*1 Also, proposition. supporting that clarify fails to what
Court the new
“agreement” was formed. Were immediately upon
provisions effective Did Mar-
adoption by the Credit Union? grace period in which he could
tin have provi-
go to the Credit Union read prob- practical
sions? Because of these conclu- unsupported
lems with the Court’s
sion, I require would Credit Union copy give
at least its members holding
new before that an agreement
agreement had been formed. sum, I would hold that section 4.406 apply provision
does not and the notice Deposit Agreement is unenforceable knowingly,
because Martin did not volun-
tarily, intentionally agree to it. Ac- I affirm the
cordingly, dissent appeals’ judgment.
court of
Coy Wayne WESBROOK, Appellant,
The STATE of Texas.
No. 73205. Texas, Appeals
Court of Criminal
En Banc.
Sept.
1Q5 *6 19.03(a)(7). § 1997. See Tex. Pen.Code A guilty verdict of was returned jury. spe- That same answered the cial issues such manner that the trial impose court obligated a sentence 37.071, 2(b),(e) § Art. death. See & (g).1 appeal to is auto- Direct this Court 2(h). 37.071, pursuant § matic to Article Appellant presents points thirteen of error exception consideration. With the points those challenging sufficiency evidence, each of error will be addressed in the order it occurred at trial. appellant’s We will affirm conviction and punishment.
Appellant, points of error two and three, challenges legal and factual suf- ficiency presented of the evidence guilt/innocence stage prop- of trial. To erly points, consider these it necessary facts, to review the relevant as illustrated the State’s evidence and by testimony. own Around two o’clock in morning, on 13, 1997, November 9-1-1 operators County Harris received several calls re- porting gunshots the sound of coming from apartment downstairs in a complex small portion located in the eastern of the coun- ty. Five shots approxi- were heаrd within *7 mately forty seconds. Neighbors, either already awake or gun- awakened the shots, rushed outside to man lying find one Hill, Houston, Wayne T. appellant. for on ground appellant, the armed with a rifle, hunting exiting apartment. the Keli Roper, Pool Atty., Asst. Dist. Hous- Neighbors appellant described as calm as ton, for the State. truck, he placed gun walked to his the cab, inside the and then stood the tail- gate where he waited for dep- the sheriffs waited, appellant uties arrive. As he OPINION like, making was overheard “I comments MANSFIELD, J., opinion delivered an with,” I get did it. did it. Let’s it over announcing Court, the judgment of the in “I I Appellant did what had to do.” con- KEASLER, J., which joined. statements, tinued to make similar some of Appellant, Wesbrook, Coy Wayne was which could heard be on various 9-1-1 charged by capital indictment for murder calls made from the crime scene that County committed Harris on night. November
1. All references to Articles are to those in the the time of trial. Texas Code of Criminal Procedure in effect at deputy just attempted apart-
The the he to exit the first on scene found before appellant waiting patiently exiting. and also ob- as was ment door or he was Cruz deceased, figure, obviously served a male by a bullet fired into his ear killed lying ground nearby. Appellant on the spinal severed his cord exited back complied law peacefully enforcement neck. two victims remаining The into custody. as he was taken demands in the were believed have been shot in- When law enforcement officers looked ap- apartment from a distance of bedroom apartment, they side saw the bodies proximately two four feet. The last lying a woman on a and a in a couch man victim, Hazlip, Kelly male was shot position on floor next to a kneeling from a of about two feet. abdomen distance alive, victim, second A still couch. fourth Hazlip days dying. survived five before lay deputy on the floor. When the asked wife, Appellant’s estranged who died inside, replied, “My who was he arrived, shortly personnel after emergency ex-wife, who I here get.”2 that’s came appears up to have her hand in a held inside, the Stepping deputy appel- found gesture just defensive before wife, alive, estranged lant’s still in the also That hand suffered extensive dam- fired. Appellant, bedroom. was handcuffed who Bullet age passed through. the bullet at this was point, questioned about then fragments and bone were blown back gun. location of the He indicated with his face, her into her neck and the half of said, “It’s truck.” my head and With chest and shoulder. consent, appellant’s investigators searched only surviving A witness to weapon. Appellant, truck and recovered the grounds apart- search on his own behalf to shooting, outside testified aup ment turned live round consistent explain sequence night. of events that used in A appellant’s with the bullet rifle. and his Appellant told the he expert wife, Coons, testified firearms separat- had estranged Gloria rounds, gun capable holding five ed, apartment her he had arrived at but magazine four and one the cham- given had indications of reconcili- after she ber. alone hoped ation. He had she would be instead, but, he Coons with her found couch, victim Ruth female on roommate, Money, Ruth and two male Money, by investigators to was believed friends, Kelly Anthony Rogers. Hazlip have been shot first. She sustained drinking apparent It that all had been to her from a bullet single wound chest Appellant down extensively. agreed to sit trajectory fired in a that exited downward he though even group and drink with the person her back. The shot lower second he was uncomfortable with claimed outside, the victim Antho- was either found Cruz arrived a short situation. Antonio or the victim found inside ny Rogers, *8 Eventually, subject of later.3 couch, time to the Antonio Cruz. kneeling next to that of group turned conversation Rogers passed hit with a bullet that chest, appel- a nature culminated with arm, and sexual through right his entered his walking bed- lung, estranged wife into her body. exited the lant’s struck his and moments, a Hazlip. room with After few indicated that he was shot either Evidence thirty about minutes appellant's ing over off and then returned 2. There was some conflict Rogers point. Appellant at this Defense coun- that actual statement testified he and later. pointed sel out on that dur- cross-examination together get beer. Prosecutors left more ing hearing deputy who an earlier the sheriffs argument appel- presented an that alternative that testified about this statement indicated actually retrieve left alone in his truck to lant wife, appellant replied, "My who I had that’s Appellant this denied rifle from home. his came here to see." always remained in his and claimed his rifle truck. neighbor 3. A testified that sometime evening appellant's truck was heard driv-
Ill Anthony joined Rogers province them. A short the jury the exclusive of to recon- reappeared time later she Rogers, cile conflicts the evidence. Jones v. pants unzipped, whose were State, announced legal at 647. A claim of S.W.2d just provided that she had him with oral is, effect, insufficiency argument that sex, and she was about to have sex with pre- the case should never have even been Hazlip who was still in the bedroom. State, jury. sented to the Clewis v. 126,132 (Tex.Crim.App.1996). S.W.2d testified, point,
