*1 Eugene DINKINS, Appellant, Richard Texas, Appellee.

The STATE of No. 71409. Texas, Appeals Court of Criminal En Banc. Feb. *5 Barlow, Beaumont, appel-

Douglas for M. lant. Maness, Atty. R. De-

Tom Dist. and John Beaumont, Witt, Atty., Dist. Robert Asst. Huttash, Austin, Atty., for State. State’s

OPINION

BAIRD, Judge. capital murder Appellant was convicted of Ann. pursuant Tex.Penal Code 19.03(a)(6). appoint- affirmatively Thompson had a 7:30 an- book indicated § appointment a 6:30 ment with Cutler and pur- punishment issues submitted swered Ricky Dennis. The book also con- with a Crim.Proc.Ann. art. suant to Tex.Code telephone number 37.071(b).1 tained a Lumberton Punishment assessed at listed patient application form Id., (e). Dennis. The Appeal to death. at this Court along tele- Dinkins Ricky with a different (h). a raises automatic. employment at place a of phone number and twenty-one points of error. We will affirm. Hydrant Company. and the American Valve names, similarity of the Because I. parties listed police attempted to contact the 12, 1990, September approximately On were telephone both numbers but discovered p.m., Beaumont Fire 8:00 members out of order. Department responded a fire alarm in a day, September Mike Shef- The next building located at 3420 Fannin Street field, investigator, and police Beaumont Showman, Captain Beaumont. John with Hobbs, County District Robert Jefferson Department, the Beaumont Fire entered Attorney investigator, went building waiting in the and located alarm and place employment, American Valve massage belonging therapy room of a office Hydrant Company, ques- Beaumont to one of the victims. noticed the Showman ques- appellant. In the course of the tioned appeared hazy air in the room and furniture sought tioning, the detectives consent around the room as if there had was strewn car but refused. search struggle. been a He also noticed a blood- knowing Thompson de- Appellant denied stained, partially opening into broken window being night nied Beaumont the another room. He then observed one point, appellant offense. At mentioned some victims, Thompson, lying injured Katherine *6 to talk to someone” and the he “wanted waiting on the room floor and to other called They questioning. their detectives ceased fighters fighters for fire assistance.2 As fire appellant outstanding then arrested on Thompson, medical aid to another rendered transported and him misdemeanor warrant Randall, fighter, peered through fire Mike County to the Jefferson Jail. the broken window and observed the second victim, Cutler, Shelly sitting afternoon, on the floor in while the detectives Later room, injured. Finding the the door second attempting to obtain a search warrant were locked, through the car, to room Randall climbed appellant contacted Shef- appellant’s for the and broken window assessed Cutler’s gave consent to search. field and his written condition. He observed had been Cutler stated that the detectives Appellant also shot the head. Both victims were trans- A revolver in the trunk. would find a .357 shortly items, ported hospital to a local and thereaf- of the car uncovered various search injuries. ter died their including and two boxes of a .357 revolver ammunition. scene, police investigating While the crime morning September Thompson’s appointment During and the

recovered book interrogated appellant application appointment Hobbs patient form'. The Sheffield and (2) probability the alleged whether there is a 1. The instant offense was to have been September committed on or about 1990. criminal acts of defendant would commit September continuing Art. 37.071 amended effective that would constitute violence All references herein refer to the Code of 1991. society; threat to and evidence, of the Criminal Procedure in affect at the time (3) whether the if raised the 37.071(b) provided: that time art. offense. At killing the de- of the defendant in conduct response to the was unreasonable in ceased (b) presentation conclusion of the of the On any, by provocation, the deceased. evidence, following the court shall submit the jury: issues to the policy to not refer to victims is the author’s (1)whether It the conduct of the defendant However, the factual cir- name. because of death deceased was that caused the of the case, policy cannot be of this deliberately cumstances with the reason- committed First v. expectation the de- followed. able that the death of result; 2n. ceased or another would County Attorney’s appellant step-sister’s in the Jefferson District went to his home to During interrogation, appellant p.m., Office. help appellant her move. At 6:00 left being admitted at the crime scene on the go Thompson’s p.m. to office for a 6:30 night Appellant had offense. stated he appointment which he had made under attempted Thompson to meet with to discuss Ricky Appellant name Dennis. arrived written, some bad checks had but p.m. p.m. around 6:45 or 7:00 Before enter- building was unable do so because the ing building, appellant placed a .25 cali- locked. He then heard a fire alarm and ber automatic and a .357 revolver inside a building a black male exit observed sling injured Ap- he wore for his shoulder. away. Appellant pur- run also stated he had pellant building and met with entered Leger’s chased a .357 revolver from Pistol Thompson talking for a her office. After Range and Rifle in Beaumont. The detec- while, began argue. argu- As the two appellant’s tives then obtained written con- progressed, Thompson pushed appel- ment locations, including sent to search various his waiting lant towards the into the room door locker at work and his home Sour Lake. During where another woman sat. the alter- Appellant accompanied the detectives as cation, appellant’s injured Thompson struck searching ap- executed the searches. While arm, hurting point during him. At one pellant’s pair home the detectives seized altercation, automatic fell out the .25 caliber jeans appeared blue which appellant’s sling. Appellant retrieved the legs have blood stains on the and cuffs. Be- shot, gun, gun jammed. fired a and the Beaumont, returning fore detectives appellant’s sling .357 also fell out of and hit grandmother’s escorted to his the .357 from the floor. retrieved appellant spoke grand- house where with his the floor but maintained he did not remem- mother. except a fire alarm ber other events Beaumont, Upon returning to the detec- sounding doorway leading as he ran out the again interrogated appellant. During tives lot, parking into the hall. In the interrogation, appellant to call asked appellant had car would not start and to raise Atlanta, Georgia mother in and the officers button on the steer- the hood and hit a reset complied request. with the After ing proceeded to drive to column. He then mother, speaking finished with his the detec- *7 in grandmother’s his house Sour Lake. At linking appraised him of the evidence tives point, appellant longer no one noticed he was point, appellant him to the offense. At this driving along the wearing sling. his While agreed provide on the a written statement from the highway, emptied he the bullets explain condition he could the stresses he Appel- out the window. .357 and threw them was under. grandmother’s house lant remained at his statement, appellant In his stated he was p.m. and then drove p.m. until 10:00 or 10:15 years age twenty-seven of and worked as step-sister’s house where he remained to his assembly specialist at Valve and American home, appel- p.m. Upon arriving until 11:00 Hydrant. professed He that he was under pond his house and lant walked to a behind of the considerable stress because recent unjam automatic. attempted to the .25 caliber up personal relationship as well as break of a it gun apart appellant threw The came required injury a from work which shoulder room, pond. He then to his into the went frequent injury, Because of his medication. medicine, asleep. pain and fell took some appellant employer was harass- believed his work, day, appellant drove The next before him. fur- ing attempt him in an to fire He coffee and grandmother’s to his house for having he was severe financial ther stated went to pain medication. He then took more many checks. difficulties and had bounced later met Sheffield work where he was offense, day appellant work On the left subsequently arrested on and Hobbs and go therapy. He p.m. around 1:15 left Appellant was indicted hot cheek warrant. p.m. or 3:30 the doctor’s office around 3:00 that, pursuant to Tex.Penal capital murder p.m. grandmother. and called his After 19.03(a)(6)(A).3 in sitting she had been shot § or when Code Ann. slug that a lead head. He also testified trial, presented testimony by At the State doorknob of the door to recovered from the Fincher, janitorial the owner of a

William discovered. the room where Cutler was service who was at 3420 Fannin Street 12, looking p.m. September on around 7:30 Klein, for the Ray a firearms examiner employee. for an Fincher testified he saw he con- Department, Houston Police testified looking hood of an old under the on revolver ducted ballistics tests the .357 thereafter, yellow Shortly model Chevrolet. appellant, seized from and the ammunition away. appellant started the car and drove slugs, casings the lead and bullet well as scene. Leger Leger’s fragments recovered from the crime Louis owner of Pistol September By rifling on ammunition test Range comparing Rifle testified that on appellant’s and two in .357 revolver with the he sold .357 revolver fired ammunition, slugs boxes of one of .38 caliber bul- from the crime rifling on the recovered Matching scene, slugs lets and the other of .357 caliber. Klein concluded the recovered the serial number on the .357 with the nota- fired from the crime scene were records, Leger in the .357 tion identified .357 revolver. seized the search of car as the Reem, serologist for the Richard a forensic

weapon appellant. sold to Investigation testified he Federal Bureau Showman and Randall testi- William Mike jeans analyzed appellant’s blood stained blue concerning fied the circumstances in which Thompson. sample and a blood taken from answering discovered the victims while sequence enzymes Thomp- Based on the a fire alarm. sample, plus, haptoglobin son’s blood PGM Molina, 1-S, pathologist Dr. Thomas J. who and GC Reem determined that performed autopsies, Thompson appellant’s pants on consistent testified blood - wounds, gunshot Thompson’s type. suffered two one to her blood Reem ex- with twenty head and the other to her Both plained only person abdomen. one has were fatal. Molina further testified that the enzyme sequence in their blood. the same stippling body on the indicated that both case-in-chief, appellant presented In his extremely range, shots were fired at close witnesses, seven each of whom testified es- resulting the abdomen wound from a contact sentially aggressive was not autopsy shot. The of Cutler indicated she violent. single gunshot died of a wound to the head. appellant guilty found Tatum, sergent William in the identifica- murder. Department, tion section Beaumont Police police sling During punishment phase, testified the recovered an arm State witnesses, Tatum, only Sgt. from the appoint- presented crime scene as well as an two *8 ment and a con- book client information sheet and Detective Hobbs. Tatum testified appellant’s place employ- cerning with name and of on the details the murders based police ment. The also recovered four lead examination of the crime scene. Tatum his caliber, slugs, Thompson .38 or was shot in the ab- either .357 and a number testified first just doorway casings fragments.4 of shell and lead bullet domen outside the from the waiting Comparing Also recovered was a .25 caliber bullet. Ta- inner office to the room. entry Thompson’s in tum further testified that based on the the entrance and exit wound entry slugs, body position point of the bullet the wall made one of the he wall, Thompson Thompson kneeling had been either in the Tatum surmised was surmised 19.03(a)(6)(A) 19.02(a)(l)provides: § provides: § 3. Tex.Penal Code Ann. Tex.Penal Code Ann. ( n ) person (a) person he: A commits an offense if A commits an offense if he com- (1) knowingly intentionally or causes the as defined under Section mits murder 19.02(a)(1) individual. death an of this code and: ( n ) person per- The murders more than one caliber, slug, 4. A lead either a .38 or a .357 fifth son: (A) autopsy. during during Cutler the same criminal transaction. was removed from affirmatively appellant shot her in the answered the three doubled over when statutory punishment Tatum further testified that issues and the trial abdomen. position judge appellant of the bullet sentenced to death. based on the of one wall, entry points thirty-one inches off appellant’s points turn to of error. We now Thompson’s ground, in relation to head wound, appellant Thompson shot a second II. sitting kneeling time as she was either on error, points In his first two the floor. appellant contends the trial erred refusing to aside the indictment because concerning

