occurred but
airway
secure an
fell
Hayslip
into a
*5
conduct,
either
or
operating
alone
later,
A
days
coma.
few
her family was
cause,
concurrently with another
unless
told she
brain
they agreed
was
dead and
clearly
the concurrent cause was
support systems.
remove life
Hayslip con-
suffi-
produce
cient to
the result and the con-
tinued to live for four more days, ultimate-
clearly
duct
actor
week
ly dying a
after she
shot.
was
of
insufficient.
that,
medical
according
examiner testified
added);
(emphasis
see also McFarland v.
who performed Hayslip’s
doctor
au- State,
482,
(Tex.Crim.App.1996),
928 S.W.2d
516
topsy,
gunshot
the cause of death
awas
denied,
1119, 117
rt.
519 U.S.
S.Ct.
ce
wound to the face.
966,
(1997);
In his point appellant first of error that, lip’s care further testified without legally claims the evidence is insufficient to attention, any swelling medical support on the ground his conviction that eventually could ob- Hayslip’s tongue have medical intervening care was actual entirely, airway resulting structed her Hayslip’s cause of Appellant death. ar medi- her suffocation. He stated that without gues death “was the sole result of her intervention, Hayslip cal would not have oxygen loss to the brain which caused family injuries. Appellant’s her to terminate her one survived her medical life week “[tjhis agreed Hayslip’s after she shot” expert injury was and that event that the produced by inability threatening was life physicians tongue was and also jury’s find- unjust where Hayslip would verdict occurs “probably” agreed unjust,” the con- “shocks “manifestly died without medical intervention. Thus, viewing light science,” “clearly bias.” the evidence demonstrates verdict, Santellan, Jones, assum- supra. most favorable to even supra; arguendo, the conduct of the ing, to the evidence discussed addition sufficient clearly to cause doctors was above, a of error one point connection death, appellant Hayslip’s conduct Hays- physician testified ab- “clearly insufficient” so as to survivable, properly if lip’s wound was him of criminal under responsibility solve points out that Appellant treated. § first of error is Appellant’s point 6.04. testified that he and treating physician overruled. Hayslip who attended other physician error, point In his second subject to a civil lawsuit for were to be factually claims the evidence is insufficient hand, the other even Hayslip’s death. On the verdict. Jones v. support See Hayslip appellant’s expert agreed own (Tex.Crim.App.1996), S.W.2d life-threatening injury and had sustained a denied, cert. if have died she had not received contin 139 L.Ed.2d Furthermore, no evidence medical care. argue Hayslip ues to here that would have tak- actions presented lived, notwithstanding re the wound she attempting Haylsip’s life en in save ceived, negligent but for the care medical kill clearly sufficient to her. hospital. she received *6 testimony pre In of medical light review, In a sufficiency factual State, say that by the we cannot sented this Court all the without views contrary so to the over verdict was prism light of “in the most favorable evidence as be whelming weight prosecution” and sets aside the verdict wrong hold the clearly unjust. We if only contrary “so it is overwhelm factually See San evidence was sufficient. ing weight clearly of the evidence as to be Clewis, tellan, at 129. supra; 922 S.W.2d State, unjust.” wrong and Johnson 23 is Point of error two overruled. S.W.3d 1 (Tex.Crim.App.2000); Clewis State, 126, error, appellant In (Tex.Crim.App. point 922 S.W.2d 129 his third 1996). review, conducting denying court In such we claims trial erred law begin requested the evi “on the of interven- presumption charge Jackson, cause death.” legally under care dence is sufficient medical State, Next, solely Lerma v. supra. Appellant consider all of the evi relies on we 635, record, comparing in the the evi 150 Tex.Crim. 200 S.W.2d dence Lerma, In we prove (1947)(opinion reh’g). dence tends to the existence on which presented showing when dispute proof fact in held that is elemental brought about disprove it. San that a victim’s death was evidence which tends to (Tex.Crim. State, gross neglect improper or treatment tellan v. 939 S.W.2d Jones, part of a physician, at 647. We instruction App.1997); S.W.2d guilty is jury’s that the defendant disagree jury with the are authorized to But instruction required. if evidence homicide probative determination even verdict, entirely on a required in rested but must Lerma supports exists which The stat- no existence. judgment longer avoid our for that of statute substituting Santellan, Lerma, Penal ute then Texas at issue the fact-finder. S.W.2d Jones, 164; provided: A clearly wrong and Code article supra.