At this as appellant he was humiliated this behavior and left By legal insufficiency in claiming apartment get truck and his manner, appellant that the arguing followed, leave. Antonio Cruz briefly justification evidence of kill Antonio appellant, talked with eventually and personal Cruz order to retrieve his grabbed keys appellant the truck’s tried property compelling was so that the issue to start kept keys the vehicle. Cruz of guilt his should have never even been apartment.4 and reentered Appellant presented jury to the for its consideration. grabbed hunting rifle and followed to disagree. Although We the trial court de get inside, the keys appellant back. Once enough cided that evidence harassed, claimed he was existed to war verbally threat- ened, rant physically jury justification instruction on pres- abused those protect ent. He testified Money personal that Ruth can property, threw we confi him, that, beer at and he gun fired the at her dently thoroughly state after examin in response. Cruz, Rogers and according ing the viewing available record and it in a appellant, him, then rushed toward verdict, light favorable to the this evidence he shot both Finally, appellant men. justification en- of strong was not so that it bedroom, tered the saw Hazlip Coons and greatly preponderated against jury’s having still sex and shot both. In his finding capital point of murder to the of defense, appellant jury told the that he completely overwhelming it and rendering “lost it” and had no killing any intention of legally insufficient. More people inside apartment. over, the jury’s implicit rejection appel justification lant’s theory of could not be
In point error, his second given considered irrational the quantum of argues the evidence used to establish his incriminating presented by the capital conviction for murder was legally State. Appellant’s point second of error is insufficient because alternative evidence overruled. justified established he in using deadly against force Antonio Cruz. See error, his third §
Tex. Pen.Code 9.42. argues factually the evidence was insuffi- legally if,
Evidence is insufficient cient to intentionally “establish that [he] when viewed in a light most favorable knowingly caused the death of Gloria verdict, rational could not have Coons and Antonio Cruz.” found each element of beyond the offense possesses This Court the author reasonable doubt. Jackson v. Virginia, ity to conduct a factual sufficiency review (1979); State, appeals. on direct
L.Ed.2d 560
Jones v.
Jones v.
(1996),
review,
at 647.
cert.
522 S.W.2d
To conduct this
we
*9
832,
100,
prism
U.S.
139
discard the
utilized in a legal
L.Ed.2d 54
suffi
and, instead,
The jury
ciency
is the exclusive
of
review
all of the
judge
view
the
of
credibility
witnesses and of
in
light favoring
the
evidence
a neutral
neither
State,
weight
given
to be
testimony, and it is also
v.
side. Clewis
We will set aside the verdict it statute Eighth and overwhelming to the of Fourteenth contrary weight violated clearly as and tо the States Consti- wrong the evidence to be Amendments United argues Specifically, appellant A tution. he unjust. sufficiency Ibid. factual review protec- process equal was due and appropriately be deferential so as to denied must subjected tion cruel and appellate substituting court’s its and unusual avoid punishment prevented was judgment for that of the fact finder. because he own State, special “The submitting v. S.W.2d 647. from instructions to the Jones 944 guilt/innocence punish- and substantially court’s evaluation should not at both passion” as “sudden upon jury’s role the sole ment on the issue of intrude “adequate of cause.” See credibility arising of the and of wit- out Tex. judge weight 19.02(a), (d). § testimony.” ness Id. at 648. PemCode killed Whether he because of Legislature is vested The with estranged he felt over wife’s fla rage his people lawmaking power in that he killed of grant promiscuity or because prescribe “may it define and alone crimes property, the evi the need retrieve his State, penalties.” 941 Matchett v. S.W.2d appellant made his dence indicates sure (Tex.Crim.App.1996), cert. 932 weapon capacit was maximum loaded to its 117 138 L.Ed.2d apartment with y,5 he walked into a small (1997); ex v. State rel. Smith Black and, high-powered this rifle from close well, (Tex.Crim.App. S.W.2d into range, single fired bullet vulnerable 1973). exclu Legislature’s It is within the of each the five individuals who regions of capi of power sive to dеfine the elements Afterwards, stepped inside. he out were guidelines tal and murder establish neighbors that proclaimed to the side of death an deciding when the sentence it.” evidence that indi only he “did The State, penalty. Matchett appropriate passion of sudden cated this was an act 932; Granviel, parte S.W.2d Ex testimony in which he own (Tex.Crim.App.1978). victims, there stated that while he shot things within a persons And while all or jurors intent to kill them. The was no must particular class or similar situation place they whatever value were free alike, possesses be the State affected upon They appellant’s testimony. wished the ex broad discretion classification rejected proclamation and apparently his Taylor power regulation. ercise of its in reasonably concluded that (Tex.Crim.App. 513 S.W.2d acted with intent dicated either 1974). guide out the Legislature set Viewing knowingly. or acted this met requirements to be before lines and no we see manifest light, in a neutral be could stand trial and convict individual injustice this result overrule murder, capital murder ed of either or point of error. third case, appellant, in the instant satisfied when he “mur capital murder points and fifth criteria for Appellant, his fourth error, person during than court more one argues der[ed] the trial “erred Tex. Pen. Penalty Death same criminal transaction.”6 failing to declare the Texas that, passion can arise “out of sion” because argued as evidenced 5. Prosecutors ground outside the live round found on provocation by the individual killed anoth- apartment, checked to ensure person acting er killed. Tex. loaded, ejected a from he round the rifle the rifle's chamber and 19.02(a)(2) (emphasis supplied). § Pen.Code replaced then great places a of faith in this Appellant deal with one several he stored in bullet phrase, we feel emphasized faith that is mis- truck. reading guided. of the defi- A commonsense passion” kill- describes the of “sudden nition proposi- Appellant’s argument rests on the person; provocation by the only ing one killing *10 Legislature tion that the envisioned the acting or with the pas- killed another multiple arising from individual people "sudden of 19.03(a)(7)(A). ap only supporting § At of sault. The Code the time trial, pellant’s passion the issue of sudden came from aggravated assault instruction punishment a to be deter solely issue took appellant himself when he the stand after a of murder.7 only and, examination, mined conviction admitted under direct jury provided option The had been of pos- rifle he that he fired the but denied convicting of the lesser-included any intent to kill the five victims. sessed him, in offense of murder but convicted stead, greater capital of the of offense if a To determine defendant is point,
murder. At this
the issue of “sud
a
offense in
entitled to
lesser-included
passion”
only
could
a
den
be considered
(1)
struction,
prong
applies:
a two
test
mitigating
jury
circumstance for the
when lesser-included offense must be included
deciding
punishment
the second
issue.
proof
necessary
within the
to establish
2(d)(1).