Tatum the details set also testified allege capital it failed to the offense of mur of Cutler’s murder. Tatum testified the bul- in Specifically, appellant complains der. let in the of the room in which doorknob culpable dictment failed to assert a mental Thompson Cutler was found was fired after alleging state in the second murder and appel- was shot. He stated this revealed allege capital murder. therefore faded to get attempt lant’s to Cutler after she read, pertinent part: The indictment locked herself in the room. A wicker shelf receptionist which an unused window covered ... RICHARD EUGENE DINKINS looking into the room had removed and been intentionally know- did then and there glass speculated individual, Tatum window broken. ingly the death of an cause covering glass THOMPSON, came by shooting the blood the unbroken KATHERINE attempted from hands as he deadly weapon, her with a to wit: a fire- arm; the window. Tatum also testified the break and the said RICHARD EUGENE telephone in the room was off the hook when did then and there cause the DINKINS discovered, individual, indicating Cutler was she was death SHELLY CUT- LER, by shooting deadly weap- attempting telephone to make a call before her with a firearm, on, of said being possible Tatum it was to-wit: and both shot. concluded during the through murders were committed same for someone to reach the window transaction. and shoot as she crouched on the Cutler

floor. every general, plead In an indictment must proven which must be trial. element testified about Detective Hobbs (Tex. Whitehead during investigation. demeanor He stat- (citing Cr.App.1988) Harrell v. initially emotionless when ed Vinson interrogated no concern that he and showed (Tex.Cr.App. Further, suspected in a murder. 1981)). culpable Naturally, this includes the appellant appeared during to be unconcerned Thompson mental state of the offense. subsequent interrogations. much of his (Tex.Cr.App.1985). defense, appellant presented several allege culpable If an indictment fails to witness, offense, a Jeffer- character witnesses. One it mental state for an is defective County Department subject lieutenant quash. son Sheriffs a motion to Id. See jail duty acquain- also, assigned to testified he was Swope v. year

ted with from his and a half pending during trial incarceration Nevertheless, consistently we have time, problems. disciplinary had no *9 allege required to the held the State is not had, appellant He at one further stated of an offense constitut constituent elements reported possible jail break. point, a capital a mur ing aggravating the feature of der, quash. of a motion to on be- even the face Nine other witnesses also testified (Tex.Cr.App.1994); State, 316, essence, 323 testifying, in Barnes v. 876 S.W.2d appellant half of each 101, State, appel- orn v. 848 S.W.2d that the murders were aberrations Hath v. (Tex.Cr.App.1992); Ramirez normally character. Fur- lant’s non-violent State, 636, (Tex.Cr.App.1991); ther, appellant 815 642 expressed the belief S.W.2d each (Tex. State, 592, v. 815 619 acts of violence. Trevino S.W.2d unlikely to commit future

339 and, State, 713; Zuckerman v. Cr.App.1991); 661 Beathard v. 767 S.W.2d S.W.2d State, 495, 423, (Tex.Cr.App.1989); Marquez 431 v. 496 591 S.W.2d State, 217, (Tex.Cr.App.1987); 725 S.W.2d 236 charge alleged we review a When (Tex.Cr. State, 9, Hogue 711 14 v. error, charge must examine the as a we State, App.1986); Andrade v. 700 S.W.2d whole instead of a series of isolated 585, v. (Tex.Cr.App.1985); 589 Hammett State, Holley unrelated v. 766 statements. (Tex.Cr.App.1979); 578 S.W.2d 708 and, In and, v. Smith 540 S.W.2d (Tex.Cr. man v. (Tex.Cr.App.1976). Consequently, we hold App.1983). Capital murder and murder were us, presently in the case before the charge,5 portion in the abstract of the defined failing not defective for indictment was portion allege a application but the did not allege culpable a mental of second state the culpable mental state for the second murder. Appellant’s murder. first and second portion permitted jury application the points of error are overruled. appellant if it convict found

III. intentionally knowingly or cause[d] error, THOMPSON, In his third con- of KATHERINE death jury charge erroneously authorized tends the deadly shooting weapon, her with a to-wit: requir- capital a conviction of murder without firearm; [appellant] a and the said did ing that the second be committed murder then and there cause the death of an indi- intentionally knowingly required by or vidual, CUTLER, by shooting SHELLY 19.03(a)(6). reasons, § following For the deadly weapon, to a fire- here with a wit: disagree. arm, and both said murders were com- during mitted the same criminal transac- indictment, In contrast to the which tion, guilty you shall find the defendant defendant, serves a notice function to Capital the offense of Murder. jury charge function of the is to instruct the jury applicable application portion permitted jury on law to the case. Abd- The (Tex.Cr. capital only v. if it nor convict murder App.1994); killings Benson v. were murders. “Murder” found both is a term of art which is defined in the Penal Williams 18, 20, See, 19.02(a)(1); (Tex.Cr.App. § § Code. 19.03. The 1977). charge charge provided that portion Because the is the instrument abstract of the convicts, Benson, See, Thus, jury jury supra. which the n. definition. capital charge person S.W.2d at must contain an instructed that a commits only killings accurate statement of the law and must murder were committed set both intentionally knowingly.6 Vuong out all the essential elements of the offense. or portion charge jury 5. The abstract of the defined further instructed the that a conviction for “capital required finding murder" and "murder” as follows: that the defen- murder Thus, Capital two or more “murders.” Murder: dant committed person Capital A commits Murder if he com- was not authorized to convict unless it Murder, person and the more mits murders committed two "murders” as found person during than one the same criminal charge. portion in the abstract defined Nevertheless, transaction. the dissent maintains "there is Murder: obliged genuine possibility not did feel person intentionally A commits Murder if he was committed inten- find the second murder knowingly or causes the death of an individual. Dissenting Op., tionally knowingly ..." added). (emphasis difficult S.W.2d at 362. It is (Tex. Citing 686 S.W.2d 157 Almanza possibility imagine could arise how such Cr.App.1985), the dissent contends the convic required only its when the definition of murder appellant suf tion should be reversed because knowing commission. intentional or culpa fered harm" the omission of a "some from event, possibility more than a mere there must be in the ble mental state for the second murder standard of harm to meet the "some harm” paragraph. Dissenting Op., application Almanza; However, above, the “defendant must enunciated in S.W.2d 362. as noted the ab *10 actual, theoreti- charge have suffered ‘some’ cal, rather than portion as stract of the defined "murder” causing from the error." Arline v. intentionally knowingly harm or the death of See, (citing charge (Tex.Cr.App.1986) Al- supra. an individual. n. Thus, (Tex.Cr.App.1992). charge of an individual. the did not 830 S.W.2d jury charge was not Consequently, permit jury the defec the to convict unless Appellant’s third of error is tive. killings ei- found both were committed overruled. intentionally knowingly. Vuong, ther or 830 S.W.2d at 941.

IV. Moreover, appellant’s reliance on First error, points In fifth his fourth and punish- 19.03(a)(6) misplaced because First addressed a § appellant contends is both un Id., under art. 37.071. ment issue applied. constitutional on its face and as Be First, jury only challenges charge entertain at 838. In the cause we will constitutionality applies to a jury of a statute as it permit it did not the defective because defendant, particular McBride v. provocation to consider the of the second (Tex.Cr.App.1993); deceased, thereby preventing jury the from (Tex.Cr. 84, 91 James v. 772 S.W.2d considering mitigating a circumstance. vacated, App.1989), 493 U.S. 110 S.Ct. case, jury instant (1989), affirmed, 107 L.Ed.2d 178 portion that it instructed the definitional (Tex.Cr.App.1990), only S.W.2d 415 we need capital mur- was not to convict point of error. address latter der unless it first determined both murders Relying intentionally on First v. 846 S.W.2d 836 had committed or know- been (Tex.Cr.App.1992), contends ingly. 19.03(a)(6) § is unconstitutional because the Further, find no merit in statute, incorporated application as “the vagueness ade- claim because the Penal Code paragraph charge did not allow the of the quately limits those acts which constitute appellant actually to find whether or not pro- Act “murder.” The Code Construction knowing [sec- committed the intentional or having partic- technical or vides that words a Brief, [Appellant’s pg. 20]. murder.” ond] meaning according to ular must be construed Eighth claims this violates meaning. Tex.Gov’t Code Ann. prohibition against

Amendment’s arbi- 311.011(b) (Vernon 1988). § The Penal Code trary capricious application of the death murder, imposition capital penalty permits prohibits because it of a which section aggravating 19.03(a), § death sentence when the offense further limits the kind of murder offense, does not rise to an intentional murder. He may capital of a which form basis 19.02(a)(1). further claims the statute is unconstitutional- § namely, pursuant murder interpreted ly vague because it can be Finally, nowhere our review of require- dispense with the mens rea either 19.03(a)(l)-(a)(6) § find an indication do we require or to ment for the second murder any type of homicide other than murder intentionally committed both murders be 19.02(a)(1) § suffice to form the under will knowingly. or Therefore, capital of a offense. we hold basis 19.03(a)(6) unconstitutionally vague § is not appellant’s argument was ad Much specify culpable mental state for failure point of dressed in our resolution of the third Accordingly, ap- homicide. the second application paragraph Although error. points pellant’s fifth of error fourth and culpable allege did not mental state with are overruled. murder, application regard to the second portion paragraph, as well as the definitional charge, required to find that of the V. killings in order for the

both were “murders” error, appellant con- point of In his sixth offense to be murder. The definition pursuant to right to be tried tends he had charge portion al defined “murder” 37.071, causing version of art. which intentionally knowingly the death the amended 171) added). (emphasis Cook v. 827, 828 manza, 686 S.W.2d at also, See Kelly Haggins State, *11 re-urged Appellant after lant’s motion. Ms motion applicable to offenses committed 1,1991.7 requested the September contends in the at the conclusion of trial and He also according point judge jury trial be instructed to the amended seventh of error the judge declaring learning a version of art. 37.071 but the trial erred mistrial after pursuant again to the venire had been instructed refused. 37.071(b).

the amended version of art. holding in that our concedes (Tex. 185, 204 The offense for which was Nichols v. 12, charged allegedly September Cr.App.1988), Ms claim that he had the occurred on belies dire, During appel- right prosecuted under the 1990. voir the and to elect to be State legal principles lant discussed with the amended statute.8 He adds constitutional claim, however, by raismg dimension to Ms upon veniremembers based the amended ver- Equal challenge Protection under the applied only of art. to sion 37.071 which Ap 1, Urnted States and Texas Constitutions. occurring September 1991. offenses after Equal pellant claims he was demed Protec proceedings, At one in the the State pro tion he the because was demed broader judge advised the trial it believed visions of the amended statute wMch were prosecution under the amended art. 37.071 available to those defendants who committed Appellant expressed would be void. his de- September murder after 1991. proceed sire to under amended the statute and refused to consent to a mistrial. The judge ap-

trial then declared a mistrial over only We need address pellant’s objection. Following a second voir Federal claim because failed to dire, appellant filed a motion to declare the raise Ms State claim at trial. Under the pre-amended Equal art. 37.071 unconstitutional and Protection Clause of the Fourteenth Amendment, also elected to be tried under the amended when a classification does not art. 37.071. appel- implicate right,9 place The trial denied a “fundamental” 7. Prior Penry Lynaugh, Proc.Ann. ed art. 37.071 to 106 L.Ed.2d 256 of the following three issues to the that if the evidence, response violence that would violence that would constitute a provocation, threat to that caused the death of the deceased was threat ceased was unreasonable in (3) ceased or another would (2) defendant would commit criminal acts of (1) whether the conduct of the defendant able defendant would commit criminal acts of (1) conduct of the defendant in committed (b) [Sec. [Sec. whether there is a whether there is a if raised On conclusion of the ^[*] to expectation 2](b) evidence, 2](e) art. September the court shall submit the issues to the society; society; ^[*] 37.071 On deliberately The court shall instruct the returns an affirmative (1989), read, 492 U.S. conclusion of Supreme any, by the court shall submit the ^[*] jury: provided that the 1, 1991, constitute evidence, jury: ^[*] pertinent part: and with the reason- probability the deceased. probability Legislature presentation Court’s decision in result; death of Tex.Code Crim. response ^[*] 109 S.Ct. pertinent part: killing whether the presentation continuing continuing finding following ^[*] that the amend- the de- the de- to the of the 9. "Fundamental” Retirement v. Acts general principle effective date of the amendment. tively. rights guaranteed by the First Amendment. right clude the the defendant's first trial was held before command, Clark v. S.Ct. S.W.2d at 204. We based this 37.071 could not be (Tex.Cr.App. 1991. In this each rather than a death sentence be Whether, taking into consideration all of the evidence, including the circumstances of the rant ground, offense, ing circumstance or Nichols, 2562, 2566, article, issue Id. See procreate, that a sentence of life right defendant, statutes 72nd 1984) the defendant’s character Murgia, submitted under Subsection it shall answer the we held subsection Leg., that, also, n. rights privacy, (citing Massachusetts Board of are not applied retroactively where there is a sufficient 427 U.S. personal (Tex.Cr.App. absent ch. right 49 L.Ed.2d 520 Ridyolph have circumstances 838, 9, to 476, 480-481, n. 3 be express Legislative 307, 312, been right moral travel, § applied following holding imprisonment 1977). eff. to held to in (e) culpability and back- and those vote, imposed. Sept. retroac mitigat- n. (1976)). to war- of art. on the (b) issue: *12 342 Leg “suspect” persons,10 class of issue. Art. 37.071 amended

