*1 ZIMMERMAN, Appellant, Kevin Lee Texas, Appellee.
The STATE
No. 71106. Texas, Appeals of of Criminal
Court
En Banc.
April 9, 1993.
Rehearing Denied June *2 course of also commit-
sion of while in the robbery.1 § ting Tex.Penal Code 19.- See 03(a)(2). phase, punishment At the affirmatively punishment answered is- 37.071(b) sues set forth in Article *3 Procedure,2 ap- Texas Code of Criminal and pellant ap- to death. Direct was sentenced peal to this was then automatic under Court 37.071(h).3 Article will affirm. We error, appellant points of seventeen challenges; sufficiency of the evidence to the verdict; support failure jury’s the the of the grant appellant’s trial court to of chal- two cause; lenges grant for trial court’s of the cause; challenges two of the for the State’s sustaining trial court’s in the conduct State’s Barlow, Beaumont, Douglas appel- M. appellant’s explanation the of lant. innocence; presumption the admission in of by appellant; evidence of the letters written Maness, Atty. Tom Dist. & John R. De- picture admission in of a of Witt, Beaumont, Atty., Dist. Asst. Robert child, decedent with his wife and and of Huttash, Austin, Atty., for the State. testimony of regarding the results another case; capital overruling the trial court’s of appellant’s objection closing to the State’s CAMPBELL, Judge. argument; refusal to the trial court’s submit jury appellant’s requested to the instructions OPINION regarding mitigating evidence and the defini- a May After in a in held Jefferson tions of certain terms contained the two County jury appellant, punishment addressing appel- found Kevin Zim- Lee issues. After merman, guilty 1987, capi- sufficiency point, of the October lant’s we will address the L_G_H_(hereinafter slaying majority tal appellant’s points “the of of error in the decedent”). aggravating they The in during element of the order4 which occurred by murder provided appellant’s of the commis- course trial. language continuing 1. The relevant from indictment lence would constitute threat society; read that “did then and there while in and committing evidence, attempting (3)if the course and to com- by the whether the raised Robbery, intentionally mit cause death of killing in de- conduct the defendant G_ [L_ H_, JR.], styled, hereafter the Com- response ceased was unreasonable in to the plainant, stabbing Complainant with a any, by provocation, the deceased. if knife, deadly weapon, that in to-wit: the man- (c) prove must each issue submitted state capable causing of its ner use serious doubt, beyond jury and the shall reasonable death, bodily injury and AGAINSTTHE PEACE special "yes” or return a verdict of "no” on AND DIGNITY OF THE STATE.” each issue submitted. The record that all three issues were reflects appellant's
2. At the time of Article 37.071 respect with submitted provided part: in relevant L_ G_ H_ murdering conduct in (b) presentation On of the of the conclusion indicated, punishment phase], evidence [at the the court 3. Unless all article referenc- otherwise following shall three to the submit issues to the Code of Criminal Procedure. es are Texas jury: Appellant’s point will fifth of error be ad- (1) the conduct of the whether defendant dressed out Since fourth of order. of the caused the death deceased was points legal and fifth of error involve identical deliberately with committed the reason- conjunction principles, will address them expectation able that the death of deceased though alleged result; even record reveals that or another would (2) points of error probability errors addressed in those did whether there is a that the consecutively. criminal vio- occur defendant would commit acts of eight, appellant argues returned to the room where that the evidence at trial was insufficient to Weber were. Appellant sustain his conviction. does not time, After some Gonzales went sufficiency contest of the evidence to struggle ensuing bathroom and heard a prove that a murder occurred. nearby room, appel- bedroom. In that does, however, contend that the evidence is Weber, knives, lant and armed with attacked prove killing insufficient to the decedent. After the two men stabbed decedent occurred the course of the com- times, appellant the decedent 31 took the robbery. mission of a our review gave decedent’s wallet to Weber. briefly upon will focus the facts of the mur- Then, Weber, Gonzales, appellant, left in der, specifically but will focus on those facts try get appellant hospi- their ear to to a proved robbery.
which
*4
only
tal.
the car broke
after
While
down
review,
In conducting this
must
time,
we
consid
appellant
finally
short
did
reach the
er all of
in
the evidence
the record in the
hospital, where he
treatment
received
for
verdict,
light
jury’s
most favorable to the
and
knife wound.
jury
decide whether
reasonable
Appellant
subsequently
was
arrested and
every
have found from that evidence
element
placed
jail.
jail,
in
appellant
While in
wrote
beyond
of the offense
a reasonable doubt.
numerous letters to Weber and to the district
307, 319,
Virginia,
Jackson v.