37.071, §
Art.
also Buhl
See
See
(2)
charged,
offense
some evidence
State,
(TexApp. Waco,
960 S.W.2d
—
permit
must exist
the record that would
petrefd), cert.
jury rationally
find that if the defen
623,
was not evidence from a that rationally conclude in the indictment in this case and for no guilty only of aggravated assault. See purpose. other (Tex. Jackson v. S.W.2d words, judge, other there has been (not Crim.App.1999) entitled to instruction testimony that of killings there were aggravat on the included offense lesser of three other individuals not named in the appel ed assault when evidence showed indictment, that obviously and would be lant, homicide). least, Appel guilty at of or And extraneous offense offenses. point lant’s tenth of error is overruled. jury being we don’t the want able to use any purpose that for other than which point in of Appellant, his eleventh allows, limiting the law which the error, that trial asserts the court erred requesting. instruction we’re failing request to submit defense counsel’s jury regard ed instruction to the limiting only TRIAL those COURT: Are the ing at extraneous offenses introduced three extraneouses? guilt/innocence Appellant of trial. stage I believe those DEFENSE COUNSEL: had indicted trial in the been and stood only are three. case for of only at bar deaths Gloria Cruz, just Coons and Antonio and before Mr. right. TRIAL COURT: All Rosen- the jury began guilt/in deliberations at the thal, your response? trial, appellant requested stage nocence PROSECUTOR: I need make a tele- a admis limiting regarding instruction that, phone respond call before I can concerning sion of evidence three other Your Honor. that that and their night murders occurred My plan TRIAL would be to COURT: status The follow as extraneous offenses. that, if you— that If request. overrule ing colloquy occurred: that, give you wants if State me to Any objec- TRIAL COURT: ... other that, join they’re in I think want requests? tions totality allowed to consider the Yes, Judge, if DEFENSE COUNSEL: deciding looking in and circumstances request I read may into record in- deciding all of and those factors a lim- regarding extraneous offenses and forth, think that’s tent and so so I don’t given jury. iting instruction be proper If the feels it’s charge. State charge We ask that the Court it, I it. give more will prudent give jury follows. You are instructed So, and let me know. come back me any testimony you if in there is before otherwise, you But I hear from unless regarding having this case the defendant request. going I’m to overrule that the of- committed offenses other than in Appellant him indict- claims harm this alleged in the against fense case, al “the you ment in this cannot consider error because discretion their use testimony any purpose said unless lowed unfettered beyond guilt a reason- offenses to deсide ... you find and believe extraneous Antonio committed of Gloria Coons and killing able doubt the defendant offense, Eighth any such other if were commit- Cruz contravention of ted, then, We cannot you may only even consid- Fourteenth Amendments.” instruction, if even determining agree limiting er the intent of the same defendant, ap- properly requested,8 would have been any, if connection the evidence. Tex. limiting would have tion the introduction of 8. Even if instruction State, 887 appellant, cir- Garcia v. appropriate, R.Crim. Evid. See been under cumstances, (Tex.Crim.App.1994), any cert. error. A would have waived party opposing has the burden of US (1995) (once limiting evidence is received objecting requesting the instruc- L.Ed.2d 223
115
propriate.
disregard
Evidence of the three addition
be
the comment.
instructed
killings
al
that evening
complied
grant
from
was same
but
judge
The
refused
and,
transaction contextual evidence
for a
subsequent request
defense counsel’s
such,
without a limiting
admissible
instruc
Appellant argues
ap-
mistrial.
reversal is
State,
tion. See Camacho v.
864 S.W.2d propriate
highly
because the State “made
524,
denied,
(Tex.Crim.App.1993),
535
cert.
prejudicial
unsupported
remarks that were
1215,
1339,
114
510 U.S.
S.Ct.
127 L.Ed.2d
by
injected
the record and
new and harm-
(1994).
687
Such extraneous offenses are
prose-
ful facts into the case.” While the
admissible to show the context in which
inappropriate,
cutor’s comment was
wе
State,
the criminal act occurred. Archer v.
agree
cannot
harm
warrants
reme-
539,
607
(Tex.Crim.App.1980),
S.W.2d
542
dy of reversal.
denied,
908,
3037,
cert.
452 U.S.
101 S.Ct.
approved
The
areas of
general
(1981).
Appellant, in
accused into the trial
proceeding.
his twelfth
Todd v.
(Tex.Crim.
error,
State,
286,
claims he
598
was entitled to a mistrial
S.W.2d
296-97
inappropriate
App.1980).
after
The
comments
remarks must have bеen
were made
by
a willful
prosecutor
part
and calculated effort on the
closing argu
his
comment,
below,
ment.
provided
deprive appellant
of the State to
of a fair
ref
State,
impartial
erenced a statement
trial.
appellant provid
Cantu v.
939
627,
police shortly
(Tex.Crim.App.),
ed to
S.W.2d
633
after his
cert. de
arrest but
nied,
994,
557,
which was never
522 U.S.
118
admitted into evidence or
139
(1997).
instances,
jury:
shown to the
L.Ed.2d 399
In most
disregard
instruction to
the remarks will
They know that
the evidence is over-
State,
cure the error.
