Wallace v. State

proving argument to evidence that Sorum During closing testimonial the State’s hospitalized gastro-intestinal with prosecutor stated: had been jury, the the hemmorrhage. arguing you to “... defense is [T]he was killed. go nobody soft because to 36.02, V.A.C.C.P., provides: Article if he no out there but There was blood to be testimony “The court shall allow be here somebody, killed I would had argu- any introduced at time charging him with murder. concluded, appears is if ment of a cause Objection, highly “MR. AHRENS: administra- necessary that it is to a due charge and prejudicial. It is not in the justice.” tion of it is outside the law. court, inabili realizing the The trial Objection overruled.” “THE COURT: instantaneously produce to ty of the State excerpts quoted From the above disability, simply pro Sorum’s record, appel apparent trial it is testimony and allowed the ceeded with trial sought lant to insinuate that if a Moreover, appellant fails time. at a later during aggravated rob had occurred by harm the any prejudicial to demonstrate bery, range punishment would be the grant mistrial refusing to trial court Although range same. the trial court continuance. We hold that aggravated have robbery for the pro proceed, properly allowed the trial same, appellant been the failed to disclose given to be at viding testimony for the result; that a more severe could necessary to action was later date. Such Thus, wit, capital punishment. ap justice.” No the “due administration jury argu pears alleged improper that the error is shown. reply appel ment was invited and was judgment is affirmed. lant’s counsel. Smith (Tex.Cr.App.1974); Vigneault trial court

Finally, contends the allowing erred in to continue de- trial spite juror the absence of one without a

showing juror either dead or 36.29,

physically disabled. Article V.A.C. juror, Lyle The record C.P.1 reveals that a WALLACE, Appellant, David Leon evening previous ill Sorum become following day the second of trial. The Texas, Appellee. The STATE of court, morning, prosecutor, prosecutor defendant were notified. The No. 65325. attempted perfect proof then Sorum Texas, Appeals Court of Criminal require hospitaliza- had become so ill as to En Banc. 36.29, tion, thereby supra. satisfying technically The evidence was excluded July objection, trial hearsay grounds. Over However, proceeded court with the trial. prosecutor time allowed the prove gather sufficient evidence to So- disability. After the defense rested

rum’s case, brought its forth sufficient State any felony juror supra, provides: one die or trial of 1. Article any sitting time before the disabled from charge jurors can render and “Not less than twelve jury, is read to the of the court felony return a verdict in a case. It must be power shall have the remainder of the juror signed concurred each verdict; ...” render the however, foreman; provided, pending when Paso, appellant. Gibson, for El Michael R. R. Simmons, Atty. & Dist. W. Steve Paso, El Stiles, Atty., Asst. Dist. Bradford Austin, for Huttash, Atty., Robert State’s the State.

OPINION

ODOM, Judge. a conviction appeal is an from This jury answered The capital murder. Art. 37.- under stage questions punish- 071, V.A.C.C.P., affirmatively, was assessed at death. appellant grounds of error In one of his sufficiency of the evidence challenges he would probability is a prove that there would of violence that criminal acts commit society. continuing threat constitute 37.071(b)(2), V.A.C.C.P. Art. was conflict- guilt stage of the trial

at the appellant undisputed that ing, but it was Chagra, kill Lee did not himself killing by proved the victim. State course of during the companion appellant’s Chagra was Appellant testified robbery. argument during an killed in self-defense drug in a transaction. that arose admitted cross-examination On robberies possible that he had discussed in- him person who hired with the committed denied he stant but he had admitted any. His confession facts participated attempt From the of the in a thwarted to com- facts case. above, it is clear that mit a a few weeks before the in- case stated robbery primary as a guilty only party, as a stant murder. The other evidence of application of the law Were there no actor. by appellant an admission misconduct was case, appel parties facts during punishment stage that he had a objection be sound and the lant’s military being absent violation for from the State, Apodaca v. Tex.Cr. error reversible. place of duty. charge, how App., 589 696. The S.W.2d There was no other evidence ever, of the law application does include presented could be considered relevant that V.T.C.A., Penal Code Sec. parties of under to the Spe issue of future violent conduct. Appellant 7.02(b) the case. to the facts of cifically, prior there was no evidence of ap court refused to complains because the convictions, violence, prior no acts of no 7.02(a)(2) parties the law under Sec. ply of evidence, psychiatric character no evidence. State, v. facts. on Pitts to the He relies Although the circumstances of the murder 898, in which the Tex.Cr.App., 569 S.W.2d may be support penal sufficient to a death parties of applied the law also State, ty, Duffy Tex.Cr.App., v. 567 S.W.2d facts, but 7.02(b) neglect to the under Sec. 197, this is not such a case. We of the are 7.02(a)(2) to apply ed to the law under Sec. opinion the evidence is insufficient to however, In there was the facts. support “yes” finding on the issue of objection. court wrote: no The future conduct. Consequently violent appellant complains “The that the also death be penalty must set aside. See Sanne applied parties law of was not to the State, 762; v. Tex.Cr.App., 609 S.W.2d is facts of case. this not a Since State, Brasfield Tex.Cr.App., v. 600 S.W.2d there and since was no fundamental error 288; Missouri, - U.S. -, Buffington v. objection charge nothing is to the court’s 1852, (1981). 68 L.Ed.2d 270 101 State, presented v. 568 for review. Romo , Because the evidence is to insufficient (Tex.Cr.App.1978); S.W.2d Mott v. 298 support “yes” finding under Art. 37.- State, 543 623 S.W.2d 071(b)(2), supra, judgment punish- Moreover, on supports and the the evidence ment only punish- be to the charge must reformed to find authorizes law, officer; imprison- ment available under the life appellant himself shot Y.T.C.A., 12.31(a); theory of rely ment. there is no on the Penal Code Sec. need States, 1, the conviction. Dur- parties support Burks v. 437 U.S. 98 S.Ct. United 395, 2141, ham v. 112 Tex.Cr.R. 16 (1978); 1 Greene Mas- L.Ed.2d v. (1929); v. McCuin sey, L.Ed.2d 15 (Tex.Cr.App.1974).” (1978); Missouri, supra. Buffington v. The ground punish- other of based on error holding, argues, means there appellant This n now moot. error, Sanne implying no there was fundamental supra. objection. would be been an error had there language We read to mean what this grounds There four of error ad- remain for says: nothing presented review. guilt stage dressed to the must objection, proper Appellant having made considered since if meritorious reversal of review, for presented the issue is now follow. conviction would on we hold there is no the facts of this case grounds error first and fourth error. We the alternative lan- paraphrase complain charge on the law of above: the evi- guage quoted from Pitts charge parties on self-de- and omission of charge authorizes supports dence fense. appellant jury to find that challenge charge 7.02(b); In to the there is no need guilty his under Sec. parties, error under rely theory parties law of asserts was Sec. 7.02(a)(2) conviction. The objection charge overrule his parties ground apply failure to the law of error is overruled. ground complaining of error to the denial of the motion to allow with charge

