*1 common sense “direct remand rule” WILLIAMS, Perry Eugene Appellant, “grounded guilt is on the fact that of which is implicitly true lesser included offense guilt in the of July’s found verdict Texas. STATE of greater offense.” No. AP-74391. concerning jury The law instructions game and lesser-included offenses is not a of Texas. Appeals Court of Criminal of acquittal in which conviction or a crimi- depends upon nal offense June 2008. Machiavellian strategy. depend upon trial It should 29, 2008. Rehearing Denied Oct. Here, and the it is not disputed facts law. legally the evidence sufficient to is simple for support conviction
assault, regardless of whether Anissa was not a member of his household on day has appellant of assault. Nor process rights
made claim that his due prejudiced by entry be
would convic- for the
tion lesser-included offense jury necessarily him found
which
guilty.11 We do a disservice common citizens ordering
sense Texas
acquittal charges of all when legally support a sufficient to conviction assault, jury necessarily simple and the guilty him simple
found
assault.
retrial,
subject
of a
remand"
that the LIO should
"direct
unless
so instruct-
ed).
modification.”).
Shellenberger
generally,
A.
&
See
James
not an automatic
Strazella,
James A.
The Lesser Included Of-
Shields,
KELLER, opinion delivered WOMACK, the Court in which HERVEY, HOLCOMB, KEASLER, and COCHRAN, JJ., joined. appellant was convicted June to death.1
capital murder and sentenced automatic.2 to this Court is appeal Direct of error. Appellant points raises eleven error, affirm no we Finding reversible and sentence. conviction 37.071, 2(h). 19.03; § § 1. Tex. Pen.Code Art. Tex.Code Crim. Proc. indicated, all art. 37.071. Unless otherwise to articles refer to the Code future references Criminal Procedure. cаr and driving
I. around BACKGROUND Corey Phillips. Butler had picked up in- appellant’s points One of of error group and the again brought handgun, her sufficiency challenge of the volves proceeded carry out four robberies jury’s determina- support First, they approached Anthony evening. dangerousness, tion of future anoth- while Appel- lot. Kroger parking Gonzales in a error, relating er to the admission point at Gonzales’s pointed handgun lant evidence, impact and character victim said, your me car.” Be- face and “Give perform an require will us extensive shift, ap- had a stick cause Gonzales’s car analysis. Consequently, engage harm gun pellant point could not drive in a comprehensive discussion evi- time, he or- at Gonzales at the same so appellant’s punishment. dence relevant dered Gonzales to drive the car while Spree The A. Crime gun Appellant held the to Gonzales’s ribs. yanked took two Gonzales’s wallet appellant The offense for con- took Appellant chains from his neck. also during occurred of a victed middle Gonzales’s ATM card and demanded The spree. presented crime State no evi- kept PIN number. Gonzales’s Appellant appellant engaged dence that had driver’s license in case Gonzales ever re- spree violent conduct before the crime be- robbery they needed ported the gan. “somebody” Appellant of it.” to “take care 9, 2000, September On appellant was Phillips’s done at testified this was driving Mend, car with a female to an ATM group instruction. drove Butler, Kinita handgun. Starr who had a machine, appellant tried use Upon seeing Cherry Lolita and Nicole money, ATM card to withdraw street, walking Green down Appellant PIN tes- number did not work. *6 parked drove and a short distance in urged try again, Dunn him to tified that Appellant got front of them. out of his appellant’s but efforts not successful. were car, grabbed Cherry, placed handgun head, to her and her purse. demanded group approached The next Matthew getting purse, After Butler searched Carter, the in this case. Carter had victim through appellant, it and told “This bitch his and medical girlfriend visited fellow got money.” Appellant don’t no turned student, Saifi, Maryam help to her with a Cherry around to face him and shot her project. class left Saifi’s home Carter Appеllant jumped the breast. then into p.m. around 11:00 to return a rented video away. his ear and Cherry drove was tak- group to into the Blockbuster. drove en to hospital, where the wound was lot parking Blockbuster and saw Carter “superficial.” determined to be The bullet returning returning to his car after had entered and exited her breast and was videotape. According appellant’s to testi- Cherry permitted not recovered. was mony trial, take supposed at Dunn was hospital morning. leave the the next Dur- part and as of an handgun rob Carter ing testimony punishment phase his at the Crips an of the initiation into affiliate trial, appellant shooting claimed that his gang, up.” Phillips but Dunn “froze then only Cherry, not to was intended scare him to appellant gun handed and told her, hit and that he did not realize at the “go get According testimony em.” to his actually time that she had been shot. trial, appellant gun at “took the and took 17, 2000, gun- at September appellant, Appellant On his over.” forced Carter Dunn, Jr., point passenger cousin James and Butler were into the seat Carter’s by appellant made and other ear, got into the driver’s statements appellant and Phillips, who inmates involved. They seat. then followed driving appellant’s vehicle. Carter was The first incident occurred October that he had told numerous times appellant jail 2000. The officer determined could “max appellant an ATM card that appellant and another inmate were en- out,” not to pleaded appellant and statement, gaged fight. in a mutual his Nevertheless, parking the him. after hurt inmate, the other appellant claimed car, in the head from appellant shot Carter insulting King, called him various Charles con- range. According close Ap- away newspaper. names and took his fession, gun appellant hit Carter further claimed that this was not pellant Forty taken out of Car- fired. dollars was him only Bong time that had insulted among evenly ter’s and distributed wallet only you can and there was “so much group. of the the four members comments, making ap- these take.” After said, sorry for pellant say “All I can is I’m later, group an hour commit- About by fighting.” breaking rules In the ted more robberies. first two robberies, Tomas Kooh and Ricardo these King appellant claimed that he asked gas appellant Rubio at a station when were of the nеwspaper, the comics section Phillips companions up. and his drove Seeing reading said he it. appellant was both men and de- pointed handgun at reading only the metro appellant was Phillips After took their wallets. manded section, appellant act- King why asked wallets, got “burned off and appellant them replied, ing way. Appellant then robbery, freeway.” In the other on the appellant that he you.” King “Fuck told Jackson, Franklin Phillips approached who appellant him to curse at did open motel room had left the door hit going King. if up stood as he was As Jackson unloading after his truck. appellant to hit back King threatened door, Phillips pointed a him, turned to close the him, swung hit appellant back. get him and told him to gun at told they began fight. Appellant Phillips at- Jackson slammed the door fighting King that he not care about did a shot way to force his tempted to be moved out because he wanted result, a minor causing fired as a wound anyway. tank *7 also the Appellant Jackson’s hand. was and inmate appellant On March robbery. in driver of the car this fighting. The Floyd caught Barnes were from either no statements record contains Appellant’s Incarceration B. of the inmates about this incident. 22, 2001, found arrest, appellant was appellant April was incarcerated On Upon tank,” According fighting Wiley the section Williams. county jail’s in the “kid they fighting by appellant, inmates who are started when jail occupied neighbor- twenty-two. During his insulted age under the Williams tank, appellant Appellant was disci- hood. claimed Williams time in the kid fighting, punch appellant for once for the first and that four times threw plined tattoos, Appellant himself. only defending unauthorized once was himself giving wrong I destroying by saying, an assault and concluded “I know was committing for I myself. stealing. fighting for but I had defend and once for county property, coming I am you in- to understand where contained ask jail disciplinary reports incidents, including from.” formation about these complained he in did to him. that he sitting Appellant
Williams claimed that was friendly why group engaging getting conversation did not he was understand appellant this, “took the conversation to a something when written like but he up for “continuously different and whole level” by saying, “I concluded his statement fight” told appellant tried him. He I wrong say it but all can is I know was fight, appеllant kept he did not want to but get was I need to into being a kid. don’t advancing toward him. The other inmates anymore I did so I don’t trouble but know they because get left did not want to into my I’m say sorry what else to Williams, trouble. hit Appellant then who forgive me childish actions. Please and defended himself. concluded Williams give me a chance.” second saying, “I feel had no this inmate reason to 12, 2001, Finally, appellant on August his I put hands on me and want to press caught stealing property was from another charges.” statement, appel- inmate. In his written 17, 2001, On jail June authorities lant indicated that other inmates in- were appellant tattooing discovered that had he volved the theft but did not want equipment in possession his and that he get whole tank to in trouble. He also recently given had tattoos. In himself his asked for forgiveness. statement regarding written the matter said, “I’ll appellant by saying like to start I incarcerated, appellant While wrote two sorry for county am rules. But disobeying letters to Butler. One those letters was I felt I paying my respect by was cousin 11, 2001, February dated and the other his getting my name tattooed arm since letter was not Both contained dated. com- passed it away. I know wrong was but ments suggesting gang at the end affilia- say I can I again sorry. all once am But I tion, forever,” including: “crip for “crip didn’t mean to so much cause trouble.” life,” gray day every and “blue all over 23, 2001, day.”