443 U.S.
attorney. At
the
introduced
2781, 2789,
(1979);
S.Ct.
The contents of this letter were §§ 19.- testimony According property. Tex.Penal Code by the of Gonzales. See her, 29.02, reviewing arguing 03(a)(2), were After and the decedent and 31.03. at the light
about an incident had occurred most favorable Suddenly, “picked up a knife verdict, fair. appellant’s ar- conclude that decedent] stabbed him [the merit. guments are without Gonzales then went into the shoulder.” testimony, the fact Concerning Gonzales’ out, only to see bathroom and came back robbery that she pled guilty she stabbing appellant and Weber the dece- both not mean not commit does claims she did dent, “yelling ‘Don’tkill me. Please who was most, robbery At this no occurred. let me die. Don’t kill me. Please don’t don’t not rob testimony means that she did ” stopped let me die.’ After the decedent appel- It does not mean the decedent. moving, appellant get his tickets— “went to did not rob him. lant and Weber pockets.” of his wallet out testimony, ap- Concerning which Weber’s testimony Appellant argues contradicts, jurors were pellant’s letter only taking property de- proves “that credibili- assign it as much or as little free to AFTER the scribed this witness occurred Moreover, ty they desired. murder, alleged and not as conclusion of argument that the rob- *5 contradicts his letter part parcel Appellant a and thereof.” also bery “part parcel of’ the mur- was not argues, upon testimony from based other letter, appellant specifically stat- In his der. Gonzales, robbery. no that there was kill [the decedent] ed that he “decided to cross-examination, admitted On Gonzales money.” fucking take his exchange testimony, pled in her she that for ap- that Finally, even if the facts showed stated, guilty degree robbery. to second She body he pellant decedent’s after robbed the however, in no that she had fact committed died, disposi- already that would not be had robbery. According appellant, only “[t]he from tive. If the State introduces evidence despite conclusion to be drawn is that the rationally jury conclude that pled robbery, which the could guilty fact that [Gonzales] intent to obtain or appellant formed the testimony indicated that there was her property ei- Also, argues of the victim’s robbery.” appellant in fact no maintain control during testimony the commission that Weber’s that the decedent ther before or altercation, murder, appellant proven that a the that then the State “has started self-defense,6 robbery, acting in and that in the course of Weber were murder occurred robbery, proves appropriation that the evi- oc- although there was no the element of State, support convic- dence was insufficient to the murder.” Nelson v. curred after the response, argues 126, (Tex.Cr.App.1992), In the re- tion. State 20, appel- denied, January that the evidence was sufficient to show 1993. Since hearing rationally the in the course of the evi- lant murdered decedent conclude from robbery requi- mere committing “[t]he because appellant had formed dence that intent, that not taken until after fact the wallet was site we overrule Appellant finally had succeeded eight. Weber and error by stabbing him until subduing the victim four and five Appellant’s points of error killing he was does not mean that the dead the trial at two instances where are directed committing a rob-
was not in the course
challenges
grant appellant’s
court refused
bery.”
points
In
veniremembers.
for cause of two
five,
offense,
respectively, appellant
four and
prove
To
State
Harrington and John
argues
that Lionel
required
appellant
that
killed
to show
decedent,
to,
have been excused because
during the Thomas should
prior
that
against
a bias
a defen-
murder,
they each exhibited
requisite
intent to
appellant had
argument.
argued
makes no such
at trial that he acted
appeal,
appellant
On
self-defense.
testify.