The destruction of life must be com- Appellant says trial. those statements act, plete by agency, such procurement were erroneously admitted in violation of omission; but although injury his Sixth Amendment to counsel. which caused death might not under oth- The pertinent follow. Deputy facts Max fatal, er circumstances proved yet Cox County Depart- Harris Sheriffs if death, such be injury cause ment punishment testified at that he was without appearing its there has inmate, approached by Reid, Jack who gross neglect or manifestly him told that appellant was attempting to improper treatment of the in- person solicit the Zernia, murder of jured, Diane who it is homicide. was slated to be a witness in his Lerma v. 150 Tex.Crim. murder case. ap- Reid shared a cell with S.W.2d (1947)(provision quoted). pellant. Reid that appellant told Cox had Appellant no comparable provision cites already arranged for the murder by anoth- today under which such instruction should inmate, er Max Humphrey, who had also given. shared cell with and had re- The controlling statute today, as dis- cently been but discharged, looking above, 6.04(a), cussed § is Penal Code gov- for gun someone to retrieve a give erning concurrent causation. Humphrey for him order out carry received an instruction essentially tracking the murder.2 6.04(a)1 Cox told Reid that if was § he language of and he does not approached by appellant again, complain otherwise he should giv- instruction en. tell him that Appellant was not an in- he knew someone could entitled to Lerma, struction of sort gun called for in retrieve the him. for Reid called Cox supra. Point of error three day is overruled. the next and indicated that complied with Cox’s instructions. Cox point error, his fourth Johnson, arranged Gary then an inves- claims the State conducted an interview tigator with the County Harris District with him while he was in custody pending Office, Attorney’s *7 to meet with appellant charges case, in the instant by utilizing an an capacity undercover to re- discuss the undercover notifying officer without his of trieval the and their weapon record counsel warning rights, or him of his and conversation. then Johnson was to assume the used during statements he made identity friend, of Reid’s interrogation suppos- had plans about to commit crime, another against edly by him been Reid punish- at the contacted about retriev- ment phase of the instant capital gun. murder al the Cox further testified that he cause, jury provided part instruction that: unless the concurrent cause was clearly produce sufficient the and to result person A criminally responsible if the clearly the conduct of the defendant insuffi- result would not have occurred but for his cient, conduct, you criminally will find the defendant operating either alone or concur- cause, responsible. you beyond rently Unless so find a with another unless the con- you reasonable doubt if have a clearly current cause was reason- sufficient produce the and you result the conduct of the able doubt thereof will find the defen- clearly responsible say insufficient. criminally by dant not and you Therefore if find your Guilty from the evidence Capital verdict “Not Mur- beyond a reasonable doubt that the death of der.” Hayslip Glenda not Dennise conduct, gun appellant 2. The la- occurred but for the wanted retrieved was defendant’s indictment, operating as the weapon ei- ter discovered to be the murder used concurrently ther alone or another with in the instant case. a dress, described the witness iden- gave map presumably a Johnson year gun daughter could located.3 a fourteen old tified where the mother with car, he had contact- her Johnson testified that been He described and a husband. agreed usually had to assume by
ed Cox and was home informed him that she identity purpose for the. undercover daughter after her went mornings the retriev- meeting appellant with to discuss her Victo- He house as school. described ing weapon to be in a murder that a used as black and white rian and her mailbox already arranged. had been possibly promised Appellant spotted, like cow. he for
Johnson testified that
was wired
jail,
pay
he would
got
that when he
out
He
recording throughout
meeting.
their
Af-
$1,500
killing
for
witness.
the
Johnson
brought
appellant
further testified that
jury,
for the
John-
played
the
was
tape
ter
similar to
map
meeting,
hand-drawn
further,
objection,
without
son testified
him,
given
up
Cox had
and held it
one
brought
with
map
appellant
had
him see. At that
glass
point
it
and that
had
meeting,
him to the
testimony, the State of-
during Johnson’s
on it. Johnson stated
address written
into evidence.
tape
fered
glass for
up
had held
appellant
given
permission
ques-
was
Johnson to read.
tion
on voir
Johnson
dire. Johnson admit-
guarantees
The Sixth
having
ted to
been aware that
assistance of
a criminal defendant
by
was represented
counsel on the
pro
of adversary
at the initiation
counsel
charge
at the time of their meet-
him,
and at
ceedings against
subse
ing. He conceded that had not notified
proceedings
quent
stage”
“critical
had
informed
meeting,
their
Smith,
him. Estelle
against
he
was an officer of
454, 469-70, 101
68 L.Ed.2d
S.Ct.
given appellant any
and had not
(1981).