Wilkerson
whelming. The defendant knows the ev-
321,
(Tex.Crim.App.),
S.W.2d
cert. de
idence
overwhelming.
is
finger-
His
nied,
513 U.S.
115 S.Ct.
(sic)
prints
rifle,
is
on the
found
(1994);
State,
L.Ed.2d 604
Cooks v.
truck, walking out of the residence with
(Tex.Crim.App.1992),
cert.
the rifle. He has
up
to come with some
does,
story, and he
gentle-
ladies and
L.Ed.2d 732
men. Two
stories. One to De-
different
tective Fikaris and one
you.
it
Clearly,
improper
jury
to invite the
immediately lodged
Defense counsel
a suc-
speculate
on the existence of evidence
objection
cessful
jury
presented
and asked that the
not
and such was the case here.
instruction,
proper limiting
objection
limiting
without a
request
it be-
for the
instruc-
part
general
comes
of the
evidence in
case
just prior
arguments
tion occurred
before
may
proof
be used as
to the full extent
and, therefore,
untimely.
persuasive power). Appellant’s
its rational
However,
him to be
prоsecutor’s
appellant forcing
comment was
arose for
re-
population
from
quickly
general
an instruction to disre moved
followed
Jones,
pre
jail
infirmary.
and moved to
gard from the trial court which we
about
hoping
exploit
this information
complied
jury.
See
sume
(Tex.
appellant, then contacted law enforcement
966 S.W.2d
Colburn
*13
Stoppers
the local
agents through
Crime
fla
Crim.App.1998). Only
or
offensive
from
program. He informed a detective
grant error warrants reversal when there
Department
ap-
Houston
about
the
Police
and,
an
to disregard,
has been
instruction
hopes
arrange
to
the murder of
pellant’s
bar,
in the case at
this comment was not so
first
her
his
wife and
common-law hus-
disregard
that
instruction
flagrant
the
to
band,
to obtain
and offered his services
was ineffective. See Wilkerson
from
on
appellant
more information
the
point
of
The Sixth Amendment to the 1409, Thus, 89 L.Ed.2d United Constitution guarantees States prosecutions, surreptitious employment all criminal “[i]n the accused of a cellmate (see enjoy right shall ... to have the v. Henry, Assis- United States punishment phаse 12. The conversations had as evidence were, fact, recorded, by jail- Johnson not played jury. trial and for the ers, by investigators but and were introduced (1980)) help be used future 100 S.Ct. 65 L.Ed.2d to would demonstrate elicit” “deliberately information violates counsel noti dangerousness being without (see right Smith, Sixth Amendment defendant’s fied first 451 U.S. Estelle though counsel (1981)), even the same methods 454, 101 S.Ct. investigation might permissible have been too, informant, jail at the acting so house arraignment before or indictment. Michi- cannot behest of elicit informa Jackson, gan v. at 1409. On any stage used con tion to be of trial hand, other the use of a cellmate infor- charges in Amend cerning which Sixth impli- mant contains no Sixth Amendment had already ment counsel attached relays cations if informant information had and counsel not been notified. passively obtained. Kuhlmann he/she arguments The that it was State’s Wilson, conducting separate investigation de However, if an L.Ed.2d 364. informant capital from the murder offense tached acting government on behalf of the delib- and law enforcement’s efforts to investi erately position used his to secure incrimi- gate new or additional these crimes nating information from defendant unfairly be have ad impinged both been when present, counsel not and the past dressed cases. motive informant had “stimulated” conversations *15 in defendant, government obtaining this information with the without even direсt appellant from irrelevant. in questioning, incriminating order to elicit information, an this amounts to “indirect allow the of ob To admission evidence and surreptitious interrogation.” Id. at from in of tained the accused violation v. Henry, 2629. See also United States rights whenever his Sixth Amendment 264, 2183, 2186-88, 447 U.S. 100 S.Ct. 65 alternative, an police legiti the assert (1980). L.Ed.2d 115 reason for their invites mate surveillance by personnel law in abuse enforcement
By intentionally creating a situa investigations the form fabricated appellant tion to induce to make likely the of the Sixth risks evisceration without incriminating statements the assis recognized in Massi-a right Amendment counsel, appel tance of violated State hand, the other to exclude h.14 On lant’s to right Sixth Amendment counsel. pertaining charges to as to evidence Jones, informant, an was not housed right the Sixth Amendment which passive “listening with to act aas time the had not attached counsel post.” He was sent in with instructions to obtained, simply because exploit existing relationship he had time, that charges pending at other were forged appellant in order “deliber pub unnecessarily frustrate the ately information re incriminating elicit” investigation of crim lic’s interest in the garding the solicitation of murder.13 See incrimina Consequently, inal activities. 264, 447 Henry, United States v. 100 (1980). pertaining pending 2187, ting statements 2183, S.Ct. are at the trial of charges inadmissible information was to be This then used fact сharges, notwithstanding those trial to sat appellant’s capital help murder police investigating also that were isfy the burden of that establishing State’s crimes, if, evi obtaining in threat to soci other posed continuing dence, violated the Sixth ety. psychiatrist, acting as a State Just as knowingly circumvent agent, by cannot elicit Amendment state information 201, States, investigators 14. 377 U.S. 84 It Massiah United is clear considered Jones, too, 1199, agent (1964). Jones an State. con- 12 246 S.Ct. L.Ed.2d State, agent for sidered himself to be an judge argu- and even the trial as she heard “an ments on the matter referred Jones as agent of law enforcement.”
119
that the erro
ing
right
the accused’s
to the assistance
to conclude from the record
was,
fact,
of counsel.
neously admitted
punishment beyond
a rea
harmless as
Moulton,
159,
Maine v.
474 U.S.
Russell,
doubt. Ex Parte
sonable
(1985).
