Williams v. State

lay conveyed); rentals was Schlittler v.

Smith, Tex. WILLIAMS, 101 S.W.2d Jr., Appellant, Frank A. (1937) (holding grantor reserved 1/2 royalties when the “royalty” word grantor Texas, used and therefore that Appellee. was not The STATE of entitled delay to receive of bonuses and 1/2 No. 72244. rentals). Texas, Appeals

Court Criminal appeals in this case En Banc. concluded our decisions Watkins and Oct. require French to “royalty a reference from production” convey actual or reserve a Rehearing Nov. Denied

royalty interest. 911 S.W.2d 535. This our misconstrues decisions. We have never any particular phrase word or conveyed

be used. The interest or reserved provisions

is to be determined all the Altman,

the instrument. S.W.2d at

118; Watkins, 189 S.W.2d at 700. The deeds

at issue in this case leave no room for doubt

that a royalty interest was reserved. The “royalty”

word no used less than six times deed,

in each and the interest retained free drilling production. costs A

royalty pro interest definition free of Eugene Kuntz,

duction costs. A Treatise 16.2, § at 482 on the Law of Oil and Gas (1987); 1 Ernest Jacqueline E. Smith &

Lang Weaver, Texas Law of Oil and Gas 2.4(A), (1991); Wagner

§ Supply at 51 see Co. Bateman, 118 Tex. (1929); Drilling see Co. also Delta

Simmons, 161 Tex. pursuant

Accordingly, to Rule 170 Procedure, Appellate

Texas Rules grants application

Court for writ of error

and, oral hearing argument, without reverses judgment of of appeals the court judgment

renders the deeds re- each royalty

served interest. 1/16 Rice, Attorney,

Daniel C. District Ki- Gail McConnell, kawa Attorney, Assistant District Conroe, Paul, Atty., Matthew State’s State.

OPINION MEYERS, Judge.

Appellant capital was convicted of murder and, pursuant jury’s answers to the statutory punishment set issues forth Tex- as Code of Criminal Procedure art. 37.071 2(b) 2(e), §§ sentenced death.1 Arti- 2(g). appeal § 37.071 cle Direct is automatic. 2(h). § Article 37.071 Appellant error, points raises five in- cluding challenges to sufficiency of the stages evidence both of trial. We will appellant’s sufficiency points address first. light Viewed most favorable to the verdict, the evidence at trial showed the fol- lowing: morning 1,1994, of February On Larry Deputy Sheriff Demanche was called Deerwood Subdivision of Montgomery County by a woman concerned about her neighbor. The woman directed him the victim’s where he trailer discovered vic- body lying' tim’s on the floor inside. From appearance body, Demanche deter- mined that the victim had been dead for days. several Other officers were called to the scene.

As Detective Bonnie Morris canvassed the witnesses, neighborhood possible she frequented learned the victim a place called Lounge.” “Bubba’s,” “Bubba’s At Morris dating was told that the victim had been Williams, man the name Frank Sr.. In Williams, Sr., attempt locate Morris began calling telephone numbers discovered eventually in the victim’s trailer and called appellant who identified himself as Frank Williams, Appellant son. Sr.’s lived Con- Williams, stepmother, roe Nina MacDonald, II, Conroe, sister, John D. for appel- Angela Guillory. Ruth From her lant. appellant, conversation with Morris learned All references to are to those in articles time of the offense unless otherwise indicated. Texas Code of effect Criminal Procedure in at the Williams, Sr., gave a written eventually whereabouts and accom- confession,