denial of a on self-defense relies on counsel, inability drawal but to the primary actor shot the obtaining defense to receive state funds for deceased in an act of self-defense. While it arguments specula witnesses. The are too party is true that a to an offense is entitled 26.05, V.A. tive to show harm. Under Art. charge primary to a on self-defense if the C.C.P., to reimbursement counsel is entitled one, actor would be entitled to Misner v. investigation expenses only they after Tex.Cr.App., the re incurred, are and even then reimbursement quested in this case was not based court, Afyre discretionary is with the presented parties. Nothing on the law of 826; State, Tex.Cr.App., 545 S.W.2d for review. pay expenses they are and refusal Eg incurred is not an abuse of discretion. ground

In another of error gleston Tex.Cr.App., complains ap- of denial of his motion for pointment psychiatrist psychologist Although supra, by Art. its purposes counsel, to determine his for of de- sanity applies only appointed terms ciding whether to raise a defense of insani- the fact that counsel on has been held that 46.03, ty. Art. This See Sec. V.A.C.C.P. bind counsel to appeal is retained does not request was contained in a motion that also appellate record at his own ex furnish the requested appointment psychiatrist and pense, indigency and that the issue psychologist appel- clinical to determine by obtaining is not determined a free record competency lant’s trial. Art. to stand See fami the financial status of the defendant’s Sec. V.A.C.C.P. The order on ly, by nor that counsel is retained the fact granted request this motion for exami- bond. Castillo or the defendant has made competency nation on the matter of and 552; State, Tex.Cr.App., 595 Con made no matter of the reference to the Tex.Cr.App., rad v. 537 S.W.2d insanity appear defense. It does not Likewise, penalize illogical ruling appellant obtained an adverse on the family hires indigent whose a defendant Nothing presented now matter raised. (and thereby for him relieves lawyer for review. obligation in the mat of its financial State ter) investigative funds un by denying him

Finally, appellant contends it was 26.05, supra. Denial of counsel’s der Art. deny error to counsel’s motion to withdraw. provide failure to motion to withdraw and presented Counsel a motion to withdraw any ex apparent prepare funds to a defense when it became that a substantial The portion paid by penses of his fee would not be incurred was not error. were mother, appellant’s prom as he had been ground of error is overruled. rights attorney ised. Any contractual re- judgment, The with against appellant’s mother would be life, formed to is affirmed.

independent continuing duty rep of his resent once he had undertaken TEAGUE, J., dissents. responsibility. right The to counsel manipulated not be as to obstruct so Judge, concurring. ONION, Presiding with the judicial process or interfere by I concur in the result reached justice, administration of Estrada compelled to strongly majority, but feel 448; Tex.Cr.App., Rodriguez v. doing fully con- so. I my state reasons for and Tex.Cr.App., 530 was insufficient the evidence cur that suggestion there is no that counsel in this answer support jury’s affirmative fulfilling compromised his case himself special issue submitted ap second duty only suggestion The appellant. question) under (the dangerousness future pellant any way makes that he was in V.A.C.C.P., pen- 37.071(b)(2), harmed relied on to Article circumstances ground alty stage of the trial. this of error is directed body Chag- The was found on the floor in any Since reversal a insufficiency of the evi- nearby case based were ra’s office. His boots submitted wound support any special dence to cigarette his mouth. A bullet was in 37.071, V.A.C.C.P., pen- at the pit under Article arm right side below the precedent alty stage proceeding is a had been ran- The office desk observed. carefully guideline to be considered as a secretary’s desk sacked the locks on the cases, future I believe the facts should be empty vials There were some were bent. fully developed opinion more in the than of- found, adjoining the and in a bedroom majority does. gold vial with a fice was discovered a small was shown to spoon. chain with a The vial correctly note majority While the does ad- living quarters contain cocaine. The requested charge on self-defense safes. joining contained three the office error, preserve majority did not fails to bathroom, in the fire- was in the one One open why, leaving demonstrate the door room, and another under place living dissenting opinion Judge Roberts rug in the master bedroom. otherwise, claiming Judge in which Clinton agrees in opinion, footnote # 7 of his con- Jr., Howard, pathologist, Dr. Merton L. curring dissenting part. in part and described the performed autopsy again, development Here a fuller finding of a bullet in the wound and the opinion important, facts in the becomes of cocaine was cavity. presence chest surrounding well as the facts Chagra’s body. detected in requested charge. When these are con- in California was arrested sidered, adequately why demonstrates March, 4,1979, he early 1979. On March fpunda- dissenting opinion is without a solid gave extrajudicial confession to Texas an tion. Compton, officers at The State California. It is for these I reasons that write. relied heavi- introduced such confession and facts, Turning to the is observed that ly upon it. this appeal is an from a stated in 20-year-old appellant The then conviction, where the returned affirm- the confession he had been stationed at Ft. ative answers special to the issues sub- Army. In Bliss with the United States penalty stage mitted at the under Article Esper a Lou in the August 1978 he met 37.071, V.A.C.C.P., following which the They met on a Playmate Bar in El Paso. imposed penalty. De- number of occasions thereafter. On Appellant was contends that the evidence 22, 1978, again Esper met who cember he insufficient jury’s affirma- Chag- Lee robbery talked him a about tive answer to sub- the second alone and Appellant ra. to act refused 37.071(b)(2), mitted under Article V.A.C. soldier, Don White. On a fellow recruited C.P., penalty stage of the trial.1 Esper gave him a .22 December afternoon, revolver from Saturday