burden on a proper light Penry Lynaugh, for review is to determine standard islature in v. 492 whether there is a rational basis for the 302, 2934, U.S. 109 S.Ct. 106 L.Ed.2d 256 treatment, say, different which is to whether (1989), Supreme in which the Court held art. relationship the classification bears a rational 37.071, applied Penry, violated the as City legitimate to a state interest. Cle Eighth Fourteenth Amendments be and Center, burne, Living v. 473 Tex. Cleburne permit jury it to consider cause did not 3249, 3254, 432, 440, 87 U.S. 105 S.Ct. give mitigated to evidence which and effect (1985); Fashing, v. L.Ed.2d 313 Clements against a sentence of death. See 492 2836, 2843, 957, 963, 102 73 457 U.S. S.Ct. 315-328, at 2945-2952. U.S. at 109 S.Ct. (1982); City v. L.Ed.2d 508 New Orleans however, wholly Penry, did not invalidate Dukes, 297, 303, 2513, 96 S.Ct. 427 U.S. Indeed, repeatedly re art. 37.071. we have (1976); 2516-2517, L.Ed.2d 511 James v. 49 jected Penry challenges pre-amended State, 84, (Tex.Cr.App.1989); 772 92 S.W.2d 37.071, holding permitted the art. the statute 476, and, State, Clark v. 665 S.W.2d 480-481 mitigat jury fully consider evidence which (Tex.Cr.App.1984). “Rational basis” review See, penalty. against ed the death Zimmer highly is deferential towards the States when (Tex. State, 89, 101-102 man v. 860 S.W.2d legislation or social is at issue. economic State, Cr.App.1993); Gunter v. 858 S.W.2d 19, 26-27, 109 Stanglin, Dallas v. 490 U.S. 430, v. 445-447 Beavers 1591, 1594-1595, 104 (1989); L.Ed.2d 18 S.Ct. 429, 433 (Tex.Cr.App.1993); 856 S.W.2d and, Cleburne, 440, 473 105 S.Ct. at U.S. (Tex.Cr. 700, Delk v. 855 S.W.2d 709 penal legislation. 3254. Courts also defer to App.1993); 851 Robinson v. S.W.2d Maryland, 366 McGowan v. U.S. reh’g); (Tex.Cr.App.1993) (Op. 236 on 1101, 1103-1106, 422-428, 6 L.Ed.2d 81 S.Ct. (Tex. Harris, parte 122 Ex 825 S.W.2d (1961). Accordingly, reviewing court 393 a Cr.App.1991); Earhart a unless should not strike down classification (Tex.Cr.App.1991); Lewis v. 632-633 solely totally it is “based on reasons unrelat 815 S.W.2d only goals and pursuit ed to the of the State’s (Tex.Cr. Ellis, 208, 212 parte Ex justify grounds if no can be conceived Baldree, Clements, parte App.1991); Ex 102 S.Ct. them.” U.S. also, Thus, (Tex.Cr.App.1991). it is

at 2843. See John (“A (Tex.Cr.App.1979) legislative Eighth Amendment is not violated clear the body right to make a classification has by sentencing pre-amended a convict under purpose serving legitimate aims for the precluded from art. 37.071 unless the is not unreasonable the limits of the class are mitigating considering giving and effect to Nowak, arbitrary.”); Rotunda & or evidence. Satterwhite Law: Substance Treatise on Constitutional In the in (1992). 18.3, Procedure, 2nd, p. § contend, ease, appellant not nor does stant suggest, was unable does the record Supreme nor this Neither the Court mitigating give effect to his to consider recognized criminal defendants Court has statutory punishment is evidence under constituting suspect general as class. time of his trial. applied sues which at the Therefore, subject is to ra appellant’s claim right Consequently, we hold shows he was tional basis review unless he Equal under the Fourteenth Protection right when he was deprived of a fundamental by prosecuting was not violated Amendment pre-amended version of prosecuted under the pre-amended art. 37.071.11 right at him under find no fundamental art. 37.071. We retroactively. Dissenting Op., applied “Suspect” been held to be not be classifications have race, reading ap- origin, upon at 363. The dissent errs in national classifications based Novak, making statutory point gender, illegitimacy. pellant’s of error Rotunda & Trea- application and Proce- of the amended tise on Constitutional Law: Substance claim for retroactive Rather, dure, 2nd, 18.3, (1992). being p. § he contends statute. equal protec- right to denied bis Constitutional their defendants who committed tion because that this discussion is un- 11. The dissent asserts of art. may the amendment necessary crimes before the amended art. 37.071 because important next of his affairs. We move sev the most contending Okay? enth of error the trial by declaring sponte erred a mistrial sua after head) (Nodding [Venireman]:

being litigants notified the had used errone Q: you sitting jury on the consider Would legal principles during ous the voir dire. impor- in a murder case the most Although jeopardy he concedes not at had your tant of affairs? judge tached the time the declared the Yes, guess. A: I mistrial, appellant nevertheless contends no Q: important That is. That’s the most necessity justify manifest existed to a mistri kind of— appellant’s legal analysis al. We believe is A: Um hum. necessity incorrect. doctrine of manifest inextricably jeop

is concept fused with the Q: —jury you if service can render. So ardy upon principle and is based that you pun- have the kind of at the doubt sworn, impaneled once a is but for a phase ishment of a trial that cause would exceptions, few limited a defendant has the you ques- to hesitate to answer those right guilt to have his or innocence resolved yes, you going tions are how to answer particular jury. that Oregon Kennedy, them? 667, 671-672, 2083, 2087, 456 U.S. 102 S.Ct. A: Be no. (1982); Washing 72 L.Ed.2d 416 Arizona v. Q: Okay. punishment phase At the ton, 497, 503-507, 434 U.S. 98 S.Ct. 829- trial, you this if have the kind of doubt (1978); 54 L.Ed.2d 717 United States v. you that would make hesitate to answer Jorn, 470, 479-481, 400 U.S. 91 S.Ct. yes, questions your those what would 554-555, (1971); and, 27 L.Ed.2d 543 United require you oath to do? Perez, (9 Wheat.) 579, States v. 22 U.S. object that, [The I’ll Your Hon- State]: (1824). also, L.Ed. 165 See Alvarez v. require or. His oath does not him to not (Tex.Cr.App.1993). question. hesitate answer the Where, case, the instant has objection. [The Court]: Sustain the sworn, impaneled neither jeopardy been nor [Appellant]: ju- At the conclusion of this principles prevent judge do not a trial from ror, my questions I could read into the declaring a mistrial. Fields v. again, record Your Honor? Appel points lant’s sixth and seventh of error are [The Sure. Court]: overruled. [Appellant]: Okay. hearing following In a the examination of VI. Smith, venireman defense counsel contended error, eighth

In his con- questioning proper. of Smith was tends restricting the trial erred in Honor, Okay. pros- Your [Appellant]: voir dire examination of a venireman con- poten- ecutor has asked almost all of the cerning During reasonable doubt. individual jurors proves tial if that the State it to voir dire of venireman Smith defense doubt, beyond they them a reasonable counsel, following exchange occurred: going yes, questions are to answer these [Appellant]: them, I think they prove the Court will instruct and if don’t it to are

you they going have a definition of My reasonable to answer them no. —now time, long questions doubt. We haven’t for a but deal with the definition of rea- law, last November the Court of Criminal doubt. sonable And under the Appeals gave us a definition that in- I believe the Court will instruct them they cludes this statement. A reasonable if have a doubt that would person doubt is the kind of doubt that would make a reasonable hesitate to person questions yes, make a reasonable hesitate act answer those then their provisions right 37.071 are not entitled to the broader of the amended statute. going analysis had a constitutional to avail him- Consequently, the fore- self of the amended statute. necessary to determine whether by way specific example and not of a requires oath them to answer no. And juror. juror I’d like to ask this order to the that’s what of doubt about is had kind keep I’ll it out. That’s fine. [The Court]: of reason- that falls under definition wrong, you got If I’m a free shot. doubt, they going able are to follow then- Bring him back. no, questions oath and answer the are through. We’re yes, in they going to answer them con- particular you [Appellant]: On that issue to their oath.

tradiction would rule— [The Court]: State? Yes, going I’m sir. with the [The Court]: *14 State, and we’ll find out. I that’s what the [The State]: don’t believe [Appellant]: objection is So the State’s in con- definition of reasonable doubt sustained, Your Honor? junction Judge. requires, the oath with Yes, Court]: sir. [The example in an I think that this is here as doubt, I think of the kind of and don’t [Appellant]: And I’ll not be allowed to ask goes specifics partic- that it questions? to those case, you juror says, if ular where That’s correct. [The Court]: know, well, we need to think about this a to Appellant contends he was entitled while, that that’s the hesitation that little concerning un- question Smith his venireman oath, they have to auto- to follow their derstanding of doubt” to deter- “reasonable matically questions then answer these properly apply if mine he could the law. I statement no. think because the linking claims his definition State out it is the kind of doubt. It’s starts oath, juror’s of reasonable doubt with giving example. It’s not 35.22, im- art. was Tex.Code Crim.Proc.Ann. specific to to delibera- meant be their juror into proper because it misled the be- juror. giving this tions as a And he’s lieving obligated pun- he to answer the juror impression a false when he tells deliberating over ishment issues “no” without oath, any him that to follow his he has disagree. the evidence. We hesitation, ques- to kind of answer the acknowledged that long haveWe tion, no. I got then he’s to answer it coun integral part voir dire is an defense think, misleading. I in think it’s fact legal providing adequate assis sel’s role attorney past the defense has asked intelligent tance because it allows counsel to questions, similar but not tied them challenges and chal ly peremptory exercise questions oath. And I think those lenges during the selection for cause says proper. But I think he were when State, 117, process. v. 837 S.W.2d McCarter required his oath to automatical- he’s McKay, parte 819 (Tex.Cr.App.1992); Ex 120 ques- ly, any if on hesitation answer the 478, (Tex.Cr.App.1990); 482 Gardner S.W.2d way. improper. specific tion a That’s 675, State, (Tex.Cr.App. 689 v. 730 S.W.2d saying Okay. you And are Court]: [The 941, State, 1987); 953 566 S.W.2d Graham v. not allowed to ask that he should be State, and, Naugle v. 118 (Tex.Cr.App.1978); doubt? question about reasonable 92, 566, (App.1931). 94 40 S.W.2d Tex.Crim. ability to No, a defendant’s I’m In order effectuate sir. That’s not what [The State]: scope of impartial jury the objected past in the select a fair and saying. I have not 482; broad, at McKay, 819 S.W.2d fairly lengthy confusing voir dire is to some and and, State, 467 My v. 771 S.W.2d doubt. Guerra questions about reasonable gener a defendant is (Tex.Cr.App.1988), it and problem with it is when he makes jurors on ally prospective dire says that he’s entitled to voir specific to the answer and an issue at trial. oath, any which will be required by that if he hesitates matter his 121; McCarter, v. at any got to then 837 S.W.2d manner that he’s Nunfio know, you question no. And answer the and, Shipley v. could number of reasons there be includes a venire- by way (Tex.Cr.App.1990). This again, this is hesitate. And once trial, presented understanding upon man’s “reasonable tion the evidence at the term Therefore, v. question proper doubt.” Lane 828 S.W.2d we hold the Woolridge v. judge abused his discretion trial (Tex.Cr.App.1992). excluding it. judge’s We review a trial decision Although generally pre harm is discretion, to limit voir dire for an abuse of judge improperly sumed when a trial limits 484; Nunfio, Allridge 808 S.W.2d at dire, Nunfio, find voir 808 S.W.2d 146, 163(Tex.Cr.App.1988), no harm in this case because selection and a trial abuses his discretion when reaching prior concluded venireman proper question concerning he limits a Smith was the 53rd venireman. Smith. Gardner, proper inquiry. area of 730 S.W.2d However, jury selection concluded when the 689; and, Powell v. Thus, limi 45th venireman was selected. judge may A trial tation of dire not affect voir did specific limit a defendant’s under voir dire ability intelligently per his exercise question circumstances: where a commits a emptory challenges challenges for cause. facts, specific venireman to a set of White Ratliff *15 State, 629 706 S.W.2d State, (Tex.Cr.App.1985) (citing Thomas questions duplicitous repeti where the are or and, 658 175 S.W.2d tious, Guerra, 467; 771 where the S.W.2d (Tex.Cr. State, 653 S.W.2d 781 Whitaker already position venireman has stated his Appellant’s eighth point App.1983)). of er clearly unequivocally, (citing at 468 ror is overruled. State, (Tex. Phillips v. 889 Appellant ninth of contends his Cr.App.1985)); questions where the are by restricting that trial error erred form, proper not in Adams v. Kyle of the voir dire examination venireman S.W.2d regarding penal- his views towards the death subject A venireman is to a chal dire, ty. questioned During voir lenge for cause a defen Kyle about the circumstances where death dant if he is unable to follow the law. appropriate punishment: an would be 35.16(b)(3) Tex.Code Crim.Proc.Ann. art. you [Appellant]: you And ... realize if (c)(2). also, See Little v. murder, person guilty capital find a (Tex.Cr.App.1988) (holding State you’ve only got punish- two choices of higher proof subjects standard of venireman ment. cause); challenge Felder v. (Tex.Cr.App.1988) (inability I [Venireman]: understand that. parole deciding punish consider when Q: By your your questionnaire answer on ment); Nichols just necessarily indicates it’s murder not (inability (Tex.Cr.App.1988) guilt to assess always capital murder should be even parties); under law of Smith v. required penalty. to face the death Is (ina (Tex.Cr.App.1984) your impression? that still bility range punish to consider minimum (Pause) thought A: a lot I—I’ve about ment); and, Esquivel v. that. (Tex.Cr.App.1980) (requiring State Q: Okay. motive). prove do not believe We question believing say anything, capital misled the venireman into A: Like I tried to murder, know, obligated special you I think in cir- he was answer the issues some pausing penalty without to deliberate. es cumstances the death should be murder, sentially re-phrased previous question just I’m kind of effect. Now not, know, concerning leaning maybe you how the toward venireman would answer know, But, special capital punishment. you cap- issues he had a reasonable murder, Phrasing ques doubt as to the evidence. ital I could lean toward the juror’s penalty. tion in oath did not I believe in it rather. the context death cir- preempt prospective the venireman’s reflec- Under certain circumstances. Some murder, happened capital I to the circumstances of what if it’s cumstances penalty. in a murder. go the death wouldn’t with Okay. Anything Q: else.