panied videotaped to talk to him. As a turned over his shoes other detectives interview, Williams, Sr., blood, result of the consented to and three vials suspect dropped as case. pickup. Appellant told the search off gotten that he had work detectives investigation of the Further crime scene 28th, Friday, January p.m. around 5:30 print impression revealed a shoe on the back paychecks, pay- cashed his his truck made wearing. victim had been A the robe the ment, purchased some “crack.” After impression print second shoe was found going change, appellant home went to investigat- kitchen. The tile floor p.m.. Appellant victim’s house around 11:00 ing officer also noted that dresser drawers in the victim’s trailer stated he had been appeared ransacked, to have been a base for pair just picked up a a few when he minutes telephone jerked cordless had been repeatedly. her He of scissors and stabbed wall, purse appeared the and a to have blood professed not remember what that he could on the inside. residue happened got up off the floor to had until he day During investigating the second of the get a further stated that he Appellant towel. crime, telephoned Leonard Carothers Detec- of went rings the and to a took two victim’s requested to a tive David Moore and he come going “crack” house before home. dealer’s same residence located subdivision as interview, During appellant a subsequent arrived, the victim’s trailer. When Moore he that, trailer, prior entering commented Betty (ap- met with Leonard and Carothers decided kill victim if he would neces- pellant’s mother), stepfather and natural sary get rings. her Williams, Angela Guillory. Nina and Guillo- ry informed that Moore she both believed investigation discovery Further led father, Williams, Sr., appel- Frank appellant’s of blood smears around sink having lant affairs with were the victim. trailer, appellant’s a sweater truck Guillory and Nina also discussed certain be- it, appeared splatters on which to have blood appellant had havior exhibited after his tele- appel- blood stains on the driver’s side phone with conversation Morris Detective lady’s rings lant’s vehicle. Two were recov- day.2 previous The women told Moore nearby pawn shop ered from a which Dennis perceived they that had unusual on behavior pawned Hines testified that he had after appellant’s part Friday night on the before description giving fitting appellant’s a man body Guillory the victim’s had been found. twenty dollars for them.3 Detectives were suspected appellant stated that she of smok- belonging to later notified a billfold that ing night “crack” that and also that she had being victim was held a truck driver who appeared to noticed what be blood around along the highway had found it a ditch appellant’s following cuticles the weekend. between the victim’s house and Conroe. Guillory Nina informed Moore that once Upon testing, subsequent scientific investi- something they suspected happened, had gators the blood on one determined that through they began looking dirty clothes appellant’s shoes and sweater was consistent for “[a]nything They with on it.” blood victim. The sole with blood of the pair appellant’s found a shorts stained partial appellant’s right shoe and shoe like with what looked blood. Nina handed print found in the victim’s kitchen were de- plastic bag containing Moore a men’s shorts. termined be the same. Appellant was located taken to the sta- questioning. punishment, presented tion for Two At detectives noticed de- adjudication appellant time that shoes ferred order wherein tennis pled charge burglary of a appeared to have blood stains on had to a them. habi- Guillory rings that she entered Hines stated received the stated the room as that he up telephone night hung January 28 appellant his conver- from a man his brother after said, appellant brought subsequently with and that sation Morris “Oh the house. Hines identi- need, God, picture appellant my accompa- I the man [the all I can’t believe fied nying his occasion. victim] is dead." brother on that tation, a adjudication delicti, deferred ap- corpus independent order of the defen- pellant’s commission offense mis- capital cases, dant’s confession. murder theft, testimony demeanor and the of a extrajudicial we have further held young jury man who appellant told the confession must be corroborated as had struck they junior him when high underlying felony part offense since it is students, along school with documents evi- corpus corroborating delicti Id. The dencing juvenile proceedings asso- evidence need not be sufficient itself to ciated with this pre- event. Evidence was rather, prove offense; underlying “[a]ll appellant picked sented that up had that is is that there be some evi- eleven-year-old boy and him slammed dence which renders the commission of the talking appellant. his back for back to probable offense more than it would with- Thus, out the evidence.” Id. at 15-16. there the testimony offered of his corroborating need not be evidence sufficient mother and sister family as to distressed prove alone to to kill intended background and concluded with the testimo- rings; the victim for her corroborating ny of psychotherapist, Master’s-level Mi- only evidence need make this conclusion conclusions, Among chelle Dennison. other probable. more opined Dennison had serious problem drug using abuse had been signs murder scene itself showed “crack” day cocaine for 5-6 hours a for the robbery. aof Officers found ransacked murder, prior five months to the victim’s purse dresser drawers and a with traces of indicating very a severe addiction. On cross- inside, blood on the indicating it had been examination, acknowledged Dennison the ex- gone by the murderer. There was through istence appellant’s job of records from corps’ testimony appellant that sold victim’s training wherein it was disclosed that he had rings p.m. around 11 night of the been involved in fights various de- murder pawned to man who later them. Further, property. struction of Dennison Finally, the victim’s billfold was found aban appellant testified that had told her that he along doned highway. These facts make thought had killing people three times probable appellant’s more statement that he offense, before he committed the instant that rings killed the victim for her and thus suffi temper, he has a bad poor and that he has ciently corroborate his confession. Cham coping skills. bers, supra; see also Gibbs 819 error, point In his first (Tex.Crim.App.1991), cert. de overruling claims the trial court erred nied, 1205, 502 U.S. 112 S.Ct. presented motion for instructed verdict (1992). light L.Ed.2d 444 When viewed in guilVin- the conclusion of the State’s case on verdict, most favorable to cor given nocenee because the evidence insufficient roborating evidence and confes to sustain a “guilty” verdict of to the offense sion, support the evidence is sufficient to capital murder. Tex. Penal Code jury’s finding beyond a reasonable doubt that 19.03(a)(2). § Specifically, appellant claims appellant committed the murder the statement he made in his confession committing robbery. course of Point being willing about to kill the victim error one is overruled. rings corroborated; therefore, was not he argues prove the evidence is insufficient to error, appel In point his second beyond a reasonable doubt that he murdered lant claims the evidence is insufficient to victim in of robbing the course her. support jury’s finding that he would be a society. continuing danger to Article 37.071 extrajudicial A defendant’s confes 2(b)(1). § reviewing legal sufficiency In this sion must be corroborated other evidence point, tending the Court looks at the evidence to show a crime was committed. (Tex.Crim.App.1993), light Chambers most favorable to the verdict to deter denied, t. mine whether rational trier fact could cer (1994). beyond 128 L.Ed.2d In have believed reasonable doubt words, probably other there must be commit criminal evidence for her to kill the victim prepared a con he was violence that would constitute acts of her home. he even entered society. Virgi jewelry before Jackson v. tinuing threat he mur- indicated nia, Appellant’s confession 61 L.Ed.2d 99 S.Ct. he reason that for the sole dered the victim (1979); Allridge buy in order money or valuables 510 U.S. wanted