Estelle,
Thus, in
where
defen
warnings.
Proc. art.
See Tex.Code Crim.
ap
indicted and counsel
dant
Arizona,
38.22;
Miranda
384 U.S.
subjected
pointed
at the time
Ap-
S.Ct.
The
have
interest
form
investigations
thor-
of fabricated
ough investigation of crimes for which
risks
evisceration
Sixth
already
Massi-
charges
formal
have
right recognized
filed.
Amendment
They
ah. On the other
hand,
also
investigat-
interest
evi-
exclude
ing new or
Investiga-
pertaining
charges
additional crimes.
dence
as to which
type
may
tions
either
of crime
require
right
Sixth
surveillance of
already
individuals
under
had not
at the time the
attached
evi-
Moreover,
obtained,
indictment.
law enforcement
simply
dence was
because oth-
time,
officials investigating
charges
an individual
er
pending
sus-
were
at
pected
committing
unnecessarily
pub-
one crime and for-
frustrate the
mally charged
having
with
investigation
committed
lic’s interest
in the
of crim-
another
obviously
Consequently,
crime
seek
discover
inal activities.
incrimina-
counsel,
right
co-defendant were indicted with four counts
of the Sixth Amendment
by receiving
of theft
stolen vehicles and auto-
stated
State
"an
Court
that the
has
affirmative
bail,
parts.
motive
While out on
the co-defen-
obligation not to act in a
that circum-
manner
police
sug-
told
that the
dant
defendant had
protection
thereby
vents and
dilutes the
af-
gested
they
to him that
kill a State’s witness
right
Id.
forded
to counsel.”
at
in the case.
Id. at
25
against
at the
to
defendant
ting
pertaining
pending
statements
admissible
then-uncharged
on
offense.
are
at the trial
trial
charges
inadmissible
fact
charges,
withstanding
not
those
in
interrogation
At the time
police
investigating
that
were also
case,
been
had
the instant
crimes, if,
evi-
obtaining
other
this
murder but had not
charged
capital
dence,
the State violated the Sixth
for murder.
charged
with solicitation
by knowingly
Amendment
circumvent-
ob
question
There
no
that evidence
is
ing
right
the accused’s
assistance
ap
questioning
tained in connection with
of counsel.
offense would
pellant about the solicitation
179-80, 106
at
Id.
S.Ct. 477.5
the trial
that
be admissible at
for
offense
right
his Sixth Amendment
because
Thus, if the
right
counsel
yet
had not
attached as to that
counsel
offense,
has attached as to a
charged
question
And there is no
that
offense.
police
in the
interrogate
the defendant
in the
of such
evidence obtained
course
his
absence of
counsel about matters
as
questioning, incriminating appellant
police
known
knew or should have
murder,
guilt
capital
his
for the
might
incriminating
pertain
elicit
evidence
trial.
capital
inadmissible in his
murder
pending charges,
the Sixth
ob
question
here is whether evidence
right to
vio
Amendment
counsel has been
tained
offense is ad
about the solicitation
lated
at
and such evidence is “inadmissible
against appellant
question
missible
on the
charges.”
if, during
But
trial of those
dangerousness
punishment
at the
future
interrogation,
police
same
elicit
trial,
as to
phase
incriminating
pertaining
evidence
crimi
rights
which appellant’s Sixth Amendment
yet
nal
subject
conduct that is not
of a
had attached.
charge,
right
formal
the Sixth Amendment
yet
recently
to counsel has not
attached
to that
issue was
addressed
This
State,
offense,
any
and therefore
such
is
this
v.
29 S.W.3d
Court.6 Wesbrook
180,
States,
299,
principles
v.
These
were reaffirmed in Texas
United
284
52 S.Ct.
76
(1932).