Q: Okay. circum- What would those any got be? You ideas? stances A: No. time, Honor, Q: Nothing I’ll else. You wouldn’t consider Your this

[The State]: trying object, other kind of evidence? [Defense Counsel] Kyle bind Mr. to a verdict. Oh, All A: I’d consider all the evidence. in, I’d consider the evidence that comes objection. [The Court]: Sustain fact, every every I fact. I’d consider [Appellant]: there are those cases So maybe just look at the first wouldn’t you capital that would not think murder well, saying, say, thing person penalty. the death should have that, well, yeah. okay, I That believe IA: believe so. murder and could be true Q: you your telling But also me that are — penalty, you know. I’d consid- the death just you eases of murder that there are say, ques- everything that both sides er you might want to would believe know, everything you consider tions somebody penalty? give the death somebody’s life on put I’d—I’d before situation, might. I According A: positive got the line. I to be the most says you do Q: You the law can’t man in the world. realize that? capital murder Q: And there are those you imprisonment think life cases A: Um hum. punishment? appropriate be would you Q: you says Though know the law A: Yes. *16 that, you to? can’t do would still want Q: right? that Is to, you necessarily said I want

A: Not Yes, A: sir. know, gonna always go by the law. I’m you law. And know like I The law is the Okay. Question number one. And Q: circumstances, know, said, you again going questions we’re over these just give I want to the death me. don’t ago? prosecutor] a moment with' [the everybody that mur- penalty to commit Yes, A: sir. know, der, you no. guilty Q: Okay. you If found some everybody Q: How that commits about murder, always capital you an- would capital murder? question yes? this first swer (Pause) A: No. capital they If found of A: murder, always yes? I answer would Q: Don’t to do that? want Yes, Q: sir. along, just everybody Not that come A: necessarily. murder, A: Not penalty,

okay, capital death murder, penalty. No. death your in Q: can conceive of an idea You may appropriate an where there be mind thought? Q: give it a lot of going You question no? You time to answer that Yeah, really giving a lot of I been A: you think of circumstances can questions. This the thought with a lot of might question no? answer me, brought up to first time it ever been Yes, A: sir. many ways, got and I a lot of in different circumstances Q: Okay. would the I What penalty, opinions on death particular— one lot, you think be? Can yes, it a I have. thought about Objection, Your Honor. [The State]: death Q: your opinion on the What is trying Again, [appellant] is to bind Mr. penalty. on some facts. Kyle to a verdict based penal- in death Basically, I believe A: objection. Court]: Sustain [The say, just give I ty, like I wouldn’t but Honor, trying to I’m not somebody [Appellant]: Your because penalty death him, trying how is just I’m to see up bind a murder. It —it’s committed

347 State, 111, 801(d); thinking looking v. 115 might and what he be 111 S.W.2d Schaffer State, (Tex.Cr.App.1989); for. Barnard v. 130 723 S.W.2d ruling I understand. The [The Court]: (Tex.Cr. McKay v. 707 S.W.2d still the same. extrajudicial App.1985). An statement or The voir dire the instant case is writing purpose which is offered for Boyd that in similar to 811 S.W.2d showing what was said rather than for the (Tex.Cr.App.1991), wherein defense matter therein does not truth of the stated prevented asking pro counsel was from hearsay. Crane v. constitute spective explain venireman to is a “what Porter v. S.W.2d proper penalty case that is for the death to State, 374, 385 (Tex.Cr.App.1981); imposed?” judge be We held the trial did Nixon v. excluding not abuse his discretion in (Tex.Cr.App.1979). In Gholson v. question question because the committed the (Tex.Cr.App.1976), we ex Id., particular venireman to a fact situation. extra-judicial plained statement or writ “[a]n (citing Allridge, at 120 at 162- ing may be admitted as circumstantial evi 164; and, Cuevas may dence from an which inference be (Tex.Cr.App.1987)). question n. 6 drawn, and not for the truth of the matter indistinguishable the instant case is from stated, therein, violating hearsay without Therefore, Boyd. ninth rule.” point of error is overruled.

We addressed a similar issue in Jones VII. trial, testifying police While officer re- points his tenth and eleventh of error peated several out-of-court an- statements contends the trial erred in implicated other witness which the defen- admitting hearsay police evidence. The dis- explained began dant. The officer that he Thompson’s covered in appointment office an suspect ultimately the defendant and ob- Dennis, containing book Ricky the name upon tained arrest warrant based those patient application listing form the name statements. at 499. We held the extra- Ricky Dinkins which were later tendered *17 judicial statements were not inadmissible appellant’s objection. into evidence over De- hearsay because were not admitted appellant tective Sheffield testified became a asserted, prove the truth of the matter but suspect in the investigation upon based the explain rather to how the came defendant appointment application Ap- book and form. suspect. be a Id. pellant argues appointment ap- the book and plication form constitute inadmissible hear- by The instant controlled case is say. appointment Jones. The tendered the State

Hearsay statement, including is a application book and the form to show how statement, written than appellant suspect investiga other one made became a in the trial, Therefore, testifying the declarant while appointment tion. we hold the prove which patient application is offered to the truth of the book and the form were Appellant’s matter asserted. hearsay.12 Tex.R.Crim.Evid. not inadmissible Jones, Despite applicability supra, the clear The dissent further contends the documents 12. case, ap- to the pointment State, instant the dissent contends the excluded should have been because the patient application book and the form articulating admitting not the basis for the evi- hearsay should have been excluded as because dence, relevancy failed establish the of the they permitted to draw the inference required by evidence as Tex.R.Crim.Evid. 401. appellant Thompson night met with However, appellant object Id. did not Dissenting Op., offense. However, 894 S.W.2d at 364. relevancy the evidence at trial does not type permissible; this of inference is appeal contend on that the evidence was irrele- may an out-of-court statement be admitted as Consequently, vant. we need not and should not circumstantial evidence from may an inference which relevancy address here. violating prohibition be drawn without Gholson, against hearsay. 542 S.W.2d at 398. 348 [appellant] points [Appellant]: [the You didn’t tell of error are

tenth and eleventh might help him? confession] overruled. No sir.

[Sheffield]: him for or Q: you Did tell it could be used VIII. him? against error, his twelfth Yes, sir. A: admitting judge the trial erred contends

appellant’s written confession because involuntary, resulting from statement advice that it could be used “for or Sheffield’s Later, on re-direct examination: against” appellant. you specifically Do remem- [The State]: ber, Detective, telling [appellant], you that a confession It is well settled could telling [appellant] statement uncontradicted evi is not admissible him or that a statement be used for person who obtained the dence shows against him? could be used for or accused that his con confession informed the usually say I for or A: I don’t recall. might against” “for or him. fession be used exactly, I but I against, but don’t recall Sterling v. against. probably said for or (1990); Dunn v. S.W.2d However, the record also contains evidence v. Walker testimony. which contradicts Sheffield’s (Tex.Cr.App.1971); McCain 613, During hearing Hobbs denied Sheffield 139 Tex.Crim. could informed his confession be (1940); and, Tex. Guinn against” him. Hobbs testified (1898). used “for or A confession 45 S.W. 694 Crim. he, Sheffield, admonished not person’s that it resulting from a statement taking prior to his confession: is against” can “for or the defendant be used it inadmissible as a matter of law because you you think [Appellant]: And did also— improper inducement and be constitutes an understanding was understood? His he statutory comply with the cause it does not statement, gave a it could be that if he Dunn, 721 S.W.2d at warnings art. 38.22. against him at the time used for or However, dis where there is a factual trial? representation crepancy as to whether such would be used I him it could and A: told made, responsible trial against him. determining the confession is admis whether knowledge anybody .your tell Q: Did Long v. sible. against it could be used for him that (Tex.Cr.App.1991); Moore him? *18 I warnings verbatim. A: I read the (Tex.Cr. Freeman v. 618 S.W.2d them. asked if understood be App.1981). And that decision will not somebody you if else Q: But don’t know an abuse of discretion. disturbed absent against for or him it could be used told 277; Long, Johnson right? him. Isn’t that confession, (Tex.Cr. I don’t date of the A: On the Sosa my out of Mr. Dinkins was ever believe App.1989). presence. that Sheffield The record contains evidence that, you him Q: somebody else told So confes- appellant that his written informed of it. Is that just wouldn’t be aware against” him. “for or could be used sion right? hearing,13 v. Denno During the Jackson not on the 14th. happen, A: didn’t Just indicating statements made several Sheffield him that and Q: somebody told Unless phrase- “for or might he have used the that correct? you hear it. Is didn’t against”: (1964). Denno, 12 L.Ed.2d 908 84 S.Ct. 378 U.S. 13. Jackson v. Yes, sir, suppose. Cr.App.1970), I

A: we held the confessions admis . testimony sible because the was contradicted. Q: give Did him Detective Sheffield Freeman, interrogating In officer testi warnings on the 14th? fied he informed the defendant his statement gave warnings. A: I I him believe his Id., against” could be used “for or him. Q: ifSo Detective Sheffield said that he However, he later denied he him and him warned told that statement phrase against” had used the “for or when him, against you could be used for or warning his the defendant and attributed just didn’t hear that conversation. Is prior testimony misunderstanding his that correct? questions. defense counsel’s He further tes many A: There were times when we were tified he the defendant from the warned talking together, I but I believe read form, warning standard which tracked the warnings. him the language holding of art. In 38.22. Id. Q: if Detective him So Sheffield told admissible, explained confession was this statement could be used for or judge trial has the discretion to resolve factu him, just against you didn’t hear the testimony. discrepancies al in the Id. right? conversation. Is that Coursey, the defendant contended the A: if I warnings Well read him his County Attorney advised him that his confes- may I then —Detective Sheffield and them, against have asked him if sion could be used either for or him. he understood police present do I A interrogation remember those words verbatim? officer at the No, sir, I County Attorney don’t. testified at trial advised the defendant that his confession Q: Okay. Id., against could be used for or him. said, A: But could that sup- have been I However, S.W.2d at 567. the officer subse- pose explain so in an rights. effort to his quently warnings testified the read off were The trial overruled mo- form, warning the standard which conformed suppress tion to the confession and filed find- statutory warnings in effect at the ings of fact and conclusions of law in which Further, County Attorney time. Id. specifically he found confession advising denied the defendant his statement by any was not induced advice that the con- against could be for or him. used at 568. fession against” could be used “for or him. County Attorney’s We held the and the offi- testimony sufficiently cer’s controverted the Evidence that a defendant received and, therefore, defendant’s claims the confes- improper warning wholly need not be rebutted, sion was admissible. Id. merely but contradicted order that a confession be admissible. Muniz v. Although Sheffield’s'testimony per Moore, 202; and, 700 S.W.2d at Barton v. appel mits the conclusion he informed (Tex.Cr.App.1980) lant his confession could be used “for or (defendant’s claim his confession resulted him, against” testimony was contradicted. beating from testimony contradicted Sterling controlling and Dunn are not be police up jail used force to break altercation testimony cause unquali Sheffield’s is not an another.). between defendant and In Ster against.” fied admission he said “for or *19 Dunn, ling, and we held the confessions were significantly, testimony More Sheffield’s interrogating inadmissible because the offi Hobbs, he, by contradicted who testified that testified, contradiction, cers without that the Sheffield, appellant day not warned his defendants were advised their confessions confession was taken. To believe the testi against” could be used “for or them. Ster mony testimony of one is to disbelieve the of 518-519; and, Dunn, ling, 800 S.W.2d at Accordingly, the other. it was within the S.W.2d at 340-342. judge’s trial discretion to resolve this factual Freeman, Freeman, 53, and,