Concerning
argument
right
ap
dant’s
not to
The State re-
the State’s
that
sponds
court
not err be-
pellant
failing
that the trial
did
has waived
error
Harrington
cause both
and Thomas stated
object
granted
at the time the trial court
Also,
they
that
would follow the law.
challenge,
past
preserva
our
decisions on the
appellant
preserve
failed to
clarity.
error
lacked
tion
such
have
any potential
(Tex.Cr.App.1989),
error for review.
v.
no abuse of discretion
your abil-
going
impair or interfere with
challenge for cause.
juror in this cause?
ity to be a
going
If I’m
to answer
FREEMAN:
juror informa-
on her
Freeman indicated
question honestly,
probably
would.
that
in
not believe
questionnaire that she did
tion
During the
initial
penalty.
the death
State’s
dire exami-
During the remainder of the voir
Freeman,
indicated
Freeman
examination
nation,
attorney
prosecu-
appellant’s
able to intro-
would never be
inconsistent an-
tor
continued to elicit
both
compel her to
evidence to
duce sufficient
indi-
Freeman would
swers from Freeman.
affirmatively.
punishment issues
answer the
attorney
be
that she would
cate to
challenged
After
the State
Freeman
punishment
based
fair and answer the
issues
cause,
attorney proceeded to ex-
and then indicate
on the evidence
examination,
During this
amine Freeman.
would not be able
prosecutor
she
following exchanges occurred between
in
punishment issues
a manner
answer
appellant’s counsel:
Freeman and
imposition of the
in the
that would result
penalty, regardless of the evidence.
death
you say-
Are
COUNSEL:
DEFENSE
examination, the fol-
During the
final
then,
really
just consid-
you
can’t
ing,
exchange transpired:
lowing
you
answering
questions,
er
those
answering
them?
you
can’t be honest
be fair to
Can
PROSECUTOR:
knowing
they
are
of Texas
the State
honest
FREEMAN:
I —I couldn’t be
penalty in this case?
seeking the death
my
if
would mean
answering them
answer
No.
something like that.
FREEMAN:
penalty or
[the] death
just
to be in the
I
wouldn’t even want
the entire
Having
a review of
conducted
situation like that.
Freeman,
we conclude
voir dire of
After
the
amined Freeman.
cross-examination,
to know is
tions based on whatever
stood
strongly against
is that
your function as a
many people
swer
following
DEFENSE COUNSEL:
FREEMAN: Yes.
FREEMAN:
DEFENSE COUNSEL:
you?
appellant’s
[*]
the
you,
right?
questions
just
#
dialogue transpired:
then,
do,
can
Yes.
the
attorney
During that examination
that
the death
n
even
you
based
juror? You could an-
prosecutor
you
answer those
though you feel
[*]
evidence is
on the
concluded
What we
If
penalty, as
I’ve
further ex-
#
evidence;
perform
under-
given
ques-
need
[*]
the
judge’s position to assess
veniremember who
Nichols,
to a member of
pellant’s
the
sustaining the State’s
the trial court’s decision
demeanor,
trial court committed
explanation
of discretion was
serts that
dire examination
O’Quinn, appellant’s
accorded
Freeman
granting
presumption
In
point of error three.
constituted a
the trial court
expression, and
of the
the State’s
highest
the venire.
of error
committed,
of veniremember
presumption
innocence,
equivocates much that
attorney,
at 195. Since
objection
no abuse of discretion
deference
prime
challenge for cause.
to excuse should be
committed error
one, appellant as
factors such as
During the voir
*8
we overrule
tone of voice.
example of the
in
stated
so
of innocence
reference to
due to the
appellant’s
no abuse
that “as
Dennis
ap-
by
Zimmerman is inno
fact,
now Mr.
your
he sits there
In
PROSECUTOR:
stating
objected,
prosecutor
The
cent ...”
you thought
I think
questionnaire
inno
presumption of
appellant “has a
and
I can’t be a fair
you put down
when
the “obvious
Appellant argues that
in
cence.”