477, 489,
rifle killing spree people days that five three tes- left ecutors before start of Jones, who, jurors from Phillip timony concerning ongoing heard be solicitation investigations involving appellant. fore for law These agent he became enforce ment, independently meetings were memorialized the court discovered reporter, they offered to solicit murders of were as evidence efforts two indi hearing, made recusal and testimony par viduals. Jones’ about these appellate During review. available ticular facts was from any free Sixth prosecutors parte ex these discussions jury, Amendment concerns. The at that Judge informed Krocker of investi- their point, possessed validly a critical indicator gative Appellant efforts.17 contends dangerousness: appellant, of future engaging parte these ex communica- despite his incarceration for brutal multi homicide, tions was violation of Code of Judi- ple was willing arrange Conduct,18 cial by exposing herself to murders, condone further this time information, potentially incriminating additional, proxy. Any inadmissible testi the impartiality Judge Krocker was mony appellant’s hopes expand compromised. Specifically, appellant ar- targets list of desired was of minimal con gues re- Judge Krocker should havе been words, sequence. In other because the (or disqualified) cused because was to she jury possessed details of both crime admissibility very evi- rule on murder, itself and the solicitation to there permitted gener- she the State to dence no reasonable likelihood that the inad result, claims, is a ate. portion of testimony, missible Jones’ con violation of his Fourteenth Amendment context, sidered either alone or moved process. due nonpersuasion from a state of persuasion regarding the issue of future dis- After filed his motion to See, dangerousness. Lagrone e.g., v. qualify, pursuant to Texas Rule of (Tex.Crim.App.1997), 942 S.W.2d 18a, judge Civil Procedure another was rt. hearing rule on motion. A assigned ce L.Ed.2d The error Judge was held on matter which beyond occurred harmless rea Also, testify. Krocker called sonable doubt. We overrule appellant’s pdrte meetings from two ex record those *17 sixth point of error. in on this was introduced evidence. Based information, appointed judge denied matter, appellant In a related appellant’s disqualify. motion to point in his first of error that the claims judge to a appointed decide to re- motion The of a refusal defendant’s judge cuse the trial from this case abused only for disqualify motion to is reviewable in denying his claim. discretion Tex.R. Pro. of discretion. Civ. abuse 18a(f). State, appellant for filed a to Counsel motion 846 S.W.2d Kemp See (Tex.Crim.App.1992), denied, disqualify 289, Jan Krocker Honorable t. 306 cer 2361, 918, on 508 113 124 L.Ed.2d grounds partici from the case she U.S. S.Ct. (1993). An not pated parte meetings pros- appellate in two ex with 268 court should every years. During judge person who over a of at shall accord to viduals number A legal proceeding, least one of these threats brand- in a or that has interest gun. a ished lawyer, right to ac- person’s be heard initiate, cording judge to law. A shall not During meetings, Judge was 17. these Krocker parte permit, or consider ex communica- cognizant always need to de- of the inform made to the tions or other communications counsel of these events as as was fense soon parties judge presence of the outside the possible jeopardizing realistically without party judge and a an attor- [or] between investigation. ongoing pending ney concerning ... the merits of a G, impending judicial proceeding.... T.2, B, App. Gov’t Code Subt. Jud. Tex. Conduct, 3(B)(8): Canon
121
was entitled to a
ly, appellant claims he
judge
ruling
reverse
whose
on the
a trial
Article 38.23
jury
pursuant
instruction
to
motion
the zone of reasonable
was within
because,
of
testimony
in
to the
Additionally, “mere
reference
disagreement.
Ibid.
Jones,
informant,
“the
Phillip
of
violations of the Code
Judicial Conduct
alone,
legality
of evi
an issue about
raise[d]
do not constitute reversible error
[ujnethical
Regardless,
...,
by the Statе.”
and ...
conduct ...
not
dence obtained
is
include an Arti
court
required
a trial
is
necessarily
legal ground
reversal.”
jury charge
in the
State,
cle 38.23 instruction
at
Kemp v.
846 S.W.2d
305. Even
dispute as to how
only if there
a factual
that a
assuming arguendo
violation
the evidence
obtained. Thomas v.
occur,
was
Code of
Conduct did
Judicial
State,
696,
(Tex.Crim.App.
723
707
S.W.2d
arguendo that it is
assuming
possible
also
1986).
case,
there was no
the instant
potential
such a
has the
to rise to
violation
surrounding
dispute as
facts
error,
to the
the level of reversible
has
acquisition
testimony.
only
of
Jones’
failed
case to demonstrate sufficient
this
in this case
determination to be made
was
harm resulting
alleged
from this
violation
nature,
legal
factual. See Bell v.
of
not
to the
a reversal would be warrant-
degree
State,
35,
(Tex.Crim.App.1996),
S.W.2d
ed. It is true that while sufficient bias can
827,
denied,
rt.