On During testimony punish- June his at the appellant engaged in a inmates fight trial, phase appellant involved David Brad- ment contended ford, Jones, Brown, Willie Quen- Hari and just responding that he to similar statement, tin Rubin. In appellant his letters, statements made in Butler’s and he claimed that he fighting was not but “was doing characterized so as “a his actions trying to break All up.” of the other youngster mistake.” disciplinary allegations against appellant January 2002, appellant was moved during jail stay a plea ended with punishment the adult tank. At the agreement, but appellant contested this trial, phase of occurred in June of particular allegation guilty. found 2002, a testified that deputy prob- sheriff August On appellant up walked unusual, lems kid tanks were grabbed to inmate Curtis Vandver problem had not been since he tore Vandver’s shirt. Vandver appeared *8 tank. placed was in the adult be afraid appellant and said that Martin, prisons,3 on appellant exрert did this for reason at all. Steve an tes- no statement, tified about the of a maxi- appellant his written claimed environment just that he mum playing security prison, appellant was with Vandver and where imprison- him to life getting something stay back for Vandver would if sentenced officer, tually consulting Martin was a later ob- started a correctional busi- correctional degree legal tained a law worked and ness. system, prison counsel in the and Texas even- Appellant also on he had appellant’s ment. He commented crowd.” claimed been record, using testifying marijuana.” “PCP laced jail disciplinary that with punishments imposition relatively mild appellant’s When mother was asked in each case that the infractions suggest actions, for his responsible whether he was not he serious. He also testified that were was, she that he but she agreed also fights to see in expected minor more often agreed “hanging wrong that with youthful a tank of than tank of offenders a not crowd” mattered he is like “[b]ecause cross-examination, older offenders. On this.” acknowledged that there are Martin incarcerated, jail appellant After was violence, gangs, drugs prison. and chaplain appellant ap- referred to was Dunn, pellant’s cousin who was concerned Appellant’s Mitigating C. Evidence spiritual appellant’s about condition. The Changes in Regarding His appel- chaplain he met testified when Character pleasantly surprised lant he to find a was person “repentant” “broken” and who was mother, Appellant’s Clay Roberta peace “made his God.” The had with Williams, testified about various events chaplain he found “a believed had real childhood, appellant’s good about what a life, change” appellant’s cross- was, his some person father about he that he did examination conceded not background on other mem- general family really life was like know what explained appellant bers. She meeting him. before family born in Houston and the there lived testimony During punishment phase his they Mississip- until when moved affirmatively appellant responded when pi. Appellant back Houston moved whether, he re- defense counsel asked sister, Di- stayed 2000 and Roberta’s sentence, a life he would follow the ceived Di- Clay Morgan. Morgan, nah Clifton рrison responded rules. He also he husband, appellant nah’s testified that for fellow inmates problem would not be “respectful” and “not violent” and Sandra prison staff. Miller, friend, testified to appellant’s also “respectful” nature. Seeking Testimony Appellant’s D. Roberta, and But Dinah told later testi- Convey Acceptance of trial, appellant began at fied Responsibility change. hanging He around the started punish- During in the direct examination crowd,” “wrong people ap- Dinah did phase, appellant ment made numerous sister, Clay, appellant’s of. prove Detra accepted indicating that he re- statements appellant changed. also testified that She during his sponsibility for actions a lot drinking stated started whether spree. crime When asked smoking marijuana, and she saw him for what drugs hap- he used were fault he pop pill once. came her When “No fault pened, replied, he sir.” “Whose home, “constantly” up threw “ev- Appel- attorney is it?” the defense asked. erywhere.” lant “It’s mine.” When asked responded, death, for his whether at fault Carter was
During testimony, appellant said own appellant explained: disregarding his reasons advice fault that he stay It meant to or his family “[m]e out of trouble were wasn’t *9 died, a bunch of I and mine. It was being saying grown drug abuse was was I on that cannot wrong things going that was hanging around with the explain. really responsi- Don’t to explain accepting how whether he know was bility them. for his conduct: Q. today right have here What we now * * n in you jury saying is front of sitting this I just Is not explain, that won’t it’s my fault, right? it’s night everything happened we had been Yes, A. ma’am. smoking marijuana. POP laced with Q. my responsibility, right? It’s That’s no excuse for I did. I what didn’t Yes, A. ma’am. intentionally kill Carter. Matthew Q. verdict, I accept your right? appellant intentionally When denied killing Carter, questioned defense counsel him A. Yes ma’am. about the he night, actions did intend that Q. Okay. But that’s not reality participating
which included the rob- you’re saying, what is it Mr. Williams? bery, holding gun, cocking saying. A. I’m That’s what gun. Appellant loading denied the gun— Q. you keep saying Corey What told claiming Phillips had done so—and he Corey me to do this. told me do this. also that he stated did not that the know A. May speak freely? I gun until gun was loaded fired. When asked whether knew a bullet in the Q. my question. you Just Are answer gun’s Cherry chamber when was shot the telling you say me—have we not heard before, responded, appellant week “Not it, Corey to do you right? told speaking.” necessarily Yes, A. ma’am. When asked how the shot was fired that Q. big Corey So is the Corey bad that’s Carter, said, appellant killed “In pro- terror, charge reign of this whole getting cess of him out of the car he right? shall say, car,
walked trying around I’m to see Technically speaking, A. yes. coming had, where he is from. I I had the Phillips After further questions about be- gun, something I happened. don’t ing the group night, leader of the happened. Something know what physical he, prosecutor appellant Butler, asked I happened and tensed I up pulled originally and Dunn planned had rob trigger.” asked, When defense counsel Phillips they recognized before him and he responsible “Who happened for what joined Appellant responded, the group. appellant replied, Carter?” Matthew “I my recollection. been “[N]ot It’s so am.” long I don’t remember. I don’t remember Later, defense ques- counsel asked some biggest part this whole situation.” regarding tions appellant say what had to When the prosecutor appellant asked to his mother and to the own victim’s whether the had group abducted Gonzales family. mother, respect With to his own during robbery on Sep- first incident appellant “Really too I replied, ain’t much answered, “Yes, 2000, appellant tember Only say. thing say can I can I’mis ma’am. I it abducting.” don’t call “What sorry.” respect to the victim’s fami- With you call prosecutor like to it?” the ly, responded, “Only appellant thing I can replied, being asked. Appellant “Not sorry I say is I’m for the pain caused you.” where no one can see your by taking your heart life.” son’s During cross-examination, prosecu- The prosecutor challenged appellant’s began question tor Phil- just following about contention that he was *10 practice” little robbery pro- kind had a bit
lips’s orders the Gonzales Appel- Cherry. week before when he shot gressed: every- “I replied, lant don’t Corey following remember — Q. fact is So then really thing so fast. I don’t happened you? that.” did acknowl- Appellant remember time, point yes. A. this At edge investigating that he never told the Q. you’re calling the right. All So Cherry shooting. detective about here, right? going we’re shots where ap- prosecutor insinuated that When put A. I don’t it like that. be- pellant kept quiet about incident Q. Well, telling Anthony where you’re cause did not indicate he the detective go, right? knew, honest, responded, “To appellant Technically yes. speaking, A. my getting mind from me slipped high.” prosecutor questioned appellant The about robbery— his actions after the Gonzales prosecutor appel- The questioned also money from an
when he tried withdraw high lant contention that about his he was explained ATM machine. Appellant during Appellant after the murders. money Phillips’s withdrawing the was idea sleep night not go said that he did appellant the one who though even He conceded murder occurred. After had the PIN number. two obtained workplace at his up he showed at 8:00 a.m. card, ap- to use the attempts unsuccessful (a center) morning after the U-Haul try him to pellant claimed that Dunn told entire murder and that he worked the really he Appellant one time. said more eight-hour Appellant shift. contended to use the ATM machine did not want high he was the entire time. PIN he knew the number would because Apparently displeased with asked, prosecutor be incorrect. The cross-examination, defense during answers wherewithal, “You're the one that had counsel, redirect, about appellant asked well, what good Anthony, sense ask issue: “taking responsibility” along this is the number. Go with so pin Q. mean, you I the witness stand took me, right? this is useless to You asked not fault, today, you your here said it was answered, that, Appellant right?” him fault, then Corey Phillip’s [sic] wasn’t speaking, yes.” “Technically telling us it you cross spent whole questioned subsequently The prosecutor Corey Phillips. role Car- appellant about his dominant ter’s murder. The testimony about Dunn mit a Crips robbery gang. order “So prosecutor being Corey to become a asked is elicited the here,” to com- part A. Q. I’m Sure you saying are. *1» [*] it’s n You said it’s anyone’s fault. my fault. said, get in order to prosecutor “and A. It fault. you my do it. James don’t want to gang putting up it. Instead of with the
do spent No, say that. You Q. you didn’t I’ll tomfoolery, give gun, me the take care telling people these the last 30 minutes responded, Appellant of business?” Phillip’s just fault. I Corey it’s [sic] “Technically speaking.” know, know, Corey Phil- you want to you jump bridge, off a lips you tells if, asked prosecutor later jumping bridge? off a pulled he on the trigger the time murder, A. no. “actually necessarily, Not in the Carter gun *11 you the truth. A. I told * * * I Q. Okay. mean— Why Q. you get say did it’s up and fault, your say turned it’s around and truth, though A. I her the told even your not fault? I’m just, sоund like it. I’m doesn’t here, I’m just speaking. up nervous say. didn’t A. I own, being to being my in the fate of Yes, you Q. did. fate. keep my own say A. I didn’t didn’t it say wasn’t —I before, Q. You never testified my fault. What I took re- said was—I you? life, sponsibility taking the man’s
shooting you Lolita if Cherry, that’s how A. No sir. name, not pronounce pro- I am Finally, questioned appel- defense counsel nouncing right. I responsibility take following lant about someone bad else’s biggest things changed my for the judgment: changed the life and Carters’ lives forev- Q. Corey Phillips just you Is this —can er. along to anyone march what tells else you to do?