(Tex.Crim.App.1991), cert. a wanton These facts demonstrate “crack.” L.Ed.2d disregard for human life. callous the crime alone can be sufficient facts of spe finding support an affirmative to this longtime facts do not reveal While the fact, supra. cir Allridge, cial issue. commit appellant’s part calculation may greater provide of the crime cumstances murder, forethought and they show some probabili probative evidence of defendant’s two streets Appellant parked deliberation. ty committing future acts of violence house, apparent in an from the victim’s down spe any other factor relevant the second Further, appellant effort to evade detection. Id. cial issue. consid- He had psychotherapist told his prior occa- someone on three killing ered permitted look jury At sions. of future factors in its review at several his- appellant’s prior dangerousness including, not limited to: also showed but Evidence to- offenses and violence tory of criminal capital of- circumstances, 1. others, chil- including violence towards wards

fense, including the state defendant’s Finally, psychiatric no evidence while dren. working mind and whether was alone State, appel- presented on behalf parties; with other appel- stated psychotherapist lant’s own the calculated nature of the defen- temper poor coping skills. lant had bad acts; dant’s evidence, forethought ex- and deliberateness that a we conclude Given execution; juror the crime’s hibited could have found that there rational- commit appellant that would probability a prior 4. criminal rec- existence a that constitute acts violence ord, crimes; criminal severity prior of the and society. Jackson and continuing a threat personal 5. cir- age the defendant’s supra. error two is Allridge, Point of both offense; cumstances the time overruled. acting un- 6. whether the defendant was