By contrast, 52, discrepancy, S.W.2d at (Tex. record, Coursey light and 457 S.W.2d 565 of the we cannot conclude lawyer Appellant’s “in terms that a him no uncertain that he abused his discretion. and keep tell him to his mouth shut point would of error is overruled. twelfth police Appellant at all.” not to talk to the to search form and signed a written consent IX. accompanied Hobbs and Sheffield as points fourteenth his thirteenth and the searches. The record does conducted error, and appellant argues his confession showing appellant requested an support not in violation of other evidence were admitted attorney accompanying the detectives while right the Fifth Amend- his to counsel under Moreover, record during searches. their of the Constitution.14 ment United States appellant met with both his is clear right his to Appellant contends he invoked day grandmother during the brother and his prior giving his confession counsel request retain not either of them to but did therefore, and all the evidence the confession attorney. Upon returning to the District it inadmissible. obtained because of were office, again Attorney’s the detectives inter- appel- contacted Sheffield and Hobbs first During interrogation, rogated appellant. 13th, place September on lant at his work speak to his mother appellant asked to advising day after the offense. After Hobbs, Atlanta, Georgia. According to who of his Miranda appellant rights,15 the detec- doorway during the con- waiting in the sought permission questioned tives him and versation, appellant did not ask his mother spoke with the Appellant to search his car. After the conversa- retain counsel for him. to a search. detectives but refused to consent tion, appellant capital the detectives informed appellant point At in the conversation some against him. charges would be filed murder someone,” at “maybe I should talk to stated agreed to dictate a statement. Appellant then ques- ceased their which time the detectives appellant his Miranda warnings Hobbs read an outstand- appellant tions and arrested on warnings appellant read back the and had ing arrest warrant. Later misdemeanor sign Appellant then dictated his and them. telephoned grandmother day, appellant formally charged his being After statement. detective, speak police and asked to to the capital murder and returned with Orr, jail, requested who was there investi- to talk to a county appellant Detective Clifton previous night. given him gating appellant’s attorney alibi for the name was local whose Although Hobbs did not Appellant by he committed the murders mother. denied his attorney appellant request- police to search whom but stated he would allow know ed, of an up telephone number telephoned car. then Sheffield he looked his Orr arranged having name and sign attorney a similar him would a written informed telephone. appellant use the A to have the car. search consent to search revolver, a .357 two boxes car recovered Fifth Amendment to Under the clothing. and items of ammunition Constitution, in order the United States interrogated again right against self-incrimina effectuate morning, Sep- tion, right the next suspect Hobbs Sheffield has invoked once his Mi- reading appellant counsel, police must interrogation 14. After tember all sought appel- until the randa provided or rights, the detectives cease until counsel is loca- conversation. suspect to search various himself re-initiates lant’s written consent Mississippi, Minnick v. tions, 498 U.S. including and his locker his home (1990); interroga- 112 L.Ed.2d 489 point during the 111 S.Ct. At some work. 484-485, Arizona, Edwards lawyer 451 U.S. Sheffield “what tion asked 1884-1885, L.Ed.2d 378 informed S.Ct. him to do?” Sheffield would tell McCambridge error, (citing (Tex.Cr.App.1991) also n. In his thirteenth I, (Tex.Cr.App. claim under art. raises a state constitutional However, 74(f)). 1986); § be- Tex.R.App.P. 10 of the Texas Constitution. argument provided appellant has no cause *20 by regarding protection authority the afforded 436, Arizona, U.S. 86 S.Ct. 384 15. Miranda I, 10, § we consider the State constitutional art. 1602, (1966). L.Ed.2d 694 16 inadequately decline to ad- briefed and claim 216, 851 S.W.2d Robinson v. dress it.

351 (1980); Arizona, attorney interrogation Miranda v. 384 an and the U.S. wanted 1602, 1628, 86 S.Ct. 16 L.Ed.2d 694 continued for another hour until Davis stated (1966); Hicks v. 860 S.W.2d 429- lawyer say any “I I I think want a before Upton 430 interrogation thing point, At this the else.” (Tex.Cr.App.1993). 853 552 court-martial, ceased. Id. At his Davis was right “The to counsel is considered invoked unsuccessfully at convicted of murder after person where a or indicates he she desires to tempting suppress to his statement. The speak attorney attorney to an or an have Military Appeals United af States Court present during questioning.” Lucas v. Supreme granted firmed and the Court cer- (Tex.Cr.App.1989). 791 S.W.2d 45 An tiorari to determine whether Davis’s initial unambiguous; invocation must be clear and an actual invocation of statement constituted “attorney” mention of the mere the word or —Id., at -, right his to counsel. U.S. more, “lawyer” without does not automatical 114 at S.Ct. ly right invoke the to counsel. Robinson v. right explained The Court that unlike the 216, 223 (Tex.Cr.App.1991); to counsel under the Sixth Amendment which (Tex.Cr. Collins v. 568 automatically, right attaches the to counsel App.1987) Russell v. prophylactic under Miranda is a measure reviewing 575 When Fifth is not inherent within the Amend alleged counsel, right invocations of the to —Davis, at -, 114 ment. U.S. S.Ct. typically totality look at the of the circum prohibition against 2354-2355. The contin surrounding interrogation, stances questioning following an ued invocation of invocation, alleged well as the in order to “justified only right by to counsel is suspect’s determine whether a statement can Id., prophylactic purpose,” to reference — its be construed as an actual invocation of his at -, (quoting 114 U.S. S.Ct. Lucas, right to counsel. 791 S.W.2d at 45- Barrett, 523, 528, Connecticut v. 479 U.S. 46, and, Russell, 727 S.W.2d at 576. Be 828, 832, (1987)), S.Ct. L.Ed.2d that is explicit cause requests made no say, protect suspect already to a who has attorney, an we must review the record to right being badg invoked his to silence from determine whether state ered into self-incrimination continued clearly ments can be understood to be an questioning by police. Accordingly, a right invocation of his to counsel. Foremost suspect actually court’s focus is on whether a is September statement on —Id., at -, right, invokes his U.S. being questioned by while Detectives Shef Illinois, (citing S.Ct. at 2355 Smith v. Hobbs, “Maybe field and I should talk to 91, 95, 490, 492, 83 L.Ed.2d U.S. S.Ct. someone.” y (1984)), inquiry purel and the an Supreme The United States Court ad objective one: ambiguous dressed the issue of invocations of right Invocation the Miranda right to counsel in Davis v. United minimum, “requires, counsel at a some — States, U.S. -, -, 114 S.Ct. reasonably that can con- statement be (1994). 2355, 129 Davis, L.Ed.2d 362 a mem expression strued to be an of a desire for Navy, ques ber of the United States attorney.” ... But if the assistance of police following tioned beating naval attorney suspect makes a reference to an deceased, death of the who owed Davis mon equivocal in ambiguous that is ey. being After advised of his Miranda light reasonable officer of the circum- rights, right Davis waived his to remain si only that stances would have understood counsel, right orally lent and his and in invoking right suspect might be — at -, writing. U.S. S.Ct. at counsel, require precedents our do not 2353. About an hour and a half into the questioning.... cessation of interrogation, “Maybe Davis stated I should Rather, unambiguously lawyer” suspect must talk to a at which the interro observed, request “a gators stopped attempted clarify counsel. As we have is such an assertion or it actually invoking right whether Davis statement either Davis, however, attorney. Although suspect to an denied he is not.” ... need not *21 not rise to do under the circumstances does “speak discrimination of an Ox with the right his desire of the to counsel. ford don” ... he must articulate an invocation (Defendant’s sufficiently clearly Russell, present at 576 to have counsel cir police they thought officer question that a reasonable to officers “whether attorney necessary” the state cumstances would understand an presence counsel). request attorney. Instead, If ment to be a for an right to did not invoke requisite fails to meet the clearly requested the statement to only appellant time Arizona, clarity, Edwards su [v. level of given he had his speak with counsel was after stop require that the officers pra] does not confession, formally charged of- been questioning suspect. jail. by magistrate, and returned to fense — State, 667 Appellant’s reliance on Green v. Davis, at -, 114 S.Ct. at 2355 U.S. (Tex.Cr.App.1984), Porier v. (citations omitted) (emphasis original). (Tex.Cr.App.1984), facts of the Turning its attention to the factually misplaced because those cases are statement, case, held the Court Davis’ Consequently, ap- hold distinguishable. lawyer” “Maybe I talk to a was too should right counsel pellant did not invoke his to an invocation of the equivocal to constitute Appellant’s prior giving to his confession. U.S. at -, right to counsel. - points of error thirteenth and fourteenth Therefore, police were not S.Ct. at 2357. are overruled. questioning. Cf., required to cease their (Tex.Cr. Jones (Defendant’s I “I think App.1987) statement X. unequivocal lawyer” a clear and want error, appellant In his fifteenth counsel.). right assertion of her to judge refusing contends the trial erred in the instant Appellant’s statement at jury on a factual issue raised instruct the ambiguous case is more than statement timely requested instruc- trial. response questioning in Davis. disregard jury to tions instructed the which Hobbs, merely and stat Sheffield they if determined appellant’s confession ed, “Maybe I should talk to someone" but appellant his confession advised Sheffield speak. specify he wished to failed to to whom favor, or if deter- could be used in his not police it clear that are

Davis makes prior to appellant requested counsel mined clarifying questions when a required to ask trial de- making his confession. equivocal invocation of suspect makes an request submitted the and nied —Id., at -, counsel. U.S. S.Ct. jury: general following instructions additionally detectives note the 2356. We you if believe You are instructed that only re questioning appellant ceased evidence, you have a reason- or it from the questioning him after re- sumed thereof, alleged state- that the able doubt later that initiated contact with Detective Orr not voluntari- of the defendant were ments day. hold state We therefore made, you the state- ly will not consider unequivocal invoca not a clear and ment was any as a result evidence obtained ments “are right to counsel. While there tion of the any purpose whatso- of the statements required to invoke an ac magical no words ever. counsel,” Russell, right cused’s Davis, requires, at a that we believe you unless be- instructed that You are minimum, suspect express a definite that a beyond reason- lieve from the evidence someone, person speak to desire to [ap- #42 Exhibit able doubt State’s — U.S, at -, See, Id., attorney. be an into evi- introduced pellant’s confession] at 2355. S.Ct. voluntarily made freely and dence was you persuasion, or compulsion or in the record without further indication We find no thereof, you shall right an have a reasonable doubt clearly invoked any Exhibit #42 for consider State’s Ap- not attorney prior giving his confession. as a obtained purpose nor evidence con- question to Detective Sheffield pellant’s thereof. attorney tell him to result cerning would what