n n n A. I don’t know how to answer Q. you talking do mean you’re What question. technically speaking? does that What Q. Well, free you know how exercise mean, technically does speaking? What say yes, you know will. You how that mean? say no? know how A. That yes just stronger means in a Yes, A. sir. way I way put it. conduct, Q. engage You know how to Q. Okay. Well, you know, you can see you engage, right? how know that technically how does not speaking Yes, A. sir. right? sound Q. say You know how to no? just— A. I Yes, A. Q. you just sir. Can see that doesn’t how right? sound Corey Q. Right. Phillips you to tells Yes, no, A. sir. something, you do say know how to you? don’t Q. case, This isn’t a technical it? Yes, A. sir. really,
A. Not sir. defense Subsequently, queried ap- counsel Victim-Impact E. State’s Victim- pellant performance about his wit- Evidence Character ness stand: judge Q. you asked take the 1. Guilt Phase stand, right? witness Saifi, the State Through introduced Yes, A. sir. about life. personal some Carter’s Q. And he did tell the you swear Saifi that she and met as testified Carter truth, right? counselors in- camp summer and became Yes, A. sir. dating relationship. in a serious volved Q. graduated And then she he prosecutor] college, asked After [the Carter you Bay- to tell the truth. she medical Remember chose to attend school just truth, tell me the right? College said lor of Medicine because Saifi was know, I So, you my I lost husband that attending there. Because Carter already student, and, life applied spend my under was an excellent rest family uhm, ac- had dreamed about. early-decision program *12 discussed, apparently, Saifi cepted scholarship. already on a full further We how uhm, family, that father was the chair- to raise our testified Carter’s we wanted Department man the at be to his Neurology of where live so we’d close we’d Uhm, and family. they Medical School that his to family, my Southwestern close All plans interrupt- mother a soсial of this that was worker. were definite were destroyed. testimony objection. was admitted without ed and dreams that were presented testimony from The State also explained position that her She also Bassett, the President Pub- Claire Vice for jeopardized and medical school became College Baylor lic at the of Medi- Affairs coun- that took off and received she time cine. testified that she knew She Carter seling. first-year as a medical student “because he father, Carter, also Gregory Carter’s Dr. top Defense
was one of our ten students.” he explained Dr. testified. Carter testimony. objected to this At a counsel and from Dallas to Houston his drove wife conference, judge bench trial the sustained evening they of their son’s learned disregard No to objection. instruction “painful He described it as a murder. given. Bassett then tes- requested was of “a certain amount disbelief drive” with of her tified that Carter was one medical real, really ... could this could that this his picture. students and she identified himself, Dr. happen.” Carter described objected to Bassett identi- Defense counsel wife, son, his their and the students other objection fying picture, but that was “very upset.” the medical school overruled. son’s impact his When asked about the him, said it was upon death had Dr. Carter Phase 2. Punishment a “considerable “devastating.” lost He rested, the State After defense difficulty keep- “had of work” and amount victim-relat- give called three witnesses ing subsequent that.” up that, testimony. ed testified be- Bassett explained also that his wife Dr. Carter many cause medical students were making really good progress had been death, upset by Carter’s the medical school death, her before their son’s career taking permit delay students to decided afterwards, full she unable work also they if so chose. school exams “markedly disabled time and had become psychiatric its at the placed faculty all of did suffer depression.” only with Not she disposal counseling, of the students for however, but “depression grief,” and needed. developed an at- months later “she few that, death, Saifi testified with Carter’s multiple tack sclerosis.” of friend, loss her best and this she lost grief said Dr. Carter testified daily her life on a basis. She changed by mitigated destroyed losing future Carter was somewhat “really his death their other son’s new planned happy I each event of and had Matt birthday ap- marriage. But when Carter’s explained that she and Carter other.” She His proached, the memories came back. had to be married the end planned or hole in the “major rip his absence year school first medical and the family, their fabric” of the victim’s destroyed plans their death had felt “like hunk particular brother dreams: support jury’s been taken out his heart.” Dr. Carter sufficient affirmative good victim person also extolled the as a spe dangerousness” “future answer parents very “You proud: whom his were reviewing legal suf cial issue.4 When know, you a child up right raise to be with support ficiency of evidence to God, your right family right with issue, jury’s answer this we view community, their a shin- and Matthew was light in the most favorable to all ing example proud that. We were so and determine whether verdict himof and so of all that he had done proud of fact have believed rational trier could accomplished and all that had what he prob reasonable there is a beyond a doubt person kind of was.” Dr. testi- Carter *13 commit ability that defendant would fied that the also painful memories were acts of violence that would consti criminal brought August his back 2001 when continuing society.5 tute threat to (the grandfather) father died of victim’s natural and then again Septem- causes on claim, appellant’s In ob- response again ber 18 we saw on the “when news appellant just per- one serve that shot not again and the families that those suffered son, two, shootings and but those occurred sudden and violent losses their loved on occasions. participated different He ones” during Sep- the terrorist attacks on robberies, at least five of which were two tember 2001. regard after murder. Carter’s With The day, sought next defense counsel Cherry, jury could rational- shooting of “bystander’s introduce a bill” to Dr. reflect ly appellant that intended to kill believe testimony. Carter’s demeanor during his her, Defense counsel contended that Dr. Carter least whether she or at did care stop “had to he crying was several while jury The had lived died. also evidence talking times in about his his wife and intentionally that killed appellant Carter son.” the prosecutors One of expressed despite pleas despite his for mercy and disagreement char- with defense counsel’s appеllant money offer to allow to withdraw acterization of Dr. Carter’s demeanor. with his ATM card. stated, Carter, prosecutor The “Doctor paused he very at all was in nature. brief jury The was also entitled disbelieve couple There guess were times I I Phillips appellant’s claim that was the would refer to it as his voice broke he believe, instead, group leader of and did not The judge sob.” trial did not appellant Appellant that was the leader. comment on contrasting these views Cherry Phillips, had robbed without testimony. jury rationally could have believed that appellant Phillips intended to rob before II. ANALYSIS recognizing him. The could consider Sufficiency A. of the Evidence— appellant personally the fact that abducted Dangerousness Future robbery two different victims and robbed Legal Sufficiency them in them was alone their while In point eight, appellant error
contends in legally evidence was (Tex. 4. The probabili- "whether there asks is a Russeau ty that the defendant would commit criminal Crim.App.2005). acts of violence that would a con- constitute 37.071, tinuing society." threat Art. 2(b)(1). § dangerous, and there was cars.6 evidence own drugs prison.8 can be found addition, In there was evidence The legally evidence was sufficient to ap- gang-related, murder Carter’s was support jury’s affirmative answer to Crips gang, pellant was associated with the dangerousness special the future issue.9 indeed, still associ- eight Point error is overruled. gang he was Crips ated with the while capital murder incarcerated Sufficiency 2. Factual that he charges. could believe gang to be a member in continue nine, point appellant argues of error pose danger to other prison thus factually that the is insufficient to staff. prison inmates affirmative answer to support jury’s dangerousness” special the “future issue. Moreover, rationally jury could have consistently conduct declined to We gang believed that continued factual-sufficiency context.10 review this not in membership that he showed Point of error nine overruled. about his criminal activities. repentant fact *14 Likewise, ap- could jury the have viewed B. Indictment’s Failure as evidence pellant’s disciplinary record Allege Special Issues getting he not reformed after that had Indeed, be- jury the could have caught.7 eleven, con point apрellant In of error instigated all or most appellant that lieved that not authorize tends the indictment did disciplined. fights of the for which was be imposition penalty of death of trial Finally, aspects appellant’s various con allegation cause it not include an did was testimony Phillips claim spe forming dangerousness future —his “technically leader, his use of words upon cial issue. relies Apprendi He his or involve- speaking” describe blame previously Jersey.11 New decid We ment, that the crime commit- his claim was adversely posit to appellant’s ed this claim of drugs, under influence and his ted ion.12 Point of error eleven is overruled. severity of attempts to minimize his be viewed as Mitigation Special