der duress the domination another at error, appellant point of In his third offense; the time of the denying his the trial court erred in claims evidence; psychiatric 7. expert for to file for assistance motion leave 8. character evidence. by being parte. Appellant asserts that ex parte hearing, an he was forced denied ex (Tex.Crim.App.), State, 316, v. 876 322 Barnes needing for an his reasons reveal denied, 861, t. 513 U.S. cer witness, thereby disclosing at least expert 174, 130 (1994); S.Ct. L.Ed.2d 110 Keeton theory, in denial of his part defensive of his State, (Tex.Crim.App. process right fairness due to fundamental 1987). helpful in These factors are also by the Fourteenth Amendment guaranteed question. Court’s evaluation of this and in vio United States Constitution above, in- set evidence As out product work doctrine. lation of the robbery a murder com- stant case shows trial, appellant prior months brutal manner. The choice of Some four mitted in a to File Motion for Leave weapon required filed “Motion scissors as Psychiatrist Ex Expert his Assistance physical contact with victim close motion was denied. Parte.” This during the attack. See Martinez compelled provide the thereupon (Tex.Crim.App.1996). was requesting copy of his motion personal relationship with the Despite his expert to assist him.4 victim, appointment of an confession that appellant stated his motion, professional be- a mental health the services of his stated that needed In Attached to his motion support and in there- beneficial.” Mississippi, Caldwell v. of, is the of a psychotherapist affidavit 1, 105 initial- U.S. 323-24 n. S.Ct. 2637 n. ly by appellant’s family hired delineating spe- (1985). 1, 86 L.Ed.2d 231 Court This has cific that an expert helpful reasons would be emphasized that a defendant will not succeed judge required case. The trial support on his Ake motion adequate absent copy provided this affidavit be allegations: his behind appellant’s objection. the State over In holding sufficiency cases that a show- expert who executed the affidavit is the same ing Ake, was not made under the defen- expert the trial judge appointed thereafter typically dant support has failed to his for the defense. motion with affidavits or other evidence in Oklahoma, 68, 105 In Ake v. support expla- of his theory, defensive an (1985), L.Ed.2d the United States nation as to theory what defensive Supreme process Court held that due entitles why expert helpful assistance would be indigent appointment defendant to the in establishing theory, showing or a an expert to assist when the question there was reason to defendant makes preliminary showing expert proof. State’s expert the issue for which he seeks' assis Rey, question 897 S.W.2d at in this “likely significant tance is to be a factor at is whether a case is entitled to Rey trial.” make his Ake showing parte.5 threshold (Tex.Crim.App.1995); De Free ce v. (Tex.Crim.App.), S.W.2d 150 cert. Ake, Supreme In Court stated: U.S. 126 L.Ed.2d 234 When the defendant is able to make an ex holding premised upon This parte showing threshold to the trial court notion that an is entitled to “mean likely that his [issue] is to be a ingful justice” access to which means that he defense, factor the need for the should have “access to the raw materials expert] readily assistance of appar- [an integral building of an effective de ent. ensuring proper fense” thus “a functioning of adversary process.” Ake, 82-83, 105 S.Ct. at 1096 added). (emphasis Supreme While the order to make the threshold suggestion appointment Court’s that the show- threshold under Ake, dicta, ing should be made ex it is defendant’s claim upon undeveloped principles “than process based more asser- consistent with the due Ake, tions requested upon that the assistance would be which Ake rests.6 Pursuant to significant may request parte appli- cause his mental would be a condition sentation them an ex phases particular, at factor both the trial. In cation. Furthermore, specifically noted that certain enumer- Federal Rule of Criminal Proce- 17(b) personal history ated pertinent part: “factors the defendant’s dure states in partic- greatly any could have to Pay. contributed Defendants Unable to court shall The ipation episode of the defendant in this criminal subpoena a order at time that be issued for and could either upon parte excuse defendant of the service a named witness an ex charged conduct or be a factor to be application upon satisfactory considered of a defendant a mitigation punishment.” Appellant did not financially showing that the defendant is unable specifically insanity competency raise or trial. pay pres- to the fees of the witness and See Articles 46.02 and 46.03. necessary adequate ence of witness is to an defense. Explaining purpose provision, behind this (Tex.App.— In Norton v. 930 S.W.2d 101 parte provision one that the ex court stated ref’d), question pet. Amarillo this was protect raised, rule not to was intended the defendant squarely but was never addressed. rather, opposition prosecutor; it from from theory was intended shield the his defense parte hearing provided 6. An ex be under prosecutor’s scrutiny. States v. United 3006A(e)(l) § federal law. U.S.C. states in Meriwether, (C.A.Ala.1973), 486 F.2d 498 rt. ce pertinent part: 3074, 41 L.Ed.2d Request.—Counsel (1974). person for a who is Upon financially investigative, expert, Notwithstanding statutory requi- unable to obtain this federal site, necessary adequate repre- or other services Ake was on certiorari to the United States or “evi to offer affidavits of an defendant needs process requires appointment due Rey, 897 making showing. this expert dence” problem requiring at 341. to the ac- provide technical assistance State at with the showing to be shared of his cused, strength help evaluate the compels a stage is that it defen defense, pretrial expert [opinion] to offer own defense, to the defensive to disclose at trial if is favorable dant identify product.”7 Washing in the the weaknesses State’s or “work theories (Tex.Crim. case, any, by testifying if himself ton and/or oppos- preparing Taylor counsel to cross-examine App.1993); cf. ing experts. expert ap (Tex.Crim.App.1996)(when Ake, expert’s pointed conclusions under Freece, presenting In De 848 S.W.2d at 159. counsel). In work-product of are often, if not Ake motion a defendant will an essence, is not enti if an defendant seeking of an ex- always, the assistance be Ake mo parte hearing on his to an ex tled developing a defensive pert purposes tion, to choose between either is forced theory questioning portion the State’s or expert or appointment of an forgoing the to make a threshold case. order detail his disclosing to the State some theo- underlying that the the defensive issue weak theories theories about defensive in the ease that ry or the issue State’s contrary This in the State’s case. vulnerable, nesses think is will defense has reason to defendant to Ake’s concern that factor defendant expert have is entitled to assistance explain who necessarily has to his theories and justice,” “meaningful and under specificity access describe with some how product doctrine.8 We de- assist him. We have indicated that mines the work would beliefs, sions, personal Supreme and countless other out of Court of Court the Oklahoma Thus, intangible ways—aptly though Appeals. quoted language tangible and Criminal Appeals premised upon requisite roughly the Circuit Court in the feder- termed not product of the law- provision. in this case as the "Work al open opposing yer.” Were such materials by the 7. A document that contains “comments demand, much of what is now counsel on mere attorney opinions concerning strategy or his trial put writing unwritten. down in would remain strengths the case” is and weaknesses of inviolate, attorney’s thoughts, heretofore An Washington, privileged product. work Inefficiency, be his own. unfairness would not Supreme at 188. has de- Court inevitably develop practices sharp would work-product sheltering scribed the doctrine as prepa- giving legal advice and in processes "[a]t its core ... the mental legal The effect on the ration of cases for trial. attorney, providing privileged area within profession demoralizing. And the attorney] analyze prepare can [an which justice the cause of interests of the clients and Nobles, 422 client’s case.” United States v. 225, 238, U.S. poorly served. would