On December revolver and a .32 cal. cal. falling because Attorney Chagra kept out cylinder Lee A. was found which the a car missing pin. Esper shot and killed in his office at 910 of a also furnished law plates and body Mesa with New Mexico license North Street in El Paso. The to him changed. suggested plates who the license discovered law associate building the name police. two-story appellant called the to use He told process being Long” was in admittance to the remodeled and “David to obtain building. appellant’s confes- security Chagra contained a number of devices.2 doors, electrically 1. The second issue submitted was “Do 2. There were controlled you beyond speakers, find from the evidence a reasona- closed circuit television and intercom probability ble doubt that there is a the Defend- etc. ant would commit criminal acts of violence continuing that would constitute a threat society?” appellant Army he the car to the In defense the called some sion relates drove investigating who officers arrived on Texas placed barracks where Don White offense, as well shortly the scene after the plates license on the car. White and the Chagra’s Chagra’s as one of secretaries appellant Chagra’s then drove to office brother, Joe, attorney. The defense es- Chagra after tell- obtained admittance from prac- principally tablished that the deceased Long” ing (appellant) him he was “David law, represented ticed criminal and often they wanted and White was his cousin and charged those that were with narcotic of- some information about a bill. White the deceased fenses. It was shown that pistol the .22 cal. carried use, but was personal cocaine for his used the .32 wanted a cal. revolver as White from seller, not a and feared harassment weapon that would work. officers, hence the securi- law enforcement Appellant they gam- related in his confession testimony he ty devices. There was pulled Vegas their and elsewhere. Chagra’s heavily entered office and in Las bled day before his secretary His testified the Chagra’s money. weapons and demanded Tucson where he death he had called from Chagra give stated he would them what $28,- give her to was in trial and instructed they hurry. wanted. He was told to As appear 000.00 to a woman who hands, Chagra slowly lowered his money from office. He told her to take the gunshot stated that he heard a as White vanity in a of a bathroom a suitcase locked Chagra. Chagra Ap- fell to the floor. shot his office. apartment adjoining She pellant Chagra’s boots off pulled stated he remaining so estimated the balance did Esper Chagra him often carried told $200,000.00. approximately $10,000.00in cash in them. He found noth- defense, his own Taking the stand in ing. ring keys, and a White found a was in much of what appellant reiterated search was made of the office. In a bed- repudiated extrajudicial but his confession adjoining they room the office found suit- purpose of visit. He testified the stated $5,000.00 money case full of bundles. and White to Esper had asked him suitcase, White, They took the accord- Chagra and pounds deliver 10 of cocaine ing appellant, ring keys, took same; Esper was to collect for the tape pair recorder a of handcuffs. and person un- overseeing delivery the for They by appel- door where exited the rear Esper appellant.3 He said known to the fingerprints off stopped wipe lant to his the $5,000.00 delivery. the He promised for They door knob. drove to a motel and Esper from and picked up automobile the registered going Esper’s rather than was in the trunk. was told the “stuff” Esper called as instructed. was apartment entrance When he and White obtained money The totaled and went to the motel. office, Chag- Chagra’s appellant the related $150,000.00.” related he Appellant “around adjoin- went into an ra took the cocaine and $20,000.00 got got same and White He stated ing to check it out. bedroom amount, more, kept Esper if not and said, right. “All Chagra returned and weapons money. Esper rest of the took the tell go back and you What I want to do is (snubnose) revolver including the .38 cal. get and you to come guy that sent Chagra. The which had been taken from Finally argument ensued. money.” An Theater in parked car was the Minx said, “All laughed and Chagra grinned and That Esper’s accordance with instructions. Chagra then right.” Appellant believed evening appellant flew to California and did his cigarette put raised his hands and not return to El Paso until December saw light it. He then began and mouth $20,000.00 spent 1978. He stated he told having been reaching, and Chagra armed, believed appellant in essence the during period. Chagra This was was pulled gun. He reaching for a Chagra was case. State’s him,” try Chagra “to beat Esper would Appellant and feared and asked had described related delivery. arrange Chagra Esper person having had a “run in” with stage weapon fell out. At the of the trial the cylinder out his and the State and Appellant yelled then White ran appellant, 20 offered no evidence. The gunshot. from the room as he heard a offense, alleged years the time of the old at return, White called him to and when he for he entered the was recalled and testified did, Appel- Chagra he found on the floor. immediately leaving high Army after urged White stated lant White to leave. school; on his record offense dope money. they get had or being for absent was an 15 violation Chagra’s Appellant he took off admitted The place duty. from the of boots, looking money. while White He when went suspended.4 was related he and they money found bedroom anticipate not Chagra’s office he did His much the left. later activities were occur the result thereof. what would as described in his confession. same hap- expressed He remorse about what his Appellant related arrest Chag- pened. testified he did shoot He the woman whom he had California with action was ra and not believe White’s did living him been in El Paso had called as he just White as scared deliberate as was told him man had run her off some tried to he had not been Appellant was. testified night arrest, road. And the before his away very prior to enter- from home much person an unknown called him at his moth- got he to El Paso ing Army, and when er’s house him and told that White been including wrong people,” “ran he into the something “busted” and warned him that Esper, record he learned of whose criminal happen to him or members his alleged after offense. family Chagra’s if he revealed that death delivery had been connected with aggra- no evidence State offered cocaine. He placed stated he was fear relied, vating apparently, circumstances but and for this reason told in his the officers upon developed at the the facts visiting Chag- confession motive that the appellant of- bifurcated trial. robbery. ra’s office was as men- mitigating fered the circumstances reputation no tioned There were

