Tompkins v. State

TOMPKINS, Philliр Appellant, Daniel Texas, Appellee. STATE

No. 68870. Texas, Appeals

Court of Criminal

En Banc.

Oct.

03(a)(2). After answered special affirmative the issues that were pursuant 37.071, to it to Art. submitted V.A.C.C.P., judge appel- assessed punishment lant’s at death. affirm.

We Appellant presents to this Court several “Issues for in the two briefs Review” appeal. purposes are the record of For appeal, we refer to his will “Issues for Review” as “Points of Error.”1 None challenge contentions sufficiency guilt of the evidence on or on punishment. any of the issues submitted on Appellant’s points error, group of which we follows, assert he is entitled as that to a (1) following: new trial because of the the prosecuting attorneys selectively exercised peremptory their on several strikes black jurors their prospective and fashioned re- spective dire of the voir examination re- maining jurors in prospective black such a prevent- that all manner so would be blacks cause; serving (2) jurors ed from in this judge granting trial not by the erred his indictment; (3) quash motion to the the finding judge trial erred in not that a law, was, as a matter of his State’s witness wife; (4) judge trial Jones, Dowell, common law the erred Hous- Larry Robert A. D. instructing on jury in not the the lesser ton, appellant. for involuntary included offenses of man- Holmes, Jr., Atty. Dist. and J. John B. negligent slaughter criminally homi- Davenport, Sidney Crowley and Norma cide; (5) permitting in judge the trial erred Houston, Hut- Attys., Asst. Dist. Robert prison psychologist from the Common- tash, Austin, for the State. Atty., State’s Virginia testify against him wealth of at (6) trial; punishment stage the the of the excluding at judge erred in not trial stage punishment testimony trial the OPINION from the reputation two Com- of witnesses TEAGUE, Judge. Virginia testified for monwealth who (7) ap- State; by one of the Tompkins, hereinafter statements made Phillip Daniel during jury her pellant, prosecuting attorneys of inten- ar- by was convicted punishment stage Mary gument D. Ber- tionally causing the death they deprived ry committing egregious or so trial were while the course of trial; impartial of a fair attempting of rob- to commit offenses grant (8) refusing Berry, ele- this Court erred in bery kidnapping which original appellate capital permission mur- him file vated the оffense of murder Code, pages, which at V.T.C.A., 19.- that numbered 144 der. See Section brief Penal 74(d), 210(b). Previously, App.Proc. such promulgation Rules of were Since the the new 1, Procedure, Appellate September “grounds Tex.R.App. effective of error." See labeled 1986, are penalty contentions in a case 210(b); 40.09(9), death Art. V.A.C.C.P. Proc. "points Tex.R. now referred to as See of error.” 30, However, April (1965). filing L.Ed.2d 759 exceed- submitted for the time was pending pages 1986, case was existing appellant’s maximum of ed the then while Court, Supreme pages. by Court review this Kentucky, in Batson v. the United States conten- Finding that none of 1712, 79, L.Ed.2d 69 106 S.Ct. 476 U.S. reversing his legally tions merit this Court Swain, (1986), supra, overruled “[t]o all of conviction, expressly overrule will we Alabama, anything in v. extent that Swain judgment court’s them and affirm trial principles we artic supra, contrary of death. sentence of conviction and at 1725.2 today ulate 106 S.Ct. ...” first asserts Appellant Kentucky and Brown United Griffith overruling his motion to judge erred 708, 314, States, 107 S.Ct. 479 U.S. had been selected quash (1987), Supreme Court held L.Ed.2d 649 excluded the State this cause because Batson, applied litigation supra, venireper- peremptory strikes five black or federal review pending on direct State right sons, him of “his to a depriving thus Batson, de yet supra, was final when peers truly by jury of his exception April “with no cided on a cross-section of the representative of rule constitutes for cases which new Appellant upon the community.” relies However, past.” a ‘clear break’ with the Texas, States, the United Constitutions Hardy, Supreme held Allen v. Procedure, and of Criminal the Texas Code 255, 106 92 L.Ed.2d 199 S.Ct. U.S. Supreme from this Court and the case law Batson, (1986), not to be authority States as Court of the United pending applied retroactively to a case then his contention. The record reflects Thus, the issue on federal review. habeas quash jury to the appellant’s motion presents must decided prior pre- the presented and overruled to Swain, Batson, supra, and not pursuant to any the sentation of evidence but after supra. had selected to hear this cause. been in for the reader tо order trial, We believe that the

At the time of Supreme the Court fully appreciate what appellant presents law on the issue that stated, Batson, supra, it is nec- and held in governed by the this Court for review was briefly the Court essary to review what Supreme decision of v. Ala Court Swain Swain, 824, supra. in bama, 202, 13 stated and held 380 U.S. 85 S.Ct. On, we, course, Challenge Peremptory Lives But Although expressly cannot state Neil: of Long?” 515 Supreme 15 Stetson Law Rev. Court to For How what motivated or caused the 4068, (1986); out in 33 CrL requirements in the articles set reconsider the it laid down 1, (June 1983), dissenting Swain, and the supra, person footnote 1 order for an accused Marshall, case, by opinions in which prima filed Justice establish a we observe that facie joined, of the Brennan to the refusal many criticizing had been Justice articles that decision York; Batson, grant McCray v. New previously Court to certiorari written. See footnote 14 Illinois; Perry U.S. v. Louisiana 461 supra. Ginger, Jury in Crimi- Miller v. Also see Selection 2438, 961, (1983). Comment, (1980 edition); S.Ct. 77 L.Ed.2d 1322 "The Prose- 103 nal Trials decided, it, too, Batson, supra, has Challenge Peremptory Since cutor’s Exercise of the Jurors; it, analyze interpret caused scholars to Common Exclude Nonwhite A Valued vigorously assail that Privilege Equal one instance to Protec- in at least Law in Conflict with the Erickson, Clause,” Neighbors, George, (1977); See Com- decision. tion 46 554 U.Cin.L.Rev. Supreme Peremptory Court and Com- Study Chal- United States ment: "A Case Cases However, (1986 edition). objective arti- lenge: Equal ments A Protection Subtle Strike at Process,” (1974); v. written. See "Batson cles have also been Due 622 18 St. Louis U.L.Rev. Response Kentucky: to the Problem The Court’s Comment: "Swain Constitutional v. Alabama: A Peremptory Discriminatory Use of Blueprint Perpetuation of Chal- for the the All-White of (1966); lenges,” Western Law Review 581 Jury,” 36 Case 52 Comment: Va.L.Rev. 1157 Belcuore, Procedures," (1986); "Restricting Racially Motivat- Jury 75 Yale L.J. "Fair Selection Challenges", (1966); Peremptory Federal Bar News "Limiting Peremptory 34 ed 322 Challenge: Representation Juries," Note: the Groups 1987; Journal, January, Meyer, “Wheeler & of Petit of Continues”, Fo- (1976); Revolution Decade Later: The rum, Yale LJ. 79 Harv. Note: Udasham, 1987; (1965); March/April, “Batson v. Selection: L.Rev. 135 Note: "Affirmative Perspective”, Challenge Kentucky, Summer Response a Defense Peremptory A New Abuse,” 1987, (1986); Voice L.Rev. 781 "State Defense. for Stanford Alabama, supra, Swain by prosecuting attorney, In Su- crimination principle preme necessary reaffirmed the of him Court to establish the re- Virgi- v. West Strauder laid peated striking law down blacks over a number nia, 303, 100 U.S. 25 L.Ed. Otto prosecuting attorney cases the same cases, (1880), other see those com- prima facie before a case was established. piled in fn. that a 106 S.Ct. at State Batson, supra, Court, Supreme In may purposefully exclude members concluding quantum proof after that the solely service black race be- Swain, necessary by supra, largely made Strauder, of their race. the State cause peremp- prosecuting attorneys made use of Virginia passed a statute West tory strikes immune from constitutional only permitted persons white scrutiny, lesser then set out a burden jurors, Supreme which the serve as Court proof through which the defendant could Although declared was unconstitutional. prima purposeful establish a facie case of Swain, Supreme Court reaffirmed in attorney: prosecuting discrimination principle purpose- that a “State’s case, prose- To establish such a [that Negroes fulness or deliberate denial to on cuting attorney per- had exercised participation jurors race of account of emptory challenges pur- on the basis of justice the administration violates discrimination], poseful the defendant Clause,” Equal i.e., prose- Protection of a first must show that he is a member cuting attorneys may not exclude members ..., cognizable group racial and that the of the same race as the defendant from the peremptory prosecutor has exercised jury venire on account of race or on the challenges to remove from the venire assumption false of the de- members race members of the defendant’s ... group qualified fendant’s race as a are not cir- [Tjhese any facts and other relevant jurors, “the to serve as it also held that cumstances raise an inference that the must, issue, pose defendant show prosecutor practice used that to exclude peremptory prosecutor’s systematic use of petit jury the veniremen from challenges against Negroes period over a account of their race. This combination of time ...” 85 S.Ct. at 839. necessary inference of factors raises the presumption also held that there a purposefulness discrimination. prosecuting attorney did not exercise at 1723. S.Ct. peremptory his strikes on account of race assumption or on the false that members prima If case is established a facie group the defendant’s race as a are defendant, prosecuting attor by the qualified jurors. to serve as ney’s peremptories of his to strike exercise principles of persons would violate black Supreme court upon Based had what law, he could equal protection of the unless Swain, supra, courts stated and held demonstrate some “neu come forward and Court, throughout nation, including this relating explanation, related- tral”-non-race State, example, Ridley see, for tried, excluding the to the case to be for (Tex.Cr.App.1972), also see the Batson, supra, held prospective jurors. appellant’s page list of cases cited on 51 of explanation need acceptable be brief, original merely because no held that however, not, equal to “cause” suffi had ever member of the defendant’s race challenge juror for justify cient to a to a juror case which served as a in a criminal Batson, Thus, supra, under cause.3 prosecuted prosecuting attorney had prima makes a only when the defendant prima facie was insufficient to establish a then, and showing facie that the burden purposeful by that case of discrimination then, for to the State to come i.e., only shifts prosecuting in the instance attorney, why per black, explanation a neutral to estab- ward with whеre defendant was exercised on the prima emptory dis- strikes were purposeful lish a facie case of Batson, supra, State chal- cause. 3. does not concern the lenging prospective venirepersons for black jurors

black purposeful Rather, who were struck. 106 S.Ct. at discrimination. we now turn to a review of the trial court’s deter- prosecuting mination that the attorneys did out, previously pointed appel- As while peremptory not use purpose strikes for the lant’s case pend- was under submission and excluding from jury service members of Court, ing Supreme review this appellant’s race. decided Batson v. Kentucky, supra. light Batson’s evident upon impact proof relative burdens of appropriate contention, April above given Batson, inquiry to the are unpublished opinion this Court in an which we excerpt arrange logi- here appeal ordered the court abated to the trial sequence: cal judge instructions to the trial to con- with Once a prima defendant makes a facie evidentiary duct an hearing and determine showing, the burden shifts to the State prima whether facie made to come explana- forward with a neutral and, showing purposeful discrimination challenging jurors tion for black ... re- so, prosecuting attorneys if whether the particular lated to the case to be tried. racially cause could offer neutral S.Ct. at [106 1723]. explanation using peremptory for their strikes which is what we also did in Henry If the trial court decides that the facts (Tex.Cr.App.1987); 729 S.W.2d 732 establish, facie, prima purposeful dis- Keeton v. (Tex.Cr. prosecutor crimination and the does not App.1987); and Williams v. come explanation forward with a neutral (Tex.Cr.App.1987).4 S.W.2d 563 The trial action, precedents require ‍‌‌‌​​‌‌‌‌‌‌‌‌​​​​​​​​‌‌‌‌​‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‍our court has hearing, conducted the and the petitioner’s conviction be reversed. appellate supplemented record is now S.Ct. at [106 1725]. a statement of facts of hearing findings written of fact and conclusions of judge,

law from the trial copy of which is prosecutor does come forward [If opinion attachеd to this “Appendix A”. explanation] with such an [t]he judge The trial found that estab- court duty then will have the to deter- prima Batson”, lished a facie case “under mine if the defendant has established found, and also implicitly, prose- that the purposeful discrimination. S.Ct. at [106 cuting attorneys per- did not exercise their 1723-1724]. emptories against the venireper- five black sons complained solely about on account of judge’s findings Since the trial in the their race or on the assumption that black context largely under consideration here jurors group as a impar- would be unable will turn on credibility, evaluation of tially against consider the ap- State’s case reviewing ordinarily give court should pellant, who the record reflects is a mem- findings great those deference. [106 race, ber of the same expressly found 1724, at S.Ct. n. 21]. that the prosecuting attorneys gave neutral non-racial explanations exercising per- prima A represents facie case mini- the emptory against strikes the five black veni- quantum mum of necessary evidence to repersons, appellant about which com- support a rational allega- inference that the plains. tion of is party fact true. The with proof produce burden of must at least this