162,
1335,
L.Ed. 306
532 U.S.
121 S.Ct.
149
Cobb.
appeal
L.Ed.2d 321
On
in our
direct
6. At least two
courts have addressed this
state
Court,
right
own
we
held
that "once the
at
issue
held such evidence inadmissible
charged,
to counsel attaches to the offense
it
,
punishment phase
trial
of the
on
sen
very
also attaches
other offense that is
charges
tencing a
that were
defendant
closely
factually
related
to the offense
interrogation of
pending at the
time
State,
1,
(Tex.
charged.”
Kidd,
Cobb v.
S.W.3d
6
93
uncharged
People v.
Ill.2d
offenses.
704,
Emphasizing,
Crim.App.2000).
as Moul
Ill.Dec.
544 N.E.2d
712-13
(1989)(defendant's right
ton,
as to
counsel
right
"[t]he
[to
Sixth Amendment
charges
pending
could not be circumvented
Cobb,
specific,”
...
offense
counsel]
uncharged
investigating
even
conduct if
when
Wisconsin,
(quoting
S.Ct. at 1340
McNeil
against
uncharged conduct was to be used
L.Ed.2d
501 U.S.
hearing
trial
penalty
at
death
(1991)),
Supreme
rejected the
Court
offense);
charged
643 A.2d
Jackson
prin
exception
to this
notion
there is
(Del.l994)(incriminating
statements ob
ciple
uncharged
offenses
are "factual
during investigation
uncharged
con
tained
ly
to a
related”
offense. Id. at 1343.
arising
charges
duct could be used
trial for
when
The Court further held that
the Sixth
conduct,
uncharged
not be
but could
attaches,
en
phase
punishment
against
used
defendant at
that,
compasses
formally
even if
offenses
pending
charges that were
at time
of trial on
evidence,
charged, are
same
obtaining
considered the
offense as
interrogation
“in
if
this
*10
offense,
by
Blockburger
Amendment
State violated
Sixth
under
103 (Tex.Crim.App.2000)(plurality
been,
opinion), had
witnesses
his capital murder
denied,
cert.
trial.
Johnson admitted at trial that he
Wesbrook,
L.Ed.2d
had assumed the evidence would
used
trial court
a motion
overruled
to suppress
against
capital
the defendant at his
evidence that
argued
the defendant
trial.
Id. at 116-17.
been obtained in violation of his Sixth
At the conclusion of the hearing,
right
to counsel. The eom-
trial court determined that no Sixth
plained-of
allegedly
established
Amendment violation had
place
taken
be-
an attempt by the defendant to solicit the
cause
right
to counsel had not attached
individuals,
murder of
including
various
Therefore,
to the solicitation offense.
witnesses at
the defendant’s trial. Wes
brook, court
S.W.3d at 116.
concluded that the
Facts
evidence was ad-
developed
at a hearing on the matter showed that
missible
and denied the defendant’s motion
informant, a fellow inmate at the Harris
to suppress.
judges
Seven
on
Court
this
Jail,
County
acquainted
became
with the
disagreed, holding that a Sixth Amend-
defendant about
prior
three months
to the ment violation had occurred.7 The three-
During
defendant’s trial.
numerous con
judge
opinion explained:
lead
versations, the
expressed
defendant
a de
“By intentionally creating a situation
sire to hire
to kill
someone
two individuals
likely to
induce
in-
to make
(the
husband).
defendant’s ex-wife and her
criminating
as-
statements without the
The informant contacted law enforcement.
counsel,
sistance of
the State violated
In exchange for a favorable recommenda
appellant’s Sixth Amendment
right
by
tion
during
the State
prosecution
counsel.
[The
informant] was
his own pending charges, the informant
housed with appellant
passive
to act as a
arranged a meeting between the defendant
‘listening post.’ He was
with
sent in
Johnson,
investigator
undercover
Gary
exploit
instructions to'
rela-
existing
pose
was to
a hit
man.
Johnson
tionship
forged
he had
tape-recorded the conversation he had
order
‘deliberately
elicit’ incrimina-
with the
concerning
defendant
the murder
ting
regarding
information
the solicita-
solicitations.
In the recorded conversa
tion,
tion of murder. This
expressed
information
desire
then
have murdered
two
to be used at appellant’s
individuals he had
informant,
mentioned to
plus
help satisfy
murder trial to
five oth
the State’s
ers,
be,
four of
already
which were to
burden
establishing
that appellant
Price,
knowingly circumventing
Johnson,
joined
by Judges
accused's
Holland and
counsel”).