I
believe
juror
don’t
impartial
because
twelve,
through
objection
nine
prosecutor’s
points
and
In
implication of the
erred
appellant
that the trial court
sanctioning
by
thereof
the Court was that
contends
the
75, 75A, 78, and
actually
admitting
in
exhibits
presumption of innocence did not
All of the exhibits are letters
Appellant
Appel
respectively.
mean that
was innocent.”
George
mailed to
Kyles
by appellant
lant directs our attention to
written
co-actor)
while the two
(Tex.App.
(appellant’s
ror.8 identical, the exhibits are Since sustaining prosecu- appellant argue
The trial below that one of court’s of the since did constituted, of author tor’s herein no error. the exhibits contained no indicia prosecutor’s ship, remark that had we will address authentica presumption arguments. Authentication of handwrit “a of innocence” was a correct tion by comparison per prosecutor ing may statement of law. While the be established jury. by experts by meaning did not elaborate formed either remark, presumption art. 38.27. Proof of innocence does Tex.Code Crim.Proc. carry comparison writing samples to other is suffi with it the connotation that a de- Therefore, fails to contest under
fendant is fact innocent. we cient when authenticity either his handwrit conclude that the trial court committed no oath the ing unsigned, or of his sustaining error in the State’s when the document signed. signature the document is Ca appellant’s point overrule of error one. when wrote, attorney-client privilege, protected by appeals have 8. The court of "It would made, argu- been better if the comment had not been no counsel on makes question Appellant. is whether it harmed but concerning privilege. ment every in a case was If loose remark criminal privilege merits of the issue. need not reach the reversal, very cause few convictions would George he At Weber testified that *9 And, up. philosophic ever there is some stand appellant. The rec- had received the letter from prosecutor 747 in what the said.” substance letter that the State obtained the ord reflects added.) (Emphasis S.W.2d at 65. Characteriz- subpoena a of all such materials means of markedly ing a as a "loose remark” is comment appellant’s possession. We note that Weber’s deeming erro- from that same comment different publication privileged act- of this communication neous. by destroying privilege the of the ed as a waiver of the letter. See Burnett v. confidential nature objected appellant’s 9. While trial counsel (Tex.Cr.App.1982). 642 S.W.2d the basis that it introduction of exhibit 75A on 431, constitut- the exhibit was irrelevant and that macho v. 765 S.W.2d Watson, attempt by the to show the 606 S.W.2d State App.1989); Ex Parte ed 902, argues (Tex.Cr.App.1980). character of the decedent. response appellant that waived error 75A, appellant Exhibit a letter from concerning photo- introduction of the attorneys, appel bears to one of his former graph. ap notarized. signature lant’s and is Since signature under pellant denied his trial, objected never appellant to the introduc- At oath, be authenticity of this exhibit could solely on the basis of rele- tion of exhibit by comparing it established with however, and was vancy. appeal, appellant On exemplars appellant’s writing that were also picture of [the “the introduction of a exhibit 75 was admitted into evidence. Since have wife and child decedent’s] 75A, nothing excerpted portions than of more of attempt ... to show the character been an was authenticat exhibit 75 also could be and family man.” When the decedent as a decent by comparison. we conclude ed complaint appeal differs from on of error occurred the admission that no Rezac, trial, made at the error is waived. 75 and 75A and overrule exhibits at 870. nine ten. points of error - Judge concurring opinion, Baird In his appellant’s points of Addressing states, appellant presents the same com- “As twelve, pertain to error eleven and which trial, Rezac is plaint on as he made at 80, and we note that both exhibits exhibits 78 disagree with concur- inapplicable.” We Weber, of from each are letters com- ring opinion’s that the same assertion signature Appellant “Lil Z.” which bears appeal as was plaint being advanced objected of to the introduction these never trial, following At advanced at trial. alleged failure to on the letters based State’s exchange occurred: only a Appellant lodged authenticate them. As to the COUNSEL]: [DEFENSE Concerning hearsay objection to exhibit 71 we proffer of exhibit State’s objected on the at trial exhibit pro- object not relevant to to it. It’s hearsay, relevancy, failure to grounds already picture ceeding. [the a There’s appeal, lay proper predicate. On decedent] in hearsay ar relevancy or appellant makes no exhibit This COURT]: [State’s [TRIAL exhibits guments, argue tries to but isn’t in. 46] sufficiently authenticated. Since were not No, appeal differs from complaint made on COUNSEL]: No. [DEFENSE complaining of lodged error that’s not. is waived. Rezac insufficient authentication exhibit [State’s It’s COURT]: [TRIAL (Tex.Cr.App. not in evidence. tendered. It’s 46] 1990). Additionally, predicate object We’re COUNSEL]: [DEFENSE any error due to its insuffi preserve failed to al- because there 71] to it exhibit [State’s State, 719 Beck v. specificity. cient See ready is another one. (Tex.Cr.App.1986).10 Hav object to 71? You [TRIAL COURT]: appellant has failed ing concluded that review, anything for we overrule present rel- Yes. On COUNSEL]: [DEFENSE points error eleven and twelve. evancy. six, exchange This demonstrates appellant ar relevancy objection at trial was based admitting erred in
gues the trial court 71 was exhibit argument that State’s photograph of the victim with exhibit already anoth- duplicative because there was child. contends and infant wife rule, however, that a requirement predates obviates recognize case that the Beck 10. We exhib- opposing of such an party and that Texas Rule the introduction criminal evidence rules of governs au- sufficiently specific current lodge Criminal Evidence it must of letters such and identification thentication exhibit. the authentication Nothing in the the exhibits discussed herein. *10 trial, objected appellant At to exhibit picture er of the decedent the record. On only grounds on the constituted appeal, appellant argues that 61C objec hearsay. Appellant lodged no trial picture obviously could was irrelevant “and upon the tions to the exhibit based attempt part have been an on the of the alleged properly authenticate the failure to to show the character of the decedent State Therefore, need not letter. we address family Appellant a decent man.” in no Rezac, argument appeal.11 way presented argument this to the trial appellant 870. We conclude that has waived Therefore, underlying court. the rationale any regarding error the admission of exhibit Purtell, supra, entirely both Rezac and appellant’s point of error 61C and overrule applicable disposition and controls the of this seven. question. appellant Since denied the opportunity upon to the com- court rule fourteen, appellant argues point In of error
plaint appeal, advanced on we will not ad- admitting testi- that the trial court erred appellant’s arguments. Having dress con- mony by on cross-examina- elicited the State error, appellant cluded that waived about the results of tion of a defense witness point overrule his of error six. case, Johnny capital another the case of Paul Penry. Appellant argues that the seven, In appellant com jury. Ap- trying impermissibly to bias the plains of the admission in of exhibit pellant purpose in asserts that the State’s 61C, by appellant. In a letter written eliciting testimony obviously to “was letter, appellant admits that he robbed and demonstrate that mental retardation while Appellant, citing killed the decedent. Cama case, may in a murder a capital be an issue (Tex.Cr.App. cho v. mentally may re- retarded defendant even 1989), argues that the admission of the letter penalty, important- and more ceive death against hearsay violated the rule because ly, mentally Appellant was not even retard- appellant’s signa State failed to corroborate argues that no error was ed.” The State ture. volunteered committed because the witness original comments about the case required interpret Camacho us to Article testimony “intimating possi- given had direct dispositive. 38.27 and is not Article 38.27 Appellant’s mental condition ble issues as provides competent give that “It is evi- possi- might which well be a fore-runner to handwriting by by comparison dence of made Penry punishment stage.” ble claim at the experts by jury. by comparison or Proof appellant’s gener- The State also only shall not be sufficient to establish preserve anything for al failed to handwriting sig- of a witness who denies his review. Camacho, appel- nature under oath.” writing lant had denied his under oath. 765 phase, Dr. During guilt-innocence Win- 38.27, interpreting S.W.2d at 432. article During appellant. del Dickerson testified literally required deny cross-examination, which defendant to volunteered Dickerson oath, signature that a Penry his under we held comments about “the decision” Later, handwriting of his “Johnny Penry’s defendant’s sworn denial case.”12 Paul obligate hand- prove questions specif- would also the State to Dickerson prosecutor asked by comparison Ap- Penry alone. ob- writing ically more than about the case. deny signature jected introduction of such evidence
pellant herein did not
his
relevancy.”