be 2160, 2170, S.Ct. L.Ed.2d 141 495, 510-11, Taylor, Hickman v. (1975). component is critical of a The doctrine 385, 393-94, 91 L.Ed. system: properly functioning adversarial See, Historically, e.g., parte Moody, lawyer 684 So.2d an officer of the court Ex (Ala.1996)(criminal entitled and is bound work for the advancement expert rightful neces justice faithfully protecting hearing whether assistance is while on Sixth, Fifth, performing sary, and Fourteenth of his vari- based on interests his clients. In Constitution); duties, however, v. to Brooks ous it is essential that law- Amendments 562, 81, (1989), yer privacy, 84 cert. degree free 259 Ga. 385 S.E.2d work with certain of 1018, 1323, denied, by unnecessary opposing par- 110 S.Ct. 108 intrusion from (1990)(indigent preparation defendant who Proper of a L.Ed.2d 498 and their counsel. ties parte appointment expert to of is entitled ex infor- seeks case demands that he assemble client’s motion); mation, Higa, hearing Haw. Arnold v. 61 he considers to be relevant on sift what 203, 1383, facts, (1979)(indigent prepare legal defen his the- 600 P.2d from the irrelevant explain opportunity plan strategy given to need dant his without undue should ories parte upon request, hearing so expenses in ex is the historical for needless interference. That particularize lawyers reasons without necessary way act defendant can in which and the theories); juris- disclosing v. system to State defensive State of within the framework of our prudence 1213, Touchet, (La.1994)(in- protect promote justice 1219-21 to So.2d to reflected, ex digent is entitled to make initial defendant interests. This work their clients’ statements, course, interviews, government funding of ex parte application for of memoran- assistance, da, briefs, preju- impres- pert of correspondence, but must make mental dine to indigent hold that order for an theories. defensive This is more like the defendant to avail himself of one of the “basic of erroneous admission evidence. defense,” tools of an adequate may got expert still the benefit of an to assist compelled to disclose defensive theories to his defense. Disclosure to the of State some prosecution. We indigent hold that an theory defensive is more amenable to an entitled, upon proper defendant request, to depriva- assessment harm than the total his 'parte. make Ake motion ex The trial expert tion an present an to effective judge overruling erred in appellant’s request defense. to make his Ake parte. motion ex then, question, is whether Appellant argues that the failure to the trial court’s failure to to allow grant parte an hearing ex is structural make his Ake parte motion ex was harmless nature and therefore immune from a harm Tex.R.App. beyond a reasonable doubt.9 analysis, citing Rey. Rey we held that the Peog. Appellant’s 44.2. motion revealed that deprivation total assistance to appellant had related to counsel facts about which the defendant was entitled under Ake history drug his history abuse as well as a was a structural defect because “the struc being alleged abused as a child and underpinnings tural begin [the] these factors could excuse end, con ning to inability were affected to mitigation duct or be factor in present punish Rey, effective defense.” expert’s ment. The attached affidavit S.W.2d at 345. The includ same cannot be said expert’s qualifications, compelling a ed the present statement his Ake motion in presence only revealing her conclusions therein amounted degree, evaluation, at least some the nature of a preliminary her conclusions get parte dice hearing in order to ex prosecution, on the the theories their 105, application); People Layer, Mich.App. although pay able to witnesses defendants for 714, (1988)(holding 425 N.W.2d 722-23 uncon subpoenas able to have blank issued. requiring F.R.Crim.P., stitutional statute 17(a). disclosure to State of inequita- Rule To cure this expected testimony witness’ names and situation, in order Congress ble amended the rule in payment for defendant to obtain of sub provide applications subpoe- 1966 to for Ballard, fees); poena and witness pay nas defendants unable to for them be 515, 178, denied, N.C. 428 S.E.2d cert. parte. made to the parte court ex The ex ... U.S. 114 S.Ct. 126 L.Ed.2d 438 provision pro- of the rule was not intended to (1993)(indigent parte defendant entitled to ex opposition tect defendant from from the hearing request psychiatric expert); for prosecutor; was intended shield the theo- McGregor P.2d ry prosecutor’s defense from the scruti- (Okla.Crim.App.1987)(hearing on Ake motion ny.... government should not be able Barnett, parte), must be conducted ex State v. obtain a list of adverse witnesses in the case of (Tenn.1995)(ar parte 429-30 pay a defendant unable to their fees when it is hearing required indigent’s request in context of not able to do so in the cases of defendants psychiatric expert); Apelt, but see State v. pay able to witness fees. When an (1993), Ariz. 861 P.2d 634 cert. subjected pre-trial defendant’s case is scruti- 130 L.Ed.2d 59 ny by prosecutor, while the monied defen- (1994)(indigent parte defendant not entitled to ex proceed scrutiny, dant is able without such assistance); hearing request State v. raised, equal protection questions serious are Floody, (S.D.1992). 481 N.W.2d 242 appears major and it for the reason questions. amendment was avoid such recognized The Fifth Circuit has that a rule Meriwether, United States v. 486 F.2d 505- requiring hearing indigent’s for an (5th added). Cir.1973)(emphasis request subpoena government expense for a shields defensive theories from the State: 9. The error here is constitutional [previously] required in nature. [T]he rule that all defen- Therefore, the case must be reversed "unless proceeding pauperis dants re- who forma beyond quest subpoenas government determines reasonable doubt that expense issued at not support requests the error did contribute to the conviction or such with affidavits “in 44.2(a). punishment.” Tex.R.App. Proc. This which the defendant shall state the name and portion newly promulgated testimony of the harmless error address of each witness the expected previous by give Appellate he rule is identical the which is the defendant to Rule of if rule, 81(b)(2). subpoenaed, and Procedure shall show that the evidence Under this the burden prove of the witness is material to the defense....” is on the State to that the made error no difficulty procedure with this was it contribution the defendant’s conviction or required indigent many punishment. to reveal defendants of admissibility photograph of is as disorders from which to certain judge. that a of the trial suffering, and a statement discretion might within the sound require further if ver complete evaluation Generally, photograph admissible testing and examination. in testimony depicted the as matters bal Long v. See photographs is also admissible. appellant’s that his Although motion states (Tex.Crim.App.1991), n. 271-72 S.W.2d “a fac- mental condition would be denied, t. 505 U.S. trial,” phases of and that tor at both the cer In 120 L.Ed.2d 910 have con- S.Ct. certain enumerated factors “could relevant, words, testimony is of the if verbal greatly participation other tributed episode,” criminal we do also relevant. photographs this of the same are anywhere guilt/innoeence in the not discern of the Testimony, photographs, and thus legal based phase of where trial jury determining the crime scene aid upon appellant’s raised mental condition was including manner means many things the any psychiatric argued. Nor does victim, used, the force the of the of death testimony appear phase at this psychological identity perpetra the even the sometimes Hence, beyond of trial. we conclude a rea- tor. gained the no ad- sonable doubt that State case, photographs In the were the instant receipt of information vantage from the Ake means of the manner and relevant show prior to tidal and hold disclosure death, used, and to the victim’s the force appellant’s motion and to the State affidavit stage the victim degree, length did not harm as to first some time the Hence, judge the trial. not did had been dead. determining pho- abuse his discretion punishment, no men- At the State offered tographs to be relevant. experts. Appellant tal health called his ex- pert qualifications to the While her stand. Appellant further contends that the opinion underlying