Kidd,
But
United
see
States v.
agreed
was a Sixth
there
Amendment viola-
(4th
12 F.3d
Cir.1993)(holding
that be
tion,
parted ways
opinion
but
with the lead
cause evidence
to new
related
criminal activi
arising
the issue of harm
from the violation.
ty
pending charges,
and not
it was admissible Wesbrook,
J.,
(Womack.,
ing notified so error, on the split there who held was informant, at the behest of the acting harmful. the error was question of whether State, elicit information to be cannot error judges the Three of the concluded concerning of trial stage used at of that light not facts was harmful charges in which the Sixth evidence, other punishment case and the already to counsel had attached solici improperly admitted apart from and had not been notified.” The evidence in case tation evidence. omitted). (citations Id. at 118 killed had five reflected that murder, subject had capital in the developments people No in the since Wes- law violence, change holding previous affect the made threats of brook would some seven-judge majority tried, We prison, there.8 from and that he turn to the instant case. As in again his and her solicit the murder of ex-wife Wesbrook, the State elicited information The of these solicita husband. evidence appellant regarding solicitation it was ob tions admissible because were person of a who to be a the murder prior to his be by tained the informant against appellant. witness The informa- 119- Id. at coming agent the State. by agent tion elicited J., (Mansfield, joined by Meyers and counsel, notifying and appellant’s without J.J.). Keasler, judges other could Four at mur- appellant’s capital was then used say the erroneous admission help der trial to the State establish was harmless. Id. at 127-28 continuing appellant posed threat to soci- J., Price, (Womack, joined and Holland ety. State murder capital The knew J.J.). Johnson, impor They pointed to charges pending against appellant at were erroneously tance of the admitted evidence time, that any and evidence incrimina- the cell corroborating testimony ting appellant another offense might mate otherwise have been dis him probably against capital be used in the believed, emphasis placed also to the punishment phase. appellant's We hold by the illegally on the obtained evidence Amendment right to counsel was Sixth closing arguments punishment. State in soliciting violated the State’s actions in repeated closing, Id. at State tape recorded conversation between urged jury ly tapes relied on against using and Johnson and “over over and tapes listen to the punishment phase in the over.” Id. trial, charges of which danger- finding To of future support pending were at the time of the conversa- case, the State re- Wesbrook, in the instant ousness trial court supra. tion. itself, lied on the facts of crime granted appellant’s motion
should of- unadjudicated extraneous solicitation tape. turn now to the suppress the We Tex.R.App. 44.2(a). fense, bad committed and a number of acts harm. P. question of fn.5, Cobb, previously-stat- time Wesbrook. reaffirmed infra principles that at the ed existence *12 by appellant.9 presented Appellant for weapon appellant. testi- Johnson also mony testified, from a on psychologist admitted objection, without that appellant appellant cross-examination that had trou- brought map had a hand-drawn to the controlling ble himself whenever stimulat- meeting, supposedly showing the location by strong ed feelings and there no was weapon. tape of the After the was played, guarantee that feelings these would be not further, objec- Johnson testified without by prison evoked some event in the set- tion, map that the had appellant brought ting. Appellant’s psychologist also admit- meeting also had an address written ted was a appellant narcissistic and had it, on that appellant and had held map sociopathic personality, was a follower and up to for him glass to see. easily could manipulated. Appellant’s be tape, jury Without the would not testified test psychologist results re- appellant plans have known that made appellant vealed that had “chronic prob- with for to kill Johnson Johnson the wit- obeying exercising lems with rules ness, retrieving gun. addition to It moral proper judgment.” only have heard that Reid had re- Although the was tape itself inadmissi- ported appellant to authorities that was ble, substantively similar re- testimony attempting Humphrey hire to kill the appellant’s
garding attempts to solicit the witness. murder jury witness was before the emphasized appellant’s taped State objected was not and/or conversation Detective Johnson in All inadmissible. testimony Cox’s closing arguments: testimony most Johnson’s before and Think about this. This what shows objected tape, after the was not to. The defendant is like. He identifies [Diane initially information that Cox obtained for his want Zerbia] killer mate) (appellant’s Reid cell before describing the 14 year old soon to be agent Reid became an for the State was daughter you motherless she has. If objec- admissible. Cox without testified yourself hadn’t heard it from his own tion he had approached by Reid mouth, wouldn’t you even believe some- him who told that appellant was attempt- body would be that Just evil. mind for ing arrange the murder of Diane ... boggling Zernia, in appellant’s a witness case. Reid Cox that also told wanted to hire weapon Every