353 Now, you if appellant find from the evidence or if er was entitled to the instruction he you thereof, have a reasonable that requested. doubt Officer Sheffield told defendant before he those have cases where we re signed any, State’s Exhibit # that it sufficiency jury viewed the instruc him, could be used for and that such state- tions, consistently we have held that when by ment Officer Sheffield was an induce- raised, the issue of voluntariness is a defen ment to defendant such as to render only general dant instruction on entitled wholly voluntary, State’s Exhibit # 42 not State, voluntariness. White v. 779 freely then such statement shall not be and also, S.W.2d 827 See made, voluntarily you and in such case are State, Burdine v. wholly disregard #42 State’s Exhibit State, (Tex.Cr.App.1986); Hawkins v. 660 any purpose and not consider it for nor (Tex.Cr.App.1983) (plurality 77 S.W.2d any evidence obtained as a result of State’s op.); Moon v. S.W.2d # 42. Exhibit Moon, (Tex.Cr.App.1980) (panel op.). In judge’s jury The trial instructions to the did jury example, the defendant contended the appellant not address whether had invoked charge fundamentally was defective for fail right prior making his to counsel his con- ing police to include the issue of whether the fession. maintains the submitted making threatened him into a confession. instruction,

jury apply failed to the law to the upheld We nonetheless the instruction as specific facts the case. given, stating: charged “The trial court presented When the evidence at trial essence, jury, they in could consider the dispute raises a factual over whether a defen only if appears confession ‘it that the same voluntary, dant’s written statement was he is freely compulsion per was made without or jury charge entitled to an instruction in the charge adequate pro suasion.’ This was advising jury generally per on the law Id., appellant’s rights.” tect at 570. See taining to such statement. Muniz also, Hawkins 660 S.W.2d at 77. (Tex.Cr.App.1993); S.W.2d Mi Burdine, Notably, upheld an instruc- (Tex.Cr. niel v. presently tion similar to the one before us. App.1992); Hernandez v. The defendant contended the instruction on Thomas voluntariness was defective because it did not 723 S.W.2d 696 art. address whether his statement was induced 38.22, § 7. The issue of voluntariness arises promise. at 320. The suggests when evidence the statement jury: trial instructed the given 38.22, was not in conformity with art. Hernandez, § 2. (citing You are instructed that under our law a Brooks v. (Tex.Cr.App. 567 S.W.2d 3 confession of defendant made while the 1978)). jail custody defendant or in was interrogation officer and while under shall The State claims that no factual is appears if it be admissible evidence sue of voluntariness was raised before the freely voluntarily the same was made jury. disagree. We Detective Sheffield compulsion persuasion.... without equivocal made several statements at trial suggest appel which he could have informed Id. lant his confession could be used for or alsoWe observed against testimony him. This was contradict jury [additionally] was instructed ed Detective Hobbs. Because this testi they could not consider the mony dispute, raises a factual and since reso any purpose, confession for unless dispute repercus

lution of this factual has that the found had been warned upon sions the voluntariness of the state rights voluntarily his waived ment, see, 518-519, Sterling, 800 making rights prior to a statement. clearly entitled to a in Muniz, struction on Noting voluntariness. 851 Id. that the defendant failed to show erroneous, question S.W.2d at 254. The remains wheth- how the instructions were we held XI. charged on the issue of properly voluntariness. Id. points In his and seventeenth sixteenth error, complains sepa- that on two *23 jury instant The instructions instances, police rate officer was allowed to case are similar to those Burdine. The testify- impermissible speculation while offer jury was that believed instructed During Sgt. Tatum at ing. examination appellant advised his confession Sheffield following testimony punishment phase, the him, it could be used for would constitute ensued: improper inducement and the confession your opinion, And in Mrs. [The State]: voluntary. that this is would not be We hold Thompson’s head could have been no 38.22, § art. a sufficient instruction under higher than 31 inches above the floor? Burdine, See, and art. 38.23. Yes, Sir. [Witness]: 320. Ex- Q: you Now when first saw State’s here, hibit the door over was there appellant’s turn to conten We now in the doorknob? bullet failing tion that trial erred in to Yes, A: sir. regarding appellant’s include an instruction Q: your your opinion it that And is —is A right invocation of the to counsel.16 defen Thompson was was fired after Katherine jury only is entitled to a instruction dant shot twice? dispute there is a factual before the where Yes, A: sir. Thomas, However, jury. 723 S.W.2d at 707. Q: you why Did draw a conclusion as to po a defendant’s statements to the whether that shot was fired? right to lice constitute an invocation of the trying get A: I think to the door he must counsel is a matter of law which be open get to to Ms. Cutler. See, Davis, judge. the trial determined Q: Okay. you arrived at the Now when already that supra. have determined We “ scene— statement, “[m]aybe I should talk appellant’s testimony, [Appellant]: object I’ll to that someone,” right not invoke his to did pure speculation. it’s law, because, a matter of it was counsel as Overruled. [The Court]: ambiguous. have further determined too We later, following A short while ensued: question appellant’s to Detective Shef your on information Based [The State]: attorney ad concerning field what an would there, you able to from the scene were similarly him failed to invoke vise all, determine, your opinion, first of right Detectives to counsel. Sheffield she was Shelly was when where Cutler appellant did not Hobbs testified at trial that shot? prior making his confes request counsel posi- about in the She was [The Witness]: appellant point has failed to sion and ap- X it you have the tion where part of the record which contradicts on on her knees down peared she was testimony. Consequently, because there was the floor. jury dispute before the over no factual it Q: Okay. you characterize as Would right to coun whether invoked crouching down? confession, prior making his he was not sel Yes, A: sir. on that issue. to a instruction entitled had (“If Q: you believe that she And would Hernandez, at 812 evi head down? her not raise offered before the does dence Yes, confession, A: sir. the issue of voluntariness jury charge on posi- to a Q: Shelly is not entitled in this Now with Cutler matter.”). Appellant’s tion, for possible fifteenth it have been would through that broken someone to reach

of error is overruled. IX, supra. substantially this issue in Part pause we have addressed We to note that case, ques gun directly fire a into the In the instant the State’s window and clearly speculative called for a answer. top of her head? tions objection ground apparent for when Yes, A: sir. However, question was asked. failing object explanation no Q: you Is that what believe occurred? offered hold, answered. before the witness We Exactly. A: therefore, failure to make a also, timely objection for review. waived error [Appellant]: object I’ll to that Your Appellant’s Honor, sixteenth and seventeenth speculation part on the points of error are overruled. *24 Tatum. Officer [The Court]: Overruled. XII. points eighteen In of error number and timely A defendant must make a nineteen, appellant contends a State’s wit- objection preserve to an error in.order impermissibly on ness commented State, admission of evidence. Johnson v. 878 post-arrest silence. The State examined 164, (Tex.Cr.App.1994); Ething 167 S.W.2d during punishment phase Hobbs of the State, (Tex.Cr. 854, v. ton 819 S.W.2d 858 regarding appellant’s trial demeanor while State,

App.1991); Sattiewhite v. 786 S.W.2d accompanying point, the detectives. At one 271, and, 283 Tex. prosecutor asked whether had 52(a). R.App.P. objection An should be police shown remorse for his crime while in ground objection made as soon as the for custody and Hobbs answered he had not. State, apparent. becomes Johnson v. 803 objected testimony that Hobbs’ 272, S.W.2d 291 appellant’s right constituted a comment on to State, (Tex. Thompson v. 691 S.W.2d 635 judge ap- remain silent. The trial sustained Cr.App.1984). general, In this occurs when pellant’s objection and instructed the the evidence is admitted. v. Wilson disregard it. 511 (Tex.Cr.App.1974). S.W.2d But later, following Moments Hobbs made the see, Johnson, Therefore, supra. question if a during comments cross-examination: clearly objectionable response, calls for an [Appellant]: testimony your And from I objection defendant should make an before gather appeared that he to be in some- responds. the witness Webb what a different state of mind than what (Tex.Cr.App.1972). S.W.2d If he you expect somebody would from who object objectionable fails to until after an investigation mur- under for answered, question has been asked and der? legitimate he can show no justify reason to Certainly way delay, objection untimely displayed his he [Hobbs]: and error his emotions was different than I

is waived. Girndt v. experienced. had 934 (Tex.Cr.App.1981); Guzman v. (Tex.Cr.App.1975) Q: Okay. your And it’s that he testimony (Error was waived you because defendant failed single question? never asked object objectionable until questions three A: No. That’s not —he never —he would answered.); were asked and Sikes pose questions, example like the one (Tex.Cr.App.1973) previously regarding we talked about (Where object Judge’s defendant failed to giving whether or not the of a statement question constituting a comment on the evi charges, would affect the level of what question dence until after was asked and him, attorney an far as would tell but as answered, waived.); Webb, error was questioning, regarding —when 400; questioning were him where about his Crestfield (Where (Tex.Cr.App.1971) abouts, wit comings goings the eve already completed offense, that, ness had answer before ning of the such as its been objected testifying my experience defendant the witness was that most times when waived.). someone, they expertise, you’re questioning outside area of error will innocence, will, be- you we have found such protest their where comment cure, know, yond held suggest things that would clear the Court has nevertheless very it can constitute harmless error context themselves. He did their —clear particular case. little of that. being

[Appellant]: object I’ll to that as also, at 753. Jones v. See non-responsive, Your Honor. case, trial sustained the instant [The Court]: Overruled. objection and instructed the object [Appellant]: I also on And would Therefore, testimony. disregard Hobbs’ the basis that it’s a comment on Appellant’s we find the error was cured. testify. defendant’s election not to eighteenth error is overruled. Overruled. [The Court]: testimony regarding appellant’s Hobbs’ A comment on a defendant’s protest his innocence was also failure post-arrest silence violates the Fifth Amend appellant’s post- on impermissible comment prohibition against ment self-incrimination. However, because the trial arrest silence. Ohio, 610, 617-618, Doyle v. 426 U.S. 96 S.Ct. *25 objection and overruled (1976); and, 2240, 2244-2245, 49 L.Ed.2d 91 jury disregard the failed to instruct the to Arizona, 436, 468, 37, n. Miranda v. 384 U.S. statement, not cured. There- the error was 1602, 1625, n. 16 694 86 S.Ct. L.Ed.2d fore, analysis a harm to we must conduct (1966). also, State, v. 707 See Sanchez testimony con- determine whether Hobbs’ S.W.2d appellant’s punishment. Tex. tributed to (Tex. State, v. 682 548 Sutherlin 81(b)(2). R.App.P. State, v. 613 Cr.App.1984); Cuellar harm, (Tex.Cr.App.1981). reviewing A com record for we When the post-arrest silence is a number of factors: the source and ment on a defendant’s examine error, testify on his failure to at the the extent to which it akin to a comment nature of State, by weight a attempts emphasized it to raise an inference the the trial because error, upon a guilt arising juror probably place from the invocation of con the would Moreover, prohibition finding harmless right. the whether the error stitutional repeat against commenting post-arrest encourage silence to it with on would the State State, testimony regarding impunity. defendant’s v. 790 S.W.2d includes Harris testimony remorse because such contrition or only from the defendant. Swallow can come initially the comment was We note State, (Tex.Cr.App.

v. 829 S.W.2d State, by response but was in not elicited the 1992) (citing v. 638 S.W.2d Thomas additionally by question appellant. We to a (Tex.Cr.App.1982)). 484 and n. 8 attempt during clos note the State made no testimony regard to Hobbs’ With appellant’s failure ing argument emphasize to apparent lack of re regarding appellant’s Therefore, bad protest his innocence. morse, agree this with here. faith the State is not consideration appel testimony a comment on constituted Further, testimony not believe the we do silence, and was therefore post-arrest lant’s jury’s In con deliberation. influenced However, does not lead to inadmissible. this ap testimony regarding appellant’s trast explained in As we an automatic reversal. remorse, testimony Hobbs’ parent lack of (Tex.Cr.App. Waldo v. protest his appellant’s failure to regarding 1988): culpability for the alluded to his innocence offense, it. The than his contrition for rather presumption ... that an instruc- at augment the evidence testimony did not disregard] generally will not cure tion [to to be de punishment to the issues accused to testi- relevant on failure of the comment punishment: deliber it point termined fy ... has been eroded ation, provocation. dangerousness, future examples. applies only to the most blatant Thus, unlikely have would Otherwise, find it has tended to the Court testimony. Finally, any weight placed force.... Even to have the instruction encourage finding the error harmless not such comments amounted to automatic re will error, repetition by despite an instruction disre State because versible (Tex. Therefore, testimony. gard. 704 S.W.2d 770 elicited the we con- Gomez beyond Cr.App.1985); Bell v. 614 S.W.2d clude a reasonable doubt that Lopez v. appel- comment did not towards contribute (1973). However, in Orona punishment. nineteen S.W.2d 844 lant’s Point of error 125, 128(Tex.Cr.App.1990), is overruled. improper comments will be