Neither party challenges the trial court’s much finding evidence to avoid a finding that the prima that a purpose- facie case of allegation is not true as ful a matter of law. by discrimination appel- was established lant, produced, however, allegation Once supports we find record that the finding. Therefore, such a have no must be found true unless it is contradict- we ed, did, occasion to impeached, by consider or whether rebutted other evi- fact, prima showing establish present context, a facie of dence. In the such other 4. Also see De (Tex.Cr. Blanc v. App.1987). S.W.2d 640 732 202 v. Schuessler (1986); neutral L.Ed.2d racially must include a

evidence attorneys, explanation by prosecuting a adequate support to legally be must determining judge, A wheth trial is, If an in favor of the it

judgment State. prospective juror challenged er а has been only be joined of is which can issue fact by prosecution on a racial basis in evidentiary by an assessment of resolved Constitution, violation of the United States of weight credibility. It is the burden Batson, supra, obligation see an has to judge by persuade trial the accused weigh the evidence and assess credibili evidence that the alle- preponderance of the short, ty judge of the trial witnesses.6 discrimination are gations purposeful of is a factfinder. If from the evidence he prosecutor per believes exercised true in fact.5 emptory venirepersons to exclude strikes Here, much are on more familiar considerations, we upon it his based racial is sufficiency of evidence ground, duty for it is the to so This Court and the courts find. reviewing proposition appeals principally that we courts. support evaluate of are Thus, judgments do our of We not substitute settled standard. where against a credibility evidentiary witnesses’ the ultimate the accused has burden factfinder, weight for af those of the but allegation, purpose prove factual such as firm those whenever the record judgments selection, in jury by a ful discrimination sup in their discloses sufficient evidence, appellate of an preponderance port. the entire record in a court must view favorable to the factfinder’s deter manner hearing At this the “Batson” ante, only if rational mination and reverse no ordered, though certainly see could have to find his so, trier of fact failed opportunity afforded the to do allegation by preponderance true attempt compare factual the five com did Van Guilder v. plained venirepersons any See of evidence. about black (Tex.Cr.App.1985), venirepersons de were not chal cert. of those who nied, 1169, 2891, lenged by prosecution.6A 476 U.S. S.Ct. brief, September, foregoing parargaph may supplemental filed on Support 6A. In for the Batson, 28, 1987, following just such a com- in the note from has offered found 1721, 18, employ cited parison, inviting 106 S.Ct. at n. the cases Court to the record this therein: that еxists in cause selection by prose- impeach testimony given or rebut in the context of Title VII [of ”[D]ecisions hearing, supra. Rights ‘disparate treatment’ cutors the “Batson" 1964] Civil Act of prima point explained operation facie and does cast considerable have well-taken Doug- proof upon explanations See burden of rules. McDonnell doubt offered the neutral 792, 1817, Green, Corp. 411 U.S. 93 S.Ct. matter las v. counsel Had the been for the State. (1973); Department during Texas pressed by 36 L.Ed.2d 668 counsel cross-ex- defense 248, Burdine, Community 450 U.S. prosecutors, or otherwise amination Affairs ” (1981); United 101 S.Ct. 67 L.Ed.2d 207 brought judge at the “Batson before the trial Board Governors v. States Postal Service hearing, materially might affected the have Aikens, 103 S.Ct. 460 U.S. judge’s findings of fact. ultimate (1983). party alleging that L.Ed.2d 403 However, though judge might even he has been the victim of intentional discrimi- independently judicially re- have noticed persua- nation carries the ultimate burden process, testimony selection called from the Community Department sion. Texas Af- hearing nothing “Batson” there is in the 252-256, Burdine, supra, 450 U.S. at fairs suggest requested defense coun- that she was ” 101 S.Ct. at 1093-95.” short, hearing “Batson sel to do at the so. gave no indication to the Obviously, testimony counsel prosecutor’s cannot for the judge her to consider the dispositive question. ad- trial that he wanted be of the If he alone exclusion, credibility by any explanation offered racially neutral mits a motivated for reason more, upon in the manner which sim- judge find the State based the trial never without should motive, ilarly-situated were treated any white veniremen But if he racial otherwise. denies necessarily during judge voir dire. the trial as factfinder must that, hearing point at a conducted gauge credibility testimony, We out of his deter- Batson, least, judge pursuant is the fact- part, by plausability the trial of his mined in at finder, weigh responsibility to princi- and it is his explanation. This task is no in different credibility of the any factfinding ple enterprise. evidence and determine than other however,

Appellant, Contrary complete memory did establish that to the of the jurors relatively attorneys black have beеn uncom- respective parties for the who capital juries mon on murder Harris participated in the trial and at the “Batson County during past years, several hearing”, but apparently judge the trial any did elicit evidence that the Office herself, the record reflects that the trial Attorney of the District County, of Harris ruled, judge pretrial hearing after the on appears contrary policy which to the appellant’s suppress appellant’s motion to Attorney the Office of the District of Dal- held, confession had been as follows: had, County las once see Batson v. Ken- “Your motion is denied as to the written Marshall, J., tucky, supra, concurring opin- confession. It is sustained as to the oral ion, exclude, 90 L.Ed.2d at through confession, wit, tape recordings strikes, peremptory “Jews, Negroes, Da- testimony regard.” we heard the in that gos, or a any minority Mexicans member of XXIV, page See Vol. VI of of the serving on jury. race” record. The record also reflects that there- after, during trial, judge, the trial after prospective As to the five black venire- County, Justice of the Peace from persons Travis peremptorily by who were struck Herman, Guy Hon. prosecuting attorneys, who had testified at the agree we judge pretrial hearing appellant’s prosecuting the trial on attor- motion to neys hearing suppress, articulated at the had racially part, sponte neu- testified sua explanations, tral which plau- were both excused the and then stated the fol- unambiguous, sible and exercising lowing: right. Gentlemen, their “All in view of peremptories on complained the five Judge about Herman’s testimony and in view venirepersons. black Supreme Court’s decision in Edwards 18, 1981, versus Arizona May returned on prosecuting attorneys’ testimo approximately which is a month we after ny that two of the five veni- black reflects had hearing a Jackson-Denno in this repersons were struck because of their case, my prior ruling I will regard- reverse general opposition to the penalty, death ing your hearing Jackson-Denno and the although such pre beliefs would not have Suрpress Motion to the written confession vented or substantially impaired them from granted.” (Our of the empha- defendant is performing the juror. office of One of the sis.) XXIX, stamped See Vol. XXII of venirepersons two also indicated that she 767-768, pages printed pages 56-57, of the might refuse to return a verdict unless record. Thus, testified at trial. as to two five, independent, there was an non Thus, prosecuting attorney when con- prosecuting racial basis for the attorneys’ ducted his voir dire examination of the decision to strike these two black venire- venireperson, above he had persons. confession, written had been ruled judge to be admissible evi- prosecuting attorneys’ testimo dence, ready to be offered into evidence. ny venireperson, reflects that a third black evidence, certainly This direct al- who in employment the course of her though might arguable as to how gunpoint, been at twice robbed exclud ed, proved direct it was to all that needed prosecuting to be attorney’s statement beyond order to hearing”, at the “Batson establish a reasonable because she indi appellant’s guilt cated returning capital serious reservations about doubt murder. Nevertheless, guilty a verdict of based circumstantial we find his statement that he evidence gave alone. hearing”, response at the “Batson reviewing