and the facts and data prejudicial pro than photographs more point were at to the were discoverable State pursuant judge failed to en and that trial to Criminal Rule Evidence bative beyond balancing Tex. gage proper we cannot conclude a reasonable test. See 403; premature doubt that disclosure Evid. Ramirez R.CRIM. not Long,

matters to which testified did (Tex.Crim.App.1991); S.W.2d jury’s punish- at contribute verdict photographs were intro supra. When the prepared ment. The State was more trial, appellant objected to their duced at expert, appellant’s cross-examine both in the judge the trial overruled his admission and hearing jury, Rule and before the comment. objections without further Once insight would have been without earlier objection prejudice versus Rule 403 aspect into this case. While invoked, judge trial has probative value is punish- the evidence offered engage to whether or not to no discretion as jury’s support ment sufficient to balancing required test that rule. verdict, overwhelming. The it was not However, judge Long, supra. a trial proving has failed to meet its burden of any findings place required sponte not to sua jury’s not the disclosure did contribute en he makes or conclusions draws when punishment. Point of error three verdict record, nor did gaging in this test into phase guilt as to overruled affirmatively appellant request such to be punishment phase. but sustained as to (Tex. State, 906 shown. Green v. State, 845 Crim.App.1995); McFarland v. error, point appel fourth (Tex.Crim.App.1992), cert. permitting the trial court erred in