result in
it
disqualification,
only
does so
ce
Appellant
(Tex.Crim.App.1983). argued The State at points Appellant, in and ninth eighth the hearing showing on this matter that no error, court claims the trial erred by appellant made indicated him denying opportunity examine Judge was influenced or Krocker biased jurors parole potential on the issue of any way a result of these two parte as ex denying requested jury also erred appointed The judge communications. parole eligibility instruction on hear motion disqualification agreed, charge punishment. court’s We have and so do we. The defendant failed each addressed and overruled er hearing, demonstrate was his past ror in and there is no need to cases burden, Judge possessed any Krocker revisit these issues. See Shannon v. bias, State, much less sufficient bias that (Tex.Crim.App. 942 S.W.2d 1996); have rights interfered Green 105- process. due It is within the (Tex.Crim.App.1996), zone of rea- cert. presump-
sonable disagreement *18 State, (1997); judicial of impartiality tion Felder v. 758 S.W.2d not over- by assigned come The cert. appellant. judge (Tex.Crim.App.1988), in did not his discretion denying abuse nine
appellant’s eight to error and are disqualify Judge motion Points of 18a(f). Proc. overruled. Krocker. Tex.R. Civ. See State, at
Kemp Appel- 846 S.W.2d appellant’s In thirteenth and final lant’s of is point first error overruled. error, the trial point of he contends court point error, erroneously requested his ap In the seventh of failed to submit into the pellant erroneously the trial court instruction on renunciation argues stage at of trial. requested jury charge punishment denied a instruction in the § The punishment. Specifical- pro- court’s at Tex. 15.04.19 charge See PemCode part: circumstances 19. Section 15.04 reads in that under man- solicitation] relevant (b) ifesting voluntary complete and renuncia- prosecu- it an affirmative defense is objective the tion or 15.03 tion of actor under Section 15.02 his criminal [criminal instruction, MEYERS, J., concurring it is ar delivered this posed renunciation opinion. necessary after called gued, Johnson, Gary agreement off expand majority’s I upon write to man,” undercover “hit because he was point of second of discussion phone being afraid his conversations were point appel- error. In his second of error by jail personnel. response, recorded legally claims the evidence is insuffi- lant 15.04(b) is in State contends Section because, support his conviction he cient to applicable the affirmative defense because argues, property. he acted defense of his only apply prosecut to a instruction § 9.41. See Tex. Penal Code ed offense under Section 15.02 or Section is raised the evi- When defense agree argu 15.03. We with the State’s dence, per- bears the burden of State ment, yet why but there another reason is beyond it a reason- disproving suasion appellant’s proposed instruction would State, able doubt. Saxton See inappropriate. Appellant have been called (Tex.Crim.App.1991). S.W.2d agreement only off his with Johnson be required is This doesn’t mean the State phone cause he was afraid their conversa the defen- produce contraverting susceptible
tions to electronic eaves were sive evidence: dropping. Appellant did not renounce his murders, he did 2.03(d)[1] intent to solicit the appears § im- Arguably, prevent not take “affirmative action” directly pose a burden on the State to object the commission of the offense. See trial, and dic- refute a defense raised Hackbarth v. certainly sup- case [certain law] ta no evi (Tex.Crim.App.1981). There was the Prac- ports] proposition, such a but supported an in 2.03(d) dence that would have § and other Commentary tice struction on renunciation. trial court First, otherwise. case law indicate in refusing did not abuse its discretion its points out that Commentary Practice of error thirteen is submission. Point persuasion has the burden of State overruled. de- disproving [a the evidence fense], produc- That is not a burden of error, affirm Finding no reversible we tion, i.e., requires which the State one of the trial court. judgment produce evidence refut- affirmatively claim, but rather a ing the [defensive] MEYERS, J., opinion an delivered requiring prove the State to its burden point concurred as to error two beyond a doubt. Sec- case reasonable joined opinion of otherwise law ondly, importantly, more case MANSFIELD, J. an issue [a defense] instructs us KELLER, J., opinion delivered jury. fact to be determinеd result as to of error concurred merely con- evidence which is Defensive six. physical evidence sistent with will alleged offense not scene of the McCORMICK, P.J., joined opinion evidence insufficient render State’s KELLER, J. credibility determination of since the *19 solely jury’s within the
WOMACK, J., such evidence is dissented with an HOLLAND, accept to PRICE, province jury and the is free & opinion, in which evidence. A JOHNSON, JJ., reject or the defensive joined. 2.03(d) provides: § "If the issue 1. Penal Code or withdrew countermanded his solicitation to the existence of a defense is submitted conspiracy commission of from the before charge that a reason- jury, the court shall object and further affirma- the the offense took requires that the de- on the issue prevented able doubt tive action that the commission acquitted.” be fendant object of the offense. Cruz, reflected implicit evidence guilty keys is an from jury’s verdict first. After rejecting self- victim was shot finding the defendant’s that another rifle, appel- with his theory. leaving the residence defense po- the arrival of the calmly awaited lant resolving sufficiency of the ... In “I did stating, He was overheard lice. issue, we whether look not to evidence it_ This what I do.” I did had to presented which re- the State evidence jury is sufficient a rational evidence evidence], appellant’s futed [defensive beyond each element the offense find we whether after but rather determine dоubt. reasonable most light all the in the viewing evidence prosecution, ration- any favorable to comments, I concur With these fact al trier of would have found join opin- of error two and otherwise beyond elements essential of murder ion. have reasonable doubt and also would against appellant the [defen- found on KELLER, J., concurring delivered a beyond doubt. issue a reasonable sive] McCORMICK, P.J., opinion in which (citations omitted)(emphasis Id. at 913-24 joined. self-defense). original)(discussing poses following question: This case presented The defensive evidence was When, indictment, after an undercover appellant’s testimony. Appel- the form of agent deliberately elicits government victims, lant testified that one Anto- of the crime from about extraneous statement Cruz, keys took the truck appellant’s nio defendant, does Amendment Sixth Appellant and refused return them. pun- at the bar admission statement also testified when he entered phase charged trial on the ishment Cruz, to retrieve keys residence from government agent’s offense? Unless people five he there encountered I entrapment, conduct constitutes Appellant threatened him. the evi- argues question answer that “no.” guilt dence is insufficient establish his eye there were and because no witnesses Amendment to counsel The Sixth appellant’s testimony was uncontraverted. govern- when an undercover is violated deliberately need agent The State not refute elicits from a de- ment Saxton, testimony. supra. Viewing incriminating an of- fendant evidence of already light most to the which the has favorable fense for defendant “The prosecution, any charged.1 rational of fact could Amendment trier been Sixth however, and sup- specific” have found the is offense right, evidence sufficient adver- port appellant’s apply It would not not to crimes for which conviction. does not appel- sary proceedings irrational for a have been be to disbelieve criminal Supreme decision testimony and initiated.2 The Court’s rely lant’s on the appli- supporting guilt. showed in Maine v. Moulton addressed the The evidence in- to under- shot the five individuals cation of the Sixth Amendment residence, multiple investigations relating side the within a few seconds. cover head, crimes, had charged in the the bullet some that Cruz was shot been Moulton, defen- trajectory, which that had not. followed a downward some charged sitting he was shot in a Moulton and Colson were suggests while dants counts of Moulton kneeling position. Although with four theft.3 meetings had several to discuss attempting claimed he was to retrieve Colson Wisconsin, 171-174, Moulton, 2. McNeil v. 501 U.S. 1. Maine v. (1985); L.Ed.2d see L.Ed.2d States, also Massiah United *20 Moulton, 162, at 477. 