witnesses. A explanations impeached court should reverse his tral were rebutted or ” findings only they supported by hearing when are not the "Batson with evidence that unchal- or, say, lenged sufficient possessed we often for an white veniremen also the same judge characteristics, purportedly “abuse of discretion." Because the trial undesireable dowe make, make, urged was not reviewing and did not not consider this circumstance in finding upon comparison analysis judge's based findings in this cause. deciding prosecutors’ the issue whether the neu- “Q: question, Why know, to the the based on you law what we we have call— important got put circumstantial evidence so everything a label on direct —not particular time?”, my evidеnce, “A: That was evidence?”, but circumstantial whole case. had no direct evidence We the venireperson responded: “I don’t think ...”, shocking totally a little not un- judge questioned so.” The trial then the more, find that derstandable. Without we venireperson, using example “Nobody the only we would have to hold that an irration- get jar” saw him into the cookie to describe accepted al trier of fact could have meaning legal term “circumstan- explanation” why he reason as a “neutral Finally, venireperson tial evidence”. juror. peremptory used a strike on the apply stated that she could not the law of capital circumstantial evidence to a murder There is more however. The voir dire However, case. she also stated that she venireperson examination of the above re- guilty could find someone based circum- questioned by flects that she was first evidence, “if I stantial was shown all of the prosecuting judge. One of the attor- possibilities beyond a reasonable doubt. neys, testified at the “Batson who hear- Thereafter, I prosecuting could.” at- ing”, questioned venireperson. then torney questioned venireperson con- legal He first covered with her such terms cerning believing police lay officer over a proof” as “burden of and “reasonable person, employment jury her and whether doubt”, explained to her and then the ele- service an would cast undue burden on her. capital ments of the offense of murder and question venireper- The defense did not murder, punishment and the difference in evidence, son about circumstantial or direct capital murder and murder. The veni- prosecutor evidence for that matter. The reperson if stated that she found a defen- peremptory thereafter used a strike on the guilty dant of murder she could consider venireperson. range punishment the entire for that explained offense. He then to her the ele- Although prosecutor when the dired voir alleged underlying felony ments of the of- venireperson, ap- because he then had fenses and intеnt. He then covered with pellant’s confession written which had been her parties During the law of and motive. evidence, ruled admissible his case was not questioning, venireperson stated dependent upon entirely circumstantial evi- “All I want to if he was there at know dence, out, things if at all. As turned if actually the time or did it.” The ultimately case turned on circumstantial prosecutor legal term then covered the fact, judge the trial instruct- evidence. “presumption right of innocence” and the jury ed the on the law of circumstantial testify. of the accused not to He then evidence. stage punishment covered the where the Therefore, because written capital defendant guilty has been found confession, opinion attach to this we murder, special and the issues that the B”, “Appendix completely did not rule prosecutor would answer. The also asked judge out an instruction on the venireperson what the term “deliber- evidence, law of circumstantial we hold ately” her, meant to and ascertained prosecuting attorney that the exercised a automatically she would not answer peremptory venireperson on the rather special simply issues the affirmative be- hung jury. than risk a guilty cause she had found the defendant prosecuting attorney exercised murder, capital and would them answer peremptory strike on the fourth black upon presented. based the evidence because, venireperson according to the prosecuting attorney questioned then prosecuting attorney who testified on this venireperson understanding about her person’s reading writing point, that direct versus circumstantial evidence. asked, poor. com proper “in the skills were Since the case was When whether case you expected to include detailed apply plex can the law of circumstantial instructions, case?”, capital murder “Can the State evident written you guilty capital ly preferred literacy problems, find someone murder to avoid qualifica- far as his neutral, Government as peremp- a States race and used which are prose- Although the jury for service. person. tions tory on that strike “I have not cuting attorney indicated that gives venireperson The fifth black postal employees”, very good luck with testimony great concern because us bias upon her evident she did not elaborate person peremptorily that that was reflects indeed, Perhaps, employees. against such pros solely, by testimony struck employees a common postal share federal attorney on this ecuting who testified justice system anti- of the criminal view employee he had an point, been because enforce- interests of law thetical to the for some Postal Service the United States it, so, if we are not aware ment. But “simply and not because years, thirteen enlighten to undertaken nor has the State black.” was subject. us further on the venireper- The record reflects that stated, Notwithstanding what we have difficulty under- expressed a certain son attorney’s prosecuting rea- we find that the in criminal standing the of causation law racially gave constitute a sons that she “probabili- cases, notions of as well as the office explanation, and it is not the neutral “continuing society” con- threat ty” and credibility. Ex- judge this her Court issues, punishment which cerning the Batson, prosecut- plicit is that a understanding find essential or- we peremp- ing free to exercise his attorney is appel- decide whether juror for the der strikes, they non- tory provided that are and, so, if capital murder guilty of lant was all, challenge, “The after race related. probability appel- a there was whether Belcuore, peremptory one.” See su- still a commit criminal acts lant would thereafter pra. constitute a continu- of violence would conclude, Therefore, respect to However, read- we ing society. our threat to venireper- process complained in the about black ing entire selection five of the sons, might disagree- a rational trier of fact widespread this case discloses find, preponderance of among ‍‌‌‌​​‌‌‌‌‌‌‌‌​​​​​​​​‌‌‌‌​‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‍venireper- uncertainty have failed ment and evidence, sons, intentional discrimination nearly every capital an as it does prosecuting attorneys in case, legal part on the regarding murder definitions holding, remind trial By cause. so we concepts, usually which are alien to this issue are confronted with the venirepersons. surprisingly, judges Not it is who most capacities in their as factfinders venirepersons for those not uncommon explanation inarticulate, confused, racially neutral truth of a appear and tentative plausibility. part by its judged should be under these conditions. We find that responsi- judge may not abdicate his venireperson’s A trial prospective black answers peremptory chal- bility to decide questions did not indicate an ina- whether asked motivated, may he lenge racially nor any greater or bility part, on his that was appellate resolu- venirepersons, questions such to an unchallenged leave less than matters, in such apply impar- tion. He is the factfinder the law or to to understand fairly judi- indi- must find the facts tially. venireperson also did not This proof ciously, according to the burdens of prejudice against any phase cate bias Indeed, prescribed by law. pertinent to this case. of the law urge hearing any did not at the the State carefully prose- scrutinized We have upon to doubt the venire- such basis why they cuting attorneys’ offered reasons As person’s qualifications service. on the peremptory of their strikes used five noted, given why the veni- the sole reason light venirepersons in above five black an reperson struck was that he was by the trial hearing that was conducted Postal Ser- employee of the United States find conclude that the judge and vice. explana- judge the race-neutral believed understanding given by them. Whether this difficulty tions We have some judgment the same venireperson’s employ- have made relevancy of a would unimportant, judge did is because postman employed by the United ment as a conclusion, given her subjective bery, belief in underlying which were the offenses prosecuting attorneys’ truth of the alleged ex- in this cause to elevate the offense planations, supported by which is sufficient capital of murder to V.T.C.A., murder. See evidence, comports with that a rational Code, Penal Section 19.03. We find no trier of fact. authority supporting appellant’s conten- capital tion. The statute, murder Section Appellant’s first contention is overruled. 19.03, supra, did require pleader Turner, People Also see 42 v. Cal.3d define with particularity in the indictment Cal.Rptr. 656, (1986); 230 726 P.2d 102 the constitutent underlying elements of the State, (Ala.Crim. Branch v. 526 So.2d 605 felony alleged offenses that were in the App.1986) Patterson, J.; United States v. in indictment this cause. Woods, (4th Cir.1987); 812 F.2d 1483 State Butler, v. 731 (Mo.Ct.App. S.W.2d 265 — W. recently, State, Just in Landry v. 706 Dist.1987); Jones, State v. 358 S.E.2d 701 S.W.2d 105 (Tex.Cr.App.1985), this Court (S.C.1987). Also see footnote ante. rejected contention, a like simply stating following: past Court has in the “[T]his

Appellant next contends that his upheld capital murder indictments identical conviction should be reversed because “The to the instant indictment in the face of a trial court in overruling erred his motion to quash. State, motion to See Hammett v. quash the indictment for the reason that it 578 (Tex.Cr.App.1979), S.W.2d 699 Burns clearly unequivocally fails to set forth and State, v. (Tex.Cr.App.1977); 556 S.W.2d 270 the offense charged for which he was State, (Tex.Cr. Smith v. 540 plain intelligible S.W.2d 693 words insomuch that App.1976), State, Appellant precluded Demouchette v. knowing was 591 (Tex.Cr.App.1979). S.W.2d 488 exact nature of These the offense for which he cases all charged.” proposition stand for the disagree. was We that it is unnecessary allege the elements of the cause, The indictment in this in unnum- underlying felony capital in a murder in one, charged bered appellant, count (107-108). dictment ...” “while in the committing course of attempting to Robbery commit the Hammett, Smith, supra, supra, cited BERRY, MARY D. styled hereafter the Burns, State, Gonzalez v. 517 Complainant, intentionally cause[d] (Tex.Cr.App.1975), S.W.2d 785 v. Watts Complainant by suffocating death of the State, (Tex.Cr.App.1974), 516 S.W.2d 414 Complainant by placing gag a cloth State, and Livingston v. mouth”, and, two, her count unnumbered (Tex.Cr.App.1976), authority, as its all of charged appellant, “while the which made a like conclusory holding. course of committing attempting to Smith, supra, merely “Appellant’s held: Kidnapping commit the of MARY D. BER- contention fatally indictment was [that RY, styled Complainant, hereafter in- defective because it failed to set out the tentionally the death of the Com- cause[d] robbery charge elements of where the plainant by suffocating Complainant by murder committed in the course of commit placing gag a cloth in her mouth.” Both ting robbery] adversely was answered counts were jury. submitted to the State, 131, 110 him in Jones v. 53 Tex.Cr.R. jury’s simply “WE, verdict reads: THE [1908], State, 741 S.W. and Oates v. 48 JURY, DEFENDANT, FIND THE PHIL- [1905], Tex.Cr.R. 86 769 S.W. which TOMPKINS, LIP DANIEL GUILTY OF allege hold that an indictment need not 37.07, CAPITAL MURDER.” Sec. Att. felony constituent elements of a which the 1(a), Sec. Y.A.C.C.P. committing attempting defendant charged

We understand commit at the time of the argument to homicide indictment.”, i.e., be that the indictment subject to his an indictment quash charging motion to because give during it failed to one offense the commis him notice of the constituent elements of sion of another crime allege need not robbery, the offenses of kidnapping, at- elements of the latter offense. Also see tempted kidnapping, attempted State, (Tex.Cr. rob- 600 v. S.W.2d 288 Brasfield

207 State, expressly (Tex.Cr.App.1983), v. App.1980); 104 White 543 S.W.2d State, v. 514 overruled Craven S.W.2d Earl v. (Tex.Cr.App.1976); Drumm (Tex.Cr.App.1981). Also see (Tex.Cr.App.1974). Appellant’s S.W.2d (Tex.Cr.App.1977). 560 S.W.2d is overruled. contention contention that Appellant’s contention, overruling appellant’s we his motion to judge should have sustained stat are this Court not unmindful what indictment, for the reasons he quash the King ed held in gave, is overruled. There, this Court indictment, capital held that a murder Appellant that his next asserts allege of the who the victim which did not “The should be because conviction reversed was, here, contrary to underlying offense permitting prosecu the court erred trial motion to subject to the defendant’s was during guilt/innocence to call the tion quash. held: “It is clear that This Court phase Appellant’s trial the wife as a of conduct, constituting an when criminal of presence for the State in the the witness may aggravated of an offense feature authority, upon, appellant relies jury.” As person other than the ulti at a directed alia, 38.11, provisions V.A. the of Art. inter alleged, mate the crime spec the victim C.C.P., privilege” stat the “husband-wife of person is that a fact to. which ification of spouse, except in prohibits ute that either request it the is entitled should he accused applicable enumerated not certain instances quash. to timely filed written motion here, testifying against from the other (Citations omitted.)” (426) (Our emphasis.) up-to-date an of spouse. For discussion the holding, distin reaching this this Court may longer exist privilege, which no be guished of the mentioned several above of Rule Tex.Rules of Crim. cause granted cases relief not been Evid., 1,1986, where Wil September see effective State, pointed that of the and out “the name v. (Tex.Cr.App. 719 lard S.W.2d 595 person aggravating the conduct is 1986). appellant’s at whom trial Because occurred in such prior September 1, provisions directed is not an essential element to the rather, context, 38.11, supra, applicable a a is crucial to but fact which of Art. are this preparation to accused’s of his defense cause. murder,” charge