lant claims photographs vic two the admission (1993). Rather, pre judge is L.Ed.2d Specifically, appel tim and the crime scene. balancing engage sumed to says irrelevant photographs lant 403 is and we refuse substantially test once Rule invoked prejudicial impact their implies silence of the record outweighed to hold that the probative their value. State, Further,

otherwise. See photograph. Santellan v. photos because these 155, 173 number, (Tex.Crim.App.1997). S.W.2d depict are few in the wounds inflict- upon victim, ed the the relative location and Rule 403 favors the of admission discovered, position in which she was relevant evidence presumption and carries a subject testimony were the of at their probative that will relevant evidence be more probative substantially is not value out- State, prejudicial. Montgomery than weighed by possible prejudicial their effect. (Tex.Crim.App.1990); S.W.2d see Point of four error overruled. Long, may also at A S.W.2d We affirm the but vacate the conviction determining consider several factors in sentence and remand this cause for a new probative photographs whether the value of 44.29(c); sentencing hearing. Article Ran substantially outweighed by danger the of (Tex.Crim. State, som v. prejudice. include, unfair These but factors App.1994). are not limited to: the number exhibits offered, detail, gruesomeness, their their McCORMIGK, J.,P. concurs. size, they their whether are black and white color, they close-up, whether are HOLLAND, J., dissents. body depicted whether the is naked or Long, swpra. availability MANSFIELD, clothed. Judge, dissenting. proof other means and the circumstances respectfully Although I agree I dissent.

unique to each individual case also majority in the that the trial court erred considered. Id. allowing not to make his threshold that, showing parte, I am persuaded Ake photographs two about which case, given particular the facts this appellant complains approximately are each beyond error was harmless a reasonable eight by ten inches in size.10 the One shows punish- doubt as to conviction upper body clothed half of victim’s the 44.2(a). Tex.R.App. ment. See Proe. position was she found and the other shows the victim after she was rolled over onto Oklahoma, 68, 83, In Ake v. appears by investiga what bodybag be a 1087, 1096, (1985), 84 L.Ed.2d 53 the at photograph tors the scene. The first de Supreme Court the United States held picts body surrounding and the area Clause Due Process Four- they originally by investigators. were seen teenth Amendment entitles an de- injuries upon Some inflicted the victim appointment psychiatrist, of a fendant angle. can seen The second expense, assist the defendant inju photograph better shows the different when the defendant makes damage ries and the extent of the inflicted on threshold issue which upon photographs the victim. Both are psychiatric sought going assistance is gruesome, primarily somewhat due significant to be factor trial. The Ake However, depicted. they amount of blood explained, part: Court relevant gruesome no are more facts long recognized This Court has offense itself. Sonnier v. judicial power brings when a State its (Tex.Crim.App.1995). in a criminal bear appearance bodybag