trial court
handwriting under oath.
this
“on the basis of
his
objection, and Dickerson testi-
fundamentally.. overruled the
case differs from Camacho
oath,
error,
signature
handwriting
under
this
appellant preserved
or his
11. Had
the record
proof
handwriting
properly proven
comparison
constituted sufficient
reveals
according
comparison
the terms of Article
letter.
handwriting
compared
expert
38.27. At
facts,
of the statement of
12. From the context
handwriting exemplars
to the hand-
apparently
were references
these comments
compari-
writing in the letter. Based
son,
Lynaugh,
Penry
492 U.S.
109 S.Ct.
expert
had writ-
believed that
(1989).
deny
App.1992). re “[t]he 2934, 106 302, L.Ed.2d 256 109 S.Ct. U.S. quirements conduct be com (1989). deliberately mitted does not mean interpreted Penry, a As we have premeditated act.” v. must be a Granviel 107, sentencing offends no federal (Tex.Cr.App.1976) capital scheme presented no evidence of his actual lant herein I.Q., information con- 13. The record is devoid "low-average, I.Q. cerning depth the child abuse. and breadth of but that his percentile," "[a]bout and that 80% in the 15th I.Q. Penry implies person of 70 that a with brighter” walking than people [were] around Penry, presumptively retarded. or below is him. 1, 2941, Appel- n. 1. n. 109 S.Ct. at U.S. at if provisions constitutional scheme both U.S. 96 S.Ct. 49 L.Ed.2d jury mitigat perhaps Ly allows the to consider also 929] relevant of Franklin v. 164, 108 ing supra provides naugh, [487 evidence and U.S. some S.Ct. noted, As expressing 155.]
means a reasoned L.Ed.2d we have Ju- moral re reasonably holding rek read sponse making is that evidence an individ youth given circumstance of punishment. ualized constitution assessment of Goss *13 State, ally 162, 165 adequate deciding consideration in the 826 (Tex.Cr.App.1992). S.W.2d special claim, regard issues. We see no to analyzing reason Penry-type a we look to family circumstances of Graham’s presented see if the at spe evidence trial is background positive and character traits cifically to relevant a defendant’s “moral cul light. a different Graham’s evidence of pability,” i.e. provides whether evidence a upbringing transient and otherwise non for concluding basis the defendant is closely character more violent resembles deserving capital punishment. less of Id. at age, employment Jurek’s evidence histo If relationship particu 165. between the ry, Penry’s and familial ties it does than special lar case’s evidence and the issues is of mental evidence retardation and harsh that the special provide such issues no means physical abuse. jurors respond morally for the in a rea way, at -, soned Id. at the statute is unconstitutional as 113 S.Ct. this,
applied. Id. From a defendant is enti conclude that not entitled to an only regarding mitigating tled to an if additional instruction additional instruction jury’s evidence relevant to the case in manner evidence. The of all of a assessment beyond special appellant’s scope that is relevant ex issues. evidence could be pressed through Id. special second issue. Moreover, appellant’s in requested All of appellant’s evidence fell within following language: struction includes the special the ambit of the second issue. All of you If an aspect decide that of the de- this evidence past related to his fendant’s character and record or circum- tory personality pertained appel and mitigating of the crime is a circum- stances propensity lant’s character and for constitut stance, give you aggravating must not it ing danger society. Goss, a future 826 Thus, your judgment, if ih a miti- effect. State, 166; S.W.2d at v. Earhart 823 S.W.2d gating independently circumstance calls 607, (Tex.Cr.App.1991); 632 Ex Parte Bal for though a life sentence it also even dree, 213, (Tex.Cr.App.1991). 