to of capital the main common the issue of whether or not a On (426-427), i.e., con when criminal conduct existed, marriage judge trial this law of stituting aggravating an feature of an jury in the cause first instructed the ab- may person fense other be directed at a common on the elements of a law stract than crime al the ultimate victim of the agreement An to marriage: “1. become leged, is a specification person that wife; pursu- and 2. Cohabitation husband fact the accused should to which is entitled (3) agreement; holding A that and ant to he request by timely it motion filed written public other to the as husband out of each quash. King, requirements The su pursuant agreement,” and and wife to the pra, were satisfied in cause because instructed jury that “if it then [found] alleged Berry the indictment here that was that a by preponderance a of the evidence both of th the victim the victim murder and marriage between common-law exist[ed] Pink robbery E.g., kidnapping. and Phillip Tompkins Daniel and [appellant] State, erton (Tex.Cr. Miles, then not consider the Lisa [it would] Cf. Beck v. App.1983). 682 S.W.2d any purpose testimony of Lisa Miles for wholly disregard testimo- [her [would] make, jury was not asked to nor ny].” We find and hold that indictment make, specific finding on the a issue. did req not fail convey this cause did some judge uisite of notice Cf. appellant. item The record reflects that the ‍‌‌‌​​‌‌‌‌‌‌‌‌​​​​​​​​‌‌‌‌​‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‍(Tex.Cr. pres- hearing jury’s Adams v. a out of the S.W.2d 900 conducted prohibit App.1986), in which a of this ence on the motion majority testifying for the State expressly overruled deci Miles this Court’s him, she, after the trial against sion 646 S.W.2d Jeffers judge, permitted might overruled the relationship, motion have been what if for testify Miles to any, might State. person Miles have had. subject prior history, Miles’ marital Although the record reflects Miles if any, parties. broached appellant originally arrested with committing capital murder the de- The issue before is not us whether there ceased, the or record does not reflect indi- was jury sufficient evidence before the formally charged cate that she was ever judge submitting warrant the trial the is committing or participating sue, whether a matter fact there was commission of murder deceased. marriage common law between The record reflect after she does Miles, because, by jury to the her released, arrested but she was does not jury, judge instruction to the governed reflect the circumstances that her found that there was sufficient evidence to yet in the release. We have find record raise issue marriage of a common law request by that the could and so instructed for it to resolve. Miles, either as matter of find fact The issue that we must resolve is whether law, accomplice was an witness. How- established as matter of law at ever, our of the record reflects review hearing pres held of the jury’s outside request a would such have been without ence that and Miles were married com merit. State, mon In law. Bodde v. 568 S.W.2d hearing The record of the held outside 344, 352 (Tex.Cr.App.1978), Court this presence of the determine pointed following: “Although out the appellant whether Miles and were common is better view that such issues should be husband wife law and reflects follow- by judge... prior decided deci ing: Miles testified that she known issue, sions of this Court dictate that this appellant August Septem- about or “Since evidence, when raised be submitted 1980”, living ber commenced with him jury...” long to the This has held 1980, 1, on December and continued to live closely that it will scrutinize a claim of they him with until were both arrested in marriage, requires common law and that 26,1981. January on Austin Miles testified agreement to become husband and wife although appellant that she and were not preponderance should be established eyes law,” married “in the of the because a showing agree of the evidence that marriage ceremonial yet per- had not been specific ment be both sides. See formed, she nevertheless considered her- State, (Tex. Hightower v. then appellant. self married to She further supra; Cr.App.1981); Bodde v. that appellant testified she and intended in (Tex.Cr. S.W.2d 854 Chatman go through the future to a ceremonial mar- App.1974); 151 Tex.Cr.R. Welch v. riage. testimony Miles admitted in her S.W.2d including she anyone, that never told her Welch, supra, emphasized this Court mother, that she and were mar- “Marriage following: is more a con than ried, question because “the never came tract, stability it a status in which and is up”; any admitted that she never filed with vital, permanence particular this are is County Clerk a declaration of informal ly dealing true with when common-law marriage, 1.92, Code; Family see Section marriages.” she “by and admitted that never went elements a common law Tompkins.” name of Lisa The testimony marriage, as the was instructed also established that when (1) cause, following: par are the that the together live they Miles decided to rented agreement, express ties enter into an or apartment together signed an but their re- wife; (2) implied, become husband and spective apartment names to the lease. pursuant they is that thereafter cohabit testimony There also that Miles had a (3) child; however, agreement; holding-out young the record does not general public they any specifics regarding child, each to the reflect other However, as who such the natural father the child are and wife. in order husband marriage general public they hus- as a to the were a common law to establish question law, necessary to We answer this estab band wife? matter of is not proof, negative. each find and hold that by direct as in the We lish each element by circumstan establishes at most may undisputed be evidence element established Marriage, tial, direct, relationship Miles only as well as evidence. an between illicit common-law, al appellant. whether ceremonial or might the evidence though the character of one, courts, Although including this our different, any proved as other fact implicitly held that expressly either have See, example, proved. might be Clave agreement and wife an to become husband Claveria, 615 ria’s Estate date might private, our research to occur (Tex.1981). always courts have re- reveals that all 38.11, provisions Art. marriage a common quired that before law prohibit or wife from husband testi might be to exist as matter of law found other, except in against fying each certain evidence, alia, inter that the there must be applicable here, not enumerated instances parties general out held themselves to the persons protect not enacted to those were public Speer’s and wife. See husband married, nor legally parties are not “who Law, (1975 Chapter 2 edi- Family Texas unmarried, together who live who are but tion). recognize each other as husband and From the that was adduced State, 122 wife.” Johnson v. Tex.Cr.R. pres- held hearing that was outside the (1932). Merely 54 S.W.2d ence of find most all jury, we that at living together person oppo he and established was that having sex and site intimate relations with might Miles had “a secret common have establish, more, do person without marriage,” does constitute law which not relationship of husband wife. See Ex marriage. Texas a common law See State, supra, v. at 141. Johnson Whether (Tex.1960). parte Thrеet, S.W.2d 333 361 marriage a common law has been estab Except County for a “Harris Pretrial Ser- law, appellant lished as a as matter record, Agency” form that is in the vices here, asserts occurred must be decided on completed appellant after which was an ad hoc basis. Jail, placed County and which the Harris reaffirm rule of We that law pretrial on pertains possible release bail testimony merely aof witness that consti not intro- surety, without and which was tutes a conclusion that a common mar law duced or into evidence at the hear- offered sufficient, riage is standing exists not presence, ing jury’s held there outside the alone, marriage. to establish a common law is not a of corroborative evidence scintilla See, State, example, for Bush v. 261 might Miles that reflect or indicate that 1953). (Tex.Cr.App. S.W.2d appellant held themselves out to the general public husband and This undisputed is wife.

It in this cause that complet- to have appellant appear form does not been together Miles and co lived by appellant, appears to have been approximately for two months. ed but habited completed person upon they might The fact that a third based have intended gave per- through marriage appellant information go ceremonial at some undisputed that times necessarily ne son. It at all time the future does not her last name and never gate they the inference that that Miles maintained believed Miles appellant’s used last name. When they were married common law. Hernan apartment, did State, appellant v. rented an she Aguilar dez 715 S.W.2d (Tex.Cr.App.1986). last Miles her- appellant appellant’s find that not use name. We anyone, she never sustained two self testified that told has his burden as to mother, appel- including that she and three elements that would her above establish Thus, marriage. question lant were there is absolute- a common law married. becomes, ly non-hearsay independent testimony or then did he establish third no element, appellant held holding-out by himself Miles evidence thаt Miles and ever general public all,

themselves to the guilty out an instruction on a lesser they were husband wife. given. included offense be need not On the hand, if other the evidence raises the issue Appellant’s he contention that estab- that, guilty, if only defendant is guilty lished matter hearing as a of law at the offense, lesser the instruction should jury’s presence, conducted or outside given. be during pres- that he jury’s established ence, that and Miles married were com- The record reflects that did not mon law is overruled. guilt trial, testify stage at the nor any did he offer testimony or Appellant complains next might reasonably have raised the judge’s on refusal instruct the guilty, inference that if guilty only he was involuntary manslaugh- lesser offenses criminally negligent criminally negligent homicide or ter and homicide at the involun- tary manslaughter. guilt The fact stage having of the trial. After care- State, record, proving fully capital read the offense of and the definitions of murder, proved also criminally negligent what constitutes homi- the lesser offense of involuntary criminally negligent cide and manslaughter, we are homicide or involun- tary manslaughter not, agree unable to standing does alone, evidence adduced called for on entitle a charge instructions on the either of these lesser lesser included criminally negli- offenses. offenses of gent homicide involuntary manslaugh- determining whether a defendant is See, example, Cordova, ter. for supra. charge entitled to on a lesser included offense, considers all the evi The evidence reflects that See, presented. dence example, for Cordo victim, twenty-four year old female who (Tex.Cr. va v. 698 S.W.2d employed Hospital at Hermann App.1985). Lugo Also see pharmacist, Houston as a left ap- work at (Tex.Cr.App.1984). If evidence proximately p.m. Sunday, 11:15 o’clock any source raises the issue of lesser January 25,1981. Approximately one hour included offense an instruction on that of later, her found automobile was aban- fense must included in the court’s doned, engine running, with its lights its charge See, jury. example, to the Bell on, closed, and its dоors but not locked. presented also from which Evidence might wrong one infer that her doer caused determining a whether lesser stop her to her car thereafter and kid- given, included offense instruction must be napped or abducted The her. victim’s majority long of this Court has sub gagged body and during bound was found two-step analysis, scribed to a which was 27,1981 morning January hours of tied first panel opinion enunciated of tree, to a which near the was located resi- State, (Tex.Cr. Royster v. 622 442 S.W.2d person of the ultimately dence who discov- App.1981), adopted majority and later by a body. ered her reflects record that of En Aguilar Banc Court in person this an only object first saw that (Tex.Cr.App.1985). S.W.2d 556 Also it, draped had a bedsheet over which later see Thomas v. ground, enabling fell to the thus later this (Tex.Cr.App.1985). two-step analysis person to identify object body as the requires of first, that the lesser included of being, a human which was fense is later identified proof included within the neces as the deceased. sary charged and, The victim’s hands were to establish the offense second, tightly tied piece must behind her and a there be some evidence back of guilty record that if the he shirt was tied around her neck and connect- defendant is is guilty ed to her only of the lesser offense. This hands. The feet victim’s were “guilty only” together rule of tied and law has been inter with a bed sheet an elec- preted by Court to if the system mean that trical cord. The entire of knots and only evidence raises the issue the ac very tight body ap- materials was and the offense, guilty greater peared cused is previously have been under a lot against appellant. In his con- However, not be used also of tension. evidence fession, tied enough stated that he had that there slack that reflects was gagged solely keep her allowed some movement of the his victim would have and seeking he help and There while escaping knees shoulders. was from and victim’s body that the tree the was card also evidence the victim’s bank went used leaning against up “scuff showed marks The confession reflects money. obtain dоwn”, which, the bruises with the vic- returned where when body, found on the one and abrasions tree he gagged tim had and tied to the been might attempted causing infer that the victim dead, then thus saw that she was escape. gagA sheet of bed material panic ultimately Austin him to flee to was, tongue, as was victim’s stuffed January he arrested on where was deep posterior pharynx, is into the which 1981.7 portion the mouth. There the rearmost of he en Appellant contends that was gag tightly wrapped also a around the was on the offense titled to an lesser instruction Joseph Jachimczyk, body’s mouth. Dr. A. negligent criminally homicide because renowned Chief Medical Examin- the world supports finding clearly evidence performed autop- an County, er for Harris negligently, Berry’s that he death caused body of after sy on the the deceased which above, intentionally. rather than Given the of death he concluded the cause was penal criminally and the code definition of gagging due to from the suffocation cloth homicide, negligent disagree. we body’s Ja- gag found inside mouth. Criminally negligent may chimczyk also testified that if there homicide in”, involuntary offense coming it take between 3 be a lesser included “no air would in manslaughter, may took be a lesser gagging place to 5 minutes after the which murder, may Berry to death. cluded be before suffocated Ja- offense chimczyk gagging capital lesser offense of murder. further testified that is included See, example, Lugo way” “as sure as sure a to cause some- death, degree “if the of S.W.2d one’s

gagging adequate, person just is as V.T.C.A., Code, 6.03(d),de- Penal Section gunshot they dead from that are from “A Negligence” fines “Criminal as follows: The exact time of death could not wound.” negligence, criminal or is person acts with be determined. criminally respect to cir- negligent, surrounding his conduct or the