motives and actions—could C. Waiver of indicating acceptance of appellant’s Impact Issue/Victim genuine. not responsibility was Evidence Character three jury through Points of error one ad- also could We observe made him drug victim-impact use dress victim-character appellant’s believe State, 766, 577, State, See 119 S.W.3d 781 758 S.W.2d 593 9. Jones v. 6. See Cockrum v. 1988)(defendant's (Tex.Crim.App.2003)(“even without two (Tex.Crim.App. dominant murders, the evidence of a brutal extraneous capital of future murder is evidence role murder, assaults, multiple gang of of dangerousness). supports jury’s membership conclusion appellant danger”). a future State, (Tex. 247 7. Reese v. 33 S.W.3d Cf. Crim.App.2000)(it capital inwas defendant’s (Tex. State, 521, 526 10. Roberts v. 220 S.W.3d jail awaiting best to behave well in interest Crim.App.2007). trial). 120 S.Ct. 147 L.Ed.2d U.S. 11. 8. Wilkerson v. (2000). 1994)(habitual drug abuse is (Tex.Crim.App. Roberts, dangerousness). 535. evidence of future Statutory Principles such of Construction relationship evidence13 and the of special Relying evidence to the issues. Resolution of first upon Mosley Ripkowski v. State14 and part points depends upon three of error State,15 appellant complains point of er- construing construction. statutory When ror one about the trial court’s refusal to statute, give plain effect to the mean we him the mitigation allow to waive ambiguous text is ing of the unless the text order to avoid the introduction meaning or the lead to absurd plain error type point this In evidence.16 could not Legislature pos results that the two, appellant contends that this kind sibly have intended.19 court When victim-related evidence is inadmissible plain mean upon called deviate from mitigation even with the In his issue.17 examine, ing analysis, among it can other error, point complains third object attained; to be sought matters: that the trial in denying court erred the circumstances under the statute request limiting instructions that would enacted; history; the legislative com admonish the compare statutory provisions, mon former law worth victim worth of others on the or similar including laws same sub and that not to would admonish the jects; consequences particular of a consider victim-related evidence in answer- conducting inquiry, our construction.20 ing the future Be- dangerousness issue.18 writing in mind that are not keep we cause the legal relating factual and issues slate; into account clean we must take points intertwined, these of error are we prior namely Mosley proge and its cases— *15 together. ny making discuss them our determination.21 —in readability 13. To opinion, judge request. following facilitate the of this denied this The then we will refer types sometimes to these of two occurred: general evidence under the more ''vic- term you, Judge. Thank [DEFENSE COUNSEL]: tim-related” evidence. separately submit it We would for "do not 1, not consider” Issue "do consider” for 14. 983 (Tex.Crim.App.1998). S.W.2d 249 2. Issue charge requested Second on victim im- 61 (Tex.Crim.App.2001). 15. S.W.3d 378 pact: testimony You have heard certain re- garding the character the victim in of this Appellant request 16. made this the before upon case the effect of his death and punishment phase began, of trial it was and you're You survivors. are instructed denied at that time. compare not to use this evidence to the of the life of to that of value the victim other Appellant might complaint 17. raised this in writ- victims whose deaths not result in trial, reurged great ten motion before and he the loss to their survivors or to the community. complaint before the State its vic- introduced testimony during Denied. punishment [TRIALJUDGE]: tim-related its rebuttal case. The trial court on denied relief State, (Tex. Boykin 19. v. 818 S.W.2d 785 complaint the on both occasions. Crim.App.1991). Appellant any limiting did ask for in- not Torres, (Tex. parte 20. Ex 473 structions at the time the evi- victim-related Crim.App.1997); § 311.023. Code, During charge Tex Gov’t dence was admitted. the appellant requested conference that the Moore, charge be instructed in the S.W.3d 566 not to consider 21. See State 225 type determining (Tex.Crim.App.2007); Pettigrew this "in an- 48 evidence (Tex.Crim.App.2001); Busby Special swers 1 trial Issues No. оr 2." The 771 216 Mosley availability testimony relating and Related the other
Legal Developments impact character” and the to victim and “mitigating introduced de- evidence Mosley, jurisprudence Before our fendant.” respect victim-related evidence had and confus- been “somewhat inconsistent holding applied only noted that We our prior conflicting plurality two ing,” with “unaware, at to defendants who' were Mosley specifical- decision opinions.23 crime, time of the of the victims’ character consistent, if “to ly set out announce a impact deaths or of victims’ always clear-cut rule to followed on will have others.”30 When evidence “[b]oth future cases.”24 The rule was that aware of shows defendant was character impact victim evi- victim things at the crime those the time admissible, context of dence are in the committed, then the victim-related evi- issue, mitigation special to show the “necessarily” dence would be “relevant to victim, uniqueness of the the harm caused dangerousness culpa- and moral his future defendant, rebuttal by the and as bility.” But when the defendant was not mitigating We defendant’s evidence.”25 things, of those the victim-related aware admissibility recognized that this rule of “patently would be irrelevant” to evidence subject to limitation under Rule dangerousness” “a of future determination the Texas Rules “when the Evidence26 only instead relate miti- and would com- encourages predominantly evidence said, Finally, we gation special issue.32 and lesser parisons upon greater based rele- victim-related evidence where morality of the victim.”27 We worth issue, only to the mitigation vant “[tjrial exer- judges should explained upon reliance the defendant could “waive their sound in permitting cise discretion issue, of mitigation submission about character some evidence the victim’s does, impact if he victim and character limit- impact lives while others’ and hence would be irrelevant the testimo- ing scope the amount and inadmissible.”33 to be taken into ny.” Considerations expounded upon Subsequent cases have na- under Rule 403 included “the account *16 up- Mosley’s pronouncements. be- We relationship of the testimony, ture victim, photographic held the introduction of evi- the witnesses and tween to the victim.34 testimony designed ... amount of to be introduced dence “humanize” State, delay, presentation of (Tex.Crim.App. or cu- 990 S.W.2d 267 undue needless v. 1999). mulative evidence.” Mosley, 27. 983 at 262. S.W.2d 262; Mosley, at 261- 22. 983 S.W.2d at see id. cases). (discussing prior 28. Id.
23. Id. 29. Id. Id. at 261 n. 30. 16.
24. Id. at 262. 31. Id.
25. Id. Id. at 263. 32. relevant, provides: "Although ev- 26. Rule 403 may probative idence be excluded if its value at 264. 33. Id. danger substantially outweighed by the issues, State, 365-66 prejudice, of the or 34. Solomon unfair confusion misleading jury, (Tex.Crim.App.2001). by considerations of Mosley’s Based on recognition aggra- to permitted have been effect such a waiv- vating circumstances are er, relevant that he estopped we held was jury’s of the mitigation special evaluation challenging of his waiver virtue own issue, we have held that a defendant is not request.40 Declining to address whether limiting entitled to an instruction the jury’s to right defendant has insist on such a consideration extraneous to offenses the waiver, explained further that the ques- we dangerousness.35 issue of future Relying ripe only tion be in case in “would which in non-capital case on Mosley’s Rule 403 the requested trial court refused a waiv- discussion, found that a we seventeen-min- concurring opinion, er.” In a Judge montage life, ute video of the victim’s set opined, Mosley’s Cochran in line dic- with music, unfairly prejudicial was ta, mitigation that the belongs issue should not have been admitted its en- defendant, and he should be allowed tirety.36 In cases in which the defendant “strategic forego exercise the decision” to victim, found, knew his we accordance it, if that is his desire.42 the dicta in Mosley’s footnote the victim-related evidence those cases Relationship between Victim- necessarily relevant to the defendants’ Related Evidence and the dangerousness future culpabili- and moral Special Issues ty.37 The only aspect of Mosley that has not Relying specifically statutory upon yet adopted been reaffirmed or as a hold- language mitigation issue, of the special ing is part suggesting discussion “[vjictim-related Mosley explained that ev that a defendant can mitigation waive the idence is mitigat relevant show avoid introduction of ing circumstances are not ‘sufficient’ to victim-related altogether. In imposing a life warrant sentence.”43 This State, Tong v. recognized part reading of the comports entirely statute the discussion being dicta and declined with the Supreme United States Court’s question address the because the defen- Tennessee,44 Payne discussion in upon dant attempted had not to waive the miti- relied,45 Mosley also of the relation gation issue and had thus forfeited error.38 ship between victim-related evidence and In Ripkowski, the defendant request did the mitigating aspects punishment to be that he permitted mitiga- waive the penalty considered a death case. issue, tion and that request granted.39 response to the claim that he should not In repudiating prior its decision in Booth (Tex. 35. Jackson v. Id. at 388-90. *17 Crim.App.1999). 41. Id. at 390 n. 48. State, 330,
36.
90 S.W.3d
336-38
Salazar
(Tex.Crim.App.2002).
J.,
(Cochran,
concurring).
42.
Id. at 395
Roberts,
532;
37.
220 S.W.3d at
Jackson v.
(quoting
43.
plained
weighted
had
in
“unfairly
penalty,
robbery
Booth
but if the
the
which
trial,”
the
in a capital
imposing
scales
“vir
second defendant
participates does
tually
limits”
“the rele
respect
victim,
no
to
result in the death of a
the death
a
defen
mitigating
capital
vant
evidence
penalty may not be imposed.49
may
concerning
dant
introduce
own
purposes,
Most
for our
the
importantly
barring the State
circumstances” while
link be-
Supreme
specific
Court
drew
offering
quick glimpse
“from either
tween victim-related
a mean-
evidence and
the
the
to extin
life
defendant chose
which
ingful assessment of moral blameworthi-
guish
or dem
evidence]
[victim-character
ness:
family
the
to the victim’s
onstrating
loss
may
that a
We are now
State
view
society
which has
from the
to
resulted
properly
conclude that for the
[victim-impact
defendant’s homicide
evid
meaningfully
assess
the defendant’s
Supreme
The
Court decided
ence].”47
blameworthiness,
moral culpability and
types
prosecution
these
evidence
sentencing
it
it at the
should have before
“simply
are
another form or method
phase
specific harm
evidence of the
sentencing authority
informing the
about
caused
by
defendant.
“The State
by
crime
specific
harm caused
in
has a
in
legitimate interest
counteract-
question,
general type long
of a
evidence
ing
mitigating
evidence
which
by
sentencing
authori
considered
in,
is
re-
put
defendant
entitled
ties.”
further
explained
The Court
just
minding the sentencer
such
harm is allowed
specific
evidence
should
as an
murderer
be considered
in
though
may
punishing
even
result
individual,
is
so too the victim an individ-
possessed the
differently defendants who
unique
ual
death
loss
represents
whose
culpable
same
mental state:
in
society
particular
his fami-
Thus,
blameworthy criminal
equally
two
ly.”
turning
“face-
By
the victim into a
may
guilty
defendants
be
of different
phase of a
stranger
penalty
less
at the
solely
offenses
because their acts cause
trial,”
capital
deprives
Booth
the State
differing
harm. “If a bank
amounts of
of its
full moral force
guard,
gun
pulls
aims his
at a
robber
having
may prevent
target,
may
he
trigger,
kills his
necessary
before it all the information
gun
put
unexpectedly
to death.
If the
for a
proper punishment
determine the
misfires,
guilt
not. His
may
moral
first-degree murder.50
identical,
responsi-
both cases is
but his
Further,
indicated that
Supreme
Court
greater.”
in the
bility
former
“the
latitude
giving the defendant
broadest
defen-
respect
same is true with
to two
evidence,”
mitigating
relevant
dants,
introduce
participates
each of
whom
Supreme
as has
done under
Court
been
robbery, and
of whom acts with
each
life;
precedent,
justly
permitting
entails
disregard for human
reckless
costs
prosecutor
defendant
“the human
robbery
first
introduce
of a of the crime of which the defendant stands
participated results
the death
Id.
46. 482 U.S.
107 S.Ct.
L.Ed.2d
S.Ct.
*18
(1987).
440
819,
49.
Id.
111
2597.
at
S.Ct.