someone to recover a ... [appellant] be used in time threatened subsequent map through murder. The show- he has on it. What followed did gun Gary my the location of the was also tell I’m a man before he Johnson? jury objection. without get you got Johnson word. I out a free one testi- When he agreed go coming.... fied that undercover and He also to frame an tried appellant, meet with a pretending Gary to be innocent man. He tried to have of Reid’s help go get give friend who could retrieve Johnson gun, some- crossing driving 9. These extraneous acts included arrest as where he was truck filled juvenile burglary for a destruction illegal with seventeen undocumented aliens. trespass, property, and theft. Finally, deputy County with the Harris Jail driving arrested as an adult for under the expert gang-related who was an activities of the influence—and as result arrest be- penal institutions testified that letters con- belligerent deputy. came and threatened the gang-related symbols nected to agent Appellant was also arrested on them. United States Customs Service at a border harmless, prosecutor in the instant body be the person else so that could weapon caught one with the and framed the inadmissible evidence emphasized case people jury He to state- closing. referred *13 killed_When Di- he wanted to have by to ments made Johnson killed it ever him? ane Zernia did bother Further, pointed by out the tape. the as Did he hesitate Did he ever flinch? ever who found the error judges four Wesbrook year about fact that she had a 14 old the case, tape without the harmful in that daughter or husband? All he was him, testimony might corroborate Reid’s getting with the details concerned credibility. Al- borne much right. That it was a cow mailbox.... that Reid had though had testified Cox cell Remember this. He came to that to solicit the reported appellant’s efforts that Gary day meet Johnson mate, cell by murder Zernia former already He written down. address report and corroborates Reid’s tape it up spur didn’t think on the additional appellant’s further demonstrates talking Gary moment John- as was that the murder was carried efforts to see day. He came down there son by yet to enlist another attempting out meaning to have her killed. beyond say are unable to hitman. We dan- appellant’s future evidence the tape doubt did not reasonable apart is consid- gerousness, tape, from Point sentencing jury. influence erably defen- less than the evidence of the is sustained.10 error four dangerousness dant’s future Wesbrook. Ap- is affirmed. Wesbrook, Appellant’s conviction the defendant had killed five vacated, this committing is case
people pellant’s the course of sentence subject capital murder. There was admis- trial court for new is remanded attempt- sible evidence the defendant hearing. punishment the murders prison
ed solicit (his husband). two others ex-wife and her P.J., KELLER, dissenting filed a These were the critical facts that led three KEASLER, by opinion,joined HERVEY error judges to conclude the was harmless: and COCHRAN. jury possessed “because the details of both itself and the solicitation to mur- crime P.J., KELLER, dissenting filed a der, no there is reasonable likelihood KEASLER, HERVEY, in which opinion inadmissible portion of Jones’ testimo- COCHRAN, J.J., joined. context, or in ny, considered either alone bars admission of Today, the Court jury nonpersua- moved from a state of (1) did though: police even evidence issue of persuasion regarding sion evidence, obtaining the nothing wrong in contrast, By Id. dangerousness.” future (2) a defendant’s the evidence involves in the in- the facts of by having his trial one attempt to subvert victims, involved two rather stant case This witnesses killed. odd State’s evi- than The admissible solicitation five. Court Supreme result not dictated is pertained planned murder of
dence purposes underlying Further, precedent or person, rather than two. one Although this Amendment. judges Sixth emphasized by the four Wesbrook its recent opinion consistent with not conclude the error was Court’s could dismissed, five, disposition phase, due to Appellant's points are our of error six and seven, alleging point error punishment four. all error State,1 opinion Wesbrook we should crimes.6 ous What Moulton not decide did this opportunity (or take to reexamine extent) and is govern- whether what disavow Wesbrook’s conclusions about the may ment use pertaining to an admissibility of type this of evidence.2 uncharged, the trial extraneous offense at offense.7 issue That Supreme
1. The Court has presented presented Wesbrook and is not ruled on this issue. now in this case.
The Sixth Amendment
is violated when
govern-
an undercover
*14
2. Cobb should motivate
to rethink
us
agent deliberately
ment
from a
elicits
de-
holding
our
in Wesbrook.
incriminating
fendant
evidence of an of-
for which
already
fense
the defendant has
Cobb,
In Texas v.