The evidence also established that be- cumstances victim, ought when to be Berry, the time when result his conduct tween found, body ap- unjustifiable until disappeared her aware a substantial or the pellant had used teller card to risk that the circumstances exist her bank $1,000. also The risk must There was result will occur. obtain degree Berry such a evening that on the when was last nature failure financially perceive gross constitutes a devia- embar- seen alive rassed, an appeared soon tion the standard care that but thereafter of from all money. ordinary person in would exercise under much There is no evidence have the ac- might that reflect or indicate the circumstances viewed the record (Our emphasis.) standpoint.” had or even seen tor’s appellant ever met that evening question. his victim before the State, 706 Becently, in Mendietta v. 1986), 651, (Tex.Cr.App. a ma- Although appellant gave a written con- S.W.2d crime, ruled “It is incum- committing “Ap- jority see of this Court that the fession B”, contain show- pursuant ap- the bent that the record evidence pendix judge, trial ing an the before pellant’s suppress, motion to after first rul- unawareness risk of negligent is charge criminally homicide ing admissible evi- that the confession was dence, required.” later ruled that the confession could might appellant presents appears appellant’s call for a conclusion written confes- It evidence, the one we reach. admitted into the issues that different from sion been We cannot conclude from the evidence caused his by victim’s death a reckless act. presented

that was might that one appellant infer Without evidence that acted reck therefrom that appellant gagged, lessly causing when tied the death of his victim we his victim’s hands cannot state tightly back, behind her that the issue of involuntary manslaughter piece neck, tied a of was raised shirt around her the presented guilt stage at the hands, was connected of to her tied the her feet State, trial. together Lugo supra. Cf. Contrary with a bed sheet and an electrical negligence, to criminal cord, which arises when a system with the entire of knots and person ought to be aware of a substantial materials used to tie her very to a tree tied risk that the circumstances exist or the tight, that he was then unaware the risk occur, result will invоluntary manslaughter his conduct created. might Just because it person arises when a is aware of but con speculated be did not intend sciously disregards a substantial and un result, given evidence, the admissible justifiable risk that the circumstances exist such does change not his awareness or or the result will occur. We are unable to perception of the risk his conduct created. infer from the presented evidence that was We find and hold that the issue of criminal that the issue whether was aware ly negligent homicide was not raised of a substantial risk gagged when he evidence. The trial court did not err in bound his victim to might a tree and that refusing give jury an instruction on have caused her death was raised. The State, offense. Also see Still v. evidence reflects enough left (Tex.Cr.App.1986); S.W.2d 658 Thomas v. slack that would have some allowed move State, 699 (Tex.Cr.App.1985); S.W.2d 845 ment of his victim’s knees and shoulders. (Tex.Cr. Hunter v. 647 S.W.2d 657 Thus, this act itself reflects that he was not App.1983); Lewis v. “reckless” as the term is defined. Also see Gordon v. (Tex.App. S.W.2d 743 Much of what we have stated is above 1982), —4th no P.D.R. applicable also claim that the Appellant argues also under his conten- judge erred in instructing jury not regarding tion judge claim that the trial on the lesser offense involuntary man- erred in instructing jury on the slaughter. lesser criminally negligent offenses of ways One of the that the of involuntary manslaughter homicide and fense of involuntary manslaughter might Supreme that the Court decision Beck v. be if committed is recklessly defendant Alabama, 625, 447 U.S. 100 S.Ct. causes the death of another individual. (1980), L.Ed.2d 392 also see Keeble v. Unit- V.T.C.A., Code, See Penal Section 19.- States, ed 412 U.S. 93 S.Ct. 05(a)(1). culpable mental state of reck (1973), L.Ed.2d 844 mandates such instruc- lessly V.T.C.A., is defined as follows given. disagree. There, tions be We Code, 6.03(c): Penal person Section “A acts Supreme Court held that where one of the reckless, recklessly, or respect is charged elements of the offense remains surrounding circumstances his conduct or doubt, plainly guilty but the defendant is result his conduct when is aware offense, likely some to resolve consciously disregards but a substan its doubts favor of conviction of tial and unjustifiable risk that the cir offense, alleged requiring thus cumstances exist or the result uHll occur. given option convicting The risk must be of such a nature and defendant of some lesser included offense. degree perceive that the failure to it consti Although disagree we do not with what the gross tutes a deviation from the standard Supreme cases, in stated the above of ordinary person care that an would exer Beck, supra, we find that factually is distin- cise under all the circumstances as viewed guishable Beck, from the instant case. (Our viewpoint.” empha from the actor’s supra, the defendant testified at trial and sis.) previously pointed out, As appellant denied that he killed his victim or intended testify death, did not any or offer appellant evidence that he his victim’s whereas here in any Virginia penitentia- present or evidence was incarcerated the testify did any only ry. he the Norman testified that the reason that possessed from source that given kidnap Berry. E.g. appellant job the of intent to rob or was “straw either (Tex.Cr. “nobody gave Santana v. boss” because Mr. was way a Tompkins a hassle. He had to han- App.1986). good way and he had pretty dle himself a Appellant’s that the contentions trial himself, get he could across what with refusing judge in to instruct the erred Appellant to also get I had across.” assist- criminally negli- on the offenses of lesser refereeing in ed Norman football and soft- gent involuntary manslaugh- homicide and games ball that occurred between inmates. are ter overruled. testimony appellant, like There that was Appellant that “The trial next contends inmates, get many occasionally would other overruling objection in court erred his fights into with other inmates. having placed the prosecution the on stand appellant The also record reflects testimony eliciting from Mat- [Jean on penitentiary was Feb- released thews, penal Virginia] psychologist, a who 28, 1980, placed ruary when he was on [, Appellant in 1979 had consulted with parole. parole July He remained on until Virginia he in when incarcerated parolе file him when the officer’s on penitentiary,] for the reason that neither he was closed “an absconder.” because was in Appellant nor his counsel were notified issued, A for his arrest however. warrant psychologist’s testimony advance capital in our The warrant was executed encompass Appellant’s would future city, Austin, day of arrest in dangerousness.” this cause. See ante. fully appreciate ap- understand and To The record also reflects that while incar- pellant’s complaint, first which at blush Virginia penitentiary, appel- cerated in the frivolous, not, appears find is but which we Matthews, contact lant came into with Jean give it is necessary we believe that a a “clinical-correctional Ph.D. who appellant background little information on Psychology psychologist” and head of pertained to when incarcerat- he was Services at Saint Brides Correctional Cen- ed, that relates to other than Matthews’ Chesapeake, Virginia. Although ter testimony. qualified credentials her as an Matthews’ punish- The reflects record that at the expert psychology, in the field there stage ment trial the State estab- testimony no or evidence in the record that lished that in 1977 was received has or certified she ever been licensed Virginia Department Corrections, of Virginia any the Commonwealth other Virginia, he Commonwealth after had Union as “clinical-correction- State Virginia been convicted court of record, however, psychologist”. al re- committing “Statutory for the offenses of her parties flects treated as an Burglary” Larceny.” and “Grand Evi- expert in her field endeavor. presented appel- dence was also that when appellant, reflects penitentiary lant was incarcerated record while boss”, volition, “straw an inmate incarcerated and his own went became who was given by employed personnel requested to to where he that she orders Matthews give help” keep relay “specific other inmates line and to him kinds of that relat- eat, employed personnel inability sleep and his them what the desired ed accomplished problems depression. to be done or on behalf Matthews saw times, Appellant eight penal approximately was a “straw but institution. Norman, any for E. who never clincial tests nor boss” Herbert administered prescribe any she him. then Assistant Director of Recreation and a did medication for July, 1979 De- foreperson Department for the of This occurred between crew cember, Appellant job also had occasion Corrections. 1979. Matthews approximately years, two he was outside “straw boss” observe when prison once encompassed yard, of the time he of her office most fighting observed him inmate, with another nia Correctional institution in 1979 was and fight appellant she stated that privileged 5561h, remains under Article jaw. “shattered” the (Texas) other inmate’s Mat- Vernon’s Ann. Civil Statutes and thews testified that from her therefore was not interview ses- available to the State for (Citations any purpose. omitted.)” sions with she Appel concluded that argues lant also frequently depressed”; that such testimony “he has a “[h]e admitted in range Smith, violation of wide Estelle v. of characteristics from being a 454, 101 1866, 451 U.S. very nice, S.Ct. very congenial L.Ed.2d 359 person being (1981). ‍‌‌‌​​‌‌‌‌‌‌‌‌​​​​​​​​‌‌‌‌​‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‍time, At no however did appellant placating, manipulative, and from time to expressly invoke pro court the time, threatening and violent. He had a visions of statute, and, the above although controlling hard time his temper... [T]he appellant brought during out his voir dire intensity very with Phil is [of emotion] examination of Matthews the fact that Mat great ... but the intensity of emotion that give thews did not him the Miranda warn proportion felt was out of to the actual ings him, when she interviewed see Mi problem... He has range this wide Arizona, 436, randa v. 384 U.S. 86 S.Ct. crying behavior as maybe being very (1966), 16 L.Ed.2d 694 at no time did happy very joyous or very very or sad or appellant complain, expressly either or im angry, and he didn’t seem to be able to plicitly, that testimony Matthews’ was ob control things which of those came out in tained in violation holding in Estelle any given situation.” From her interviews Smith, 451 U.S. 101 S.Ct. appellant, Matthews concluded that (1981), L.Ed.2d 359 which was decided on appellant did not want to be and could not 18, 1981, May almost four months to the rehabilitated, given he were “[u]nless day after committed the offense some psychotherapy intensive and he de- at bar and before he was tried sired to have that change. kind of It would cause. quite take doing.” a bit of Although Mat- Smith, supra, Supreme Court held thews further testified that pro- psychiatrist’s that a testimony on future pensity to commit future acts of violence dangerousness, which had been obtained “unpredictable”, she also testified that pursuant to a court-ordered psychiatric ex- opinion her there was a probability that only amination to determine the accused’s appellant would continue to commit crimi- competency trial, to stand was inadmissible nal acts of violence that would constitute a evidence because it violated the accused’s threat society. Matthews admitted in Fifth privilege against Amendment com- her testimony that psychologist another pelled self-incrimination and also violated might “draw different conclusions and right defendant’s Sixth Amendment opinions appellant]” than she did. [of appointed counsel because court defense Appellant’s objection sole tri counsel was not notified in advance that al to testimony Matthews’ was the follow psychiatric examination would encom- ing: objections “We any questions have pass the issue dangerousness. of future in regard relationship answers to the diligently We have searched the record between psychologist [Matthews] objection of this cause for by appellant an [appellant].” inmate highly ques It is testimony to Matthew’s on the basis of tionable prop whether the claimed error is Smith, error, supra, yet but have to find erly Nevertheless, before us for review. such objection, an and appellant does not given the fact has been as point any place in the record where he sessed the penalty, death we will assume objected in the trial court on this basis. In that his contention properly before us for (Tex.Cr. Granviel v. review. App.1986),this Court held failure to Appellant argues that “the introduction object Smith, error, supra, on the basis of prison psychologist from her commu- where the accused’s trial occurs after Appellant nications with during Smith, supra, rendered, his com- had been waived pelled period Smith, error, incarceration Virgi- any while in a which we find