On cross-examination admitted above. side, discussing possible Esper no by psychi- robberies with in- offered either witnesses cluding nephews, one Esper’s but he de- psychiatric testimony appellant’s as to atric nied he was in any urged involved offense make-up, testimony appellant’s from no by Esper Chagra other than the affair. Army jailors, etc. companions his denial, Upon sought impeached he was to be Chagra theory that It the State’s part previously of his confession not White he co-defendant while killed read to the jury wherein he stated that at were in the course urging Esper he a Robert Par- robbery. defendant It is established ren, four Chagra killing, weeks before the despite can be convicted attempted robbery at a home next door to co-defendant was defendant’s fact Chagra's Lee home. at the Someone card during robbery. who killed the deceased game was to open, leave the door but didn’t State, (Tex.Cr.App. 693 540 S.W.2d Smith v. attempt Appel- was unsuccessful. 655, State, 1976); v. Livingston he attempt lant said knew of that Par- not, however, (Tex.Cr.App.1976). 660 It is Charles, ren and man named but stated he the evidence appellant’s contention that was not involved. He he told the testified a conviction insufficient sustain officers about the incident in order to make murder, insuf only that the evidence is but robbery his statement motive spe jury’s answer to support ficient to Chagra more of the affair believable as he pen two submitted cial issue number feared retaliation if he mentioned a deliv- ery alty stage of the trial. narcotics. appears military non-judicial This to be a determination which was sus- pended.

74 answering special the evidence is support

It is clear that insufficient 37.071, V.A.C.C.P., issues under finding special affirmative of the as to ad jury may consider all of the evidence issue No. 2. guilt stage Duffy duced at the of the trial. sup being The evidence insufficient State, (Tex.Cr.App.1978); v. 567 197 S.W.2d penalty, port the assessment of the death State, (Tex.Cr. Felder v. 564 776 S.W.2d longer penalty. death is no an available State, App.1978); Brock v. 556 309 S.W.2d State, (Tex.Cr. Brasfield v. 600 288 (Tex.Cr.App.1977); Burns v. 556 Missouri, - U.S. Bullington App.1980); v. 270 (Tex.Cr.App.1977); Moore v. -, 1852, 68 L.Ed.2d 1270 542 S.W.2d 664 States, (1981); 437 Burks United U.S. Indeed the circumstances of the offense and (1978); 1 57 L.Ed.2d Greene S.Ct. surrounding the facts may great furnish Massey, probative er any evidence than other evi (1978). capital In a murder case L.Ed.2d regarding special dence the second issue sup is insufficient where the evidence penalty stage submitted at the of a assessed, port penalty the review State, supra, Duffy case. court, proper ing deciding on the cases there cited. appeal, must determine if disposition of the instant Despite the brutal of the facts guilt reversible error. stage is free from did the State sustain its burden error, such guilt stage If the is not free of proof beyond a doubt that there reasonable error, for such the cause must be reversed probability appellant was a that the penalty death upon any retrial commit criminal acts of violence that would penalty. If the would not be an available continuing society? constitute a threat of reversible guilt stage of the trial is free 37.071(b)(2), See Article V.A.C.C.P. There error, question remains as to the then the record, showing prior was no criminal disposition of the cause where the proper prior part or acts of violence on the stage of the is at the only error appellant. no evidence The State offered trial, insufficiency of the evi to-wit: penalty stage at all at the of the trial and support issues dence to one solely upon relied the facts at 37.071, supra, or where life under Article facts, despite ap- of the trial. These punish imprisonment has been assessed pellant’s participation, active did not show penalty. This than the death rather shot and killed the deceased. changes brought light about is so in