822,
Payne,
501
at
219 convicted.”51 “It affront to such used to is an the civi- evidence could be show that lized human say mitigating upon members of the race to circumstances relied sentencing capital case, that at in a a not sufficient to defendant were parade may praise justify witnesses back- life sentence. ground, good character deeds of De- dangerousness” special But the “future (as case), fendant in this done without special issue is different. issue That asks: relevancy, nothing limitation as to but probability “whether there is a
may upon be said that bears the character defendant would commit criminal acts of of, or the imposed, upon harm the vic- violence that a continuing would constitute 52 tims.” society.”54 danger- threat The future statutory ousness mitigation special special all-encompass- issue issue is ing; was submitted in case con- focus in a jury’s partic- narrows formed to the ular Supreme require- way. Court’s Not all of mitigating evidence ment of according special defendant value is relevant to that issue.55 “broadest latitude” to introduce Most State mitigating evidence that the or the defen- evidence. It asked: dant might present “aggrava- wish to ting” or “mitigating” given can be effect
Whether, taking into consideration all of
through
dangerousness
the future
special
evidence,
including the circum-
issue56
only
special
for the
issue’s nar-
offense,
stances of the
the defendant’s
purpose: showing
row
whether or not the
character and background,
per-
and the
continuing
defendant
constitutes
threat
sonal moral culpability
defendant,
of the
society.
dangerousness
The future
is-
there is a
mitigating
sufficient
circum-
sue does not
present
State
stance or
with
circumstances warrant that
situation
pres-
in
the defendant can
imprisonment
sentence of life
rather
any
ent
types
mitigating
and all
than
evi-
a death
be imposed.53
sentence
dence
types mitigating
and all
Thus, the special
placed virtually
issue
no
purposes.
Just as some evidence of miti-
limits on
types mitigating
evidence
gating
may
value
be irrelevant to the fu-
might
particular
introduced
determination,
ture dangerousness
some
mitigating purpose for which the evidence
aggravating
may
evidence of
value
likewise
might be considered. Under the logic of
be immaterial.
Payne, this all-encompassing mitigation is-
sue included
scope
effect,
within its
victim-impact
practical
dangerous-
the future
and victim-character
special
evidence because
ness
on the jury’s
issue turns
as-
827,
302,
51. Id.
Penry
111
Lynaugh,
S.Ct. 2597.
55. See
492 U.S.
109
2934,
(1989).
S.Ct.
256
L.Ed.2d
826,
(quoting
52. Id. at
sessment of what kind dant Is the defendant someone is or rela regarding is: who the victim’s character of iikely to commit criminal acts violence specific not tionships, then those facts are the the defendant knows future? When dangerousness to the future det relevant (it inferred) victim, may the and thus be the ar ermination.58 That is conclusion the character or of the is aware of victim’s find it to be Mosley, rived at and we others, the victim has with relationships that, if correct. the entirely And follows relationships the victim’s character of special part not a mitigation issue were become to the future necessarily relevant case, is the victim-related evidence determination dangerousness such because only mitigation special is the relevant defendant is the evidence shows the sue be inadmissible. would of kind of who kill someone person would net- particular that character or with that Mitigation 4. Nature of the relationships. to the extent work of And Special Issue the knowledge the defendant’s victim’s ability relationships give to the rise question then becomes wheth the reasonably foresee the harmful effects the right er had the to remove others, on the victim’s death would have case. special issue from the mitigation jury can consider that information likewise long Generally, a matter can be so waived dan- respect to defendant’s future with requirement or as it is not an “absolute gerousness. prohibition,” designed implemented to be By regardless parties’ wishes.59 hand, other when the defen On statute, permitted a is to “waive defendant victim, stranger dant is a to the and thus any by except that rights secured him law” character or does not know victim’s to a may right a defendant waive relating those relationships, evidence case.60 jury penalty trial a death help jury topics does not determine To person what kind of the defendant is. present Because case involves sure, stranger kills a be a defendant who initially examine penalty, death could realize that the victim is and should mitiga waiving whether submission or unique being, human her own with be tantamount tion would dreams, hopes and defendant Obviously, a defen waiving jury. trial peo anticipate could and should other is mitigation special dant who waives the mourn ple may passing. the victim’s jury sue have still received a trial things Those are a matter common dangerousness spe guilt and on the future prosecutor argue knowledge, could most, issue, only partial inter cial so at support without requirement trial if, But ference evidence in the record.57 committed, accomplished.61 waiving But time offense was the defen would State, (Tex. the defendant’s actual ousness to the extent of 57. v. 17 S.W.3d Martinez State, awareness. Crim.App.2000); v. 970 S.W.2d Nenno 1998). (Tex.Crim.App. (Tex. State, 59. Marin Crim.App.1993). course, stranger might 58. Of even crime been at the time of the of some aware 1.13(b). 1.14(a). Art. See also Art. (e.g. relating a victim who facts victim visibly Prystash pregnant), one See is famous or who (Tex.Crim.App.1999)("It danger- said that a waiver rendering to future evidence relevant
221
No one would
jury
classically
a
the defendant’s interests.
foregoing
trial
involves
statutory pro-
argue that
the
shifting
seriously
determination of the matter to the
from
trial re-
judge,
withdrawing
against waiving
jury
the matter
a
scription
altogether.
example,
For
instruction be
quires
consideration
self-defense
a
Gaudin, a
States v.
defendant was
the defendant’s
against
United
submitted
wishes.64
deprived
right
jury
by
of his
to a
trial
course,
remains to be determined
Of
what
practice
submitting
prior federal
is a
mitigation special
is
issue
whether
“materiality”
perjury
element of a
offense
or an element of the State’s
defensive issue
jury.62
rather than
In
judge
question.
to that
case. We turn next
Texas,
when a defendant’s
of a
even
waiver
mitigation special
Whether
by
jury
accompanied
plea
trial
prosecution’s
an
issue is
element
trial
the au-
guilty,
judge
still retains
im
critically
issue is
case
a defensive
thority as the factfinder to find the defen-
sub
portant. A defendant cannot waive
guilty
dant
of a lesser-included offense or
prosecution’s
of an element of the
mission
case,
an
In
acquittal.63
even to render
this
But
case to the finder
fact.65
submis
judge
not seek to
appellant did
have
strategic
sion of a defensive issue is a
issue,
mitigation special
decide the
decision to be made
the defendant and
of it
possibility
being resolved in his
attorney.66
only
Not
is a defendant
favor; rather, appellant sought to
waive
permitted
forego
submission of a defen
altogether.
determination on that issue
issue,
sive
he is also entitled to insist
addition,
no
say
one would
If
that a
issue not be submitted.
defensive
forego
defendant’s choice to
a defensive
mitigation special
properly
issue is
issue amоunts to a
of a
trial.
waiver
issue, then it
characterized as a defensive
example, suppose
capital
For
in a
that the defendant
have
follows
prosecution
murder
raises the
of self-
upon waiving
its submission.
right
insist
defense, but the defendant and his counsel
reasons,
decided that
hold that
submission of self-de-
For several
we
would,
balance,
mitigation special
fense
be detrimental to
issue is a defensive
by jury,
capital
trial
which is forbidden in a
dants unwanted defensive issues in the
sought
case in which the State
the death
charge”).
penalty, occurred when the verdict did not
special
required by
include issue which was
868,
State,
65.
74 S.W.3d
874
See Smith v.
applicable
statute. There are several fatal
(Tex.Crim.App.2002)(submission of "deliber-
with,
reasoning.
begin
flaws in this
To
if this
waived).
ateness”
issue cannot be
See
waiver,
improper
were
an
doctrine of
State,
635,
also Martin v.
200 S.W.3d
638-39
estops
invited error
from com
stipu-
(Tex.Crim.App.2006)(even if defendant
Second,
plaining
face;
of it.
it is untrue on its
felony
jurisdictional priors in a
DWI
lates to
jury.
the case was tried to a
The worst that
prosecution, jury must be instructed on the
can
that the
returned a verdict
be said is
elements).
may
estopped
But a defendant
"Xemphasis
which did not answer one issue.
challenging
the failure to submit an ele-
added).
requested
ment when he
the lack of submis-
874;
2310,
Smith,
506,
Ripkowski,
71.
37.071,
(2),
2(b)(1)
Id.,
(g).
15.04(d).
§
78. Art.
&
§
Id.,
e.g.
19.02(d).
79. See
71-74.
footnotes
§
(b).
simply
added it to subsection
the evidence. But there is at least one
not,
But it
choosing
did
example
instead to craft a other
of a defensive matter that
separate
designed
subsection. At
point
applicable
every
one
time—indeed at
penalty
parole instruction,
time of
death
case: the
(e)
only
trial —subsection
which needed
contained another
written defense re-
provision
quest
involved
to warrant its inclusion in
clearly
what was
death
рenalty
defensive matter:
case covered
parole
submission of a
version of the
instruction.80
statute that authorized the
parole
instruction.
instruction was
*22
Given some of the unusual
only
aspects
submitted
“on
of death
request
written
of the
cases,82
penalty
it is not
attorney
unreasonable to
representing the defendant.”81
think that
Legislature might
the
craft a
Finally,
mitigation
the
special issue was
defensive issue that
appear
every
would
a legislative response
Supreme
to the
by
case
default.
Court’s decision in Penry
Lynaugh.
It
that,
This
to the
designed
point,
leads
second
to fix a constitutional defi-
provision
while the
ciency
authorizing
parole
the old Texas capital sentencing
scheme,
instruction contained
give
language giving
not to
advantage
State an
option
it
defendant the
would not
decide whether to
have had under that scheme.
instruction,
submit the
Allowing
the subsection
a defendant
“opt
out” of the
“Penry” portion
mitigation special
authorizes the
issue con-
falling
scheme—
tains no
language.
back on
such
But
what the
we should
Texas scheme would be
that,
remember
under
Penry
like
had not
Almanza v.
been decided —seems
jury charge
more in
error is
completely
accordance
never
for-
legislative
with the
feited;
request
intent
the lack of a
saddling
objection
than
the defendant with an
merely
issue
the harm
supposedly
analysis.83
that is
affects
Under
his benefit but
Posey,
a party
he does not in
can forfeit the right
fact
want.
complain about the omission of a defensive
We see
points
three
of distinction that
issue because the defensive issue must be
could be made
the mitigation spe-
between
requested before the trial
duty
court has a
cial issue and other issues that are tradi-
place
it in
charge,
and so no “error”
tionally
defensive, but,
characterized as
for
occurs
request.84
absent a
below,
the reasons discussed
those distinc-
tions do not dissuade us from our conclu-
happens
But what
Leg
when the
sion that
mitigation
special issue is in islature enacts a defensive issue or instruc
fact a
First,
defensive issue.
one could tion that
apply
every
will
case of a
point out that the mitigation special issue
certain type, regardless of
If
the facts?
is designed to be applicable
every
case.