810 S.W.2d 217 “yes” Spe- support tends to a answer to a Penry’s child Unlike evidence of abuse Issue, cial you Special must not answer damage, appellant’s brain evidence “does not “yes,” you Issue rather either answer but act, explain tend to his excuse or criminal may it no you use as a for a vote basis State, Lackey 111, ...” v. 819 S.W.2d 134 mercy your for “life” in write word State, (Tex.Cr.App.1989). See also Mines v. verdict form. (Tex.Cr.App.1992); 950-51 language This constitutes incorrect state Nobles v. 506 an Penry only that, App.1992). Concerning appellant’s requires ment evidence of the law. case, jury “provided having good adoptive appropriate in an be been a son for his mother, recently expressing with for its ‘reasoned Supreme Court has a vehicle de ” 328, 109 response.’ moral at S.Ct. “positive cided that U.S. such evidence charac Penry require, require at does howev ter traits” does not the trial court to 2951-52. er, jury both jury. a that if a finds certain evidence Penry submit instruction to Gra — nature, U.S. -, Collins, mitigating aggravating in then ham v. S.Ct. (1993). its jury give must evidence Writing 122 L.Ed.2d (cid:127) stated, mitigating majority, effect. Justice White jury a de- example, For could consider Penry are [W]e not convinced mitigating both a circum- mitigat youth fendant’s be extended to cover the sorts of aggravating stance circumstance. ing suggests without a evidence Graham mitigating because Youth seen as of Jurek could be [v. wholesale abandonment Rezac, maturity jury refused. age. request often coincides A for counsel was with might young be merciful defendant Appeals towards at 870-871. Court in the belief that the defendant could live a reversed, holding of Rezac’s invoca productive being life after incarcerated for an erroneously of counsel was right tion of his jury, extended time. The same placed jury. Rezac v. before the might youth aggravating also view as an 1986). (Tex.App. We — Dallas circumstance based the belief reversed, holding: young simply use re defendant would Thus, maining years to continue a life of crime. theory upon by failed to state the relied — Collins, at -, See Graham U.S. Appeals. Because the trial the Court of (1993) (Souter, dissenting). S.Ct. at 917 J. opportunity to rule judge did not have an Nothing Penry require would this or jury quash based on the on motion other faced with evidence which is both *14 making impermissible ap- inferences from mitigating aggravating give the evi counsel, right his pellant’s invocation of Likewise, only mitigating dence its effect. nothing presented appellate review. is neither could the be instructed that it give only aggravating must the evidence its Rezac, at 782 S.W.2d 871. appellant’s requested effect. Since instruc holding upon in Rezac is based Purtell Our incorrectly mitigating tion on stated State, (Tex.Cr.App.1988), v. 761 360 S.W.2d law, we discern no error in the trial wherein we stated: court’s refusal to submit that instruction.
Having appellant’s arguments concluded that perfect appeal, ... In order to an issue for merit, point are devoid of we overrule his of objection “required an is to inform the trial error seventeen. objection judge of the basis of the opportunity it.” afford him the to rule on judgment The of the trial court AF- addition, objection “af- ... should FIRMED. opposing opportunity to ford counsel an MALONEY, JJ., OVERSTREET and objection supply remove the or other testi- concur in the result. mony.”
CLINTON, J., dissents.
Purtell,
365-366, quoting
at
Zil
State,
lender v.
557 S.W.2d
BAIRD, Judge, concurring.
reaching the
App.1977).
before
reasons,
following
For the
I concur in the
point
appellate
of error an
court
merits of a
disposition
point
of
sixth
of error
whether the
of error
must determine
join
opinion.
and otherwise
so,
objection.
comports
If
with the trial
judge
opportunity
trial
had the
to rule on the
I.
objection
opposing
could
counsel
have
six,
appellant’s point
To resolve
any error.
cured
plurality
appellant’s complaint
finds
complaint
appeal.
differed from his
on
II.
(Tex.
Citing Rezac v.