There was no to show the other evidence Bullington v. supra; by Brasfield v. Army while in was violent States, Missouri, supra; Burks v. United arrest, jail while after his etc. supra. Massey, supra; Greene v. As we stated Warren v. bifurcated past if the Normally, (Tex.Cr.App.1978): S.W.2d 474 and an error oc trial was before a where the may “While there be cases stage of the trial the curred at the guilt stage of the evidence offered at the entirely new defendant was entitled to be sufficient to an af- was without autho trial because this court No. 2 firmative before a dif rization to direct a new trial conclude under under Article we jury on the issue of ferent the circumstances of the instant case alone. Daniel v. the evidence is insufficient sustain State, 548 v. (Tex.Cr.App.1979); Bullard special jury’s finding affirmative as to 13, (Tex.Cr.App.1977); parte Ex 18 S.W.2d issue No. 2—that Flores, (Tex.Cr.App.1976); 537 458 S.W.2d commit of violence that criminal acts Olvera, (Tex.Cr. 489 586 parte Ex S.W.2d continuing society.” would be a threat State, 955 v. 432 S.W.2d App.1973); Ellison (Footnote omitted.) (Tex.Cr.App.1968). true, I would conclude the is here same V.A.C.C.P., provides: 37.07, 3(c), majority and would concur with Article §

75 State, (Tex. 562 474 punish- In Warren v. S.W.2d matter of “In cases where the court found the evidence jury, Cr.App.1978), the verdict this ment is referred to the to sus capital murder case has insufficient in a complete jury shall not be until the finding to tain the affirmative a on the rendered verdict both 37.071, and re supra, 2 Article and the No. under innocence the defendant did While the court punishment jury versed remanded. amount where above, they discussed In the not discuss the rules guilty. finds the defendant event decided, applied. case were This was jury agree, shall fail to a mistrial course, declared, the decisions of the United jury shall be shall be dis- Supreme United Court Burks v. charged, jeopardy and no shall attach.” States States, supra. supra, Massey, v. and Greene State, 304, In Eads v. 598 308 S.W.2d State, supra, the verdict (Tex.Cr.App.1980), In Eads where it was written: v. stage of a penalty complete was not 3(c) “It has been said under § trial, jury having an- capital murder where the selected assess has been having issue No. 3 and only special swered agree a penal fails to on 2, issue Nos. 1 and failed answer ty a mistrial should be declared judge without the trial was it held State, trial. v. 548 entire Bullard S.W.2d authority complete the or substi- verdict 13, (Tex.Cr.App.1977); Galloway 18 v. impris- tute his and assess life own State, (Tex.Cr.App.1967); 420 S.W.2d 721 for an en- onment. The case was reversed State, (Tex.Cr. Longs v. 429 157 S.W.2d tirely new trial. State, App.1968); Brumfield v. 445 732 And if on discussed It is clear then that rules appeal is reversible determined non-capital applied above have both been stage error occurred at the of the cases, and capital cases as well as murder trial before a is jury, this court without penal- where the error occurred at the authority to direct a new trial or trial, ty defendant hearing before a different on the entirely entitled to new trial. issue of alone. Bullard v. States, 1, 98 In Burks 437 U.S. v. United State, supra, and cases there cited. See 2141, (1978), held 1 it was 5.Ct. 57 L.Ed.2d State, supra.”5 also Ellison v. Clause of the Jeopardy the Double 37.07, has been held It that Article V.A.C. precludes a second trial Fifth Amendment C.P., applies to the trial of following of conviction where reversal procedure cases where the not in is conflict in- reviewing has found evidence 37.071, with Article V.A.C.C.P. Eads v. jury’s verdict of sufficient sustain 304, (Tex.Cr.App. guilt.6 1980). 19, Massey, 437 In v. Greene terms, By very its supra, 2151, (1978), Burks the rule of 57 L.Ed.2d 15 applies cases, 2(a), all (b) criminal States, applica supra, §§ was made v. United 3, applicable and is of capital to the trial Ben proceedings. ble to state criminal See procedure murder cases Maryland, where the not in ton v. 395 U.S. 37.071, supra.