While proceeding, steps of a it must take to assure photograph might prej- opportunity second be somewhat has a that the defendant fair udicial, prejudice elementary present not caused does sub- defense. This part stantially outweigh probative principle, grounded value 50(b) photographs Tex.R.App. We note neither actual included in the record. Proc. photocopies (d); 53(a); 51(d); nor color were included in the rec- Rule Sonnier Cf. ord. If believed that the 1995). colors in (Tex.Crim.App. photographs actual would have made a differ- 276 n. 19 also Webb v. prejudice, in- ence our assessment (Tex.Crim.App.1988),cert. upon cumbent to ensure that him either 105 L.Ed.2d 709 original photographs photocopies or color (Tenn.1995). fair- That fundamental process 428-429 due the Fourteenth Amendment’s ness, by the Due Process fairness, guaranteed as of fundamental derives guarantee hearing ap- Clause, is requires parte an ex justice equal from the belief that cannot seek “Indigent defendants who must parent. where, simply poverty, a a as result his psychiatric expert funding hire a to state to opportunity is denied defendant theory to reveal their not be should meaningfully judicial a participate in affluent counter- when their more of defense proceeding liberty is at stake. in which his not experts, to hire are parts, with funds defense, theory of or required to their reveal recognized long ago ... that mere We consulted, are but identity experts who to the doors does not access courthouse not, not, testify at do trial.” may who proper functioning itself assure a Barnett, “If ex v. S.W.2d at adversary process, that a criminal trial and not de- hearings required, are parte fundamentally pro- effect, if would, unfair the State penalized fendants against with- psychiatric expert ceeds an defendant assistance requesting making to infor- being required [sensitive] out certain that has access to disclose seeking it integral building mation, may the raw materials to be deterred re- an because of the breadth disclosure effective defense. Non-indigent Id. at 429. defen- quired.” dants, hand, not the other face ... to make is able When defendant dilemma. trial ex threshold that, that, I Having said all still believe likely sanity to be a case, particular facts of this under the defense, significant need factor affording appellant trial court’s error not psychiatrist the assistance readi- parte hearing beyond harmless was ly apparent. appellant’s as to conviction reasonable doubt punishment. majority concedes respect appel- error was harmless with that when a We therefore hold defen- respect lant’s With conviction. judge dant demonstrates to the trial majority only that punishment, argues at sanity the time of the offense is to be it not harmless because result- the error was must, factor at the State having “premature” access ed the State minimum, at a access assure defendant affidavit, psychotherapist’s initial competent psychiatrist ato who will con- (2) (1) qualifications, her which contained appropriate duct an and assist examination regarding certain mental disor- conclusions evaluation, preparation, presenta- appellant might from which be suffer- ders tion of the defense. (3) ing, that her conclusions an admission 82-88, Oklahoma, 76, 77, v. Ake & (4) preliminary, statement 1092, 1093, (emphasis S.Ct. at & 1096 complete appellant would re- evaluation of added).1 majority quire further examination. The Supreme explicit language If that, Court’s psy- concedes time the defense enough pro clear that was not make due chotherapist punish- the stand at the took cess to make his thresh entitles stage, ment entitled parte, high showing ex several other old Ake Rule of anyway affidavit under Texas Crimi- held, 705(b), specifically majority so courts have but the never- nal Evidence See, e.g., good parte Moody, Ex reason. insists that was harmed theless (Ala.1996); “premature” Brooks access So.2d because State’s (1989); pre- the State “more 259 Ga. 385 S.E.2d the affidavit rendered (Okla.Crim. psychotherapist pared” McGregor 733 P.2d 416 crossexamine Barnett, have been. App.1987); State v. otherwise would 1995). (Tex.Crim.App. applies non-psychiat- We later held Ake experts, Rey well. ric disagree. I I presents believe this ease (Tex.Crim.App.1996), S.W.2d 506 (Keller, classic case only of harmless error. The real dissenting.) J.

effect of the give error here was to

early access to an affidavit of the defense’s

expert, but ultimately the State was entitled 705(b). anyway

to the affidavit under Rule judgment

I would affirm the trial

court. Ex Alton John RAWLINSON.

KELLER, Judge, dissenting. No. 72757. Assume it particular that was error in this trial judge deny appellant’s case Texas, Appeals Court of Criminal motion for leave to file motion for En Banc. parte. assistance ex The question then Dec. error, arises: is it analyzed constitutional Tex.R.App. 44.2(a), under P. or non-constitu- 44.2(b)? error, analyzed

tional under Rule says majority that the error constitu- Op. fn

tional nature. process,

Ake error ais of due but violation

there was no Ake ease—appel- error expert.

lant was way not denied an The only conceivably

the error here could consid- if

ered be constitutional it would be some-

how resulted in ineffective assistance of coun-

sel. But if the error is ineffective assistance counsel, prevail appellant in order to Strickland, i.e.,

meet the second prong establishing

must meet the burden of harm.

If prong, he meets that he has exceeded what (a) (b) prove

he needs to under either rule, gets error harmless and he relief. actually be better off if this

is non-constitutional error because

case his burden less the burden im-

posed by prong the second of Strickland. event,

But in the error should not be

analyzed, it is majority both the Mansfield, 44.2(a).

Judge R. under

If the error here is ineffective assistance

counsel, I would find that has failed carry his burden harm under simple

Strickland. If the is a error violation doctrine, workproduet I would find 44.2(b). R.

harmless under disagree majority’s

I also with the treat- point

ment first of error.

my opinion, proof law require does not corpus underlying felony delicti of the capital case. See Monterrubio murder

Case Details

Case Name: Williams v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 15, 1997

Citation: 958 S.W.2d 186

Docket Number: 72244

Court Abbreviation: Tex. Crim. App.