*1 search, however, must be which, “specific articulable facts taken WARREN, Appellant, Don Louie together rational inferences from facts, reasonably warrant intru-
those Ohio, Terry v. sion.” 392 U.S. 889; 1868, 1880, 20 Keah v. State, Tex.Cr.App., 508 836. While Court Criminal Appeals Barnwell testified to information received En Banc. conclusion, Pruitt supporting such specifically Pruitt also testified and 1978. Thereby a
giving such information. fact Rehearing Denied March on the admissibility issue under 38.23, supra, was raised. State, Tex.Cr.App., In Rose v. 198, 200, we held that require did not of an
therein the submission charge jury. 38.23 to the We ob
served:
“No the appel- witness was called to controvert
officers. cross-examination did not a fact to arrest. right
raise issue on the the court err in re- did not added.)
fusing charge.” (Emphasis present such an issue of fact testimony. raised Pruitt’s For this
reason, error was we hold that reversible refused when the trial court
committed as to the issue of
instruct of the search
legality and seizure 38.23, supra. required by Article
Accordingly, judgment reversed the cause remanded. investigation by Furthermore, investigate burglary. under committed none subject theory This Barn- be- Barnwell. was the jury, wished to Barn- fore the and thus would in no well discuss with event knowledge any bearing of the cred- on submission of well ibility reliability supra, or of either or the third Pruitt was raised ap- jury. person, and further testified he before the proach to arrest
It contained cash and checks. The endorsed police key found a the deceased’s wristwatch, opened the which box. A digital belonging clock and other items the deceased were the found behind house. Benson, Daniel Lub- Taylor, T. H. Willis pistol A .38 caliber to have known bock, for kept the deceased in the bedroom was Griffin, Atty. Alton R. Dist. and H. Gra- missing. An empty holster was Terrill, III, Lubbock, dy Asst. Dist. Atty., Jr., the Ray, found on bed. Dr. John P. for the State. the determined that cause of death was a
single gunshot wound penetrat- in the face ing resulting the central system nervous OPINION brain, the fracture, the skull destruction ONION, Presiding Judge. appeal This is an a conviction receiving On after infor- in which punishment murder Elliott, police mation from Steve Lubbock jury’s af- following death was assessed appellant, shortly arrested the there- firmative answers to the issues. See gave extrajudicial after Code, V.T.C.A., 19.03(a)(2), and Ar- Penal § which was introduced into evidence ticle Vernon’s Ann.C.C.P. appellant State. In his confession Johnny that he Barone had decided
At we are the outset confronted burglarize at 6203 West house 19th appellant’s contention that they Street and there gone unarmed there, in. appellant and broken While No. 2 finding by the put penalty stage submitted at the of the bedroom, While in a he later heard someone inquired probability which into talking, enter the front door and heard appellant’s committing criminal acts of persons. two He then related suggesting continuing lence that would constitute a bedroom, flipped man walked into Ver- See Article light yelling and started at non’s Ann.C.C.P.1 gun, him. The man scared then stage At guilt the trial the State did, the appellant pulled and when he showing after shortly offered evidence his coat. out of The confession then January 7 a.m. on Bob Tucker dis- recites, “. shoot- don’t remember brother, Victor body covered the ing only him but I one that had a Tucker, Wayne in the de- gun. was so scared that he was ceased’s home at 6203 West 19th Street doing.” shoot that I didn’t know what I was police They Lubbock. The were called. then related he fled house with a found the they with Barone and that buried the eye, bullet under the left a bloodied wound but later recovered it and sold it. Carlisle head, with a loaded lying in a back bedroom at his lying .25 caliber Elliott testified for State that unfired Steve opera- a service station killed feet. The tor, carry a with him. he re- weapon the deceased. On cross-examination out items were were lated stated Drawers “just (appellant) A locked and that he scattered about bedroom. eyes was found near the deceased. shut his and shot.” money box evidence, issues to “(1) “(b) On [*] 37.071(b)(2) provides: [*] conclusion [*] jury: court shall submit presentation following defendant would commit criminal acts threat to lence that would “(3) “(2) whether * * *” society; is a constitute probability of vio- Williams, woman, Shirley a married before the jury of deciding Mrs. with the deceased on she had lunch issue No. 2. testified later went to one of January Thus, to determine the question before closing time service stations deceased’s us, we the evidence as to the in her car to his the deceased