215 (1) to Furthermore, was not shown given the sons: Matthews occurred here. either in practice to medicine appellant appeal authorized upon relies on facts which Texas, State of Virginia any or or other Smith, error, supra, and the facts to raise matter, (2) for there is Smith, the Union that appel supra, that are in we find licensed or that Matthews was no evidence Smith, supra, sorely mis lant’s reliance diag- in the by of Texas certified the State clearly placed. record reflects that The evaluation, any nosis, of men- or treatment appellant were interviews with Matthews’ or disorder. We or emotional condition tal insistence, not only appellant’s done at testify or find did not also that any or other Matthews command any testimony or that when offer “compel did not state Matthews’ official. reasonably him he Matthews interviewed speak he [appellant] to where [with her] prac- to that she was authorized believed freely.” otherwise so would not done] [have Virginia reasonably or be- tice medicine Granviel, supra. Lastly, Matthews when by she was licensed certified lieved appellant, spoke with she was not ordered diagnosis, evaluation, in the of Texas State any speak him. by court to with any mental or emotional or treatment of Appellant’s complaint, it to relates Therefore, we find or disorder. condition error, Smith, supra, is overruled. satisfy that and hold has failed appel- We will next determine whether important precedent in very one condition applied lant was entitled to invoke have prohibited Matthews his claim that 5561h, provisions to this cause the of Art. testifying above stat- from because V.A.C.S., as that worded when statute wаs ute, namely, Matthews was shown come appellant’s trial occurred. This be- statute provisions of the statute. within 29, 1979; August came effective disposition appellant’s contention Our 1, 1983, September amended effective but because, however, given stop does not here 1, 1983, repealed September by effective situs of the interviews the fact Texas, Supreme “in- order of the Court appellant and occurred Matthews between Appel- sofar as relates to actions.” it civil whether, Virginia, must we determine lant’s trial occurred in 1981. Insofar as law, would under conflicts of Matthews might prosecutions, relate criminal prohibited testifying in have been 509, by replaced statute has been Rule prosecution about her Virginia criminal Crim.Evid., Septem- effective Tex.RuIes appellant, con- conversations with prior For of Art. ber discussion Although therefrom. clusions she drew 5561h, supra, Ginsberg see v. Court Fifth that Mat- the evidence did establish (Tex.1985); Appeals, Ex certified was either a licensed or thews (Tex.1981); Abell, parte 613 255 S.W.2d psychologist Virgi- “clinical-correctional” Property, Inc. Wimberly Resorts v. Pfeuf- her as nia, parties treated hav- because the (TexApp. fer, 691 27 S.W.2d —Austin the State ing been licensed or certified 1985); (Tex. State, 58 v. 640 S.W.2d argument Virginia, assume for we will Heflin 1982), App. refused; Gay- P.D.R. purposes that was licensed or certified —Austin she Johnson, (Tex.App nier v. 899 673 S.W.2d Mason, parte Ex 656 that State. Under 1984); Abdnor, 635 —Dallas Wade (Tex.Cr.App.1983), proper it is 470 S.W.2d (TexApp. 1982); S.W.2d Tum- 937 own seek out that for this Court on its —Dallas (TexApp. 663 linson v. Legis- S.W.2d have led us to the law. Our travels 1983), see P.D.R. refused. Also Library —Dallas of this State lative Reference V.A.C.S., per- Art. Virginia. and the discussion The Code of we found where taining thereto is found this Court’s Code, 8.01-400.2, Civil Reme- see § decision of Blunt Procedure, governs commu- dies and counselors, social work- nications between patients, in its response ers,

We find that worded psychologists 5561h, contention, except correctly argues similarly Art. Virgi- rely upon provi- to civil actions. cannot it is restricted 5561h, supra, Supreme held in v. Com- sions of Art. several rea- nia Gibson monwealth, Va. spoken 219 S.E.2d appellant’s neighbоrs, (1975), Virginia friends, that in phy- family there exists no he, and members of his sician-patient privilege in prose- appellant, a criminal Virginia. when lived in Virginia provision cution. See Code Murphy Virginia testified that he was a 8.01-399, supra, governs physi- which the § Trooper opinion in his appellant’s repu- and cian-patient privilege in that state. We being peaceful tation “for a and law-abid- holding govern find that such would also ing was Murphy citizen” bad. formed his psychologist-patient the relationship. opinion after he had conversations with Thus, under the doctrine of conflicts of Queen in King “The sheriff down and law, Virginia is of law no assistance to County, Virginia troopers and several other in appellant his claim that the trial court ..., talking King with in citizens erred in permitting testify to at Matthews Queen County the in Cothorville area stage punishment the of his Also trial. see Tompkins where Mr. resided he when was Edition, 12 Tex.Jur.3rd “Conflict of Virginia.” in Laws”; Leflar, American Conflicts of Appellant upon Wright relies (1968 edition), 123; Law Section 56 Colum- (Tex.Cr.App.1980), S.W.2d as au- (1956); Weinstein, bia Review “Recog- Law thority for his contention that neither in Privileges nition the United States of the nor Murphy qualified Drummond were to Jurisdiction,” of Another at 543. testify reputation being peace- to his for a Appellant’s contention the that trial law-abiding ful and he lived in citizen when permitting court in erred Matthews to testi- Virginia. disagree appel- We strongly with fy punishment stage at the of his trial is lant. overruled. appellant’s find We first that reliance Appellant next claims that he is upon Wright, supra, misplaced. is sorely entitled a new because the trial supra, in Wright, facts that the show objection permitting court over erred in the grew in inup defendant that cause Dallas George State’s witnesses Drummond and reputation and the who “bad” witness testi- Murphy testify against Charles William against him a highway patrolman fied was reputation him punish as the witnesses at in who lived San exclu- Antonio worked stage disagree. ment trial. the We sively County. in appears Bexar It that 37.071, first that We observe Art. V.A.C. patrolman the came into contact with the C.P., alia, provides, in capital inter that a stopped appellant defendant when he for sentencing proceeding murder “evidence violating in some traffic law while Bexar presented may any as matter that the opinion County. appears It also from the court deems relevant to sentence.” [trial] reputation that the sole basis for the wit- rep- This Court has that a held defendant’s testimony, repu- ness’s the that defendant’s having particular utation for a character bad, tation was was a conversation that he may trait be admissible prosecuting attorneys had had in sentencing stage capital a murder case. prior cause to the trial of case. See, example, for Nethery v. 692 The defendant was in County. tried Dallas highway patrol- This held qualified man a testify repu- was The record reflects that the called State against tation witness defendant. testify punishment Drummond to at the concurring opinion Judge Roberts stage trial and he testified that he cause, emphasized in correctly filed he formerly appellant’s parole had been offi- knowledge reputation that a Virginia witness’s cer after released was Virginia person’s reputation having another for penitentiary from the in 1980. See particular gained character ante. Drummond also testified that in trait traits opinion appellant’s “in reputation community the members of the which com- being munity peace- person lives for lives or “This he lived: Dallas; law-abiding ful was community citizen” bad. was in he there lived opinion having prose- Drummond formed his after had been reared there. Yet the impression attorneys reputation impossibility withdrawing cuting called a wit- produced jurors’ had worked Dallas and minds.” ness who never never talked about who complains Appellant of another also anyone other than themselves.” error, argument point of in the same supra, at Wright, attorney made at the prosecuting the same however, Here, both Drummond stage she punishment trial when knowledge having Murphy’s for psychologist referred testified to a who reputation being peaceful bad having “prostituted” himself appellant as law-abiding citizen not limited аs it appellant. on behalf of when testified Wright, instead rested on but Appellant’s objection argument knowledge that they obtained other judge. overruled Virginia in persons communities in where agree appellant neither ar- that We with previously had resided. Also see record, gument for called under this (Tex.Cr. State, 303 Wagner v. 687 S.W.2d clearly improper. and both were (On App.1984) appellant’s motion for re- appellant’s complaint We find that first State, hearing); and 628 Jackson S.W.2d prosecuting attor- goes to the fact that 446, 450, (Tex.Cr.App.1982). fn. 2 argument ney jury to him in her referred point out that did not com- We animal”, “as an to which comment court, plain in the trial nor does he com- objected, judge counsel sustained appeal, plain on that Drummond and Mur- objection, instructed to dis- qualified persons phy not were because regard, for mis- but overruled motion they had had that conversations with never trial. specifically appellant’s gen- told them reputation being peaceable eral for a Although appear to there be decisions Jackson, law-abiding person See was bad. referring to the de- approving this Court supra. Notwithstanding specific omis- animal”, find that fendant as “an we also record, in sion the we nevertheless find and decisions this Court many there are of given import hold that the fair of the wit- convictions which have reversed because testimony, nesses’ such indicates that the See the such as were made here. remarks persons they ap- whom with discussed in Erisman’s Re- cases collated Manual of pellant’s reputation being peacea- a for not versible in Texas Cases Errors Criminal law-abiding person told them ble and (1956 edition), ar- 529. Whether such an § appellant’s reputation for those traits was error, gument constitute reversible will Therefore, we hold that both Drum- bad. however, decided on an ad hoc must be Murphy qualified express to mon were basis. reputation to opinion an as for State, 114 Many ago, in years Smiley v. law-abiding being peaceable per- a not (On (1929) 228, 25 S.W.2d 1098 Tex.Cr.R. they in where knew son the communities submission), Judge original Lattimore he once resided. Cf. Aro- him and where “there pointedly remarked that this Court State, (Tex.Cr.App. 495 957 S.W.2d cha v. legitimate discussion abundant room is State, 924, 1973); 522 Stephens v. S.W.2d applicable, testimony and the law of the (Tex.Cr.App.1975); Abies v. 519 927 indulging personal without abuse (Tex.Cr.App.1975). 466 S.W.2d (1099). justice.” man is at the bar who that Drummond Appellant’s contention here argument as made Such an repu- qualified “bad” Murphy were not to purpose except legitimate served no tation witnesses is overruled. appeal. jeopardize case on the State’s (Tex. State, 472 534 S.W.2d Grant v. that he Appellant next contends Presiding Judge Onion Cr.Cr.App.1971), “fi granted trial because should be a new quick out for point the Court during arguments of the sen nal the State often for members of this Court clearly difficult tencing phase of so calcu trial was attorney why prosecuting jurors minds of the to understand lated as to inflame the similar, argument suggest engage in that is the would being of such character as aggravated, supported by not as occurred in this such is not but when evi- dence, Judge correctly might many jurors the term pointed cause. Onion out mean Judge argument, vitupera- what Henderson of this Court ex- that “Abuse is not pressed years ago McCray logic less talent almost tion is not ... It takes far (1898): making Tex.Cr.R. S.W. 170 indulge than an abuse experience, “In common it is known that intelligent assessment of the facts and the persons morally degraded who are so as to jurors in their task.” law to aid prostitutes ply their vocation as common point This Court should have plane people not on are mass attorneys out that comments should legitimate who follow and honorable voca- to the record and always be confined tions, integrity. As the matter of testimony from the legitimate deductions rule, general capable more they are no Notwithstanding that we witnesses. telling the truth than one who has been approve argument the above do not felony, of a or of some misde- convicted animal”, as “an referred to it is involving turpitude, they meanor moral every improper is not axiomatic that it ar worthy are not more than such a belief by prosecuting attorney gument made one.” Also see Cravens v. requires reversal. Before The trial occur, may improper because of reversal judge clearly sustaining appel- in not erred argument, argument prosecutorial jury the general objection, it was a one. lant’s albeit light in entire must be examined the compare Also see and Gomez v. manifestly record and must be extreme or (Tex.Cr.App.1985). S.W.2d 770 statute, mandatory improper, violative of a Notwithstanding strong disap our that are inject new facts into the case argu proval prosecuting attorney’s of the Generally, the an harmful to defendant. ment, referring to the defense as witness by judge jury instruction to the appellant did prostitute”, “a find that we disregard argument the sufficient will be timely perfect the error. properly not instance, any error. In this the to cure First, he has not set forth his contentions disregard judge jury instructed See, separate points of error. for exam in argument. the facts of the case Given ple, Kendrick v. judge’s prompt instruction to and the trial Second, general (Tex.Cr.App.1972). ob say jury disregard, are unable to we objec to no jection, “objection”, amounts prosecuting argument by the at that such Thus, his com appellant has waived tion. might any effect at all on torney have had State, 557 S.W.2d plaint. Cf. Zillender v. spe jury’s to answer the two decision Notwithstanding “This cial issues the affirmative. argument, holding, we trust that such our [by prosecuting language has held that absolutely clear the record makes it unless may may objectionable, attorney], which for, again in a court that it is called will extravagant illogical, fanciful or also be so by uttered either an of this State be law it could conclusion that require as to attorney or an for a attorney for the State jury arriving not have influenced defendant. State, 171 Tex. Brown v. their verdict.” (1962). Appellant’s contentions are overruled. We Cr.R. 353 S.W.2d applicable here. find such statement complains his last Appellant Court, by this “The complaint gives point of error of action Appellant’s second Appeals erred in overrul of Criminal аbsolutely noth Court more concern. There us the statu ing Appellant’s motion to exceed might justified ing in this that have record the Rules of tory limits of Rule 202 of attorney stating that the prosecuting the denial of Appellate Procedure “prostituted him appellant’s psychologist Appellant’s rejection find that same and stand.” We self on the witness deprives Appel original appeal on attorney brief prosecutor or a defense when a appeal right effective of his to an “prostitute” lant opprobrious term uses the of conviction judgment argument, process from in his against a witness during jury selec- by of “BATSON imposed is death violation the sentence where capital trial for in the Defendant’s tion injection.” lethal following findings fact The murder. Rules, Appellate 202 of the Under Rule pursuant are made conclusions law attempted to as it existed when thereto: brief, pages file his first which was is an identifiable minor- 1. The defendant length, clearly exceeded the then this brief ity, i.e. black. limitation, page and this Court rule There no blacks on 2. were permission him to file that properly denied the defendant and assessed tried Thereafter, timely filed a brief. penalty. death only 47 that numbered well written brief carefully compared pages. We have peremptory complained The State’s 3. that, find other than two briefs and against challenges exercised were detailed, being original more substan- brief venirepersons. black tively they are the same. prima foregoing facts constitute a The points of considering all of case under BATSON. facie con- error, carefully considered his we have was ex- venireperson David Miller 4. original as set out in his brief tentions of a by the State the use cused timely prop- as the brief well challenge. peremptory appel- filed, find erly which we is all originally, question- Mr. Miller had 5. point of asking us to do in his last lant is Court, ing by disqualified under error. Witherspoon, subsequently Therefore, appellant’s last contention is upon questioning “rehabilitated” overruled. the defense. Mr. Miller was carefully appel- excusal of