Legislature
simply designates that the
Typicаlly, a
ap-
defensive issue does not
submitted,
instruction or
issue be
pear in every case but
by
must be raised
would construe the failure to submit as
37.071, 2(e)(2)(1999).
fact,
§
80. Art.
ry
upon
finding
maximum based
a
requiring jury
Ap-
thus
a
determination under
81. Id.
prendi
Jersey,
v. New
530 U.S.
120 S.Ct.
(2000)).
error,
sentencing
mitiga-
tal
benefit
regardless
who would
issue,
from
To allow the omis-
special
special
the submission.85
tion
issue is a
complete-
issue,
to be
parole
thus,
sion
a
instruction
a
it is also
unlike
discrete
forfeitable, then,
Legislature
ly
had
general
punishment in non-
assessment of
a
provision requiring
include a
defense
capital
Every other discrete issue
cases.
Likewise,
request.
the absence of a “re-
belongs
by jury
be
that could
considered
quest”
mitigation special
for the
provision
the State or the defendant.
either
mitigation special
issue
means
issues,
Moreover,
by
we think discrete
But
issue cannot be forfeited
inaction.
nature,
belong to one of the
their
must
not
prevent
does
defendant
Almanza
parties.
part
Either
issue is a
rate,
issue,86
an
waiving
case or
a defensive issue.
State’s
provision
already
can
permitting waiver
in a
general
punishment
assessment
So,
Legislature
found in Article 1.14.
“neutral”
in the
noncapital
only
case is
specific
not
to attach a
waiver
all.
that it is
a discrete issue at
sense
provision
mitigation
Legislature intended to enact
Had the
*23
it to be waivable.
neutral,
mechanism
con-
non-waivable
evidence,
could
that
Finally,
argue
one
the broad
sidering mitigating
could have
scope
mitigation special
issue makes
upon
jury
chosen
confer
simply
sentencing
noncapital
(after
it similar to the
de-
authority
finding the de-
to decide
termination,
an
that
which is not
issue
answering the future
guilty
fendant
belongs
There is no bur-
party.
to either
issue)
impose a
dangerousness
whether to
respect
of proof
party
den
on either
with
punishment of “life” or “death.” But
years
might
to the number
did.
Legislature
is
not what
case,87 virtually
in a noncapital
assessed
mitiga
We conclude
can be considered
mitigating evidence
tion
issue is a defensive issue
special
determinаtion,
is
in that
the determination
inaction but can be
cannot be forfeited
respect
it is
to the miti-
normative as
with
issue,
waived, and
it is a defensive
because
issue,88
gation
impact
and victim
special
has
its
right
upon
the defendant
a
insist
under
and character evidence is admissible
in this case erred
judge
The trial
waiver.
By
guidelines.89
analogy,
the same basic
in
to waive
refusing
allow
attempt to
miti-
might
one
characterize the
jury,
of the
to the
and as
“neutral,”
submission
gation special
belonging
issue as
result,
admitting victim-impact
a
party.
noncapi-
unlike
erred
neither
But
However,
(In
general
by defense
85. Delgado,
n. 34
86.
a
statement
standard
the er
unless we determine that
5. Harm
nature,
ror is constitutional
in which
“beyond
case the
harm
reasonable doubt
Appellant argues
that the error
this
apply.92 Evidentiary
less” standard would
harmless,
case should not be held
contend-
error is
under the Texas Rule of
evaluated
ing that he
“strong
had a
defense to the
44.2,
Appellate Procedure
constitu
continuing threat
issue” and that there is
“beyond
tional error evaluated under the
“no
jurors]
assurance that [the
would have
44.2(a)
reasonable doubt standard” of Rule
reached the same
“if
answer”
that issue
and nonconstitutional error evaluated un
they had not
impact/char-
heard the victim
der
rights”
the “substantial
standard of
testimony.”
acter
It
not entirely
clear
44.2(b).
Rule
argument
from his
whether
thinks the
error is immune from a harmless errоr
In erroneously submitting the
analysis or
he merely
whether
thinks the mitigation
issue,
the trial court es
error
not harmless in
his case. Nor
sentially interpreted the issue as an ele
appellant attempt
does
to explain whether ment of the State’s case rather
than a
the error
issue is constitutional or non- defensive matter
that could be waived.
nature,
constitutional
or whether we
simply
That error is
a misconstruction of
apply
should
harm standards
for jury
Likewise,
the statute.
the erroneous ad
charge error or for error in improperly mission of evidence constituted a mere
*24
admitting evidence.
statutory
because,
violation
without
the
issue,
mitigation special
the victim-related
State,
said,
v.
“Except
Cain
we
In
evidence was not relevant under the statu
for certain federal constitutional errors la
tory scheme. As Payne
abundantly
makes
by
beled
the United
Supreme
States
Court
clear, there is no
impedi
constitutional
‘structural,’
error,
as
no
whether it relates
ment to the consideration of victim-related
jurisdiction,
plea,
voluntariness
or
evidence. The trial court’s errors in this
any other mandatory requirement, is cate
case
statutory
were
rather than constitu
analy
gorically immune to a harmless error
nature,
thus,
tional in
apply
we
the
The erroneous submission of an
sis.”90
harm standards for nonconstitutional er
unwanted defensive issue has not been la
rors.
by
beled
the United States Supreme Court
as structural.91 We therefore conclude
In conducting
analysis,
our harm
we find
that the error in this case is not “structur
a number of factors that are relevant
al,”
subject
and thus is
to some sort of determining harm for the type of error
harm analysis.
First,
before us.93
we must assess the
State,
(Tex.Crim.App.1997).
90. 947 S.W.2d
92. See
32 S.W.3d
236-
Jimenez
(Tex.Crim.App.2000).
91. See
Johnson
235-
Although
are
these
the main factors to be
(Tex.Crim.App.2005)(discussing
Supreme
analysis
type
assessed in a harm
for the
cases,
including
Court
Johnson v. United
us,
preclude
possi-
error before
we do not
the
States,
461, 468-69,
520 U.S.
117 S.Ct.
bility
particular
relevant
in a
other
factors
(1997), containing
[*] [**] gation special issue—a point prosecu- argument. tor made in his age, suggest And I to is not a you turn We next to the relative factor, mitigating you but that is for on strength parties’ positions decide. issues, special particularly other future a, well, family. He is good from ease, dangerousness. In this future dan been, know, many you There so has only gerousness other is was people been for him all that have here recognize sue submitted. We father, his life. and all Mother Among State’s evidence was substantial. uncles, people. aunts and all kinds of things, the State submitted other People willing to He’s not always help. robberies, multiple shootings of аnd violent sexual, any subject physical, membership, in jail, gang behavior and abuse, type emotional but from lov- jury evidence that could construe as ing family, he a con- but does not have indicating of true and a lack remorse one, give science can’t him but I you and part truly on appellant’s accept failure you ask these questions answer based responsibility for his actions.
upon
nothing
and evidence and
law
just
every issue, appellant
On
about
had
your
else and we
abide
will
verdict.
answer,
par-
an
the answers
were
Appellant
ticularly
credible.
wished
point
intelli-
Appellant could not
to low
that he
mere
believe
was a
follow-
family,
an
other
gence,
or some
abusive
er,
by
that he
dominated
three differ-
was
be-
bad circumstance
his life that was
people
by
ent
at three different
times:
why
yond
explain
control
order
Cherry robbery, by Phillips
Butler in the
capable
of commit-
person
was
kind of
night
occurring
for various crimes
ting
point
heinous crimes. He could
to his
killed,
and Dunn at the time
Carter was
parent
...
youth,
“as
knows
‘[a]
money from an
appellant tried to withdraw
maturity
underdeveloped
lack of
and an
appellant
ATM
But it
who
machine.
youth
are found in
responsibility
sense
appellant
was alone
people,
shot two
who
more often than in adults and are more
victims,
in the car
with two different
among the
These
young.
understandable
Dunn froze
appellant who took over after
ill-
result in
qualities
impetuous
often
”102
up.
considered
actions
decisions.’
But
Moreover,
youth
precisely
appellant produced
known
are
aspects
these
while
mitigat-
testimony
chaplain
say he
give
of a
had
permit
what would
evidence, in
“changed,”
concrete
ing
youth
effect to
within the context of
more
prison disciplinary reports,
issue.103 form of
showed
dangerousness special
the future
in the
involved
numerous
So there was no evidence
record
one
incarcerated —at least
mitigating impact peculiar
fights
to the miti-
while
Simmons,
551,
Roper
deemed themselves foreclosed from consider-
543 U.S.
(2005)(quoting
evaluating
ing
petitioner’s
S.Ct.