and followed instant offense The deceased arrived p.m. about 11 house of trial and pen packet offered at the *3 and met first, opened the house her penalty stage of the trial reflecting appel- door, living room. The and she entered prior lant’s felony theft conviction. There bedrooms, then went to one of the no psychiatric testimony a like a scuffle heard noise and Williams appellant’s psychiatric makeup, which has shot, immediately. she left a and and then been held to have value as to happened and did not what not see She did special under Article when the scene even presence her report When first con- of the death. she learned knowl- any police, she tacted Robinson v. make a edge of the event. She State, 548 63 (Tex.Cr.App.1977), nor ar- appellant’s date of statement until the other aggra- did evidence of rest. vating on this issue such as behalf, violence, of that twenty- personal history appel- a Testifying in his own burgla- admitted the year five old that He reiterated he
ry shooting. and was, course, There of a prior of evidence a question, went to the house year felony theft and the four conviction placed pocket, and probation burgla- revocation of upon based surprised by that he and Barone were later ry coin-operated of a machine. The fact said, a “You son of bitch that a a significant defendant has criminal you.” I’m kill related going to He record, including range severity that when the deceased a any prior conduct, certainly criminal is ran his thought through going mind he was factor to be considered. In the instant self-preser- that in an act however, there was no to evidence show he pulled vation from his any appel- that violence was connected explosion. was a loud fact, lant’s argument criminal record. In he had been convicted of attorney the district admitted the absence felony placed proba- theft in 1971 and appellant’s prior of violence in criminal con- tion, which was revoked six months later as while arguing duct the lack of rehabilita- coin-operated a result of a of a tion. 1974 he was released July, machine.2 The facts of the instant reflect a case Department from the of Corrections. criminal act of but it was not a punishment phase At the calculated act. The State’s evidence packet as the four pen offered the appellant’s form of shows that felony Hockley year theft conviction appellant went unarmed to the deceased’s no County and rested. The defense offered burglarizing house for the evidence. pistol, house. There he he Although supra, provides placed surprised in his He coat mur- penalty of a in the bedroom whom he not did know. When the deceased der trial “evidence gun, yelled at him and threatened to kill any matter the court deems relevant sentence,”3 he shot the above was all the evidence the deceased. The confession however, prohibits, appears 3. The statute se- 2. It the offense was used as basis evidence revocation, appear that state but it does not cured violation of federal or consti- independently prosecuted appellant was tutions. coin-operated burglary of a machine. “he was was so scared the evi- makeup, reflects I what I shoot us that didn’t know support have been sufficient to remember doing . . . don’t as I was the shooting him but 37.071(b)(2). no Since there was appellant’s story that gun.” had past evidence of violence and no evidence initially during that violence was intended the deceased was burglary, psychi- it is inconceivable that that his carry testimony concerning appellant’s atric at his feet when pistol was found caliber psychiatric makeup could alone be suffi- was discovered. finding as cient to Thus, past there was no even if lence, initial- evidence that violence was no qualified psychiat- the State introduced during ly intended appellant’s psychiat- *4 evidentiary predictions of future violence. makeup, the would have evi- be cases where the may While there jury’s affirma- insufficient the trial offered as Article finding tive support an affirmative sufficient to 2 finding to
37.071,4 under the we conclude circumstanc- evidence is of the instant case
es jury’s sustain issue No. 2—that acts of would commit criminal be a
violence WILSON, III, Appellant, Eugene cause is judgment is reversed and the
remanded. v.
ROBERTS, Judge, concurring. the result reached
I concur However, I feel con- majority in this case. Appeals of Court of Criminal following portion to address the strained 2.No. Panel majority opinion states: psychiatric testi was no “There make mony held to
up, which has been 2 under issue No.
value State, 542 655
State,
Robinson
App.1977), nor did aggravating personal history of issue such as etc.”
Ante at 476. im- my opinion, quotation,
The above intro- implies
properly testimony as to qualified psychiatric
duced (1977); Burns v. cf. 4. See and Granviel 552 S.W.2d (Tex.Cr.App.1977). (Tex.Cr.App.1976), cert. den. 431 U.S.