conflict with Article Mas (1969). Eads v. In Greene v. 23 L.Ed.2d 707 (Tex.Cr.App. may 598 S.W.2d sey, supra, was held that state 1980). has after his conviction retry defendant State, supra, (Tex. 5. In Brumfield v. it was See also stated: Miller S.W.2d 269 Cr.App. 1971); 442 S.W.2d 363 Wheat however, “If, punish an error occurs at the 1969); (Tex.Cr.App. Ocker v. hearing judge before the case 1972). (Tex.Cr.App. appeal be remanded to the trial court for proper punishment by assessment of distinguish a rever- 6. The was careful Court judge. State, Tex.Cr.App., Johnson v. sufficiency sal based 906; State, Tex.Cr.App., Baker v. on trial from a reversal based error. People Taylor, S.W.2d App.2d Cf. 155 Cal. 317 P.2d 167.” appellate been reversed an court on the ant entitled to an entirely new under trial ground prior that evidence introduced at the rules discussed earlier? Under the im- insufficient, law, pact trial of Burks interpreted as a matter of and Greene as in Bullington, imprisonment Brasfield life sustain the jury’s verdict. only penalty. is the available A defendant In Brasfield v. entirely could not be afforded an new trial. (Tex.Cr.App.1980),it was held that where again If there was a new trial the evidence was to sustain insufficient stage, conducted error-free another jury’s finding special as to issue No. 2 in a jury penalty stage capital of the capital murder case the defendant could not permitted murder trial not be to an- could penalty any assessed the death retrial. required by special swer the issues Burks and were as authority. Greene cited 37.071,supra, only penalty available as the were, however, There other at the errors The court would would be life on retrial. guilt stage of trial the bifurcated so penalty phase of the have to terminate the cause was reversed remanded. See imprison- penalty trial and assess the of life cf. Sanne v. 766-767 ment as a matter of law. There thus would upon any the trial penalty be no - Missouri, -, Bullington v. retrial. (1981), 68 L.Ed.2d 270 con- In the instant case we are confronted firmed the rationale and result of Brasfield. guilt stage of the with an error-free trial There it was held that under Missouri’s being possible punishment with life procedure bifurcated capital trial of law. under the circumstances as a matter Jeopardy Double Clause of the Fifth for an entire- It would be absurd to remand seeking Amendment forbids a state from not be ly new trial when the same could penalty death at the retrial a defend- require afforded. The law does ant, following jury, whose first a sentenc- Thus, an ex- which is useless to be done. ing proceeding effectively amounted to murder cases to ception capital is created in a “trial” on the de- issue of at the the rule that if the error is impose clined to and as- before a stage of a trial conducted imprisonment. sessed life The rationale of entirely new defendant is entitled to States, Burks v. utilized supra, United trial. Supreme Court. guilt stage of the trial in the instant It is observed that Missouri’s bifurcated being reversible error and case free of procedure trial is somewhat similar to ours being impris- life only possible punishment capital murder cases. setting verdict at onment after aside the trial, my question where it is penalty stage There can be no impose should life opinion murder case answers the that this court penalty is affixed imprisonment issues so as in a life sen- since that to result tence, where, and affirm by law under the circumstances as in the instant subject proper sen- judgment evidence is insufficient to an af- imposed by the being subsequently tence firmative to one of the is- trial court. 37.071,supra, sues under Article and there guilt stage is reversible error at the any error majority I concur with the upon any retrial could the defendant the law of self-de- for failure to penalty than any greater not be assessed the non-testi- fense based on evidence that imprisonment, penalty being life shot the deceased White fying co-defendant longer no and ef. punishment. a viable See properly preserved. in self-defense was not V.T.C.A., Code, dissenting Penal 12.31. § of the assertions in the In view Judge Judge with which opinion by Roberts Where, however, no reversible there is say more agrees, compelled to Clinton I feel trial, guilt stage of the what error at the majority does. than procedure is be followed? the er- Since reads: stage, ground ror is the defend- of error was at the trial, 36.14, failing grant the time of see “The court erred in Article and V.A.C.C.P., requested in- is in special defendant’s the no appeal. issue on complain struction on self-defense since this condition to by testimony.” was the raised orally appellant’s fact that counsel ... with charge keyed “be read: stated that the requested instructions parties” certainly was the instructions “It is prosecution a defense to this if enough to the attention to not call court’s justified by the Defendant’s conduct was charge on fact that wanted the justified law. A is in person using force request self-defense different than the one against degree another when and allow the trial ed. To hold otherwise would reasonably he believes the force imme- is “sandbagged.” v. court to be See Seefurth diately necessary protect himself (Tex.Cr.App. S.W.2d against attempted the other’s use or use 1967). Austin v. of unlawful force. Reasonable belief dissent, by is a (Tex.Cr.App.1976), cited the by means a belief would be held an ordi- There the cry from instant case. far the nary prudent and person in the same charge on affirmative requested the circumstances as Defendant. There- supported was cor by defense the evidence fore, you even if believe from evi- the charge mis except requested rect the that dence doubt beyond a reasonable that the placed proof. The court held the burden of Wallace, Defendant David as al- Leon the court’s at requested charge the called leged,7 you believe, but you further or and a tention to the affirmative defense thereof, that, have a at reasonable doubt given. been should have correct instruction place question, time and in the De- controlling. Austin is not here reasonably fendant believed that Lee A. stated, Chagra using I concur. attempting to use For the reasons (sic) unlawfuly against force him and CLINTON, Judge, concurring part degree that use of force and of force dissenting part. were immediately necessary to protect himself against Chagra’s Lee use or A. cases penalty This is one of several death attempted (sic) force, you use or will find rehearing on in which is raised a submitted not guilty.” Defendant (Emphasis question: common Where troublesome supplied.) found, is is what cause for reversal judgment of disposition of the proper This is requested charge the court opinion court? case the In this give, refused to only charge court concludes: requested. self-defense The court cor- We opinion “. .. are of the rect as the evidence did not raise support is evidence insufficient part appellant. self-defense ‘yes’ on the issue of future violent Buried in appellant’s argument under the Consequently conduct. ground theory above stated of error must be set aside. See Sanne since upon theory he was convicted 762; [Tex.Cr.App.] 609 Brasfield liability vicarious consideration 288; State, [Tex.Cr.App.] 600 should be given to whether the co-defend- - Missouri, -, Bullington ant White acted in self-defense. Appellant (1981).” 68 L.Ed.2d acknowledges White testify, did not but contends in- supra, having was sufficient found In Brasfield v. fer he White’s reasonable belief acted af- the evidence insufficient issue, argument Even if could we set self-defense. this the second firmative answer to accepted, charge request- judg- this is “a consequently not the entered aside having requested setting ed. Not such a assessed aside omitted, 36.14, V.A.C.C.P., appears apparent something It was here contains the same objection but an later examination the oral omission. writing reduced accordance with life,” judgment,” confinement for embodied was therefore af- therefore, appellant may declaring, firmed, supra, v. at 777. Sanne again be tried for the murder al bar, though In the case at the death leged “wherein the seeks the death State evidence penalty is set aside for insufficient penalty.” By citing Burks v. United States answer to the an affirmative Massey, supra, and Greene v. the clear question, correctly ad- second the Court understanding conveyed by the Court is assailing as- grounds other of error dresses jeopardy of principles constitutional during guilty stage, serted “trial errors” the result, Buffington mandated that and v. immediately rather than to reform the 1852, Missouri, - U.S. -, 101 68 it, thereby and obvi- judgment and affirm 270, just L.Ed.2d now confirms that both comports with ate a new trial. This action right. rationale