the gun to Carter’s head when Carter appellant sought to pushed him and caused To the extent appellant up’ pull gun’s testimony support prop use Dunn’s trigger. ‘tens[e] intend kill an effort to osition that he did not Car corroborate version events, ter, relitigate attempted sought to introduce a the issue (Tex. Roberts, at 532. Gallo Crim.App.2007). *30 1)
guilt, not to do state entitled so.108 constitutional violation: when a however, Assuming, that the evidence evidentiary categorically arbi- rule ap- support proposition could also the that trarily prohibits the defendant from offer- impulsive pellant’s decision to shoot was relevant, ing otherwise reliable evidence premeditated, than ad- rather we further 2) defense; which is vital to his and when dress claim. clearly ruling ex- trial court’s erroneous relevant, cluding reliable otherwise evi- instances, In the exclu some portion dence forms such a of vital can sion of a defendant’s evidence amount the effectively precludes case the defen- right compel to the a violation of to presenting dant from defense.114 In the in the attendance witnesses defendant’s scenario, infirmity first “the constitutional Amendment, ap favor.109 Sixth made arbitrary is in the rule of evidence it- to plicable through the states Four 115 scenario, In rule self.” the second “the Amendment, guarantor teenth is a firm appropriate, but the trial court itself compulsory constitutional assurance of erroneously to applies the rule exclude to process obtain favorable witnesses.110 to admissible evidence such an extent application an of the local rules When effectively it “fundamentally prevents be unfair” or consti defendant 116 rights directly affecting the presenting theory.” tutional ascer defensive his guilt implicated, tainment are the rules princi Even if the constitutional mechanistically
“may applied not be to de punishment In justice.”111 ples apply feat other set out to the ends above words, case, rules, in an local appropriate phase of a case—an issue we do not capital prohibiting hearsay, yield like those should not err in ex decide—the trial court did to protections. constitutional But this case, In this cluding evidence. every not mean that erroneous exclu does judge trial had the discretion exclude sion of a defendant’s evidence amounts police Dunn’s out-of-court statement a constitutional violation.112 hearsay and because it did because was qualify exception general an Potier,
In this Court noted “eviden- hearsay.117 Although prohibition against rulings rise tiary rarely level state some discussion was had denying fundamental constitutional against as a might qualify ment statement rights present meaningful defense.”113 interest, of the statement portion there explained The Court are two into contained rulings appellant offered evidence distinct scenarios which exclud- Rather, ing might self-inculpatory rise to the of a no assertions.118 level State, 659-62; Wiley 74 114. Id. at S.W.3d 108. Id. 399, (Tex.Crim.App.2002). 405 State, 657, (Tex. Potier v. 68 109. S.W.3d 659 Crim.App.2002). Wiley, 74 at 405. 115. S.W.3d Texas, 14, Washington U.S. 87 110. 388 116. Id. 1920, (1967). S.Ct. L.Ed.2d 1019 284, Mississippi,
111. Chambers v.
410 U.S.
117. Tex.R. Evid. 802-04.
(1973);
93 S.Ct.
119. See U.S. 93 S.Ct. stances the statements reliability”). (holding that the Due considerable assurance of their Process Clause right affords criminal defendants the intro- parties' duce into evidence third declarations 120. Masterson v. 174- against penal (Tex.Crim.App.2005). interest ... when the circum- closing argument prosecutor’s Judge, that’s own COUNSEL]: [DEFENSE striking to him comments: object I law. shoulder. defendant over counsel’s Judge you tells about page On argument This is the we parole law. THE Overruled. COURT: have, imag- I have and we’ll continue And I ask don’t re- [PROSECUTOR]: ine, doing as both this. long we’re Don’t let him re- question. this write I’m you why me tell I think what Let As the defendant question. write something you rely can on. saying is day, that’s courtroom this sits this you page Judge you 4 the tells On question are. This is before where get or to a life sen- sentence someone day you have to you. Today is the they’re murder ease capital tence it, to answer it you answer years 40 calendar without going serve question. today, this That any good time. consideration Judge, may I COUNSEL]: [DEFENSE *32 Now, reality tells day-for-day. means misrep- running objection a have here, goes if Mr. us that Williams leaves that counsel is resentation law Depart- in the Texas prison to a unit telling jury? capital a mur- ment of Corrections with Yes, sir. THE COURT: he is going life sentence that’s where der a years. for the next 40 That’s to be you. Thank COUNSEL]: [DEFENSE does they, prosecutor], fact. [the Now running that ob- Will [PROSECUTOR]: to a fact. He wants not that want jection be overruled? something on the argue grafting I’m Yes. THE COURT: there, you see it. that is not but statute to decide is You’re the law is. Judge’s [PROSECUTOR]: It’s the words what probability there a you’re looking Special the defendant —is Issue So when reasonable beyond society defendant a in you got that the to consider No. threat continuing be a to be for going doubt would is Perry Williams violence, of a con- commit criminal acts years.121 the next 40 society, and that’s the tinuing threat for a Legislature provided Before gets it put Not into after question. cap- in parole eligibility on jury instruction after 40 years, gets if he out out after in cases, of this Court plurality ital got in he a life years. put You cannot State that such Smith v. rejected the claim in because question, into the sentence constitutionally re- an instruction was says, very part, first it charge holding reasoning quired.122 The mandatory for the says punishment adopted binding later opinion was you capital murder of which offense in nu- has been followed precedent123 and guilty is death found the defendant not need merous later decisions we Department in the Texas or confinement Smith, rejected expressly cite here. we life. for Corrections rele- parole eligibility the notion of future jury’s to a determination completeness, point vant In the interest of dangerousness: in his responded counsel out that defense prosecu- 123. Broxton objection was made 121. No 1995). argument. (Tex.Crim.App. this tion to (Tex.Crim.App.1995)(plu 122. 898 S.W.2d rality op.). MEYERS, J., subject dissenting. proper is not in even context of be- special the second issue agree majority’s analy- I do not with cause jury considering when a wheth- of error. Appellant’s point sis first represents continuing
er a defendant
surely the
issue has
Slowly
mitigation
society,
‘society’
threat
the term
in- been
on its head and has become
turned
prison
non-prison
cludes both the
than a tool to insure the
nothing more
populations.124
The issue
implementation
death.
provide society
a mechanism
meant to
with
We
subse-
reasoning
have echoed this
declining to sentence a defendant
quent cases.125
attorney
The elected district
has
death.
pa-
Legislature
When the
inserted the
penalty
death
prerogative
seek the
eligibility
requirement
role
instruction
require-
in any case which meets the basic
statute,
specify
it did not
whether
Penal
Sec. 19.03. But the
ments of
Code
instruction should have
effect on the
say
mitigation
jury
allows the
jury’s
deliberation
issues.126
give
penalty
it does not want to
the death
circumstances,
Under those
find
we cannot
of that case. As a
the circumstances
prosecutor
fault
arguing
as an advo-
result,
society’s right
it is as much
as it is
cate to the
that the
should
defendant’s, and
no defendant should
eli-
parole
consider defendant’s minimum
it.
be able to waive
determining
gibility
he consti-
whether
*33
that
agree
Appellant
I
with the
the issue
jury
tutes a future
to
The
danger
society.
so
the hearing
has become muddied that
had the
about
mini-
information
on
is often more detrimental
mitigation
parole eligibility,
mum
heard
they also
time
By
jury
than
the
is to
beneficial.
the
argument
why
defense counsel’s
it
on
issue,
mitigation
they
the
consider
have
should be
ex-
judge
considered. The trial
agreed
already
that
the defendant
is a
hibited no
to either
inter-
partiality
party’s
danger and
to sen-
future
have decided
pretation
played
of the
by
parole
role
the
or her
See-
tence him
to death.
Texas
jury
law instruction. The
in a
was thus
Art.
Code of Criminal Procedure
37.071
position
give
to
to
parole
effect
the
law
2(b). Mitigation
Sec.
is the defendant’s
instruction to the extent it was deemed
try
to
to
their
opportunity
change
minds.
appropriate.
Point
error ten is over-
that
By presenting
may
evidence of issues
ruled.
culpable
defendant
for his
make the
less
actions,
issues,
horrible
such as childhood
The
af-
judgment of the trial court is
abuse,
addiction,
drug
mental problems,
firmed.
etc.,
consider that
jury
the
has
chance to
been some situations that
may
there
MEYERS, J.,
dissenting
filed a
opinion.
of the defendant’s control that
were out
Therefore,
to his
contributed
actions.
PRICE, J.,
a concurring opinion.
filed
to
rather than allow a defendant waive the
JOHNSON, J.,
issue,
give greater
should
structure and
concurring
filed
we
dissenting opinion.
guidance on the issue so that
is useable
37.071,
2(e)(2)(1999).
§
124.
125. Morris v.
940 S.W.2d
State,
Crim.App.1997); Collier v.
(Tex.
1997).
Crim.App.
ever,
something
and not
that a defendant
the
held
ultimately
Court
that
the
my dissenting
want to
opinion
pres-
waive. See
Amendment did not bar
Eighth
the
in Mosley v.
impact
Payne
entation
victim
evidence.
(Tex.Crim.App.1998).
thus hold
if
says, “We
that
the State
permit
chooses to
admission
victim
The Texas
legislature promulgated
prosecutorial
impact
argu-
evidence and
mitigation
issue because
United
subject,
Eighth
ment
Amend-
Supreme
jury
States
Court stated that the
per
may
erects no
se bar. A State
ment
give
be able to consider
must
effect
legitimately conclude that evidence about
any mitigating
evidence relevant
a de
impact
the victim and about the
background
fendant’s
and character or the
family
on the
is
murder
victim’s
relevant
Penry
Ly
circumstances of the crime.
jury’s
decision
to whether or not
302, 328,
naugh, 492 U.S.
109 S.Ct.
penalty
imposed.
the death
should be
(1989);
Under our
a trial
(or
may
hung jury)
court
not
a
on the mitigation special
authorize a death sentence
unless and until
jury
issue
has made an
does not mean that the
only
assessment of the defendant’s relative
play
comes into
if the evidence “raises” it.
moral culpability in order to determine A capital defendant under Texas law does
deserving
whether he is
of that ultimate
not
the option
subject
himself to
punishment.3
plain language
Under the
penalty
death
a jury
without
resolution
statute,
penalty
the death
is not au-
(or
resolve)
inability
jury
thorized
finding
without
question
the normative
of his overall
mitigating
not,
circumstances offered do
Legislature
death-worthiness. The
in-
has
light
non-statutory
aggravating circum-
simply
dicated it
not
will
tolerate a death
stances,
warrant
life sentence. The de-
sentence otherwise.
fendant can neither forfeit the submission
It is
Legislature
true
has else-
instruction,
of the mitigation
by a failure to
provided
where
that a criminal defendant
request
by
it or
some other inaction or
“may
any rights
by
waive
secured him
omission, nor even affirmatively
it.
waive
law-”5
But Article 37.071 does not
The issue does not “belong” to either the
“right”
create a
on the
part
defendant’s
State or to the defendant.