States
United
charged.3
“The Sixth Amendment
doctrine,
Supreme Court disavowed the
however,
right,
specific”
is offense
expounded by several lower
includ-
courts
not apply
does
which
crimes for
adver-
Court,
this
the Sixth
extending
sary criminal proceedings have not been
right
Amendment
uncharged
counsel to
Supreme
initiated.4 The
Court’s decision
that are closely
factually
offenses
related
in Maine v.
appli-
Moulton addressed the
charged
Supreme
offense.8 The
cation
the Sixth
Amendment
under-
pointed
Court
out the
expanding
error of
investigations
cover
relating
multiple
of the
scope
right
Sixth Amendment
crimes, some of
charged
which had been
beyond
Supreme
counsel
earli-
Court’s
and some of which
Supreme
had not. The
er
that
pronouncements: “We hold
our
that,
Court held
though
even
in McNeil v.
...
decision
meant
Wisconsin
charged
crime,
is
with a
government
said,
what it
and that the Sixth Amend-
may legitimately
in-
conduct undercover
”9
is
right
specific.’
ment
‘offense
As the
vestigations
extraneous,
uncharged
observes,
opinion
speak
lead
Cobb
not
does
crimes and use the
recovered in
evidence
directly
the issue at
Neverthe-
hand.
prosecutions for the extraneous crimes.5
less,
Supreme
Court’s
con-
restrictive
However,
the government may not use
of the
right
struction
Sixth Amendment
pertaining
charged
evidence
offense
is at odds
with our
inter-
expansive
at the trial of
charged
offense even
pretation
right
in Wesbrook. Cobb
though the evidence
have been
may
ob-
illustrates
this Court
not
incidentally
govern-
tained
should
too
during
investigation
ment’s
uncharged,
extrane-
hastily
right
extend the Sixth Amendment
Moulton,
McNeil,
29 S.W.3d
(Tex.Crim.App.2000).
supra;
1.
5.
see also
501 U.S.
at 176.
arguments
opinion
2. Some of the
in this
are
Moulton,
greater
my concurring
supra;
discussed
detail in
see also
States v.
United
(Keller,
1099,
(11th
Madruga,
opinion in Wesbrook. Id. at 123-127
897 F.2d
Terzado
Cir.1990).
concurring).
J.
159,
Moulton,
171-174,
Moulton,
Wesbrook,
supra;
3. Maine v.
474 U.S.
See
29 S.W.3d
477,
(Keller,
(1985);
concurring).
S.Ct.
factors
a crime
b.
constitute
Statements
support
finding
there was no
intent to commit future
or show an
Amendment violation.
Sixth
activity do
deserve
criminal
protection.
Sixth Amendment
The evidence
a.
consisted
extraneous,
proof of an
*15
by
made Moulton relat-
statements
uncharged offense.
of
past
ed the details
a
crime.12 The
however,
by appellant,
statements made
Moulton,
Supreme
In
the
Court
(solicitation
a
crime
of
present
constituted
that
law
officials
concerned
enforcement
(mur-
murder) or
future
proposed
a
crime
might
an
fabricate the existence of
extra-
future).
der,
be
out in the
This
to
-carried
to
a pretext
neous offense
use as
to elicit
against
a Sixth
strongly
finding
works
the charged
evidence of
offense.11 But the
cases in
Amendment violation. Federal
present
is
case
not one which authorities
the
and Eleventh Circuits have
Seventh
investigated
offense and in-
extraneous
Amendment does
held that the Sixth
cidentally
charged
found
of-
proof
admission,
Here,
at the trial for the
bar
police investigated
fense.
the
offense,
offense,
a
statements
constitute
extraneous
and evidence of that
present
a crime to be
exactly
they
offense is
what
discovered.