and result are The cause Sanne, justifi- whatever Brasfield and and remanded, however, was reversed and be departure cation is believed to warrant grounds cause we have sustained two other suggested else- from their format is not implicated process of error that the of trial where. Brasfield, guilt-innocence. supra, on at re However, resultant reversals the 298.1 when by the Court presently mands ordered State, recently in More Sanne dealing verdict has been returned a death 762, (Tex.Cr.App.1980) 766-767 S.W.2d whose members were some of format, Court followed the Brasfield hold- gloss Witherspoon in violation of selected ing “having received a favorable an- Code, 12.31(b) by given Penal § V.T.C.A. swer issue in his punishment to the second Texas, 38, 100S.Ct. Adams v. 448 U.S. trial, appellant first should not have Sanne inapposite, al (1980) are 65 L.Ed.2d 581 subjected receiving been to the risk of though is in the kernel there them upon following of death his retrial Witherspoon error affects theory that a conviction,2 reversal of his first and that his Yet, the punishment. only the issue of punishment from must reformed death Grijalva v. remands in such cases as Nevertheless, proceeded to life.” the Court (Tex.Cr.App.1980); Loudres grounds to consider “the other of error ad- (Tex.Cr.App.1980); trial; stage” dressed to guilt (Tex.Cr. however, Brasfield, grounds Pierson v. unlike Sanne’s ordered, for rea App.1981) correctly judg- of error were were found meritless. margin.3 punishment ment in his “reformed to sons that are summarized Court, convictions had been as is its wont when the 2. earlier reversed 1.In Brasfield the raised, (Tex.Cr.App. sufficiency first Skillern v. 559 S.W.2d 828 issue is reviewed and, 1977) permitting finding for the error committed to sustain the jurors separate finding supportive, of the court eviden- after the moved on to other jury— Concluding guilt-innocence tiary punishment. been read to the on issues on error,” by which constitutional issue one was so-called “trial an affirmative answer to supported by evidence, implicated. principles jeopardy See are not but that the affirm- States, been, supra, 15- 437 U.S. at Burks v. United ative answer to the second issue had not 2149-2150; Massey, noting holding only Greene v. “affects 98 S.Ct. at the latter pretrial supra, penalty,” at 98 S.Ct. at 2155. 437 U.S. death we returned asserted sustaining grounds of and trial errors. After complaining overruling is, Essentially reasoning errors a motion to as stated Gri- indictment, out, quash point only jalva, though Witherspoon did the Court error taints ruling respect ques- penalty, its “raises a in that “it is not such error as proper disposition seeking preclude tion of of the cause in its the State from and, therefore, present posture,” assumption but the stated death on a retrial” retried on an amended reform the to life that the cause would be Court judgment. Underlying lat- indictment we went on to consider the remain- and affirm statutorily prescribed Still, ing grounds ter statement is the of error. this does not mean interrelationship every nonevidentiary grounds be- scheme of the intimate that in case all 37.07, verdict, Articles 37.01 and tween a error must be reviewed. See Fearance V.A.C.C.P., 3(c), judgment based § 616 S.W.2d 207 rendered, verdict Articles 37.12 id.. judgment reform the to reflect Still, quite resolve the should those reasons will not provided in the case at for the problem presented different available bar. of which an capital murder4 offense of flawlessly convicted. accused has been legally evidence is Unlike a and, to do so empowered Surely the Court insufficient, Witherspoon errors do not call is likewise having judgment, reformed prohibitions of play jeopardy into to con- sentence authorized to reform the Fifth Amendment to the Constitution 44.24(b), judgment. form to the I, of Article Section the United States and State, Vasquez v. V.A.C.C.P., 477 S.W.2d Burks- Rights. 14 Bill of From the of our 629, (Tex.Cr.App.1972).5 finding of 635 Greene tandem it is clear that a judgment support a insufficient evidence to agreeing insuffi- Accordingly, while judgment acquit a of of conviction dictates the requires ciency of the tal, thereby a second trial. This precluding aside,6 because be set punishment verdict exception” “constitutionally is a mandated rejected what is seen as majority has the that “no to the settled rule this State error, action of I dissent to the trial verdict,” discharged jury’s court can alter a judgment.7 affirming the reformed Court State, 144, Ramirez v. 2 587 .2d 147 n. S.W here, Where, ex ROBERTS, Judge, dissenting. State, applies, Brasfield v. ception supra, Missouri, - U.S. -, Bullington In grounds and there are no other of error 1852, (1981), the 270 guilt, invalidate the verdict of we 101 68 L.Ed.2d Code, course, capital felony, pronouncing judgment a V.T.C.A. Penal and the sentence executed, ordering 19.03(b), prescribed punishment and See id. § State, 110, death, d., Bessett 249 78 Tex.Cr.R. 180 S.W. which is confinement for life or (1915) (Davidson dissenting); at 250 ff Pritch 12.31(a). That the did not follow this § Court State, 106, ard v. (1931); 117 717 State, Tex.Cr.R. 35 S.W.2d procedure 474 in Warren v. 562 S.W.2d State, 524, Wooten v. 111 Tex.Cr.R. 15 (Tex.Cr.App.1978) is no doubt because Burks (1929); State, S.W.2d 635 Johnson v. 125 Tex. and had not then been decided. Greene 147, 295, (1934); Cr.R. 67 Moore v. 296 State, (1918); 83 Tex.Cr.R. 203 S.W. 51 by disposition may well be dictated 5. Such a Williams v. 118 Tex.Cr.R. jeopar- underlying policy the dy considerations (1931); Chaney Tex.Cr.R. doctrine; longer though his life is no Even Thus, (1938). 112 S.W.2d 464 because a finality” jeopardy, “principles and of fairness not, may Witherspoon selected in violation of require seem also to law, as a matter of constitutional return a ver subjected ordeal of trial for be to another dict which will result in assessment of the Wilson, 420 United States v. same offense. See and, therefore, penalty death ity is without author 1013, 1021, 332, 343, L.Ed.2d “yes” “special to render verdicts” of event, (1975). any that the constitution- In 37.071(b), pursuant issues submitted any judgment purportedly to Article precludes jeopardy the State from al doctrine an based on such again seeking is what distin- fatally invalid and verdict is likewise defective guishes do here from that which we should may not be “reformed” into an assessment required by procedural scheme remand punishment imprisonment. at life See Smith v. upon Texas law the sole of a Wither- (Tex.Cr.App.1972): 479 S.W.2d 680 “The Grijalva, spoon-Adams error in such cases as having by verdict and been received the court judgment 4,n. ante]. Loudres and Pierson record, [see entered of the court in its change sentence was not entitled to the verdict jury.” by Legislature, House enacted 6. Just now purports to direct that when Bill No. 1164 V.A.C.C.P., 37.071(a), provides 4. Article pun- any special on issue affirmative answer guilty of a when the defendant has been found capital evi- without sufficient ishment is found to be offense, sepa- “the court shall conduct a requests prosecutor dentiary support, and the sentencing proceeding rate to determine [sic] it, shall be of the trial court the “sentence” whether the defendant sentenced to shall be punishment for life. at confinement reformed imprisonment. [Emphasis death or life add- (e) upon negative a Section directs that ed].” finding part agree respect with that In this I issue, any on submitted “the Court Judge Dissenting Opinion by which Roberts shall sentence the defendant to confinement failing give and finds error examines them Department the Texas for life. Corrections a on self-defense. is, [Emphasis Capital murder added].” defendant, Supreme reasonably held that a who “the Defendant Court believed” rather given imprison- of life than to White’s reasonable belief. But the charge “be also asked that at his first trial parties.” keyed ... with the instructions charges, protected Jeop- Double Although specially requested charge may ardy expo- from Due Process Clauses defective, it still serve to call the retrial.1 sure to the death charge on a court’s attention to the need to retrial, a Because of this effect on a chal- defensive issue. Austin v. lenge sufficiency 162, 166 (Tex.Cr.App.1976). The ob appeal evidence must be considered in an jection special requested charge from capital case. Cf. Rains v. preserve the error. were sufficient (suffi- (Tex.Cr.App.1980) ciency of evidence must be considered even should be reversed the conviction Since self-defense, found, charge on I when error of differ- for the failure to because affirmance. retrial).2 dissent from the ent effect on agree I that the evidence was insufficient jury’s verdict on