271 preserve relevancy insufficient to tion to is photograph of the purpose appeal probative if the value of the issue for family his was to together with decedent by substantially outweighed is the evidence against Appel- jury inflame the arouse and prejudice. A further danger of unfair any testimony was irrelevant lant. The re objection upon Rule 403 is now based proper jury and was not issue before Montgomery, at 388. quired. 810 S.W.2d any purpose. for Appellant’s pg. Brief 24. III. trial objection informed the Appellant’s judge erred Appellant contends the objection, the trial judge of his of the basis trial, the admitting exhibit 71.2 At State’s objection and the State judge ruled on photographs of the de- tendered two any error. to cure given opportunity was depicted 46 the de- exhibit ceased. State’s Zillender, and, See, Purtell, supra. supra, autopsy. appeared before the ceased as he complaint on presents the same As with depicted the deceased State’s exhibit inapplica- Rezac is he made at objected: his wife and child. ble. [Appellant’s Counsel]: As to the State’s IV. object to it. proffer exhibit 71 we of State’s failed to contends The State proceeding. It’s not relevant objection under specific grounds for state already picture deceased] of [the There’s objec- 52(a). Tex.R.App.P. While in evidence.... stated, we have have been better tion could Judge]: [State’s 46] This exhibit [Trial of exclu- ground the “correct held that when isn’t in. opposing judge and was obvious sion No, not. [Appellant’s Counsel]: No. that’s general counsel, from no waiver results Zillender, objection.” 557 S.W.2d imprecise ten- Judge]: [State’s 46] It’s exhibit [Trial State, See, 827 S.W.2d Lankston v. at 517. It’s not evidence. dered. admitting State's Trial Court erred Appellant's six The 2. states: 71, character of evidence of the Exhibit No. deceased. and, (Tex.Cr.App.1992); family previously Tex. been admitted without had 52(a) objection R.App.P. (specific grounds for objection. Prior to the admission of State’s specific grounds “if must be stated were intro- Exhibit the deceased’s wallet was context”). Here, by apparent not from the objection. without duced into evidence exhibits, viewing proposed argu- and the photographs of the de- wallet contained counsel, grounds ment of sisters, mother, and children. ceased’s wife objec- objection apparent.3 Appellant’s are photograph was and dis- Each identified relevancy tion to the Exhibit 71 State’s jury from cussed before the without any preserve sufficient to error as to appellant. Rule violation of 401. State, Stoker 788 S.W.2d However, appellant’s relevancy objection App.1989), we held: preserve any did not error as to violation probative Rule 403. Whether the value of It that when ... is well established substantially exhibit 71 out same is introduced from another by danger weighed prejudice of unfair source, objection, without the defendant is the Court because there was no before position complain appeal. not in on See, Long, such at trial. also, Id., 12. 788 S.W.2d at See Boles v. 271; and, Montgomery, S.W.2d at State, (Tex.Cr.App. 598 S.W.2d 279-280 at S.W.2d 1980) (“Where complained of admit facts are objection by competent ted without other V. evidence, presented.”); no reversible error is character, good Evidence of the deceased’s 701; Armstrong, 718 Havard v. defense, unless attacked is irrelevant. 195, 205(Tex.Cr.App.1989); Armstrong v. and, 59, 62 Womble v. (Tex.Cr.App.1985) (opinion rehearing) (Tex.Cr.App.1981). photo Because other (Testimony good of deceased’s character family graphs of the deceased and his were “was irrelevant to issue before *16 objection, the error in the admitted without rebuttal”). also, proper and was not See 71 was waived. admission State’s exhibit Hatley v. App.1976). The State does not contend comments, I concur. With these any State’s Exhibit makes the existence of consequential probable. fact more or less MILLER, J., joins opinion. Further, the State does not direct our atten to, found, any tion nor have we instance
the trial where the character of the deceased questioned. clearly State’s exhibit attempt convey
character and circumstances of the deceased.
Such evidence does not tend to make
consequential probable. fact more or less judge admitting the trial erred Exhibit 71.
VI.
The State contends waived the photographs
error because of the deceased’s Lankston, judge supra, him at a time when we stated: to understand proper position to do the trial court is in a procedural default ... are standards implemented by something [Appellate splitting courts] it. not to be hairs in the about appellate regards specificity, complaints courts. As all a those should reach the merits of party has to do of a to avoid forfeiture parties requiring read some without complaint judge is to let the trial special script to make their wishes known. wants, why know what he he thinks himself Lankston, 827 at 909. it, clearly enough entitled to and to do so