It
is not a
present mitigating
It
evidence.
is the
“defense” to the death penalty. We have
Eighth
guarantees
Amendment
said that
party
neither
has a burden with
right.
Legislature
respect
implemented
has
to the issue of mitigation.4 It is a
that guarantee,
by
judgment
codifying
normative
the consti-
for the jury to make
se,
“right,”
based
tutional
upon
-per
mitigating
whatever
instead
may
either side
present,
that,
formulating
requirement
combination
before a
with evidence of whatever
trial
non-statutory
may impose
sentence,
court
a death
aggravating
may
circumstances
against
offered
must find
the defendant on
relevant
the defendant’s moral
the issue of his moral blameworthiness.6
37.071,
2(e)(1)
(b)
§
Crim. Proc. art.
finding
of this article or an affirmative
*35
2. Tex.Code
(trial
that,
jury
(e)
court "shall” instruct the
in
an issued submitted under Subsection
of
the event it
applicable special
answers the
any
this article or is unable to answer
issue
(b)
affirmative,
(b)
(e)
issues under Subsection
in the
submitted under Subsection
or
of this
article,
issue).
mitigation
it "shall”
special
answer the
the court shall sentence the defendant
to confinement in the institutional division of
Department
the Texas
of Criminal
37.071,
Justice for
3. See former Tex.Code Crim. Proc. art.
life.")
2(g),
§
prior
as it read
to its revision to ac-
2005,
parole
commodate life without
at Acts
State,
102,
787,
9,
2707,
E.g.,
Leg.,
1, 4.
p.
§
79th
Howard v.
941 S.W.2d
Sept.
ch.
119—
eff.
("If
(Tex.Crim.App.1996).
jury
the
an
returns
affirmative find-
ing on each issue
under
submitted
Subsection
(b)
negative
1.14(a).
of
finding
this article and a
on an
5. Tex.Code Crim. Proc. art.
(e)
issue submitted under Subsection
of this
article, the court shall sentence the defendant
provide,
example,
6. The statute
not
does
jury
to
negative
death.
If the
returns a
find-
"right”
present
that the defendant has the
to
ing
evidence,
does,
issue
mitigating
submitted under Subsection
and that
the
trial)
conditions,
to
qualifications,
There
no
or
that
the trial court was correct
are
It
in the
of
refuse
the
case to
prerequisites.
is
nature
to allow
this
systemic requirement,7
“right”
special
not a mere
the
issue.
“waive” submission of
it,
the
he can
under
the
legitimately
of
defendant that
waive
Without
State cannot
1.14(a).
sentence,
plain
obtain a
the
Article
death
under
I
con-
operation of the statute.
cannot
grant
I
the Legislature
that
could have
clude
the trial
that
court erred in this case
designed
statutory
the
scheme in such a
reject
attempted
the
waiver
way
capital
that
defendants would have the
plainly
of
con-
statutory
what the
scheme
option
affirmatively
mitigation
waive the
templates cannot be waived.
special
Legislature
issue. Had the
fact
I
trial
agree
Because
do not
that
the
scheme,
likely
enacted such a
it would not
erred,
proceed,
court
I
the
would not
Supreme
have run afoul of the
Court’s
does,
majority
analysis.
a harm
conduct
Eighth
re-
jurisprudence
Amendment
with
the
I
given,
For
reasons
concur
spect
necessity
capital
authorize
judgment of the
judgment
Court’s
that the
juries
give
full effect whatever evi-
affirmed,
join
trial
not
court’s
do
might
capital
proffer
dence
defendants
opinion.
the Court’s
justification of a sentence less than death.8
my eye,
way
Legislature
But to
JOHNSON, J., concurring and
statutory
did
does not
design
scheme
dissenting.
mitigation special
optional
make the
way
The
parties.
with the
our statute
articles of the Texas Code of Crimi
works,
of moral blame-
nal
are
assessment
Procedure
deal with trials
worthiness,
non,
indispensable
very specific
partic
vel
is an
as to
the duties
step,
ipants
parties.
in the absence of which the trial
rights
Many
may
impose
mandatory
court
a death sentence.
contains
lan
articles
reason,
guage,
For
the State
entitled to
Article
this
is
followed
a condition.
(and
insist
entitled to insist on 33.03
must be
would be
commands that a defendant
trial,
object
appeal,
though
personally present
even
it did not
at
at
but allows
respect
trial
that it must
client
and the
court shall instruct
to that evidence
mitigating
foregoing
advantages
disadvantages
evidence
its
determine whether
Instead,
presentation
punishment phase
warrants a life sentence.
it man-
at the
of his
mitigation
regard-
capital
giving
dates
instruction
murder
But see
v. Lan-
trial.
Schriro
-,
mitigating
may
drigan,
less
whatever
evidence
U.S.
S.Ct.
(2007) (state
presented
guilt
either
court
been
Article 36.15
the
requires
trial court
duty.
create an unavoidable
The state
allow counsel for the state and the defen
produce
guilt.
must
Tex.Code
dant
present
a reasonable time to
written
CRIM.Proc. art.
Writ “counsel
1.15.
shall
instructions to
jury
be included within the
investigate
...
factual
legal
charge. The
opportuni
statute mandates
grounds for
of an
filing
application
for
ty, but
require
request
does not
a
a
corpus.”
writ of habeas
Tex.Code Crim.
either
require
counsel or
the trial court to
3(a).
11.071, §
Proc. art.
The state shall
grant any
request.
such
Article 20.03
application
answer the defendant’s
for writ
says that an attorney representing the
corpus.
habeas
Tex.Code Crim. Proc.
state is
appear
entitled to
before the
11.071, §
art.
capital
7. A
in a
defendant
grand jury
evidence,
and present
but does
may
case
not
waive indictment
favor of
presence
mandate the
of state’s coun
information,
an
if the state is not
even
sel and
during
bars it
grand-jury dеlibera
seeking
penalty.
the death
Tex.Code Crim.
says
tions. Article 26.052(g)
that the trial
trial,
a capital
art. 1.141.
Proc.
court shall grant
request
a
for advance
a jury
defendant cannot
trial if the
waive
payment
expenses,
certain
if the trial
state is seeking death. Tex.Code Crim.
court deems
request
is reasonable.
1.13(a).
Proc. art.
case
permits
Our
law
a
The United States
guaran
Constitution
capital
guilt
defendant to
phase
waive
right
counsel,
tees the
but even that
plead guilty
jury,
to the
is
may
constitutional right
by
be waived
always and
only
jury
to decide
defendant if
prerequisites
certain
are met.
punishment
what
will
assessed.
See Faretta
California,
422 U.S.
(Tex.
Williams v.
36.14. The article trials, imposed. article death sentence be charge capital-murder 37.071, two that explicitly mandates issues sug- my knowledge, one has To no ever jury always the must answer and third or of the first two gested that either both that, jury “Yes” instruction the answers clearly They may issues be waived. are issues, mandatory each the first of two the on the sentence necessary to decision by jury. must be the also answered it, then, the that Why to be assessеd. is the issue, necessary also third mandated in Capital
Article Procedure Case 37.071 assessed, to be decision on the sentence can be waived? the frequently given is that answer 2(b) presenta- On of the Sec. conclusion state,” “belong to the first two issue evidence, sub-
tion of the the court shall mitigation the proof, has a of burden while following jury: mit the issues By issue is “the defendant’s issue.” waiv (1) probability there is a whether instruction, mitigation the ing giving criminal the defendant commit may fore reasoning says, a defendant the acts of violence that would constitute victim-impact of and vic presentation stall continuing society; threat state; a de by evidence the tim-character (2) charge the jury in cases in which up the instruction and gives fendant guilt stage permit- at the innocence evidence, may not and the state mitigating jury to find the defendant ted with victim- then evidence “rebut” 7.01 guilty party under Sections impact and -character evidence. We Code, 7.02, Penal whether See, e.g., Ripkowski said so ourselves. caused the death of actually defendant (Tex.Crim.App. actually did not cause the deceased or 2001). of might persuaded I the validi but intend- the death the deceased way if that were the ty position of that ed to kill the deceased or another or world, it is things in the real but worked anticipated that a human life would be world, capital not. the real defendants taken. only to mitigation instruction waive the that, by asserting find the victim- is admissi impact and -character evidence legal theory, ble under some other 2(e)(1) The Sec. court shall instruct the that the very state introduces if the returns an affirma- keep the instruction defendant waived issue submitted un- finding tive each waiver, benefits from the out. The state (b), it shall der Subsection answer in ways-no loses two defendant following issue: struction, no evidence. Whether, into all taking consideration first evidence, including possible I resolutions. The the circum- see two mere to rule that offense, is this Court stances of the defendant’s in- legislatively mandated background, giving and the character and pres- door” to “open the de- struction personal culpability moral does fendant, mitigat- and victim-char- victim-impact is a sufficient entation of there state; admissibility acter evidence circumstance or circumstances to ing evidence, evidence, other impris- of that like all sentence life warrant opportunity. Curiously, prose- cution not accorded the same objections it. written *38 governed by would be Rules of Evidence that,
403 and 404. The second if the waived, victim-impact
instruction is may
victim-character evidence not be ad- applies
mitted. The first limits to the
nature and extent of victim-impact and
victim-character evidence. The second en- gets
sures that the defendant some benefit
from his bargain.
I point dissent as to of error oné and judgment
otherwise concur in the
Court. Lynn ROUTIER, Appellant,
Darlie
The STATE of Texas.
No. AP-75617. Appeals
Court of Criminal of Texas.
June
Rehearing Sept. Denied