(2). that, agree I if also there were no error, judgment should reversible trial be reformed to confinement for life and affirmed. HOLDER, Appellant, Wendell Duane But in this case was reversible there error. The was entitled Texas, Appellee. charge on the law of self-defense under STATE parties, but he was it. The court denied No. 67553. passes holding over the error that it was Texas, Appeals of Court of Criminal preserved. not Panel No. 3. appellant “object[ed] to the in July 1981. fails include a submission jury.” issue of self-defense to the He also

presented special requested charge, which imperfect in it referred to what 556, 561,

1. In Home v. 564 n. It would also follow that the court must con (Tex.Cr.App.1980) opinion), sufficiency (concurring challenge I sider a the evi suggested previous prove in “has this result could be reached dence to ly that a defendant Bullington finally felony recognizing while a substantive dif- been convicted of two of fenses,” etc.; 12.42(d). ference between issues of historical fact and All Tex.Penal Code sec. procedural guilt issues of future conduct. This could have re- hallmarks of the trial on or quired Bulling application a different of the Double innocence that underlie the decision Jeopardy (2) Missouri, - U.S. -, Clause to of Tex. ton v. 37.071(b), (1981), present Code Crim.Proc. art. which is an 68 L.Ed.2d 270 when the are conduct, is an habitual issue of future than to all the other decides whether a defendant trial, felony separate proceed is a issues in the which are issues of historical offender. There requirement proof ing, facts of additional Similar were fact. substantive distinctions doubt, explicit urged by Bullington, beyond stan but the a reasonable dissenters jury, entirely proce- guide and a choice of two dard to based its decision Bulling- procedural basis of alternatives. The dural similarities between the in Poner v. this court’s decision trial and the trial on ton makes (Dou (Tex.Cr.App.1979) procedural Since similarities 591 S.W.2d 482 innocence. these prevent Jeopardy retrial obtain for all issues under article ble Clause does three appellate 37.071(b), my allegations proposed rever after the distinction that I enhancement insufficiency evidence), appear light opinion even Home sal for cannot be maintained Bullington. light may plainly wrong was on sub than I said it To me and others that more at-, “wholly unpersuasive,”- grounds stantive 556, 561, in Home v. (concur (Powell, J., dissenting), (Tex.Cr.App.1980) 563 n. 4 but it is controlling. ring opinion).

Case Details

Case Name: Wallace v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 1, 1981

Citation: 618 S.W.2d 67

Docket Number: 65325

Court Abbreviation: Tex. Crim. App.