106 S.Ct. 84 S.Ct. 3. upcoming their trial.4 At time, one of these er charges pending were at that meetings, Moultоn suggested possibili- the unnecessarily pub- frustrate the ty of killing one of the State’s witnesses.5 lic’s interest in investigation the of crim- Later, secretly agreed Colson cooperate inal Consequently, activities. incrimina- police the in exchange govern- for the ting statements pertaining pending promise ment’s to refrain from bringing charges are inadmissible at the trial of any charges against additional him.6 Col- charges, those not withstanding the fact agreed son to the recording secret of sub- police the investigating were also sequent conversations between him and crimes, if, other in obtaining this evi- Moulton.7 At a strategy meeting between dence, the State violated the Sixth two, Moulton and Colson discussed by Amendment knowingly circumvent- fabricating an alibi for charged of- ing right accused’s to the assistance fenses.8 The two discussed the details of of counsel.12 develop thefts order to an alibi that Claiming memory lapses believable.9 incident, about the prompted Colson Moul- Incriminating pertaining statements ton for additional details of the thefts.10 crimes, other as to which the Sixth The government argued that the record- attached, right yet Amendment has not ed statements were admissible because the are, course, at a admissible trial of government was investigating an un- those offenses.13 charged crime—Moulton’s threat to kill passage proposi- above articulates two govеrnment’s one of the witnesses.11 In tions of law concerning gathering rejecting contention, government’s information an undercover informant distinguished Court per- between evidence after the defendant has been indicted for taining to the charged offense and evi- First, an government may offense: not dence pertaining to other charges: use pertaining charged evidence to the To allow the admission of evidence ob- charged offense at the trial of the offense tained from the accused violation of though even may have been rights Sixth Amendment whenever incidentally obtained govern- police alternative, legiti- assert investigation ment’s of an extraneous of- mate reason for their surveillance invites Second, fense.14 government may use abuse personnel law enforcement (un- to an pertaining extraneous the form of investigations fabricated charged) offense at the trial of that of- risks the evisceration of the Sixth fense.15 What Moulton did not decide is right recognized Amendment in Massi- (or extent) whether hand, govern- to what ah. On the other to exclude evi- may ment pertaining pertaining dence use evidence to an charges as to which Sixth Amendment to counsel extraneous offense the trial of the had not attached at charged the time the evi- offense. That is the issue in this obtained, simply dence was because oth- case.
4.
Id.
11.
Id. at
7.
Id. at
125 however, present a appellant, constituted distinguish this case from Three factors murder) (solicitation pro- or a most Moulton. The first factor is the crime (murder, to be carried crime presented posed this future significant: future). strongly offense. This works pertains to an extraneous out case in Moulton viola- holding a Sixth Amendment against finding This factor renders and elimi- in the Seventh and inapplicable present to the case Federal cases tion. Supreme concern about nates the Court’s have held that Sixth Eleventh Circuits investigations. Moulton admission, ad- at the fabricated not bar Amendment does offense, a in which dressed situation of statements charged trial for the an charged offense was elicited or address present crime that constitute supposedly centered on investigation in the future.18 a crime to be committed Supreme offense. The extraneous present crime that constitute Statements apparently concerned that law Court was uniquely a future crime are propose might enforcement officials fabricate relationship attorney-client be- outside the an extraneous offense as an existence of to the assistance of there is no cause charged excuse to elicit evidence of new crime.19 committing counsel Hоwever, where the evidence offense. of statements are not covered types These offense, pertains to an extraneous elicited attorney-client privilege, and the by the if investigation unlikely, a fabricated seems require attorneys to ethical rules do not possible. it is even Because the Sixth If a keep such information confidential.20 Amendment had not attached to the extra- in coun- made such statements defendant case, present in the neous offense presence, might obligated counsel be sel’s investigate State was entitled to and ob- If counsel reveal those statements.21 tain this evidence from the defendant exchange present during had be- been the absence of counsel.16 and the undercover infor- tween mant, to re- any advice to the defendant distinguishing
The second factor
making the statements would
case from Moulton is this: The statements
frain from
“not
the statements would have
by
made Moulton related the details of a be
because
complici-
guilt
past
by
crime.17 The statements made
shown a consciousness
236,
Moschiano,
v.
695 F.2d
16.
If a Sixth Amendment violation can occur
18. United States
denied,
Cir.1982),
obtained,
(7th
cert.
464 U.S.
only
240-243
at the time the evidence is
110,
831,
(1983);
111
104
78 L.Ed.2d
S.Ct.
would seem to end the matter in this case.
Darwin,
(11th
F.2d 1193
v.
757
United States
The State was entitled to elicit the extraneous
denied,
1110,
Cir.1985),
106
cert.
through
in-
offense evidence
the undercovеr
896,
930
A similar
88 L.Ed.2d
formant, so there
Sixth Amendment
was no
Meachum,
holding
occurred in Grieco v.
inception, and
Amend-
violation at
no Sixth
st
713,
(1 Cir.),
F.2d
717-718
cert.
any
excluding
ment basis for
the evidence at
158,
858, 97 S.Ct.
U.S.
charged
trial —even for the
er,
offense. Howev-
(1976),
subsequently
Circuit
held
but the First
support
there is at least some
for the idea
been overruled Moulton.
that Grieco had
that the Sixth Amendment can be violated
270,
Bender,
n. 4.
221 F.3d
pretrial
the admission at trial of uncounseled
Michigan Harvey,
statements. See
v.
Moschiano,
241; Darwin, 757
19.
Though
guilt stage
these federal cases were decided
indicated that it would
Moulton, their
And in
reasoning
sentencing.30
before
is still be admissible
Kidd,
v.
dis- United States
persuasive. The
has
the Fourth
Seventh Circuit
Circuit
tinguished
prior
Supreme
held that
Sixth Amendment was not
United States
ground
prior
Court case on the
that the
violated
the introduction of
extrane-
(elicited by
case did not address the distinction be- ous offense
an undercover
cаse)
past wrongdoing
agent
primary
tween
and new criminal
after indictment in the
in Dar-
Circuit,
activity.25
phase
trial for the
sentencing
The Eleventh
win,
Kidd,
charged
did not make such a careful distinc-
the defendant
offense.31
past
charged
regard-
tion between
In was
with several offenses
new crimes.