we held such analyzed of Rule under the framework XIII. 81(b)(2). Id., at 129-130. in his contends twentieth during closing of error that error occurred disagree with the State that the We argument prosecutor when the made com- permissible prosecutor’s comment was as re striking appel- ments which amounted to prior argument counsel’s buttal defense lant over the shoulders of defense counsel. concerning the voluntariness of prosecutor following made the comment Although prosecutor’s state confession. during closing argument in the State’s rebuttal, may ments have been intended as guilt/innocence phase: aspersion on also cast defense counsel’s jury. Compare, Lopez, veracity with the coming The case starts to- [The State]: (reversible occurred at gether, and we Ex- S.W.2d at 846 error know without State’s voluntary hibit comment that defense counsel and defen 42—Folks this is as as it pled guilty). liars when not But any question can be. There’s not about dants were see, Now, that. Gorman [Defense Counsel] wants *26 (comment you by saying you (Tex.Cr.App.1972) [de “don’t let

mislead little bit you” per was counsel] find— fense smoke-screen rebuttal). Nonetheless, prose missible the judge objec- The trial sustained egregious cutor’s comment was not as tion and disregard instructed the the Gomez, (reversible supra, in error re those statement, but denied motion for from comment counsel sulted that defense a mistrial. now contends the com- “get paid to “manufacture evidence” and ment constituted reversible error. hook”); and, Bray this off the v. defendant jury argument lim Permissible State, 89, (Tex.Cr.App. 478 89-90 S.W.2d 1) ited to four areas: summation of the evi 1972) (reversible error resulted from com 2) dence; reasonable deductions from the prosecutor grateful ment that for not 3) evidence; responses opposing counsel’s defendant). having represent someone like and, 4) argument; pleas for law enforcement. Moreover, appel the trial sustained (Tex.Cr. State, 192, Coble v. 871 204 S.W.2d objection lant’s and instructed State, 85, App.1993); Felder v. 848 S.W.2d Finally disregard the statement. the State and, State, 94-95 Todd v. impugning made no further comments de 286, (Tex.Cr.App.1980). 598 S.W.2d veracity. therefore hold fense counsel’s We Generally, argument when an falls outside of Appellant’s the error was harmless. twen areas, However, in these error occurs. an tieth of error is overruled. disregard argument general struction to State, ly cures the error. McGee v. 774 XIV. 229, and, 238 S.W.2d error, twenty-first point of In his (Tex. State, 851, Anderson v. 633 855 S.W.2d challenges sufficiency of the Cr.App.1982). support evidence to an affirmative answer consistently argu punishment issue. con have held that the second When We sufficiency ducting which at a a review of the of the ment strikes defendant over the evidence, light in the improper, shoulders of defense counsel is we view the evidence Coble, and, 205; Fuentes v. most favorable to the verdict order to 871 S.W.2d State, 333, (Tex.Cr.App.1984), any rational trier of fact 664 S.W.2d 335 determine whether 81(b)(2), and, affirmatively pun- prior to the enactment of Rule could have answered 358 (Baird, J., dissenting). at 336 How- beyond a reasonable doubt. S.W.2d

ishment issue (Tex.Cr. ever, State, 316, that each case must pause to note 322 Barnes v. 876 S.W.2d Vuong, be resolved on its own facts. 830 776 App.1994); Valdez v. S.W.2d (citing v. 714 S.W.2d Santana 162, In Keeton v. 1, (Tex.Cr.App.1986)). We will (Tex.Cr.App.1987), of the instant case therefore review the facts factors which we consider we listed several light of the aforementioned factors and the sufficiency evaluating when of the evi authority. relevant decisional support dence to an affirmative answer in punishment issue. These factors second the Offense 1. Circumstances of clude: § Code Ann. 19.03 Tex.Penal (1) capital the circumstances of the of- the circumstances under which the “limits fense, including the defendant’s state may penalty to a small State seek the death working and whether he was mind narrowly particularly group of defined and parties; alone or in concert with other State, 779 brutal Smith v. offenses.” (2) the calculated nature of the defendant’s (quoting (Tex.Cr.App.1989) Jurek actions; (Tex.Cr.App.1975) (3) forethought and deliberateness ex- added)). the commission of (emphasis While execution; hibited the crime’s undeniably offense is brutal (4) prior of a criminal record the existence is committed mere fact that such offense offenses; severity prior prove danger future is insufficient itself to (5) personal age the defendant’s cir- ousness. Green cumstances at the time of the commis- den., (Tex.Cr.App.1984), cert. offense; sion of the 84 L.Ed.2d 794 U.S. 105 S.Ct. (1985); McMahon (6) acting un- whether the defendant was (Tex.Cr.App.1978). Although the or under the der duress or intoxication may of the offense alone be circumstances domination of another at the time of jury’s affirmative sufficient to sustain offense; the commission of the issue, punishment All answer to the second (7) psychiatric con- the lack of evidence (Tex.Cr. *27 ridge v. 850 S.W.2d 488 and, cerning dangerousness; future and, State, App.1991); Black v. 816 S.W.2d (8) any relevant character evidence. 350, (Tex.Cr.App.1991), typically 355 we have also, State, 881 Id. See Wilkerson v. S.W.2d required to be so hei those circumstances J., 321, (Baird, (Tex.Cr.App.1994) 335-336 display and callous nous as to a “wanton State, dissenting); Rousseau v. 855 S.W.2d State, 815 disregard human Deeb v. for life.” 666, (Tex.Cr.App.1993); 684-685 and n. 25 692, (Tex.Cr.App.1991); S.W.2d State, 656, 661-663

Bogges v. 855 S.W.2d (Tex. O’Bryan v. 591 S.W.2d v. Johnson example, in Joiner v. Cr.App.1979). For (Tex.Cr.App.1992), 825 S.W.2d Valdez v. support we found the evidence sufficient (Tex.Cr.App.1989). disposi- factor is No one punish to the second an affirmative answer tive, jury’s to the and the affirmative answer murdered ment issue where the defendant may a punishment second issue withstand A medical examiner testified two women. sufficiency notwithstanding the challenge complainant, was found to first “[t]he relating lack of to one or more of evidence in chest four times the have been stabbed Vuong these factors. lacerations on and ... a series of received complainant suffered her neck. The second chest, blunt forty-one wounds to her the evi- stab In order to determine whether head, to the her lacerations support an affirmative force trauma to dence is sufficient to ” head, ... issue, ‘slashed.’ her throat had been punishment we answer to the second suggested that Physical further in have evidence those eases which we should examine Keeton, sexually assaulted complainant each insufficient. found the evidence is Id., Wilkerson, In 61; and, at 704. appellant after their deaths. 724 S.W.2d at boy. A six-year-old a napped and murdered support the finding the evidence sufficient as- the deceased died of sentence, pathologist testified we stated: Additionally, the deceased re- phyxiation. in this case presented The evidence head, leaving a heavy blow the ceived disregard for the complete demonstrates wounds, bruise, well as numerous stab not sanctity for human life. Id., The de- death. at 292. inflicted after complainants two only took the lives the around pulled down trousers were ceased’s their disfigured and brutalized herein but body in too advanced a legs, his but cold, Appellant’s appear actions bodies. whether stage decomposition to determine and calculated. deliberate sexually The State molested. he had been Id., at 704. punishment that no evidence at offered Vuong, we Similarly, in continuing constitute a would defendant the offense alone found the circumstances of pre- society. And the defendant threat jury’s affirma- support were sufficient Reviewing mitigating no evidence. sented systemat- answer where the defendant tive evidence, although “... we we held that ically patrons game in room with a shot the adequately sup- of violence have a crime rifle, killing injuring two and semi-automatic evidence ported the circumstantial seven. that the inescapable to the conclusion are led support an affir- contrast, Smith, insufficient to evidence was By Id., issue.” mative answer to the second course of defendant committed murder entry 293-294. gaining After a sexual assault. apartment, deceased’s the defendant tied the Keeton, defendant In to the headboard of her bed and deceased and, without warn grocery entered a store Id., sexually assaulted her. at 419. He then fired at the store owner. ing, shot a clerk and untied her and stabbed her fourteen times counter and stole He then went behind the back, including through the chest and once Roney complainants’ purses. confession, In a the de- the heart. written during a (Tex.Cr.App.1982), 632 S.W.2d 598 her, explained: raped I I fendant “After defendant, robbery, grocery with store crazy to kill her añd kind of went decided provocation, shot a store clerk after re out trial, a few minutes.” Id. At a State foren- ceiving money. clerk testified Another pathologist the heart wound sic testified hands at trial the deceased had his would have killed the deceased soon after its Final when he was shot. at 602. raised explained infliction. He further the offense (Tex. ly, in 728 S.W.2d 382 Beltran very typical

was “a sex murder” and while it shot the de Cr.App.1987), the defendant death,” “extremely” was “a brutal it was not him the immediately after she handed ceased brutal. Id. We held: *28 during money cash drawer a rob from the ... cannot the circumstances We conclude acknowledging in bery While of a tortilleria. evince an of the offense are so heinous or killings were three cases that the each peculiarly “aberration of character” so unnecessary, we nevertheless senseless and justify an affirma- “dangerous” as alone to were of the offenses held the circumstances special is- response tive to the second in prove as to themselves not so brutal in this sue .... To hold the offense itself posed a continu three defendant’s prove future dan- cause was sufficient to society. ing threat undermine gerousness would threaten to 37.071, supra, the function of Article in circumstances of the offense death-eligible class of further narrow the distinguishable from case are the instant who have offenders to less than all those Keeton, Smith, Roney, and Bel Brasfield, guilty as defined found of an offense been twice; Thompson both Appellant shot tran. § 19.03- Code] under [Penal range close fired at extreme shots were Smith, at 419-420. 779 S.W.2d appel Significantly, fatal. shots were both she was Thompson in the head as lant shot Similarly, in 600 S.W.2d Brasfield sitting the floor after kneeling or on kid- either (Tex.Cr.App.1980), the defendant the infliction the first wound to her abdo ... There is no evidence that Appellant’s preplanned burglary multiple men. infliction of or the murder. range Appellant’s ap- of [the deceased] wounds at close indicates a wanton and murder pears disregard to have been an immediate reaction present callous for human life not being recognized [the deceased] in the after aforementioned cases. Johnson (Tex.Cr. Moreover, unexpectedly she 853 S.W.2d awoke [the facts show that entered de- App.1992); Bower v. ceased’s] residence unarmed and did not Livingston weapon look for a with which to arm him- (Tex.Cr.App. 1987). burglarizing self while res- [the deceased’s] idence. greater significance Of even for our review Id., at 662. appellant spent is the indication that consid Smith, 417, despite In evidence in hunting erable effort down the second the defendant loitered around the de- deceased, Cutler, killing before her. After apartment complex, ostensibly ceased’s look- room, adjacent Cutler locked herself into an ing opportunities engage in sexual appellant attempted get by shooting relations, we held there was no evidence the Appellant doorknob. then tore down a wick pre-planned rape defendant had either the window, covering receptionist er shelf Id., the murder. at 420-421. window, broke the reached inside and shot (Tex. In Warren v. Cutler as she in a crouched comer. We Cr.App.1978), the defendant was convicted of suggests appellant believe this evidence com murder committed the course of a mitted the second murder in order to elimi burglary. burglarizing While the deceased’s nate a witness to his first In murder. John home, Later, pistol. the defendant found a son, 532-533, upheld we the deceased discovered the defendant and jury’s pun affirmative answer to the second response threatened to kill him. In ishment issue where the defendant commit threat, In the defendant shot the deceased. purpose ted two murders for the of eliminat sentence, reforming the defendant’s death ing burglary. to an witnesses extraneous only burglarize noted that he had intended to We believe the circumstances the second the deceased’s home and had acted under homicide likewise evince intent to elimi provocation. at 476. We concluded nate witness. “the facts of instant a crimi case reflect violence, nal act of but it was not a calculat Forethought 2. and 3. Calculation and ed act.” Id. of the Offense cases, In there contrast to the above have also We examined the calculated na- pre-planning is evidence of in the case before ture of a defendant’s acts and the fore- Appellant us. stated his confession that thought planned which with he and executed meeting arranged Thompson he had with propensi- his crime in order to determine his purpose dissuading filing for the her from ty to commit acts of future violence. charges for had her. bad checks he written O’Bryan, 591 appointment under a made the (Tex. meeting, day Ellason v. 815 S.W.2d 656 fake name. The before their *29 Cr.App.1991), appellant purchased the defendant was convicted of the .357 revolver and the elderly murder after he stabbed an used to kill both vic ammunition which he neighbor meeting Thompson, ap to death when she awoke and rec tims. Prior to with ognized burglarized pellant pistols sling. him as he her home. in his We secreted two anticipated appellant The evidence indicated defendant from the entered infer these actions preparation. the deceased’s house unarmed and stabbed a conflict and armed himself in (“there see, Beltran, “split the deceased in a second decision” But at 390 Id., panicking being recognized. intend upon showing after was no violence was although reforming appellant at 659. In the defendant’s death ed the was armed when store”). sentence, Consequently, observed: we we he entered history, pre-planning logical past amount went evidence criminal conclude some of typically the Keeton offense. which we review under into the Nonetheless, of this the absence framework. 4. Character Evidence automatically a does not undermine evidence pun- jury’s the second affirmative answer to concerning Evidence a defendant’s See, Rosales, issue. ishment is a relevant of character consideration (“... [P]sychiatrie is not essen- evidence poses continuing he a threat to soci whether prove dangerousness].”); future Wilk- tial [to Wilkerson, (Baird, J., ety. at 343 erson, (Baird, J., dissent- testimony dissenting). presented (lack Black, prior of ing); 816 S.W.2d at 355 during by guilt/inno- a number of witnesses by consider- record offset other criminal punishment, eence and all of whom charac ations); Livingston, at 340 non-ag appellant as non-violent and terized (“[L]ack acts, reputa- of extraneous violent gressive. They further testified that because psychiatric testimony of fu- tion or on issue non-violent, unlikely appellant was to he was dangerousness negate ture does not alone acts commit future of violence. The State 37.071(b)(2).”). see, Art. But finding under presented no evidence in rebuttal. (death Smith, 779 S.W.2d at 421 sentence Smith, In 779 S.W.2d at witnesses reformed, of part because of no evidence prosecution uni- both the and the defense well as past criminal or violent conduct as formly a non- characterized the defendant as evidence). reputation lack of bad using adjectives person violent such as “mild Id., “gentle.” Fur- mannered” and at 421. weighing the factors enunciated evidence showed was consid- ther Keeton, supports find the we evidence by ered a “hero” a local of the Texas office pun jury’s affirmative to the second answer Employment Commission because presented at issue. The ishment evidence assaulting had once subdued man TEC premeditat trial shows the offense was both evidence, employee. Reviewing Id. this we purchase The of the murder ed and brutal. stated: murders, day weapon the before the Considering testimony uncontested making appointment a fake under character, appellant’s nonviolent cannot we name, weapons prior and the secretion of the say urged upon that the us inferences premed meeting Thompson to with indicates adequate persuade are a ra- State act is brutality The itation. “probability” appellant tional of a Thomp readily apparent having shot future would commit acts of violence. hunting then son twice and down Cutler Id. Although to eliminate witness. order (Tex. In Rosales 841 S.W.2d 368 uniformly is favorable character evidence however, Cr.App.1992), we held the defen find this alone insuffi appellant, we evidence good dant’s unrebutted evidence of character and bru mitigate premeditation cient jury’s deter was insufficient overcome the twenty- Appellant’s tality the offense. mination that constituted a continu point of error overruled. first society. ing threat at 382. judgment of is affirmed. the trial court In the instant case find the unrebutted appellant’s good peaceful evidence of a mitigating character to be factor. None- McCORMICK, P.J., and WHITE theless, extent to unre- which JJ., MEYERS, following concur with mitigates character the of- butted evidence Regarding appellant’s eighth point note: weighed against must be the other fense error, agree we do not that the trial factors.