Hаving reviewed all of State’s relative, neutral, legitimate contentions, finding none clear lant’s not required by BATSON and was reversing appellant’s con- as merit this Court racially death, motivated. viction or sentence judgment of and sen- court’s conviction Sutphen venireperson Belinda 7. The death are affirmed. tence of by the use by the State excused was challenge. peremptory of a P.J., ONION, and McCORMICK and ques- Sutphen originally, had on Ms. 8. DUNCAN, JJ., concur in the result. Court, disqualified un- by tioning Witherspoon, and subse- was der “A” APPENDIX upon question- quently “rehabilitated” ing by the defense. # C.C.A. 68870 Sutphen of Ms. The excusal 9. State’s 329,004 # TRIAL COURT relative, legit- neutral, and clear was by and required BATSON imate as The of Texas State racially Ms. Sut- not motivated. was her answers phen also vascilated admonished that she was the extent Phillip Tompkins Daniel during dire. by voir the Court 230th Judicial District Court The ex- Thomas was Venireperson Isabella County, Texas Harris of a by the use by cused the State AND OF FACT FINDINGS challenge. peremptory OF LAW CONCLUSIONS could not at first said she 11. Ms. Thomas evi- on circumstantial Court of Criminal follow the law to Order of the Pursuant time of 1987, hearing in effect at the that was April entered dence Appeals the State upon and the voir dire 230th District Court held was conviction, though she 4th, and Texas, relied for a 3rd and County, on June Harris could follow indicated she later possible exclusions made regarding 15. The State’s excusal of Mr. Samuel neutral, relative, legit- was clear and Court, by law if so instructed required by imate as BATSON and prosecutor skeptical was her about not racially motivated. ability to do so. venireperson 16. The Leroy Green ex- 12. The State’s excusal of Ms. Thomas by by cused the State the use of a neutral, relative, legit- clear peremptory challenge. required by imate as BATSON and 17. Mr. Green testified that over the racially was not motivated. years changed frequently he had his 13. The venireman Frank E. Samuel was opinion on propriety of the death by excused the State the use of a penalty opposed his wife was peremptory challenge. penalty; frequently to the death “yeahs”; made non verbal answers or Samuel, illiterate, though 14. Mr. not there nowas valid communication be- satisfactorily juror could not fill out prosecutor juror. tween the and the information question- sheets juror problems with vas- naires, obviously had extreme dif- regarding ability cillated to follow ficulty legal concepts. pros- the law of causation and indicated great ecutor felt that he would have might require pre- that he difficulty in understanding the com- meditation. plexities capital Although of a case. 18. The State’s excusal of Mr. Green was spent questioning less time was Mr. neutral, relative, legitimate clear and jurors, Samuel than on some other required by as was not BATSON and that that was obvious was motivated racially motivated. perceived Mr. what was Sam- Kegans /s/ Joe inability uel’s to understand and com- KEGANS, Judge JOE issues, prehend the 230th District Court County, fact Texas that he was black. Harris