Darwin,
by ing
possession
most of the evidence obtained
and distribution of co-
Later, an
the confidential
informant
related to a
caine.32
undercover informant
witness,
tape-recorded purchase
threat
to kill a
but made a
of cocaine
government
pled
there was some evidence
to the
from the defendant.33 The defendant
relating
guilty
offense that
elicited and ad-
to one of the earlier distribution
original
Grieco,
inserted).
(ellipsis
22.
23.
offenses,
post-in-
was such
sentencing,
and at
cаse
introduced
relevant
would have found
State’s
sale was
dictment
(on
...
punish-
the defendant’s
conduct
enhance
sufficient
dangerousness)
future
Sentencing
the Federal
Guide-
ment under
testimony
not been
if
had
even
[the]
*23
expressed
the court
Although
lines.34
however,
question,
The
admitted.”
propriety
introducing
of
about the
doubt
evi
legally
admitted
not whether
trial,35
stage
at
of
it
guilt
evidence
this
support
dence
sufficient
not
that
Amendment did
held
Sixth
was,
sentence,
it
which we assume
death
prohibit the introduction
evidence
rather,
has
whether
the State
but
arriving
holding,
at this
sentencing.36
that
a reasonable doubt
proved “beyond
remarked,
Circuit
“The Sixth
the Fourth
of did not contrib
complained
the error
sanctuary
a
not create
Amendment does
Chapman
obtained.”
ute
the verdict
of additional crimes
for the commission
24[,
],
[18], at
87
386 U.S.
[v. California
an
during
pendency
of
indictment.”37
(1967)
824,
trist who violated Satterwhite’s had WOMACK, J., dissenting opinion a filed Using him examining jail. in to counsel HOLLAND, by PRICE, and joined information, psychiatrist testified that JOHNSON, JJ. that, presented Satterwhite opinion, society through acts continuing a threat Texas, In Satterwhite v. 486 U.S. evaluated of criminal violence.2 The Court 258-59, L.Ed.2d of the record. the error in the context (1988), admission, the Court held that the trial, cаpital a punishment stage at the sentencing The introduced at of evidence in violation of a obtained defen that, in to his conviction showed addition dant’s Sixth Amendment to counsel case, prior had four Satterwhite if may be harmless error a court finds: ag- from ranging convictions of crimes robbery. to armed gravated assault that the erroneous admission of [the testified that Sat- Eight police officers testimony beyond tainted] was harmless peace- a reputation being terwhite’s A a reasonable doubt. Texas court can and law-abiding citizen was bad ful to death if the only sentence defendant husband mother’s former Satterwhite’s jury, prosecution beyond convinces the him shot that Satterwhite once testified doubt, “there is a proba reasonable that also argument. The State an that bility the defendant commit testimony of Bexar Coun- introduced the criminal acts of violence that would con ty psychologist Betty Lou Schroeder. continuing society.” stitute a threat found Dr. testified that she Schroeder Appeals thought The Court Criminal individual” “cunning Satterwhite to be the admission of testi [the tainted] that inability people,” “user of mony on this issue was harmless critical testified empathy guilt. to feel She “the admitted properly because offenses, obtained, so are admissi- extraneous 34. Id. sentencing). ble at 35. Id. at 33 n. 2. 37.Id. State, 643 Id. at 33. Jackson v. 36. But see (Del.1994), 1. Other omitted. rt. citations A.2d cе Satterwhite, S.Ct. 1792. (1995)(disagreeing holding that with Kidd's opinion, in her anything says, Satterwhite would want to believe he that’s be a continuing society through threat to tapes fine. Because the are there.” Sec- acts of criminal violence.3 ond, the evidence the mur- soliciting about der psychiatrist quality The Court noted that the of witnesses was of a different witness, trial, illegally- the State’s final that his from all the other evidence testimony obtained stood out both because which was the crimes and mis- of his qualifications as a medical doctor conduct in anger were committed specializing psychiatry and because of against acquaintances. recordings al- powerful content message, of his say argument lowed the final State prosecutor highlighted those jury, “The man ais stone cold killer.” points closing argument: in his *24 illegally-obtained figured The Grigson, psychia- “Doctor James Dallas prominently arguments jury. in the to the
trist and medical doctor. And he tells jury in opening argu- The State told the you range that on a from 1 to 10 he’s ten “evidence, especially ment that plus. sociopath. Extremely Severe tape, very damning [was] towards the de- dangerous. continuing A threat to our Well, fendant,” society. it be cured? them urged Can it’s not to listen to the a disease. It’s not an illness. That’s his tape recordings “over and over and over.” That’s personality. John T. Satter- reviewing capital After the facts of thе white.” murder, prosecutor reminded case, Having appellant reviewed the the trial impossible say Court found it be- people. “plotting killings five more yond a reasonable doubt that the true, testimo- It’s unbelievable. But it’s true. It’s ny sentencing jury.5 did not influence the you tape. because can hear it on And tapes attorneys’ don’t lie.” The defense
Our review of the error in the case now record, before us should be modeled on that in arguments occupy pages opinion. appellant Satterwhite The mur- response illegal 13 of which were to the wife, roommate, estranged dered his her closing evidence. the State argument, men, and three thought some whom he tapes. told the to the again jury to listen she was sexual having relations with. At argument quoted tapes, and used punishment stage testimony there was appellant them to characterize the as a jail from a inmate that the want- “stone cold killer.” ed to have his ex-wife and her husband impossible say beyond I find it killed. There was evidence of “threats of testimony reasonable doubt that did by appellant violence that were made to a jury. I variety sentencing not influence the re- individuals over a number of years.”6 illegal- spectfully And the State introduced from the judgment dissent evidence, ly-obtained tape- included which affirm the sentence of death. conversations, recorded that the investigator
had solicited an undercover trial,
kill four witnesses as well as a
jail illegal inmate. The evidence was im-
portant. First it corroborated the admis- inmate, testimony
sible who other- easily
wise could have been disbelieved.
As the in closing argument, State said Jones, individual, Philip you may
“That you
also discount him if If you wish. don’t (footnote
3.
Id. at