crime
address
That
may
pro-
the extraneous offense
committed in
future.13 Statements
event,
180,
Moulton,
any
we
474
at
that constitute a or propose crime should not permitted fendant be to claim a future crime are outside uniquely wronged by that he was the admission of attorney-client relationship because there such evidence at the very proceeding the no is the assistance counsel in defendant has tried improperly influ- committing a types new crime.14 These ence: statements are not covered attor- perceive [W]e no reason sort why this ney-client privilege, and the ethical rules concerning post-indictment ob- require do not attorneys keep such in- justice struction of should not be admis- formation confidential.15 If at sible a hearing on sentence. The made such pres- statements counsel’s sentencing judge is entitled know that ence, counsel might obligated to reveal the defendant has attempted distort those statements.16 If been very proceeding which the sen- present during the between exchange ap- tence determined. Yet since obstruc- informant, pellant the undercover justice guilty tion of occurred after advice the defendant refrain from making plea, government necessarily be “not statements would be- con- cause statements would have shown a its investigation activity ducted into this guilt consciousness of in ... complicity after indictment had filed.
murder,
statements,
but because his
them-
circumstances, if
adopted
these
we
de-
selves, were
operative
acts of a sepa-
fendant’s understanding of Massiah and
rate criminal
offense.”17 As
Eleventh
required
government
to contact de-
noted,
Circuit has
is not magic
“Massiah
*16
using
fendant’s counsel
an in-
before
18
cloak with respect
to future conduct.”
former,
government
would be effec-
prevented
tively
fully investigating
from
attempts
c. Criminal
to subvert a trial
obtaining
such conduct and from
such
do
deserve Sixth Amendment
compelling
sentencing
evidence for the
protection.
judge. We refuse to read
Massiah
attempted
What
do here
providing
shield for
at-
defendant’s
by killing
subvert his criminal trial
tempts to interfere with
sentencing
prosecution’s
one
witnesses. When
process.20
new
criminal
activity involves
at-
Appellant’s argument
is akin to
of a
tempt
subvert a
upcoming
defendant’s
trial,
parents
a form
defendant
has murdered his
of estoppel should arise with
him
regard
asking
Sixth
claim the
the court to take
be-
pity
might
defendant
have:
orphan.
otherwise
de-
cause he is an
Moschiano,
241; Darwin,
Darwin,
(quoting
14.
d. The punishment. at admitting admissible appel- not err trial court did lant’s statements. evidence Moulton disputed The trial, during guilt phase
presented presented
while the evidence here was Recently
during punishment phase. Circuit, evi- holding
the First while such guilt stage at
dence be inadmissible trial, admissi- indicated that would be And United States sentencing.21 at
ble v. Kiddthe Fourth Circuit held BANALES, Manuel Honorable Amendment was not violated Sixth Judge 105th District Court (elic- of an extraneous introduction offense County, Relator, Nueces indict- agent ited an undercover after case) sentenc- primary ment phase charged trial for the offense.22 THE THE OF APPEALS FOR COURT Kidd, the defendant was THIRTEENTH JUDICIAL regarding possession offenses several DISTRICT, Respondent. Later, and distribution cocaine.23 74-307. No. informant made tape-record-
undercover purchase ed of cocaine the defen- Appeals Court of Criminal of Texas. pled The defendant to one guilty dant.24 offenses, of the earlier distribution and at May
sentencing, post-indictment sale was
introduced as relevant conduct to enhance punishment
the defendant’s under Al- Sentencing
Federal Guidelines.25
though expressed the court doubt about *17 propriety introducing this evidence trial,26 guilt
at the that the stage held prohibit the in-
Sixth Amendment did not sentencing.27
troduction of arriving holding, at this the Fourth remarked,
Circuit “The Sixth Amendment sanctuary
does create for the com- during
mission additional crimes an indictment.”28
pendency of Bender, 26. 2. at 271. Id. at 33 n.
21. F.3d 30, Kidd, 22. 12 F.3d 32-34 United States 27. Id. at 33. But see Jackson denied, (4th 1059, Cir.1993), cert. U.S. denied, (Del.1994), A.2d cert. 114 S.Ct. 128 L.Ed.2d L.Ed.2d 898 115 S.Ct. holding (1995)(disagreeing with Kidd's 23. Id. at 31. obtained, offenses, so are admissi extraneous sentencing). ble at Id.
24. at 32. Id. Id.