Keeton by limiting trial abused his discretion only questions. we can counsel’s Therefore *30 5. Other Evidence majority in result holds concur the since the alleged pre We otherwise appellant Neither the nor harmless the error. State evidence, majority opinion. any psycho- join the sented other such as MALONEY, J., in concurs the result 266 (Tex.Cr.App.1976) (burglary joins in reached Part III and otherwise allege entry indictment which did not with opinion. “theft,” intent to commit alleging instead en- try requisite with intent to commit the ele-

CLINTON, Judge, dissenting. theft, ments of but which left out one element thereof, In points appellant offense, his first two of allege error did not an and there- argues that failing the trial court erred in support burgla- to fore could not conviction for grant quash his motion to ry). the indictment. That the indictment here later alludes appeal He claims on that it, the indictment is to “said murders” does not save Davila v. allege

defective in that it not culpa does (Tex.Cr.App.1977) not- ble mental knowing state of intentional or withstanding, because the indictment has alleged vis-a-vis the second murder victim. only alleged the constituent elements of one In quash appellant complained his motion to up point, murder to that and hence has not that the indictment was deficient in it Thus, my theretofore “said murders.”1 in allege failed to “all view, the essential acts and appellant had raised his contention necessary omissions the Defendant to con court, timely in the trial it would have been a stitute violation of Section 19.02 [sic?] of complaint. valid the Penal Code of the State of Texas.” He event, any In adequately did call however, complained, nowhere of a failure to jury charge, attention to the defect in the viz: allege every requisite culpable mental state. application paragraph failure of the to re- He particular has therefore forfeited that quire jury to find that caused complaint 1.14(b), appeal. on Article “intentionally the second victim’s death or Y.A.C.C.P.; Studer v. 799 S.W.2d 263 concur, therefore, knowingly.” I cannot (Tex.Cr.App.1990). The Court should not disposition point the Court’s of his third of reach the merits of contention at default, procedural eiTor on of I the basis as ah. disposition can its first two Moreover, merits, in treating the the Court points Reaching of error. the merits of the foregone errs. The Court considers it a error, should, third it the Court conclusion that the second murder under recognize fails to it error at all to fail is 19.03(a)(6) Code, § nothing V.T.C.A.Penal require application paragraph in the true, aggravating but an feature. It is as the jury culpable find an mental elemental brief, State notes in its that in another con state before it is authorized to convict.

text this designated Court has indeed join. this I cannot “merely aggravating second murder as ‘capital’ circumstance that Simply put, application paragraph renders the mur here person” aUeged every requi- der of the first require jury the indict did not to find ment. Narvaiz v. capital site murder element the offense 19.03(a)(6)(A) predicate § It seems me this under as a to con- not, proposition requires searching a more scruti that it viction. The Court holds need ny than application the Court has afforded it so far. in the because the allusion later that, Failing paragraph the Court here falls back on a to “both of said murders” was holding host necessary enough of cases that it is not refer the back the abstract allege ag appearing the constituent elements of the in the definition of murder earlier gravating charge, whereby recog- feature of a murder to al have would lege complete Maj. op. offense. at 338. nized the need to find that the second mur- held, essence, intentionally knowing- But the Court has also der was committed or observation, allege aggravating ly the State chooses to it This before could convict. by simply naming compelling ap- feature not it in the indict in combination with evidence ment, by alleging pellant intentionally knowingly but the constituent ele did indeed thereof, murders, allege might ments it must all con commit both be sufficient to Cannon, parte egregious stituent elements. See Ex establish did not suffer emphasis 1. All added. *31 when the para in States Constitution application

harm the defect to the United from the Thus, special graph. might persuaded I there the be court declined to submit trial charge, jury error was no fundamental in the trial punishment phase of that at the issues as Almanza defined legislative in amend- contained the are (Tex. Cr.App.1985) (Opinion on State’s the Applying pre- to Article 37.071. ment rehearing). the motion But that is not for 37.071, appel- version of Article amendment here, appellant used standard to be since contends, of him the benefit the lant denied objected jury cause. charge to the this added to mitigation instruction that was the question is simply the whether Instead 838, 1, 2899, 1991, p. § by Acts ch. statute Ar harm” resulted from the error. “some 1,1991. However, 5 of Sept. Section eff. (Tex.Cr.App. line v. 721 S.W.2d 348 it expressly provided that same amendment 1986). application required paragraph only to an that is committed “applies offense appellant the find the death of to caused Thus, 1, September 1991.” al- on or after knowingly.” “intentionally the first victim or appellant’s trial commenced Octo- though That absent requirement conspicuously 1991, date of of after the effective the ber pertains to the second victim. That the amendment, offense occurred in because the application paragraph to “both later alluded 1990, by express terms September of its the murders,” of said even that sufficient were him.2 apply does not to More- amendment jurors to direct the to the abstract definition over, apply to the amendment does not jury charge, of found earlier murder in the capital murderer who committed his offense confuse, would at best serve to than to rather 1, Every September capital 1991. before clarify. charge, genuine Given this there is a special thus situated will have is- murderer possibility obliged the did to not feel phase punishment submitted at the of sues find murder inten the second was committed according provisions to the of Article trial tionally knowingly of the of element —an prior it read to the 1991 amend- 37.071 as it was fense —before authorized to convict similarly capital all situated ment. Because capital Surely of that is murder. same, the murder defendants are treated For, enough constitute “some harm.” equal protection no simply is colorable there compelling however the of intent evidence Nothing be said. The claim. more need may been, the have both Amendment Sixth rights” discussion of “fundamental Court’s States and Article the United Constitution confusing, is “suspect classifications” and V.A.C.C.P., 1.14(a), guarantee appellant a and, anyway, superfluous. jury finding on that issue he can be before capital lawfully convicted of murder. disposes The Court tenth trial judgment For this reason the by agreeing points error with and eleventh court be reversed cause re- should and the appointment the contention that the State’s trial. manded for new Because Court application and patient notation form book not, does I I to ad- dissent. write further truth of mat- were not admitted for the dress what I consider to deficiencies be therein, explain only to asserted but ters points treatment of other Court’s several suspect jury “how officers came of error. him out.” The State [ajppellant .seek items, pur- argues that such “offered for com- his sixth error therein, showing rath- plains deprived protec- pose of what was said equal that he was asserted, the truth of the matter tion of the laws under the Fifth Amendment er than for 1993, September every trial of 2. to be tried the first time for ber Were today, prior September this he offense would be entitled offense that occurred only by mitigation sought, he provi- instruction but 1991 was to be conducted under promulgation of Article virtue of the recent read when the of- of Article 37.071 as it sions 37.0711, added This statute was V.A.C.C.P. new Appellant does not here was committed. fense 3060-3061, pp. § eff. ch. Acts (nor argued, argue he as of date could have Aug. By express its the new 1993. terms filed) appellate brief was retroactive; is, applies expressly it statute to Nevertheless, retroactively denied him somehow amendment September committed before offenses equal protection of law. years Septem- two in the between *32 hearsay.”3 do not constitute un- overruling Court decide whether hear- critically accepts proposition, parrots say objection this beyond was harmless a reason- thereof, support number of cases in and is Tex.R.App.Pro., able doubt under Rule Maj. 81(b)(2). op. done with it. at 347. But that is not the end of the matter. The respectfully I- dissent.

appropriate question next, course, to ask whether the substance of the out of court

declaration —“what any was said” —has rele- apart vance at all from the truth of the matter asserted. How came to be suspect in the case does not seem to me to “any tendency have to make the existence of any consequence fact that is of to the deter- probable mination of the action more or less parte Ex Charles Lewis HATCHER. probable than it be without would the evi- Tex.R.Cr.Evid., dence.” any Rule 401. No. 72027. event, proponent of the evi- Appeals Court Criminal of Texas. dence, did not articulate this or other non-truth-of-the-matter-asserted basis March 1995. admitting the evidence at trial. suggests

This that in all likelihood the purpose State had no other in mind. The appointment “matter asserted” in the book is somebody very with a name similar to appellant’s was scheduled to be at the scene killings very they at the time occurred. probative “[T]he value” of that statement “as offered flows from declarant’s belief as to the 801(c). Tex.R.Cr.Evid., matter.” Rule Like- wise, implied” by patient the “matter ...

application form somebody appel- is that with actually lant’s up name ap- showed at the time; pointed and one would assume that the value of this statement “as offered” also

“flows from the declarant’s belief’ that that was indeed his name. Id. These statements

have no apart relevance that I can see from express implied

these matters asserted. Obviously hoped the State would infer writings from these killings. scene the time of the probative

Because that is the most obvious appointment pa- value the book notation and indeed, application tient only form have — probative I can value hear- see— say objection should have been sustained. Having already concluded the trial court cause, reversibly erred in this I need not R.Cr.Evid., 803(6), proffered they Had the State these items as business Rule would have been records, argue However, it would not now have to purpose. admissible for that the State were admissible for reasons other than the truth proffer. made no such therein, of the matters asserted since under Tex.