225 impact CLINTON, Judge, dissenting. case also an on the State will have proof its in satisfying in another. burden presents again once the co- This cause 7, post. See note “culpable two mental nundrum of lesser (d), 6.03(c) and “risk” is an es- Under § negli- criminal states:” recklessness and condition; by it is acts of sential created majority The gence. Opinion, at 210-213. accused, respect of his here to result with raising ultimately finds no either. It must be both “substantial” conduct. However, in problems there are its determi- Once he has created “unjustifiable.” and germane making to those nations of law risk actor is either aware of that kind of an findings.1 ought The it or to be aware of it. provides an opportunity This cause to has the former as “conscious characterized creation,” risk latter as “inattentive interpretations applica- the consider and State, v. creation.” Lewis risk 529 S.W.2d 6.03(c) (d), pri- in opinions tions of and § 550, (Tex.Cr.App.1975). Practice Com- 553 Odom, marily Judge accepted by by were mentary to 6.03.3 § years, only the Court several be rejected opinion in recent suddenly a craft- may An awareness be inferred the Davis, ought by Judge ed W.C. and to determine facts, aware is a but one to be Remember, others, factor, along is correct.2 stric- judgmental which view at cоmprehend A placed rights an in work here.4 failure tures on accused one outset, discussing causing recklessly the of his in en- in death victim 1.At the the course of [involuntary manslaughter charge not raised].” a on a included of- titlement to lesser fense, Id., just majority page opinion 212. found one the iterates usual at But the considering of the “all was aware risk. rules about the evidence presented,” any if source and evidence "from analytical approach an 2. Odom takes view charge appropriate raises issue” an must be the weighing matter and a the facts given, citing propo- correct authorities for those factfinder, by judgmental a rather than factors Id., (All emphasis at is sitions. mine directly nicely looking fits for evidence that noted.) throughout unless On the otherwise socalled "mental state.” In these two either however, page, opinion says the next fact others, many more than several instances proof greater that the State’s offense "also judgment left See calls must be to factfinders. not, proved standing lesser offense ... does State, 690, (Tex.Cr.App. v. 617 S.W.2d 691 Giles alone, charge entitle to a of the lesser 92, State, (Tex. 1981); Dillon v. 574 S.W.2d 94 offense,” State, citing included Cordova v. 698 Judge by Cr.App.1978) written Odom. —both (Tex.Cr.App.1985) was earli- S.W.2d 107 —which State, (Tex.Cr. Lopez 630 936 See also v. S.W.2d support er the first rule! Both cannot cited McCormick, by following App.1982), Judge Giles right, and from our cases the second is evidentiary post Compare the Davis and Dillon. wrong. in, State, e.g., Simpkins v. S.W.2d 590 view only authority is for the second “See State, (Tex.Cr.App.1979), 699 and Thomas v. State, Aguilar (Tex.Cr.App. [v. my (Tex.Cr.App.1985); see dissent- S.W.2d 845 1985)], abundantly seeing it makes clear ing opinion in the latter. thing. Compare Augilar such that Aguilar, holds no “Merely require negligence con- at 558: because a lesser offense ... does not 3. “Criminal offense, greater proof of definition of is included within the however, of risk. Rather the sciousness (d) jury charge negligence inquires always not does warrant in Subsection criminal ought so included actor on the lesser offense.” But may it is factfinder whether the recklessness, charge. Bell v. of the risk. As in warrant have been aware (Tex.Cr.App.1985). at 442 Thus we substantial and the failure S.W.2d the risk must be perceive State, just may proof by unjustifiable gross to the adduced an deviation look it however, care; Campbell majority ordinary does here. standard of See from the weighed objec- against an the actor’s conduct standard, ordinary prudent says appellant’s majority conduct that of First tive original). precludes (emphasis an inference "that he was then un- in man." created,” his conduct aware of risk ‘substantial,’ ‘unjustifiable,’ adjectives 4. "The speculation that he did not intend result admittedly ‘gross’ in are the definitions ... change perception his awareness or "does not judg- only vague to focus on the and intended created,” speculation the risk his conduct weigh.... must factors the fact finder mental "does not did intend result forthrightly Penal Code As stated the Model change perception of the risk his awareness or reporter: Opinion, 212. So his conduct created.” articulated, principle how- negligent must be criminally ‘Some homicide. Next much for ever, judgment is de- what final says, to indicate acted “Without evidence that is, concept view, my person revealed two That “ought to be aware” is not fact, readily matter Judge susceptible sentences written to di- Davis proof.6 rect testimonial Whether under Simpkins panel opinion given facts and “ought circumstances one 1979), (Tex.Cr.App. S.W.2d 129 viz: to be aware” of judgment risk is a value —a “However, the evidence this case did care, ordinary matter of pru- caution and [negligent not raise the issue of homi- Dockery State, v. dence. Illustrative is 542 No evidence indicates that the cide]. 1976) (Tex.Cr.App. (Opinion 5.W.2d 644 on appellant possessed requisite culpa- Rehearing), viz: negligent homicide, ble mental state for ap- “We conclude the actions of ought i.e., that he to have been aware of pellant were to indicate that sufficient unjustifiable a substantial risk.” ought he to have been aware unjustifiable substantial and risk Id., (Second emphasis at 134. by is might injure his conduct kill the de- Court.) lay That notion dormant for a ceased, pistol quite at whom the was while, only by Judge to be revitalized Davis obviously pointed at the time it was State, Thomas v. (Tex. 699 S.W.2d 845 Clearly, fired. the risk was of such a 1985). Cr.App. degree nature and it constituted a Thomas, Mendieta v. Following behind gross deviation from the standard State, 651, 706 (Tex.Cr.App. S.W.2d 653 6.03(d).” prescribed by care Sec. 1986), changed the formulation somewhat: Id., at 648.7 “It is encumbent the record con- [sic] State, In Hunter v. (Tex. 647 S.W.2d 657 an unawareness showing tain evidence 1983), Cr.App. implicitly the Court went charge negli- the risk before a on criminal through reciting a similar exercise. After Thomas v. gent required. homicide is stating general propositions the facts and State, supra.”5 regarding charging of law of lesser of- everything weighed. charge manslaughter, involuntary manded after is There is on "reckless” homicide; way value-judgment criminally negligent no to state this does not full facts of beg question analysis; excerpted are not incident as claimed accused in the last reproduced opin- from his confession and in the point jury is that the must evaluate the con- is, Giles, ion. See at 691. In context the issue duct and determine whether it should be con- * * * * all, question after is defensive nature and jury demned. must find fault it, general whether some evidence raised and find it was substantial ...”’ State, evidentiary sufficiency. Moore v. Commentary following Practice 6.03. § 122, 1978). (Tex.Cr.App. S.W.2d Thomas, decisis, disdaining majority 5.In stare a permitted say 6. Are that ac- witnesses to be prior opinions did indeed criticize several of the obliged of a cused was or was not to be aware Court, viz: unjustifiable substantial and risk? Neither is a "The attendant circumstances from which the fact; nothing expres- statement of each is but an defendant’s mental state can be inferred must pure opinion. evidence be- sion of The factual collectively light examined in of the defini- same, fore the factfinder remains the criminally negligent tion of V.T. conduct. See “ought" requirement is for the factfinder to im- Code, 6.03(d). respect C.A. Penal Sec. In this ante, pose. See n. 3. prior opinions] because are overbroad [two they rely only pointing on the of a loaded Dockery speciously says, "The value оf 7. Thomas ’ weapon being criminally as to raise sufficient entirely is limited because the rationale is not negligent raising homicide. Other clear as it focused on the distinction between issue of a defendant whether or not voluntary and uninten- action and intentional presented aware of the risk must be before Id., Beauty, Clarity, tional acts." at like is 850. charge required." such is eye Accused was con- in the of the beholder. Thomas, 850; supra, note one of the at negligent degree in the first victed of homicide two, (Tex.Cr.App. code; Giles setting penal under our after out former 1981), "enough providing stated, is faulted for not in- allegations proof, the Court and essential formation from which to determine whether the alleged the conduct “The issue then is whether ought perceive defendant did not a have but proved is an offense under the new Code.” unjustifiable pointing Dockery, substantial and risk in it at 647-648. The Court concluded was, gun negligent namely, criminally de- he knew was loaded at another.” That homicide Code, 19.07(a). Penal § criticism demonstrates the author of Thomas nounced V.T.C.A. Id, did not understand the issue in Giles refusal to at 650. ‘ought fenses, one to be sets conclusion. “Whether the Court out verbatim “ought 6.03(d), underscoring to be risk is a matter the charac aware’ § Reprising the circum aware” et cetera clause. salient risk Under ter of involved.” testimony appellant, regarded risk Court conclud- have jury could stances ed, testimony surely raised an issue as to “This of death to be “substantial” negligent involuntary whether in not “unjustifiable.” “The issue [in cre- perceiving which his conduct the risk whether, given manslaughter] all the is ... Hunter, Obviously, ated.” circumstances, to infer that reasonable of the issue the Court from its treatment fact particular individual reasonably had first concluded could just risk.” The could aware of the ought been hold that accused have inference. Nash v. made that well have perceive risk failed aware (Tex.Cr.App. 664 S.W.2d it.8 1984); Lopez 941- 1982), quoting approving (Tex.Cr.App. ante, all cases Unlike homicide discussed State, at ly v. 574 S.W.2d from Dillon deadly from of death resulted use a where “seeing also” (Tex.Cr.App.1978), оf is ‍‌‌‌​​‌‌‌‌‌‌‌‌​​​​​​​​‌‌‌‌​‌​‌​​​‌‌​‌​​‌‌​‌​​‌‌​‌‍weapon, here cause death suffoca- (Tex.Cr.App.1 State, v. Giles in by gag inside and the back tion caused 981).9 Appellant of deceased. did not of mouth his confes-

testify, and content of written (Tex.App. v. 651 S.W.2d Nash he jury; did not sion was not before 1983), an col- —Dallas involved automobile on his affirmatively present witnesses be- convictedof lision and accused was involun- basically appellant the facts are half. So tary manslaughter; support in of his claim deceased, gagged up and tied her abducted criminally negligent raised that evidence and to a tree. erred therefore the trial court homicide and view, Following plurality Davis requested overruling in his instruction appellant would have the Court find was thereon, medi- appellant pointed to certain criminally not to on entitled instructions testimony support insanity in of his cal negligent involun- homicide and “reckless” defense, effect he had been to the tary manslaughter. of the Odom What dangers that “unaware of the rendered view? of The Dallas Court confronted [him.]” “the medical testi- Appeals accepted that That a risk was thus created cannot be evidence that was not mony is disputed. is “If it not risk of one of mental dis- risk because aware ought aware, criminally to then neither be of however, ease;” it found that the standard negligent involuntary nor man- homicide “ought to accused be aware” is whether an slaughter The risk would shown.” [be] he in fact to be “whether was unable —not appellant was death of vic- created Court concluded that aware.” The Dallas “Upon consideration of recklessness tim. does by appellant relied “the evidence negligence, criminal whether one is versus question of whether not reach the requisite simply of a risk should aware risk,” and ac- aware’ of the it, ‘ought be is drawn a conclusion be aware requisite cordingly held that “the evidence through from all the circum- inferences criminally raise the issue sufficient to jury fact.” The was stances a trier of shown,” no not thus negligent homicide is opportunity any to make such given an (Tex.Cr. deadly weapon. The Only involves 9. Giles 8. In Mendieta S.W.2d 651 1986), by Judge charge Teag- App. quoted is and followed entitlement issue Nash Hunter, ue, saying distinguished cer the Court criminally negligent in a automobile homicide testimony was situation; "showed that Harris [sic] tain Lopez sufficiency of evi- collision creating." risk his conduct unaware of the negli- criminally support a verdict for dence analysis 653. That of Hunter is 706 S.W.2d at situation; in Dillon gent in a homicide similar simplistic, point is that the however. The too involuntary manslaughter sufficiency for judgment for Court determined it starving Judge all Odom wrote a child death. ought jury to have been aware whether he Lopez, except relies on Dillon. but it and, so, per negligent failing to risk if ceive it. refusing Id., error in 1974,” (1974), instruction. at 28 S.L.J. 293 at extracted, alia, inter “The trier of fact must make an judgment evaluative wheth- years Such is the Davis view. Just three er the actor’s of perception failure consti- ago eight rejected members of this Court gross tuted a acceptable deviation from it. panel, standards of conduct.” For the review, petition discretionary On Judge McCormick concluded: writing Judge only for the Mil- supports find evidence “[W]e dissenting, expressed Judge ler Odom finding ordinary that an or reason- agreement with the ultimate conclusion of ably prudent person, posi- Court, reasoning the Dallas found “its but tion, TO OUGHT HAVE BEEN AWARE incorrect.” Nash that a unjustifiable substantial (Tex.Cr.App.1984), viz: risk was created when he exceeded the opinion focus in “The that court’s on the speed light limit and ran a red on a appellant ‘ought absence city thoroughfare [quoting at p.m. 11:30 Dillon, risk extensively to be aware’ of the not correct. at 94].” ‘ought to Whether one be aware’ of the Id., ipsa Res loquitur, 941-942. that is. a matter risk is of the character risk Exercising judgment, its collective a ra- This conclusion is obvious involved. have tional could found statutory from the definition of criminal equally ought have been aware that his 6.3(d) negligence in Sec. ... which con- unjustifiable acts created a substantial and cludes statement about the char- [a] death, per- risk of and that his failure to [quotation acter of risk omitted]. gross that risk deviation from ceive Apрeals erroneously Court relied proper standard care. finding on a that the evidence did ought appears an When it accused be appellant ought show been have risk, requisite of a then also raised is aware If it is not risk of aware risk. the issue of whether he was in fact aware aware, ought which one then nei- disregarded consciously it. of the risk and criminally negligence ther nor homicide regarding inferences “Which the two involuntary manslaughter have would is of the risk correct accused’s awareness been shown.” matter drawn the circum- is a to be Id., at 344. jury. Dillon stances [su- Giles, supra, pra].” at 691.10 colli- Lopez, another automobile resulting death, sion rather facts simple In the Odom it was therefore error view appellant, of the matter are that “while charge jury to refuse to on lesser driving thorough- speeding city car on a involuntary man- included offenses p.m., light, fare 11:30 a red at ran slaughter negligent homicide so that [another], collided with the car driven to infer whether reck- could decide Id., causing passenger].” negligence the death of or intent to kill. or lessness [a Instead, only any permitted at 941. If there direct even were acquit. See bearing capital circumstantial on “aware- murder or to convict ness,” Giles, Judge the Davis was not McCormickdoes not allude to at 691. In view Bubany, Code it. From “The Texas Penal error. unjustified (Tex.Cr.App. that her con-

10. Moore v. risk substantial but 1978), of deceased demonstrates the duct would result the death converse. Accused murder, involuntary [i.e., jury, involuntary manslaughter]. indicted for convicted of if evidence, manslaughter appeal and on asserted error could have found it believed this charge criminally been, failing negligent homi- ought that not, to have but was cide. her conduct create a aware that would resulting unjustifiable Referring testimony, Dally risk Judge to certain substantial and [i.e., criminally neg- deceased panel: the death of the wrote for Court ligent homicide].” evidence is sufficient to issue "This raise an Id., Ormsby v. whether the 124. Accord: of reasonable doubt consciously disregarded a was aware of but opinion internal- plurality Because the co- contradictory not solve

ly and will created, respectfully I

nundrum we have

dissent. McGEE, Jr., Appellant,

Jewel Richard Texas, Appellee.

The STATE 69324.

No. Texas, Appeals of of Criminal Banc.

En

Feb. 1989.

Rehearing May 24, Denied

Case Details

Case Name: Tompkins v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 7, 1987

Citation: 774 S.W.2d 195

Docket Number: 68870

Court Abbreviation: Tex. Crim. App.